Volume 183 — Massachusetts Reports

<p>Intoxicating Liquors. Cider. Words, “Makers.”</p> <p>The word “ makers ” in St. 1894, c. 489, § 1, R. L. e. 100, § 1, includes both farmers- and manufacturers, and neither can sell cider without a license if it contains more than three per cent of alcohol, measured in the manner provided by the statute.</p>

<p>Contract, upon an instrument in writing under seal, for $100 with interest thereon at the rate of five per cent per annum from October 6, 1894. Writ in the Municipal Court of the City of Boston dated November 15, 1900.</p> <p>On appeal to the Superior Court the case was tried before jRichardson, J. The instrument declared on was as follows: “No. 66 a. German Workingmen’s Association Arbeiter-Liedertafel Von Boston. $ One hundred, $100. From Louis H. Jacobs for and on account of the ‘ Arbeiter-Halle,’ voted to be erected by the above-named organization, said sum to be repaid to the above-named or order within five years from date, whenever, in the opinion of the society, the business of the said Arbeiter-Halle will permit, and on surrender of this receipt to the president of the Society. Interest 5 % per annum. Boston, Mass., October 6, 1894. German Workingmen’s Association, incorporated October, 1890. Henry Schroeder, Pres., Emil Gurke, Sec’y, Louis Steinhardt, Treas.” [Seal.]</p> <p>Evidence, which is referred to by the court, was introduced by the plaintiff. The defendant offered no evidence ; but objected to the instrument in suit, that it was not a bond, that it had not been issued under authority of the corporation, and that it had not been authenticated.</p> <p>The judge ordered a verdict for the defendant, and by agreement of the parties reported the ease for determination by this court. If the jury would have been warranted in finding for the plaintiff upon the evidence, or upon such evidence as was admitted properly, the plaintiff was to have judgment for $100 and interest; otherwise, judgment was to be entered on the verdict.</p>

<p>Contract, for compensation for desk room in the office of M. L. Sanborn on Tremont Row in Boston from May 1,1896, to May 1, 1897, alleging an assignment of the claim from Sanborn to the plaintiff. Writ in the Municipal Court of the City of Boston dated July 27, 1900.</p> <p>On appeal to the Superior Court the case was tried before Richardson, J. No copy of the assignment was annexed to the declaration, and the declaration did not state whether the assign-' ment was oral or in writing, but an assignment in writing in the common form was put in evidence.</p> <p>Sanborn was called by the plaintiff as a witness, and on cross-examination was asked by the defendant what was the consideration for the assignment to the plaintiff. The judge excluded the question. The defendant admitted that the full amount of the claim was due to Sanborn unless there had been an accord and satisfaction.</p> <p>The jury found for the plaintiff in the sum of $109.68; and the defendant alleged exceptions.</p>

<p>Contract against certain non-residents doing business as copartners in the city of New York. Writ dated July 29,1901.</p> <p>No service was made on any of the defendants. Certain business corporations, and persons carrying on business as co-partners, were summoned as trustees. James T. Franklin, a resident of New York, appeared as claimant, and filed a bond dissolving the attachments by trustee process. The proceedings took the course stated by the court, and the case came up on appeals by the plaintiff from the denials by the Superior Court of the plaintiff’s motions to vacate orders taking off the defaults of six of the trustees, and from orders of that court discharging the same six trustees.</p>

<p>Writ op entry, dated September 15,1896, for an undivided half of certain real estate in Lowell.</p> <p>In the Superior Court the case, at the stage at which it is considered by this court, was heard by Stevens, J., upon a motion by the tenant for a stay of judgment, and an assessor’s report. By that report it appeared, that the demandant and the tenant were daughters of Mahala C. Laking, who was the owner in fee of the real estate in question on and before February 24, 1890, when she conveyed it on a condition subsequent to Frederick J. H. Laking, her grandson, son of the tenant, reserving to herself a life estate therein ; that Mahala occupied the premises, and received the rents and profits thereof, until her death on March 16, 1896; that Frederick, her grandson, died on July 8, 1893, his-mother, the present tenant, inheriting his estate in the premises ; and that Mahala died intestate, leaving the demandant and the tenant as her only heirs. The condition in the deed from Mahala to Frederick, and the nature of the circumstances attending the failure of Frederick or the tenant to perform the condition, are stated in the opinion of the court.</p> <p>The demandant requested the following rulings:</p> <p>“ First. On all the evidence in this case the tenant is not entitled to have the judgment of forfeiture stayed.</p> <p>“ Second. The condition in the deed of Mahala 0. Taking to Frederick J. H. Taking was broken on the failure of Frederick J. H. Taking to pay the note of Mahala and Alfred B. Taking to Hunter until after judgment was obtained thereon against said Mahala and Alfred.</p> <p>“ Third. A stay of judgment of forfeiture for breach of condition in a deed cannot be granted because of a mistake or accident which occurs after the breach.</p> <p>“ Fourth. Evidence of an agreement between Mahala Taking and Frederick J. H. Taking, the tenant, after judgment on the note of Mahala and Alfred B. Taking to Hunter and execution issued thereon relative to the giving of a note and mortgage to raise money to satisfy such execution and to the manner in which such note and mortgage should be paid is inadmissible on a motion to stay a judgment of forfeiture for breach of the condition in the deed of Mahala Taking to Frederick J. H. Taking.</p> <p>“Fifth. The supposition that the note was for $700 instead of $900, in the absence of any evidence of an offer to pay the former sum until after judgment and execution against Mahala Taking thereon, is not such a mistake as would authorize or justify a stay of judgment of forfeiture for breach of condition in the deed.</p> <p>“ Sixth. The mistake which will authorize a stay of judgment of forfeiture for breach of a condition in a deed must be a mistake of fact, and misapprehension on the part of the tenant or a person to whose title the tenant succeeds as to her or his legal rights or liabilities is not sufficient.</p> <p>“ Seventh. On an application by the tenant in a writ of entry for a stay of judgment of forfeiture for breach of the condition in a deed it is not open to the tenant to show facts which amount to a waiver of the condition after breach, as such waiver would have been a good defence to the action, and can only be shown at the trial of the writ of entry or on a motion for a new trial.”</p> <p>The judge refused to make any of these rulings, and ruled that on the evidence the tenant was entitled to have the judgment stayed. He made an order that all further proceedings in the case be stayed on payment by the tenant to the demandant, within thirty days, of $422.36, found to be the actual damage, with interest, to the demandant by reason of the failure of the tenant fully to perform the condition in the deed given by Mahala C. Taking to Frederick J. H. Taking, together with the costs of suit. The demandant alleged exceptions.</p>

<p>Negligence, Employer’s liability, ways, works or machinery, plaintiff’s due care, assumption of risk.</p> <p>In an action against a stevedore maintaining a run or staging for unloading coal, for the death of the plaintiff’s intestate, alleged to have been caused by a defective barrier on a platform of the run where the intestate was at work in the employ of the defendant, it appeared, that when the defendant assumed control of the run the platform was guarded by a barrier, consisting of iron posts set into the floor of the platform each secured by a nut, with a rope running through an eye in each post, that afterwards wooden posts were substituted for the iron ones, and were not mortised into the platform or secured by clamps or bolts but merely nailed to the platform, that a few hours before the accident one of these posts, which a month before had been drawn out a little and nailed back again, was struck by a wheelbarrow and knocked off, and was set back and nailed in place by a fellow workman of the intestate, that the intestate while engaged in tipping a bucket of coal into a wheelbarrow, lost his balance and fell against the rope, whereupon the post gave way and the intestate was thrown to the deck of the vessel below, and received the injuries which caused his death. The post was found with the nails drawn out hanging from the platform by the rope. There was no evidence, that the intestate knew of the repairs that had been made on the post or knew that it had been renailed that morning, or that there was anything in the appearance of the post that upon ordinary observation would indicate that it was insecurely fastened. Held, that there was evidence warranting a finding, that the negligence of the defendant in maintaining his ways, works or machinery was the proximate cause of the death of the intestate. Held, also, that the intestate being engaged upon his work in the usual way at a place where he had a right to be, and no negligent act being shown, due care on his part could be inferred. Held, also, that the defective condition of the post was not an obvious risk and therefore not one assumed by the intestate.</p>

<p>Contract, Validity. Jurisdiction.</p> <p>Where a contract is made in a foreign country between a citizen of that country ' and one electing it as his domicil by the terms of the contract, and the contract is to be performed partly in the foreign country but principally in the United States, a provision of the contract, that suits arising under it, with a certain exception, shall be brought in the courts of the foreign city in which the contract is made, if it does not appear to be unreasonable, will be enforced here.</p> <p>A composer of operas, a subject of the King of Italy, made in Florence, Italy, a contract with a manager, who by a provision of the contract elected Italy as his domicil, by which the composer agreed to direct certain concerts, and direct and present certain operas, composed by him, in the course of a tour through such parts of the United States and Canada as the manager should designate, during a period of fifteen weeks, for the sum of $4,000 per week, $7,000 to be paid ten days before the composer’s departure from a port in France and $7,000 more on his arrival at New York, with a provision, in substance, that the contract should be governed by the laws of Italy, and that any suit upon it should be brought in the courts of Florence, Italy, except that the composer might sue for his compensation in the courts of New York. In an action against the composer for an alleged breach of this contract, it was held, that the provision limiting jurisdiction of suits under the contract, with the exception named, to the courts of Florence was valid, and was a good defence to the action in this Commonwealth.</p>

<p>Contract, Construction. TFords, “In a satisfactory manner.”</p> <p>An agreement to make certain pumps for a contractor, who intends to place them in a pumping station of a city, guaranteed “to work in a satisfactory manner”, is an agreement that the pumps shall work in a manner satisfactory to a reasonable person, and not an agreement that they shall be satisfactory to the particular engineer appointed by the city to inspect them.</p>

<p>Tort for injuries from stumbling over a carpet temporarily placed by the defendants across the sidewalk at the Tremont Street ladies’ entrance of the Hotel Touraine in Boston. Writ dated July 18, 1898.</p> <p>At the trial in the Superior Court Sherman, J. refused to rule that upon all the evidence the plaintiff could not recover, and submitted the case to the jury. The jury returned a verdict for the plaintiff in the sum of $2,000; and the defendants alleged exceptions.</p>

<p> Equity Jurisdiction. </p> <p>A bill in equity will not lie to restrain the prosecution of an action of law, on grounds which the plaintiff in equity set up as an equitable defence to the action at law, and on which he has been heard fully in that action, although technically he was not a party to the action at law, having been permitted to conduct the defence in behalf of the nominal party.</p>

<p>Bankruptcy, Rights of trastee. Waiver.</p> <p>A trustee in bankruptcy, who petitions for leave to sell real estate of the bankrupt, which is subject to a mortgage, and who sells the equity and gives a deed of it treating the mortgage as valid, has waived any right he otherwise might have had to set aside the mortgage as a fraudulent preference.</p>

Coetract for a deposit of $150 paid by the plaintiffs to the defendant under a contract for the sale and conveyance of certain real estate by the defendant to the plaintiffs on payment of $850, the balance of the purchase money, within ten days. Writ in the Municipal Court of the City of Boston dated May 8, 1900. On appeal to the Superior Court the case was tried before SopTdns, J., who ordered a verdict for the plaintiffs.

<p>Two bills in equity, filed May 31,1895, to recover alleged secret profits of the defendants as promoters and directors of the plaintiff, a corporation organized under the laws of the State of Tennessee, before this court at previous stages as reported in 176 Mass. 310 and 178 Mass. 206.</p> <p>At its present stage the case came up by the defendants’ appeal from decrees of the Superior Court confirming a master’s report and awarding damages to the plaintiff as found by the master.</p>

<p>Petition for a writ of certiorari, addressed to the county commissioners of the county of Plymouth, to quash proceedings abating a tax of one Esther O’Connell, widow of Terrence O’Connell, a veteran of the war of the rebellion.</p> <p>The case was heard by Lathrop, J., who made the following decision and order: “ The only question argued in this case is whether, as Terrence O’Connell died in 1884, his widow is entitled to avail herself of the provisions of the statute of 1898, c. 370. I am of the opinion that she is. The order, therefore, will be — Petition for writ of certiorari denied.” The petitioner appealed.</p>

<p>Two PETITIONS, filed respectively June 2,1902, and July 9, 1902, the first for a writ of certiorari addressed to the mayor of the city of Boston, and the second for a writ of mandamus directed to the election commissioners of that city and to the city treasurer, seeking to review the action of the mayor in removing the petitioner from the office of election commissioner, and to have the respondents named in the second petition ordered to recognize the petitioner as election commissioner in place of David B. Shaw, one of the respondents.</p> <p>The petition for certiorari was dismissed by Lathrop, J., and the petition for mandamus was dismissed by Hammond, J. In each case the petitioner alleged exceptions.</p>

<p>Bill in equity, filed September 5, 1902, «to restrain the defendant from removing certain ranges from an apartment house on which the plaintiff held a mortgage.</p> <p>In the Superior Court Hardy, J. made certain findings which are quoted in the opinion, and ordered that the bill be dismissed. The plaintiff appealed.</p>

<p>Insurance, Fire, Sworn statement of loss. Words, “Forthwith.”</p> <p>In an action on a fire insurance policy, it appeared, that the fire occurred on October 7, that after correspondence with the plaintiff, then in Seattle, her agent on November 12, delivered to the defendant a statement not under oath and otherwise insufficient, and that a sworn statement was not furnished until about December 15, no reasonable excuse being shown for the last delay. Held, that there was no evidence to warrant a finding that a sworn statement of the loss was furnished forthwith to the defendant in accordance with the terms of the policy. Whether there was sufficient evidence of a waiver of the requirement to justify a finding for the plaintiff on that ground, was not considered.</p>

<p>Deceit. Practice, Civil. Evidence. Accord and Satisfaction.</p> <p>In an action for false and fraudulent representations, inducing the plaintiff to take in part payment for a house sold by her to the defendant a second mortgage upon a house belonging to the defendant’s wife, the defendant cannot be asked in his own behalf, in what condition the house which he bought from the plaintiff was when he took possession of it, because, even if it appears that the defendant was harmed by the exclusion, the value of the plaintiff’s house is not material to show the amount of damage caused by the deceit of the defendant, and the possibility, that the poor condition of the plaintiff’s house might have led her to wish to part with it instead of the representations of the defendant, is too remote.</p> <p>In an action for false and fraudulent representations, inducing the plaintiff to take a second mortgage on a house belonging to the defendant’s wife, if it appears</p> <p>, that the plaintiff, in order to prevent the expense of a foreclosure, took a deed of the equity from the defendant’s wife, this is not evidence of an accord and satisfaction of the alleged tort.</p> <p>In an action for false and fraudulent representations, inducing the plaintiff to take a second mortgage upon a house belonging to the defendant’s wife, by showing the plaintiff another and better house as the one to be mortgaged and by false statements of the amount received as rental, it is, as matter of law, no defence that an agent of the plaintiff knew the identity of the house to be mortgaged, if the plaintiff was deceived and the' agent was ignorant of the fraud. In such a case the relation of the agent to the transaction is a question of fact for the jury under proper instructions.</p> <p>Inducing one to take a mortgage on a certain house, by showing him another and better house as the one to be mortgaged and making false statements as to the rental value, is actionable.</p> <p>If the rule of caveat emptor applies to a person induced to take a mortgage of a certain house by the defendant fraudulently showing him another and better house as the one to be mortgaged, it is a question of fact for the jury whether the plaintiff used reasonable diligence to ascertain the truth or falsity of the defendant’s representations.</p> <p>The rule of caveat emptor does not apply to a person induced to take a mortgage on a certain house, by false statements of the husband of the owner as to the rental value and number of tenants, the knowledge of these matters not being as open and available to the mortgagee as to the husband of the mortgagor.</p>

<p>Bill ih equity, filed July 24, 1902, by the trustees under the will of Elizabeth Pratt, late of Boston, for instructions as to whether a certain dividend of sixty-six and two thirds dollars a share on fifty-one shares of the Lawrence Manufacturing Company held by the trustees, should be paid as income to Robert M. Pratt, who was entitled to the income of the trust fund, or should be invested as capital.</p> <p>The case came on to be heard before Loring, J., who at the request of the parties reserved it for determination by the full court upon the bill, answers and an agreed statement of facts, such decree to be entered as law and justice might require.</p> <p>The agreed facts were as follows:</p> <p>During many years before 1901 the Lawrence Manufacturing Company had been carrying on its business at a profit, but it was the custom to distribute only a portion of its net receipts as dividends among its stockholders, the balance being retained and used for the general purposes of the business, purchasing supplies, new machinery, etc., this being required in order to keep the business on a sound basis, and expedient because it reliéved the company, in so far, from the need of borrowing, it being usual for mills and manufacturing companies engaged in similar business to use more or less borrowed money in their business. No accounts were kept showing how far such net receipts were so- used in the business, for all receipts went through a common cash account and were used for the payment of dividends or for the general purposes of the business without distinction as to origin. Mo specific dividend fund was established, nor was any account carried fixing a fund of accumulated profits, as such, but dividends were declared and paid from time to time as seemed expedient. In addition to its actual assets the company increased its available funds by borrowing so far as it deemed expedient.</p> <p>In 1896 the company decided to change its business by' abandoning the manufacture of cloth and confining itself to the manufacture of knit goods, and on account of that change reduced its capital one half, that is, from $1,500,000 to $750,000, by paying to each shareholder the par value of $100 on half the shares owned by him. As the stock had been selling in the market at about $122 a share before this reduction, and immediately afterward fell to about $110, a corresponding loss, in stock market valuation, aggregating about $225,000, was suffered by the shareholders at that time.</p> <p>After 1896 the business of the company improved, and in February, 1901, the increase in the capital described in the petition in this case was decided on by the directors, who wished by that means to repair, to this extent, the losses suffered by the shareholders in the previous reduction. This increase and the dividend accompanying it, with the advance in the price of stock resulting from it, gave to stockholders an aggregate gain in stock market valuation of about $250,000. In February, 1901, when this increase was proposed by the directors, the company was in good credit and could have borrowed $500,000 more than it then was borrowing, but, as it could not have divided $500,000 in profits without crippling its working funds, the directors considered it necessary that the $500,000 voted in dividends should be immediately repaid in order to keep up the business as it had been carried on before the increase of the capital, and the plan was arranged with that in view. All the- stock subscriptions were underwritten, or guaranteed, before they were offered to the stockholders.</p> <p>On May 13, 1901, the date at which the special dividend was payable by the terms of the vote, the company issued to each shareholder a check for the amount of his dividend, and this the shareholder was at liberty either to draw in cash or to turn in to the company in payment of a subscription for new shares if he had made such subscription. For the convenience of stockholders who might wish to turn in their checks for subscription a form of order was prepared by the company. This was not circulated, but was obtainable at the company’s office by any stockholder who might inquire as to the method of paying for his subscription. Many stockholders did not subscribe for the shares to which they were entitled, but took the money on their dividend checks and sold, or could have sold, their rights.</p> <p>The shares of the company sold in the market in February, 1901, at about $150 a share, and on March 2, 1901, were sold as high as $175.25. Sales on March 27, and immediately thereafter, were at from $110 to $111. By the following October the price had advanced to $126. Bights to subscribe to the new shares issued in May, 1901, were sold in March and April at from $5.75 to $7.75 for the right attached to each old share, and, it was agreed, that for the purposes of the case the value of each right might be taken to be $6.75.</p>

<p>Equity Jurisdiction, To protect compiled early information. Property.</p> <p>Early information in regard to the erection of buildings and the construction of public works requiring contracts for work and supplies, procured and compiled by the plaintiff as a business, for the purpose of furnishing it daily in confidence to the plaintiff’s subscribers, is property which will be protected in equity, and a defendant will be restrained from conducting a rival business of the same character at cheaper rates by purchasing from the plaintiff’s subscribers the reports which they have agreed not to divulge.</p> <p>The daily furnishing of early information by a corporation formed for the purpose, to its subscribers, orally, in writing or in print, in regard to the erection of buildings and the construction of public works requiring contracts for work or supplies, under contracts binding each subscriber to use the reports in strict confidence and for his business only, is not a publication of the information which dedicates it to the public and deprives the corporation of the right to control its use.</p>

<p> Bills and, Notes. </p> <p>The holder and owner of a negotiable promissory note may covenant with the maker not to sue, and reserve his rights against the indorsers, and this is none the less so, where the note is made by a firm and the members of the firm, liable as partners, also individually.are the indorsers.</p>

<p>Way, Defect in highway. Negligence, Contributory.</p> <p>One walking on a city sidewalk in the evening and seeing a barrier with a lantern at the end extending part way across the sidewalk from a building to a tree, leaving a clear space of five feet and two inches between the outside of the tree and the curbstone, as matter of law, is not bound on seeing the lantern to stop and look before proceeding beyond the barrier, and, if in so proceeding lie falls over a pile of stones and is injured, and sues the city under the highway act, the question of his due care is for the jury.</p> <p>A city may be" found to have had reasonable notice of a defect in a highway consisting of a pile of stones on a sidewalk, between two barriers thirty feet apart extending part way across the sidewalk, if there is evidence that the pile of stones sloped toward the curbstone and extended beyond a line from the end of one barrier to the end of the other, and “ had been there for a few days.”</p>

<p>Tort for personal injuries while in the employ of the defendants, with two counts as described by the court. Writ dated March 23, 1899.</p> <p>At the trial in the Superior Court before GrasMll, J., the plaintiff introduced evidence tending to show the following facts: The defendants were building contractors and at the time of the accident on January 24, 1899, the plaintiff was in their employ as a hod carrier and a tender to stone masons. The -defendants were engaged in erecting a building on Binney Street in East Cambridge, and were using in connection with their work a derrick tower, which was constructed of four upright posts ninety feet high and twenty feet'apart, each standing at a corner of a square. These posts were connected with each other at intervals of thirty feet by a series of four cross pieces twenty feet long which formed three landings, the third landing being at the top of the structure. At the time of the accident, a carpenter in the defendants’ employ was engaged in fitting in a cross piece at the third or last landing, a distance of ninety feet from the ground. The cross piece did not fit well, and the carpenter laid a hammer, which he had been using, on the adjoining cross piece. In doing this work the carpenter was standing upon a ladder, the upper part of which rested against the upright and the bottom of which rested upon four or five planks about twenty-four feet long, two or three inches thick and eight or ten inches wide, which were laid side by side across opposite cross pieces. The bottom of the ladder was two or three feet from the upright against which the ladder rested. Neither the planks nor the ladder were cleated or fastened in any way, and were so placed there by the orders of the defendants’ superintendent some time before the accident. This condition of the boards and ladder existed for three or four days before the accident. The plaintiff had no knowledge of the condition of the boards and ladder, nor was any warning given to him on the subject. The ladder was stationed there for general use as a means of reaching the third landing.</p> <p>While the carpenter was thus standing upon the ladder, endeavoring to fit the cross piece in place, the ladder moved; and as the carpenter was attempting to save himself from falling, the hammer fell from the cross piece and struck the plaintiff, who, pursuant to the orders of the superintendent, was working upon the landing below unloosening a guy rope. There was no evidence tending to show that the planks upon which the ladder stood moved. The superintendent was in constant attendance upon the work. At the time of the accident he was standing upon the ground. Evidence was introduced by the plaintiff tending to show that it was customary in the erection of stagings of the kind above described to fasten or cleat the ladder at the bottom and also the planks upon which the ladder stood to render them stable and safe, and that sometimes the ladder was fastened at the top by a piece of rope. • It also appeared that it was the business of the man who used the ladder thus to fasten and secure it.</p> <p>At the close of the plaintiff’s evidence the judge ordered a verdict for the defendants; and the plaintiff alleged exceptions.</p>

<p>School. Roclcport. Words, “Needful buildings.”</p> <p>The town of Roekport is not bound to build a schoolhouse on Thatcher’s Island for the children of the lighthouse keepers there, even if it has the right to do so.</p> <p>Semble, that a town is not bound to build and maintain a schoolhouse on a small island within its territorial limits on which a few persons live having children of school age.</p> <p>The town of Roekport is not bound to furnish a means of conveyance for school children from Thatcher’s Island or from Straitsmoutli Island to the town.</p> <p>Under R. L. c. 25, § 15, authorizing towns to appropriate money “ for conveying pupils to and from the public schools . . . the same to be expended by the school committee in its discretion ", a town is not obliged to make such an appropriation, and, if it does, the school committee is not bound to act.</p>

<p>Petition, filed May 17, 1901, to enforce a mechanic’s lien.</p> <p>At the trial in the Superior Court CrasJcill, J. ruled and refused to rule as stated in the opinion, and ordered a verdict for the respondent. The petitioner alleged exceptions.</p>

<p>Contract against the executors under the will of Caroline Louisa Gardiner for a legacy of $1,000. Writ dated May 11, 1900.</p> <p>The defence was payment. At the trial in the Superior Court before Sherman, J., without a jury, it appeared, that the defendants had paid the amount of the legacy to the guardian of the plaintiff appointed in the State of Maine and authorized by the laws of that State to receive the payment. The judge found for the defendants, and reported the case for determination by this court. If the rulings made by the judge were correct judgment was to be entered for the defendants; otherwise, such judgment was to be entered as this court might think proper.</p> <p>The case was argued at the bar in November, 1902, before Knoivlton, Morton, Lathrop, $ Hammond, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Practice, Civil, Exceptions. Res Judicata.</p> <p>No exception will be sustained to an instruction of a judge, on the ground that it was too broad and allowed the jury to include damages to which the plaintiff was not entitled, unless the attention of the judge was called to this ground of objection at the trial.</p> <p>The proprietor of an ice pond obtained a decree in equity against a corporation conducting a shoddy mill, enjoining it “ from allowing the waste matter from its waste duct ” to blow on to the plaintiff’s pond while ice was forming and being harvested thereon. Later the same plaintiff brought an action of tort against the same defendant for damages from waste matter blown on the pond after the filing of the bill in equity. There was evidence of damage to the plaintiff’s ice from dust blown from the defendant’s waste duct and also from dust blown from the windows of the defendant’s mill. The judge instructed the jury that it had been adjudicated between the parties, that the defendant could not manufacture shoddy “in such a way as to pollute the water with this dust or the waste from this mill ” and thus render it unfit for the purpose for which the plaintiff had the right to use it. At the conclusion of the charge the defendant excepted to so much of it as instructed the jury that the rights of the plaintiff as determined in the suit in equity were conclusive in this case. At the argument of the exceptions, the defendant contended that the instructions were too broad because they allowed the jury to find damages for dust blown from the windows of the mill while the decree in equity was confined to dust and waste matter from the waste duct. Held, that it was too late to raise this point, as the defendant had not called the attention of the judge to this ground of objection at the trial.</p>

<p>Contract, Performance and breach, Construction, Validity. Pleading, Civil, Declaration. Words, “May.”</p> <p>On a petition by a contractor against the Commonwealth under R. L. c. 201, for alleged breach of a contract for the construction of a section of the metropolitan sewer, it appeared, that the contract required the work to be done in accordance with the specifications of the contract subject to such modifications and additions as the engineer in charge for the respondent should deem necessary, and stipulated, that “if the engineer is of the opinion that at any point sufficient or proper supports have not been provided, he may order additional supports at the expense of the contractor.” The engineer ordered that oak ribs should be used in place of pine ribs, and that the petitioner should cease work until oak ribs were substituted. Held, that this was not a breach of the contract by the respondent, and that the petitioner was bound to comply with the requirement of the engineer, whose judgment was final, unless he acted in bad faith, of which there was no suggestion.</p> <p>If a contractor agrees to do certain work in accordance with the requirements of the engineer in charge, it does not excuse him from performing the requirements, that in making them the engineer acted unreasonably, if he acted in good faith.</p> <p>On a petition by a contractor against the Commonwealth under R. L. c. 201, for alleged breach of a contract for the construction of a section of the metropolitan sewer, it appeared, that by the terms of the contract the prices paid by the Commonwealth were to be received by the contractor in full compensation for work and labor, “and for all loss or damage arising out of the nature of the work . . . or for any unforeseen obstruction or difficulties which may be encountered in the prosecution of the same; and for all risks of every description connected with the work.” The contract also contained a clause, called the emergency clause, beginning as follows: “It is further agreed that if an emergency demands, or if the engineer deems it desirable, he may make alterations in the line, grade, plan, form, position, dimensions or material of the work herein contemplated, or of any part thereof, either before or after the commencement of construction.” Held, that the word “may” in the emergency clause did not mean “shall" but had its natural meaning, and that the provision was intended for the benefit of the Commonwealth alone.</p> <p>A contract with the Commonwealth for the construction of a section of the metropolitan sewer, contained the following provision: “The engineer shall, once a week, make an approximate estimate in writing of the amount of work done and of the relative value thereof, according to the terms of this contract. . . . And it is expressly understood that said weekly estimates shall only be made when the work progresses in accordance with the provisions of this contract and specifications.” Payments were to be made upon these estimates. In a petition by the contractor against the Commonwealth under R. L. c. 201, a failure of the Commonwealth to furnish the certificates was alleged as a breach of the contract. The respondent demurred on the ground that the petition did not aver, that the work was progressing in accordance with the provisions of tile contract. Held, that the allegation of the breach was bad for want of this averment.</p> <p>A contract with the Commonwealth for the construction of a section of the metropolitan sewer required supervision and inspection of the work of the contractor by the engineer for the Commonwealth. By the terms of the contract the Commonwealth had the right to terminate it if the work was not done properly, and everything was to be done “in the manner and according to the plans and specifications and the requirements of the engineer under them.” A petition by the contractor against the Commonwealth under R. L. c. 201, alleged as a breach of the contract a failure by the Commonwealth to furnish the required engineering supervision and inspection, but failed to aver, that the petitioner had performed his part of the contract according to the requirements of the engineer, or to set forth facts excusing him from satisfying such requirements. Held, that the allegation of the breach was bad for want of one of these averments.</p> <p>On a petition by a contractor against the Commonwealth under R. L. c. 201, for breach of a contract for the construction of a sewer, it does not matter whether or not a clause in the contract, making the engineer of the Commonwealth in certain cases a referee, is valid, unless the clause is relied upon by the Commonwealth as a defence to the petition.</p>

<p> Street Railway. Negligence. </p> <p>A passenger riding with other persons on the front platform of a crowded electric car, knowing that there is a sign on the car stating a rule that “Passengers riding on the front platform do so at their own risk”, in the absence of anything to show that the rule has been waived by the railway company or that it is not in force, cannot recover from the company for an injury caused by being thrown to the ground by reason of the negligent operation of the car.</p>

<p>Tort for damages alleged to have been caused by the drainage of surface water from the north side of Revere Street in the defendant town upon the land of the plaintiff upon the south side of that street. Writ dated September 9, 1898.</p> <p>At the trial in the Superior Court before Mason, C. J., the plaintiff offered to prove that there had been an old culvert across the street, when the land on both sides of the street was owned by one Coolidge and used by him as a farm; that when the farm was sold to one McCann and cut up into house lots the culvert was closed up, causing the surface water to collect in a large quantity covering several acres on the north side of the street, and that the defendant also conducted into the space so covered the surface water from Revere Street itself; that by direction of the selectmen of the defendant its superintendent of streets opened the culvert and the accumulated water ran upon the lot adjoining the plaintiff’s premises, and from thence on to her land and under her house, making it uninhabitable.</p> <p>The judge ruled, that upon the facts offered to be proved the action could not be maintained, and ordered judgment for the defendant. The plaintiff alleged exceptions.</p>

<p>Tort for injuries recéived in the manner described by the court when the plaintiff had been sent from the shop of the defendant in Boston to the State farm in Bridgewater to true up two wheels or sheaves there. Writ in the Municipal Court of the City of Boston dated September 26, 1901.</p> <p>On appeal to the Superior Court the case was tried before Fox, J., who at the close of the plaintiff’s evidence ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Scire FACIAS, dated September 11, 1901, under Pub. Sts. c. 161, § 24, for costs, against the alleged indorsers of a writ brought by the P. C. Lewis Manufacturing Company, described as a corporation organized under the laws of the State of New York, against Benjamin Johnson, the plaintiff in this case.</p> <p>In the Superior Court the case was tried before Lawton, J., •without a jury. It appeared in evidence that the defendants were attorneys at law, and at the time of the alleged indorsement were partners under the firm name of Sprague and Wash-burn ; that a rubber stamp bearing the firm name and address was procured and used by clerks in the office of the defendants for the purpose of showing the business address of the firm. The stamp bore the words “ From the office of Sprague and Washburn, 105 Summer Street, Boston.” The rubber stamp was used by a clerk in the office of Sprague and Washburn on the back of the writ in the case of P. C. Lewis Manufacturing Company v. Johnson, and the declaration in that action was written by the clerk, and signed by the defendant Sprague with the firm name. There was no evidence that the clerk had any instructions or authority from either of the defendants to use the rubber stamp on writs.</p> <p>The defendant Johnson, the present plaintiff, was defaulted in the action, and, before the motion to remove the default, the partnership of Sprague and Washburn was dissolved. Several days after the default was entered, Johnson’s attorney made a motion to remove the default and gave notice of the motion to the firm of Sprague and Messer, Sprague being the defendant Sprague, no other notice of the motion being given. Sprague and Washburn were still attorneys of record in the case, and the firm of Sprague and Messer were not, but were in charge of the case. The motion was opposed by Mr. Messer. The default was removed on the motion, and Johnson, the present plaintiff, afterwards recovered judgment and execution for costs against the P. C. Lewis Manufacturing Company. The execution was returned unsatisfied.</p> <p>The judge found for the plaintiff; and the defendants alleged exceptions, raising the questions stated by the court.</p>

<p>Contract by the surviving partner of the firm of Nutter and Seabury on a guaranty in writing of a note of the Bay State Distilling Company for $5,000. Writ dated June 19, 1901.</p> <p>At the trial in the Superior Court before Bond, J., the parties agreed at the close of the evidence, that for the purposes of the case all the evidence introduced was true. The judge refused to order a verdict for the defendant, and ordered a verdict for the plaintiff in the sum of $7,155, the amount having been computed by the parties. The defendant was described in the writ as a resident of New York, and it appeared and was agreed, that he was a resident of that State for a long time before January 1, 1895, and continuously until January 21,1901. The defendant alleged exceptions.</p>

<p> Executor. Devise and Legacy. </p> <p>A testatrix having provided, that a certain person should have the use of her dwelling house for life and on the death of that person the house should fall into the residue of her estate and be disposed of as provided for the residue, and having given her two executors power to sell real estate, on the death of the life tenant after all the estate of the testatrix other than the dwelling house had been administered and both of the executors had died, it was held, that there was occasion for the appointment of an administrator de bonis non with the will annexed.</p>

<p>Bill in equity, filed October 2, 1901, by the administrator de bonis non with the will annexed of the estate of Albert M. Chase, late of Canton, for instructions as to the construction of that will.</p> <p>The case came on to be heard before Hammond, J., who reported it, upon the bill and answers and the facts agreed by the parties, for determination by the full court. The facts agreed were as follows:</p> <p>Albert M. Chase died on February 19, 1883. He left a widow, Mary P, Chase, who died July 5,1901, and who during her life was supported by the income of the estate of her husband. Harriot E. Noyes, mentioned in the will, was not of the blood or kindred of the testator nor related to him by adoption, but from her early childhood had lived in the testator’s family, and continued to do so up to the time of his death. She was married to Maynard Newcomb October 14, 1886, and the issue of that marriage were William M. Newcomb, born August 19,1887, and Ethel C. Newcomb, born November 14,1888, both of whom were living, Maynard Newcomb being their guardian. Harriet E. (Noyes) Newcomb died on August 8, 1892. The estate in the hands of the plaintiff was sufficient to enable him to make the purchase of bonds mentioned in the third article of the fourth paragraph of the will.</p> <p>The will was dated August 31, 1882, and was proved on March 28, 1883. It contained the following provisions: “First. To my nephew, Boring A. Chase, I give my gold watch and chain; but if on the administration of my estate the said Boring A. be deceased, then this article of my will is to be inoperative and void.</p> <p>“ Second. I give and bequeath to my beloved wife, Mary P. Chase, all my household furniture, wearing apparel, books and all other articles of personal property about my house to be disposed of by her, by will or otherwise, as she may deem advisable, and I give the use, improvement and income of all the rest and residue of my estate, both real and personal, of every name and nature, during her life ; and in case the income should not prove sufficient for her support and the support of the person hereinafter named, then such a portion of the property as will be necessary for that purpose may be disposed of.</p> <p>“ Third. It is my will that Harriet Elizabeth Noyes, who has been a member of the family from early childhood, shall continue to receive the same support from the income of the property that she has hitherto received, so long as she may remain a member of the family. But if my said wife shall not survive me, or we shall both decease at the same" time, then the second and third articles [paragraphs] aforesaid are to be inoperative and void.</p> <p>“ Fourth. Upon the decease of my said wife, I give, devise and bequeath the remainder or reversion of my estate as follows, to wit: ”</p> <p>Then followed fourteen subdivisions or articles, consecutively numbered, of which the third was as follows:</p> <p>“ Third. To the aforesaid Harriet E. Noyes, I give the sum of six thousand dollars, -which I wish invested in United States four per cent bonds at par value, (premium, if any, to be paid as above, [from the general fund]) to be registered in her own name, the interest to be used for her own benefit, without any regard to any husband she may have, until they are payable in the year 1907. But if on the administration of my estate the said Harriet E. Noyes be deceased, leaving no issue, then this article of my will is to be inoperative and void.”</p>

<p>Bill in EQUITY, filed as amended October 13, 1902, under Pub. Sts. c. 106, § 60, (R. L. c. 110, § 58,) to enforce an alleged personal liability of the president and directors of the Boston Woven Hose and Rubber Company, on the ground that the debts of that corporation exceeded the amount of its capital stock. The defendants demurred.</p> <p>In the Superior Court Braley, J. sustained 'the demurrers and dismissed the bill. The plaintiff appealed.</p>

<p>Contract on a policy of insurance on the life of George S. Abraham of Medford. Writ dated March 22, 1901.</p> <p>At the trial in the Superior Court before Sherman, J., it appeared, that the policy was dated February 14,1900, and that the assured died on November 14 of the same year from tubercular peritonitis which began in the previous April. The defence relied on was that the insured in his application concealed material facts, amounting to a breach of warranty and making the contract void. This defence was founded on the contention that eight years before his application the insured had pleurisy, as stated in the proofs of loss, and that the plaintiff could not be allowed to contradict this statement. The judge against the objection of the defendant admitted evidence tending to contradict the statement.</p> <p>In the proofs of loss the sworn statement of the plaintiff came first. To the question “State remote cause of death” she answered “ As certified by physician in his oath.” The attending physician in his sworn statement gave as the remote cause of death “ pleurisy eight years ago,” and a specialist called in as consulting physician answered the same question “ acute pleurisy eight years ago.”</p> <p>The plaintiff testified: “ At the time I filled out this statement of the proof of death which I sent to the company, no one was with me. No papers had been filled out. I filled out mine first and then sent it around to each one that had to fill it out. I did not afterwards read the proofs of death furnished by the physician. I did n’t read any paper that was filled out except my own. ... I alluded to the doctor. I referred him to the doctor; that the doctor could tell him better than I could about it. I supposed the doctor would tell what he knew and not what he didn’t know.”</p> <p>The judge refused to rule, as requested by the defendant, that upon all the evidence the plaintiff was not entitled to recover, and submitted the case to the jury with special questions. To the question “ Did the insured have pleurisy about eight years before his death?” the jury answered “No.” To the question “ Was the insured in good health at the time the policy was issued, February 14,1900 ? ” the jury answered “ Yes.”</p> <p>The jury returned a general verdict for the plaintiff in the sum of §535; and the defendant alleged exceptions.</p>

<p> Certiorari. Practice, Civil. </p> <p>Semble, that an answer to a petition for a writ of certiorari, to quash the proceedings of a hoard of street commissioners, should be signed personally by all the commissioners.</p> <p>After a full hearing before this court on a petition for a writ of certiorari, a decision upon the petition and the issuing of the writ, it is too late to make a motion for a discharge of the agreed facts used at the trial.</p> <p>After a decision of this court upon a petition for a writ of certiorari, to quash the proceedings of the street commissioners of a city in making an illegal assessment, and tlie issuing of the writ, the commissioners cannot be allowed to amend the record by filing an additional answer setting forth a vote of the hoard, passed after the decision of the court, declaring that the assessment in question was made for a purpose different from that for which the court upon the record found it to have been made.</p>

<p>Receiver. Mortgage, Of chattels.</p> <p>When a receiver of the property of a corporation is appointed, his custody of the property is that of the court, and the title to the property remains in the corporation.</p> <p>The holder of a cliattel-mortgage made by a corporation, who records his mortgage within fifteen days as required by R. L. c. 198, § 1, has no title as against a receiver of the property of the corporation appointed after the making of the mortgage but before it has been recorded, the receiver being “a person other than the parties.”</p>

<p>Practice, Civil, New trial. Discretion of Court.</p> <p>A finding of a judge on a motion for a new trial, that evidence alleged to be newly-discovered, so far as material, was merely cumulative, if subject to revision at all, can be revised only where error appears by the record.</p> <p>A trial judge may refuse in his discretion to set aside a verdict, although there is newly discovered evidence which if presented would justify a jury in reaching a different result.</p>

<p> Charity. Boston Athenceum. Boston Library Society. </p> <p>A trust fund, created and maintained by gifts, bequests and gratuities, entirely within the control of the trustees, for the purpose of rendering charitable assistance to sick and disabled members of an association of printers, of teachers, or of bank officers, is a public charity.</p> <p>A society for the prevention of cruelty to animals is a public charity. So is an animal rescue league.</p> <p>The Boston Athenseum, a corporation maintaining a large library accessible to inquirers and students as well as to its own members, and having the characteristics described by the court, is a public charity. So is the Boston Library Society, a similar corporation.</p>

<p>Payment, In cash. Equity Pleading and Practice, Decree.</p> <p>Where each of two persons owes the other a like amount and both debts are absolately and immediately due, if the two.agree together that the debts shall offset each other and that both are paid, this is a payment in cash for all purposes.</p> <p>In affirming a decree for a plaintiff which finally disposed of all questions raised by the pleadings, the court ordered words, giving the plaintiff leave to apply for such further orders as might be necessary, to be stricken from the decree affirmed.</p>

<p>Contract for $1,823.25 for work done and materials furnished for a building of the defendant numbered 811 on Beacon Street in Boston. Writ dated April 11, 1899.</p> <p>At the trial in the Superior Court before Bishop, J., without a jury, the judge excluded certain evidence offered by the defendant and refused to make certain rulings requested by the defendant. He found for the plaintiff in the sum of $2,043.86 ; and the defendant alleged exceptions. '</p>

<p>Grade Crossing. Damages. Equity Pleading and. Practice, Master’s report.</p> <p>Expenses for surveys and plans incurred by a town in a controversy before commissioners appointed under the grade crossing act, St. 1890, c. 428, § 3, as to whether the plan desired by the town should be adopted, are not part of the “cost of the hearing” which can be apportioned under the act, but are expenses of one of the parties to the controversy which must be borne by that party, although the plans were, prepared in accordance with suggestions of the commissioners and the surveys were made at the commissioners’ special request. So also of expenses for entry fees, witness fees and printing briefs.</p> <p>Where a report of commissioners under the grade crossing act, St. 1890, c. 428, does not provide for the gutters of the new way being paved, the petitioning town has no right to impose a part of the expense of a local improvement, which it alone ought to bear, upon the railroad and the Commonwealth, by putting in a gutter better than required by the local standard of street construction or by any standard which existed there at the time of the change in the crossing.</p> <p>Assumption, that the report of an auditor appointed in proceedings under the grade crossing act, St. 1890, c. 428, § 7, is to be treated as a master’s report, approved.</p>

<p>Probate Court. Equity Pleading and Practice, Appeal.</p> <p>In order to give this court jurisdiction of an appeal from a decree of the Probate Court, a statement of the objections to the decree appealed from must be entered with the appeal within thirty days after the decree, as required by R. L. c. 162, § 10.</p>

<p>Trust, Duties of trustee. Payment.</p> <p>The trustees under a will held a certain amount of accumulated income belonging to G. a minor. H., one of the trustees, was the guardian of M., another minor. The person who was guardian of G. had formerly been guardian of M. and owed a large sum of money to M. which H. had been unable to collect. The trustees made an arrangement with the guardian of G. that he should give them a receipt for the amount due G. for accumulated income in exchange for a receipt for the same amount given by H. as guardian of M. The receipts were exchanged. No money passed on either side, but H. charged himself with the amount as received for M. Held, that in the accounts of the trustees the amount exchanged by receipts must be disallowed as a payment to G.; that it was a misappropriation of the income of G. to release it without receiving a payment in money or anything valuable to her, and to use it as a means of obtaining a release of the personal liability of M.’s former guardian..</p>

<p>Bill IN equity, filed December 3, 1900, to enjoin the defendant from using or imitating the trade name of Boston Peanut Roasting Company, or from using the word Boston in connection with the business of roasting peanuts.</p> <p>In the Superior Court Richardson, J. ruled that the defendant should be restrained from using the name Boston Trade Peanut Roasting Company in any way likely to cause confusion and mistakes, or to deceive and mislead the trade and public as to the identity of the plaintiffs’ and defendant’s business, and by agreement of the parties reported the case for determination by this court, such decree to be entered as law and justice might require.</p>

<p>Devise, Construction. Perpetuities.</p> <p>Before the enactment of St. 1888, c. 273, (R. L. c. 134, § 5,) a testator, having six children, after giving one sixth part of the residue of his estate to trustees, to pay the income to one of his daughters during her life, provided as follows: “And upon the decease of my said daughter, if she leaves children, such income shall he paid to such children, in equal shares, during their respective lives, and as such children shall successively decease, said sixth part of the residue and remainder of my estate, shall be distributed to and among their lineal descendants, in fee simple, according to the right of representation. But if my said daughter shall die without children or lineal descendants, I direct said trustees to dispose of said sixtli part, of the residue and remainder of my estate, among my surviving children,” in a manner stated. The daughter died without issue. Held, that in the light of circumstances and of other provisions of the will stated by the court, the words " shall die without children or lineal descendants ” referred to a definite failure of issue at the death of the daughter, so that she took only a life interest, and not a fee tail with an absolute estate in the personalty. Held, also, that the words “surviving children” in the last clause above quoted meant those surviving at the testator’s death, and therefore that their interests in the remainders, limited to take effect in default of issue, became vested immediately upon his death. Held, also, that the fact, that the limitation over to the lineal descendants of the testator’s grandchildren, in the alternative of his daughter’s leaving children, was void under the rule against perpetuities, did not affect tile validity of the alternative provision in case his daughter died without children, the contingency which happened.</p> <p>A provision of a will gave to a son of the testator the income for life of one sixth of the residue of the testator’s estate, and gave the son’s widow the income for life of one third of the fund after the son’s decease, with remainder in fee to his children. Another later paragraph of the will, describing the manner in which the testator wished his estate to be apportioned among his six children, provided, as to the share of this son, that it should go to him “in trust for his life, with remainder in fee simple to his children.” Held, that the paragraph containing the provision last quoted was intended to be merely declaratory of the previously expressed intention, and that the provision in regard to this son was intended to be the same as, and to adopt all provisions of, the trust for him, including the provision for his widow.</p> <p>A testator gave to one of his daughters the income for life of a certain fund, payable quarterly, with a provision that “if such income shall be, at any time more ■ than she needs, or shall think it necessary to receive, such surplus income shall be added to the principal of the trust estate.” This daughter having died some time after a quarterly payment, it was held, that, in the absence of anything to show that she thought the income more than she needed, it all belonged to her, and under R. L. c. 141, § 25, the executor under her will was entitled to the income which accrued between the time of the last quarterly payment and her death.</p>

<p>Devise and Legacy, Construction.</p> <p>A testatrix after giving one half of her estate to her daughter for life, provided, that should the daughter “ die leaving heirs it shall all be transferred to them (i. e. husband or children).” The daughter died after R. L. c. 140, § 3, went into effect, leaving a husband and one child. Held, that the gift was to tile heirs of the life tenant ascertained as of the date of her death, and that under the statute the heirs of the life tenant were her husband and child, the husband taking one third and the child two thirds of the property,</p>

<p> Carrier. Railroad. Master and Servant. </p> <p>Money, not intended for travelling expenses, in the purse of a passenger in a parlor car, is not baggage for which a railroad company operating the car is liable as a common carrier.</p> <p>If a passenger in a parlor car operated by a railroad company places his purse containing money on the window sill of the toilet room of the car and goes back to his seat without remembering it, the money is not intrusted to the carrier, nor delivered into its possession.</p> <p>A railroad company operating a parlor car is not liable for the loss of money contained in the purse of a passenger, if it is stolen by a porter in the employ of the company when left by the passenger on a window sill of the toilet room of the car, the act not being within the scope of the servant’s employment.</p>

<p>Damages. Boston Elevated Railway Company. Words, “Damages.”</p> <p>Under St. 1894, c. 548, § 8, providing for compensation for damage caused by the construction, maintenance or operation of the lines of the Boston Elevated Railway Company, noise which operating with other causes would constitute a private nuisance to abutting property, if it were not authorized, is special and peculiar damage, for the whole of which compensation can be recovered, without seeking to determine how much of the effect is due to that part of the noise which alone would not constitute a liability and how much to the excess.</p>

<p> Executor. Sheriff. </p> <p>When a sheriff dies leaving a deposit in a trust company in his name as sheriff, and the deposit is shown to comprise certain money which belonged to him individually, other money in which various deputies are interested, and still other money belonging to various parties to suits, who deposited it with him to secure him from liability in making attachments, and when the circumstances indicate, as to most of the money not his own, that he was to retain possession of it for his security, the executor of the sheriff is entitled to the entire fund for the purposes of administration and can recover it from the trust company in an action of contract.</p>

<p> Constitutional Law. Landing Place. County Commissioners. </p> <p>St. 1882, c. 109, (R. L. c. 48, § 102,) giving the county commissioners authority, on the representation of ten freeholders, to ascertain the correct location of a common landing place, erect the necessary bounds thereof, and make a record of their doings, gives them no jurisdiction over controversies concerning property, and therefore is not unconstitutional in containing no provision for a trial by jury.</p> <p>Under St. 1882, c. 109, (R. L. c. 48, § 102,) the county commissioners, on a petition to ascertain the correct location of a common landing place, supported by evidence warranting a finding that there is at the beach in question a landing place used in common by a part of the public under a claim of right, may take jurisdiction to ascertain the correct location of the landing place, erect its bounds, and make a record of their doings, in spite of the fact that the existence of the landing place is controverted in good faith by the owner of the beach.</p>

<p>Negligence, On street railway.</p> <p>The sudden slackening of speed of an electric street car with a little jerk when running in the ordinary way, is not evidence of negligence on the part of the operating company.</p>

Tort by a stone cutter against his employers, for injuries sustained while the plaintiff was working in the defendants’ stone shed at Quincy. Writ dated January 10, 1900. At the trial in the Superior Court before Bishop, J., the jury returned a verdict for the plaintiff in the sum of $600; and the defendants alleged exceptions.

<p>Two complaints, received and sworn to March 27, 1902, under R. L. c. 102, §§ 29-32, each for keeping a shop for the purchase, sale or barter of old metals and second hand articles without a license.</p> <p>In the Superior Court both cases were tried before Aiken, J., who in each case ruled that the jury would be warranted in finding that the defendant was a dealer and in finding that the defendant was guilty.</p> <p>The jury in each case returned a verdict of guilty; and "the defendants alleged exceptions.</p>

<p>Practice, Criminal, New trial. Words, “Trial”, “New trial.”</p> <p>The power to grant a new trial to a defendant in a criminal case within one year ot the original trial, which is conferred upon the Superior Court hy R. L. c. 219, § 33, does not authorize that court to revoke a sentence founded upon a plea of guilty, an arraignment not being a trial.</p>

<p>Petition, filed May 22, 1902, under R L. c. 182, § 11, to determine the validity of a possible equitable restriction on certain land of the petitioners in Ashburton Place in Boston.</p> <p>In the Superior Court the case came on to be heard before Richardson, J., who reserved it upon the pleadings and an agreed statement of facts for determination by this court.</p>

<p>Bill in equity, filed August 29, 1902, to rescind a contract between the plaintiff and the defendant Jacobs, alleged to have been induced by fraudulent representations and acts of the defendants conspiring together, whereby they obtained from the plaintiff, a wholesale dealer in clothing in New York, goods of the value of $6,606.50, the defendant Jacobs giving as security a second mortgage on certain real estate in Boston, praying that the defendants Kaufman, Bilosky and Jacobovitz should be ordered to deliver to the plaintiff such of the goods as remained in their hands, and that the plaintiff be given a judgment for the value of such of the goods as they had sold, and that the mortgage and note held by the plaintiff should be ordered to stand as security for the payment of the judgment.</p> <p>The Superior Court made a final decree, that the plaintiff was entitled to rescind the contract with Jacobs, and was entitled to ■the merchandise delivered by the plaintiff under the contract, giving judgment personally against all the defendants in the sum of $1,382.20, and ordering that the mortgage and note, after being deposited by the plaintiff in rescission of the contract, be returned to him to be held as security for the payment of the judgment.</p> <p>The defendants Kaufman, Biloski and Jacobovitz appealed from the final decree. The defendant Jacobs appealed from an order confirming a master’s report and the denial of a motion made by him to dismiss the master’s report.</p>

Bill in equity, filed November 14, 1902, against the administrator with the will annexed of the estate of Luther Twiss, for an accounting, and the delivery of certain personal property, alleged to have been bequeathed to Nancy M. Twiss during her life, and, on her death, to the three plaintiffs.

<p>Intoxicating Liquors. Pleading, Criminal, Indictment. Constitutional Law. Words, “Native wines.”</p> <p>An indictment under R. L. c. 100, § 1, charging that the defendant on a certain day did sell intoxicating liquors to a person named, the defendant "not having then and there any license, authority or appointment according to law to make such sale,” is in proper form, and sufficiently alleges the illegality of the sale.</p> <p>Wines made in the State of New York are not “native wines ” within the meaning of R. L. c. 100, § 1.</p> <p>The provision of R. L. c. 100, § 1, permitting the sale by the makers thereof of native wines and of certain cider manufactured in this Commonwealth on terms more favorable than are granted for sales of similar articles produced in other States, is unconstitutional and void, as in violation of art. 1, § 8, of the Constitution of the United States.</p> <p>The unconstitutionality of the provision of R. L. c. 100, § 1, excepting native wines and certain cider manufactured in this Commonwealth from the regulations applying to sales of other intoxicating liquors, does not affect the validity of the other provisions of the statute.</p>

<p>Evidence, Relevancy. Witness, Examination. Arrest. Practice, Criminal, Exceptions. Homicide.</p> <p>A police officer, who was a witness for the government in a murder trial, put on a pair of glasses to examine a map to which his attention was called when on the witness stand. On cross-examination he testified that for one or two years he had used glasses in reading and writing, but for no other purpose. The defendant then asked leave to exhibit the glasses to the jury in order to show the thickness of the lenses as evidence that the witness had defective vision. The judge excluded the glasses as evidence. Held, that the exclusion was right.</p> <p>A police officer, who in a murder trial had testified for the government that he arrested the defendant, and who lia’d been cross-examined as to the description given to him of the person to be arrested, was asked, on redirect examination, from wiiom he got the description, and answered that he got it from the person alleged to have been murdered, who was another police officer. Held, that the question and answer were admissible as a proper explanation of his testimony upon cross-examination.</p> <p>On the trial of a defendant charged with murdering a police officer, a witness for the government testified that after the shooting he found the wounded officer in front of the police station, and then was asked whether he had any conversation with him, and answered “ Yes.” Held, that the question and answer were admissible, to show the physical condition of the wounded man immediately after the shooting, no statement of either party to the conversation being asked for.</p> <p>In this Commonwealth the general proposition, that a police officer lawfully cannot arrest without a warrant a person whom he has reasonable ground to suspect of having committed a crime not a felony, is not correct, as there may be circumstances other than the officer’s suspicion justifying the arrest of such a person under the provisions of the statutes.</p> <p>On tlie trial of two defendants for the murder of a police officer who had arrested them without a warrant, it appeared, that the defendants were seen walking with the officer at a very late hour of the night toward the police station, that they presented the appearance of suspicious looking characters, and that one of them shot the officer on the way to the station, whereupon they both ran away. Held, that there was evidence to justify a finding that there had been a legal arrest under R. L. c. 31, § 2.</p> <p>On a trial for the murder of a police officer who had arrested the defendant without a warrant, if the judge in his charge has dealt in general terms fully and correctly with the doctrine of burden of proof beyond a reasonable doubt, no exception lies to his refusal to give a specific instruction, that when the legality of an arrest is in question in a criminal case the burden is on the government to prove the legality beyond a reasonable doubt.</p> <p>On a trial for the murder of a police officer who had arrested the defendant without a warrant, the jury at the defendant’s request were instructed that “ if an officer has lawfully in his custody a person charged with having committed a crime not a felony, the officer is not authorized, in order to prevent his escape, to shoot him, or at him, or to draw a dangerous weapon for the purpose of preventing such escape.” In a previous portion of the charge they had been instructed that if they found that the “ defendant was in actual bodily fear by reason of some assault or threatening action upon him by the officer which was not justified by their situation, and that the shooting vvas done in mere self-defence, it would be justifiable homicide.” Held, that these instructions left the defendant no ground to complain that a certain other instruction on the same subject requested by him was not given in terms.</p>

Tort under the employers’ liability act for an injury alleged to have been caused by a- defective warning bell on an electric coal car alleged to be part of the ways, works and machinery of the defendants’ coke works at Everett. Writ dated February 11, 1901.

<p>Agreed EAOTS submitted to the Superior Court. That court gave judgment for the plaintiff in the sum of $1,500, in accordance with a finding of a referee assessing damages at that amount. The defendant appealed.</p> <p>By the agreed facts it appeared that the defendant, in accordance with a memorandum in writing,'dated June 14, 1900, agreed to sell to the plaintiff three houses on Maverick Square in East Boston for $20,000, and “ to give a good warranty deed free from all incumbrances,” subject to a mortgage of $12,000. On June 29, 1900, the plaintiff paid the balance of the purchase money in accordance with his agreement and received from the defendant and his wife a deed, which stated the premises to be subject, besides the mortgage, to a certain passageway as defined in a deed referred to.</p> <p>The premises consisted of three brick houses in a block of four houses facing upon Maverick Square. The passageway mentioned in the deed was built into that portion of the block conveyed to the plaintiff, and anybody looking at the buildings from Maverick Square could have seen the entrance to this passageway. No one could reach the rear of the premises except through the passageway, and it was in constant use by the occupants of the four houses. If material, it also was agreed that no objection was made until about two months after the deed had been delivered, when the plaintiff had plans completed for the erection of a building covering the entire premises. At that time the subway commissioners built a permanent roof about twelve feet above the level of the street in front of the premises.</p> <p>The plaintiff contended that these facts constituted a breach of the agreement. The defendant contended that the acceptance of the deed precluded the plaintiff’s right to recover.</p>

<p>Petition, filed September 3, 1902, under R. L. c. 25, § 100, by ten taxable inhabitants of the town of Randolph, to restrain the first named respondent, the treasurer of that town, from borrowing $300 for the purpose of carrying out a vote passed at a special town meeting, in regard to requiring the insertion of certain conditions in any location or franchise to be granted to the Old Colony Street Railway Company, and to restrain the other respondents, acting as a committee, from employing counsel in accordance with the vote.</p> <p>The respondents demurred to the petition. In the Superior Court Hardy, J. overruled the demurrer, and made a final decree granting the relief prayed for. The respondents appealed.</p>

<p> Judgment. </p> <p>In a suit in equity to reach and apply property of the defendant in satisfaction of a judgment, obtained in an action at law in which the defendant did not appear and was defaulted, the defendant cannot avail himself of alleged payments which could have been pleaded and proved in defence of the action at law, and which relate to the merits of the debt on which the judgment was founded.</p>

<p>Probation. Practice, Criminal, Exceptions.</p> <p>Although R. L. c. 217, § 84, requires that a person released on probation shall be furnished by the probation officer with a written statement of the terms and conditions of his release, and although a probation officer who is surety on the recognizance of a defendant, when informed by a third person that the defendant has broken the terms of his probation, should make an investigation to determine whether the information is correct before surrendering the defendant to the court, yet if the probation officer without having done either of these things surrenders the defendant to the court where his case is pending, it is within the discretion of that court to determine whether the defendant has violated the terms of his recognizance or of the oral arrangement between him and the Commonwealth and whether the probation officer, as his surety, was justified in surrendering him into court, as well as whether the defendant’s conduct has been such that sentence should be imposed under R. L. c. 220, § 2.</p>

<p>Devise and Legacy, Construction.</p> <p>A testator in the first clause of his will made his wife executrix, and after certain bequests gave to his “ said executrix ” all the rest and residue of his property, both real and personal, “for her sole use and benefit.” Held, that the widow took the personal property absolutely and the real estate in fee.</p>

<p>Constitutional Law. Board of Health. Vaccination. Evidence. Words, “ Wholesome and reasonable.”</p> <p>K. L. c. 75, § 137, authorizing the board of health of a city or town to require the vaccination of all its inhabitants, and imposing a fine of $5 for a violation of such requirement, is constitutional.</p> <p>A defendant charged with violation of a requirement of the board of health of a city or town, under R. L. c. 75, § 137, that all its inhabitants shall be vaccinated, cannot introduce evidence to show what vaccination consists of, this being matter of common knowledge, or of the grounds of his refusal to comply with the requirement, this involving matter of opinion and also being immaterial, or of the alleged injurious or dangerous effects of vaccination, the Legislature being the judges of what the welfare of the people demands.</p>

<p>Negligence, On street railway.</p> <p>In an action for injuries from a collision of an electric car of the defendant with a watering cart in which the plaintiff was driving, it appeared, that the plaintiff saw the car coming at a distance which he-called one hundred yards, and then turned to drive across the track ahead of it, that the car moving at the rate of from six to twelve miles an hour struck the watering cart and cut it in two, going from twenty to forty feet farther before it stopped. Held, that on the conflicting evidence in the ease, the questions of the due care of the plaintiff and the negligence of the defendant were for the jury.</p>

Writ oe entry, dated November 29, 1901, to recover one undivided third part of about forty-five acres of land called Hardscrabble farm and of about twenty-five acres of land called Wildflower farm, in that part of Worcester called Tatnuck. In the Superior Court the case was heard upon agreed facts by Fessenden, J., who found for the tenant and ordered judgment for the tenant for costs. The demandant appealed.

<p>Two petitions, filed respectively November 12, 1889, and May 23, 1898, under Sfc. 1874, c. 196, §§ 2, 3, for damages from the diversion of the waters of Stony Brook, and an ACTION OP tout for other damages from alleged negligence of the respondent in polluting and dealing with the waters of that brook. Writ dated December 22, 1897.</p> <p>A demurrer to the first petition was overruled by a decision of this court reported in 152 Mass. 307. Later the Superior Court appointed as assessors Charles S. Hamlin, John Kilbourn and John C. Cobb. By St. 1898, c. 262, the city of Boston was authorized to make by its mayor an agreement with the Boston Belting Company as to the waters of Stony Brook and other water supply. Under this authority an agreement was made of which the sixth article was as follows:</p> <p>“Article 6. The questions heretofore submitted to Charles S. Hamlin, John Kilbourn, and John C. Cobb, as assessors as aforesaid, and the specific determination thereof, are hereby withdrawn from said assessors, and in lieu thereof the said assessors or their successors as hereinafter provided for shall hear the parties in said petitions and action of tort and determine and report, saving therein all questions of law desired by either party, except questions as to the admissibility of evidence, and except those questions already determined by the Supreme Judicial Court in the first petition aforesaid, and except all questions as to the power of said assessors to act; and said report shall determine: — First. What sums of money, if any, shall be paid by said city of Boston to said Boston Belting Company as damages to its said real estate up to but not beyond January first, 1898, for which said city is legally liable under said petitions or any similar petition. Second. What sum of money, if any, shall be paid by said city of Boston to said Belting Company for damages for which the city is legally liable by acts, doings or omissions of said city up to but not beyond January first, 1898, for which said city is liable in said action of tort or any similar action of tort, and is not liable for in said petitions.”</p> <p>Thereafter in the Superior Court the cases came on to be heard before GrasJcill, J. on a motion of the petitioner for an acceptance of the awards of the assessors and the entry of judgments thereon, and a motion of the petitioner for the allowance of certain items of costs, mentioned in the opinion ; and also upon a motion of the respondent for the recommittal of the awards. The judge with the consent of the parties, for the purpose of settling the questions of law raised by the motions, denied the respondent’s motion to recommit the awards, and ordered judgment to be entered on the award in favor of the petitioner in the first of the petitions in the sum of $117,000, less the sum of $46,661.40, being a balance of $70,338.60, with interest from January 1, 1898, to the date of the entry of judgment, and also ordered judgment to be entered for the petitioner on the award in the action of tort in the sum of $67,000, with interest from January 1,1898, to the date of the judgment. The judge also, without prejudice to the plaintiff’s right to recover such items of costs as might thereafter be found to be legally taxable by the clerk, denied the plaintiff’s motion that there should be included in the plaintiff’s costs the items mentioned in the report of the assessors, and reported the cases for determination by this court.</p> <p>If the rulings were correct, the judgment or judgments and the ruling as to costs were to be affirmed. If there was any error in the rulings as to the questions of law raised by the awards, or either of them, or by the motions, the judgments, or such of them as ought not to have been entered, were to be set aside and the cases were to be remitted to the Superior Court, there to be proceeded with as law and justice might require and this court might direct.</p> <p>The sections of St. 1874, c. 196, under which the petitions were brought are as follows:</p> <p>“ Section 2. Any person injured in his property by any of the acts done by said city, under the first section of this act, shall, upon application to the board of aldermen of said city, have compensation therefor, the amount thereof to be determined by said board of aldermen. And said board of aldermen shall finally adjudicate upon the question of damages, within thirty days after the filing of said application, unless the parties agree in writing to extend the time. In case damages are awarded, payment shall be made forthwith by said city.”</p> <p>“ Section 3. If the applicant is .aggrieved, either by the estimate of his damages, or by a refusal or neglect within thirty days to estimate the same, he may, within three months from the expiration of said thirty days, or of the extended time as provided in the second section, apply for a jury and have his damages assessed in the manner provided when land is taken in laying out highways. If the damages are increased by the jury, the damages and costs shall be paid by the city, otherwise the costs arising on such application shall be paid by the applicant.”</p> <p>The case was argued at the bar in November, 1902, before Knowlton, Morton, LatTirop, Hammond, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Tort for the conscious suffering and death of the plaintiff’s intestate, caused by falling down an elevator well in the department store of the defendant in Boston, by reason of the gross negligence of the defendant’s servant operating the elevator. Writ dated May 8, 1899.</p> <p>At the trial in the Superior Court before Richardson, J., it appeared, that the accident happened in January, 1899, on the fifth birthday of the plaintiff’s intestate, when the intestate had been taken by his grandmother, fifty-three years of age and since deceased, to the defendant’s store to make purchases for his birthday and to see a play which was given there. The intestate and his grandmother were in the elevator when it stopped at the third floor of the building. There a lady got off, and the boy followed her. His grandmother called to him; whereupon he turned, and saw the elevator going up with his grandmother in it. In trying to get on it he caught the floor of the elevator with his hands, and after holding on for a short time fell to the bottom of the elevator well, receiving the injuries which caused his death. The door of the elevator well was open. The door of the elevator itself also was open.</p> <p>Certain evidence mentioned in the opinion was admitted against the objection of the defendant, and at the close of the evidence the judge refused to give certain rulings requested by the defendant. The jury returned a verdict for the plaintiff in the sum of $2,600, assessing $100 for conscious suffering of the intestate and $2,500 for his death. The defendant alleged exceptions, raising the questions stated by the court.</p>

<p>Way, Defect in highway. Damages. Shade Trees.</p> <p>A loose and rotten root of a tree, standing in a sidewalk of a city, which has stood there for sixty years or more and comes under the provisions of the statutes relating to shade trees, may be found to be a defect in the highway. The question whether a sound portion of the root of such a tree could be found to be such ' a defect was not open on the exceptions.</p> <p>Under Pub. Sts. c. 62, § 18, (R. L. c. 61, § 18,) a father cannot recover for the bill of a physician employed by him to attend his minor daughter injured by a defect in a highway. Nor can the daughter recover for the expense incurred by her father.</p>

<p>Petition, filed January 19, 1900, for a writ of mandamus to compel the metropolitan water board to take, under the provisions of St. 1895, c, 488,- § 4, a certain mill property of the petitioner at Holden on the Quinapoxet River, a branch of the south branch of the Nashua River, situated six miles above another mill property of the petitioner in West Boylston which will be partly but not wholly submerged by the reservoir to be built under the act, although the property at Holden will not be in any part submerged by the reservoir.</p> <p>The case came on to be heard before JShowIton, J., who at the request of both parties reported it for determination by the full court, a writ of mandamus to issue or the petition to be dismissed as the court might decide.</p>

<p>Two ACTIONS OF tort, the first by a minor, for injuries caused by being pushed from the front platform of the baggage car of a passenger train of the defendant by a brakeman in the defendant’s employ, and the second by the mother of the plaintiff in the first case, for expenses and loss of services caused by his injuries. Writs dated June 6, 1901.</p> <p>At the trial in the Superior Court before Maynard, J., it appeared, that the plaintiff, with three other boys, was stealing a ride on the front platform of the baggage car, which they boarded at Bridgeport. The plaintiff and the other boys testified, that just before the train pulled into the station at New Haven the brakeman, one Wilson, came out of the baggage car, seized one of the other boys, and immediately afterwards took hold of the plaintiff, who had got down on the lower step of the platform, and pushed him from the car, so that he fell under the train, which cut off one of his feet.</p> <p>In regard to the speed of the train the plaintiff testified: “ As • the train arrived at this point, we were going pretty fast. It had slowed down a little coming into the yard, at the switch tower. That must be about, over one thousand feet from the place where the accident happened. At the time of the accident the train was going so fast we could not get off.”</p> <p>The jury made the special finding quoted by the court. They found for the plaintiff in the first case in the sum of $3,340, and for the plaintiff in the second case in the sum of $677. The defendant alleged exceptions, raising the questions stated by the court.</p>

<p> Bills and Notes. Alteration of Instruments. </p> <p>If a promissory note is payable to a firm of three partners, and on the winding up of the partnership is turned over to one of them as part of his share of the assets, and he thereupon draws a line of ink through the firm name and inserts his own name as payee, and indorsements are made on the back of the note by the other partners, making the note payable to the partner to whom it belongs, and if that partner brings an action on the note against the maker, and, after it is begun, erases his own name as payee and also the line that he has drawn through the firm name, restoring the note to its original condition except for the marks of alteration on its face, and if all these changes are made without the knowledge of the maker, but innocently or by mistake, and neither the maker nor any third person suffers any injury in consequence, the alterations constitute no defence to the action on the note.</p>

<p>Contract for an alleged breach of an oral contract to employ the plaintiff as manager of the hotel Westminster in Boston-, from September 1, 1900, through August 31,1901, with a second count on a quantum meruit for services as manager1 from1 September 1,1900, to May 13, 1901. Writ dated June 3, 1901.</p> <p>In the Superior Court the case was tried before Sheldon, J. The counsel for the plaintiff, in his opening to the jury, said that he intended to rely on the second count, but should hold to the first if for any reason of law he could not rely on the second. The evidence on both sides tended to show that the defendants were lessees of the Westminster, and that they employed the plaintiff to act as manager of that hotel for the year beginning September 1,1900, and ending August 31,1901, the plaintiff to have the exclusive control and management of the hotel during the whole of the year, to set aside out of the net proceeds the sum of $66,000 for the payment of the rent and taxes, and out of any surplus, after paying the running expenses of the hotel and the $66,000 for rent and taxes, to receive all of the surplus up to $2,000 and one half of all excess over $2,000. The defendants retained the right to lease or sell the hotel during the year upon paying the plaintiff $1,000. The father and mother of the plaintiff were to have board and rooms at the hotel without charge during the winter season, and did so. The plaintiff reserved the right to give a reasonable part of his time from May to September to looking after a summer hotel belonging to him at Islesborough, Maine.</p> <p>It was testified by the plaintiff, but denied by the defendants, that if there should be no surplus over all expenses including the $66,000, it was understood and agreed that the plaintiff should receive $1,000 in payment for his services as manager. The plaintiff testified fully as to the character and extent of his services as manager of the hotel during the period in question, and that his services were worth $300 per month in addition to the board and lodging at the hotel of his father and mother. The plaintiff being about to offer expert testimony as to the value of his services as a hotel manager, the defendants admitted that $230 a month and the board of the plaintiff’s father and mother was a fair charge for a manager of such a hotel in the absence of an express contract.</p> <p>The plaintiff testified that the defendants discharged him in May, 1901, and that he knew at that time that the hotel would make no profits over the running expenses and the $66,000 for rent and taxes, during the year of his employment, beginning September 1, 1900, and ending August 31,1901. The defendants contended, that they released the plaintiff from further performance of his contract and relieved him from the necessity of returning to Boston from time to time during the period from July to September 1, 1901, in which the plaintiff would be managing his summer hotel at Islesborough, that the plaintiff assented to such a termination of his services under the contract, and that the agreement was ended so far as it was ended by mutual consent. The plaintiff did not return to the hotel after the alleged discharge.</p> <p>The parties agreed that there was no surplus over the $66,000 and that both knew at the time of the alleged breach that there would be none at the end of the plaintiff’s term of employment on August 31, 1901.</p> <p>At the close of the evidence the defendants requested the following rulings: 1. The plaintiff, not having waived the first count but having relied on it throughout the trial, cannot recover upon his second count, but must recover if at all upon his first count. 2. The plaintiff cannot now elect to waive the first count and rely only upon the second count.</p> <p>The judge refused to give either of these rulings. He ruled that the plaintiff could not go to the jury on both counts, and allowed the plaintiff to strike his first count from the declaration, and to rely on his second count only.</p> <p>The defendants also requested the judge to instruct the jury, that if the jury found a breach of the contract, the plaintiff was entitled to recover only such sum as would place him in the position in which he would have been had the contract been fulfilled. The judge refused to give this instruction. The jury returned a verdict for the plaintiff in the sum of $2,017.33; and the defendants alleged exceptions.</p>

<p>Contract, Performance and breach. Tender. Accord and Satisfaction.</p> <p>An agreement in writing, that if the defendant has not made a tender of a certain sum of money on or before a certain day, he shall at that time be obliged to accept certain shares of stock at an agreed price named, does not require the plaintiff to make a tender of the stock, in order to recover for a failure of the defendant to take and pay for it as agreed, and if the plaintiff has alleged such a tender, it is surplusage and he need not prove it.</p> <p>The defendant had agreed to pay the plaintiff a certain sum of money fbr certain shares of stock on a certain day, and having failed to do so was sued by the plaintiff. Thereafter the parties made an agreement under seal whereby the plaintiff agreed to release the defendant on payment by him of a smaller sum of money on receipt of the same stock. The defendant went twice to the plaintiff’s office when the plaintiff was absent, for the purpose of paying the smaller sum of money and receiving the stock, and informed the person in charge that he came for that purpose. Going again to the plaintiff’s office, he found the plaintiff and told him that he was ready to pay the smaller sum of money, and was told by the plaintiff that lie was not ready to deliver the stock, but would advise him When ready. Held, that the agreement under seal was at most an executory agreement for an accord and satisfaction, and never was executed, and that there was no tender by the defendant of the smaller sum of money, even if a sufficient tender would have operated as satisfaction; therefore that there was no defence to the plaintiff’s action.</p>

<p>Contract. Partnership. Landlord and Tenant. Practice, Civil, Exceptions. Discretion of Court.</p> <p>Where the body of a lease of a part of a building contained no provisions as to steam heat, incandescent electric light or power for an elevator, but stipulations on these subjects were written in an independent clause below the signatures of the parties, these stipulations were treated by the parties as forming part of the lease and this treatment was assumed by the court to be correct.</p> <p>A lease of real estate from one partnership to another, executed under seal in the names of the respective firms by one partner of each without any previous authority from their respective copartners, can be found to have been ratified so as to bind all the members of both firms, if it appears, that the firm named as lessees entered into occupation and possession of the premises described in the lease and paid the rent according to its terms, and the firm named as lessors opened an account on their books for the rent accruing under the lease, and collected and received it from the lessees.</p> <p>Where a firm who are the lessees under a written lease transfer their assets to a corporation of which one of the partners is an incorporator, and thereafter the lessor accepts from the corporation the rent reserved in the lease, it is a question of fact whether the lessor has agreed to the substitution of the porporation as a tenant, and a finding may be justified, that this is not the case, and that the members of the firm still are liable as lessees.</p> <p>The allowance of an amendment to a declaration adding a new count for the same cause of action, and the question whether after such amendment the plaintiff shall be required to elect on which count he relies, are within the discretion of the presiding judge.</p>

<p>Tort against the sheriff of Plymouth County. Writ dated February 15, 1901.</p> <p>In the Superior Court the case was tried before Mason, C. J., who ordered a verdict for the defendant. The plaintiff alleged exceptions, raising the questions stated by the court.</p>

<p> Damages. Metropolitan Park Commission. </p> <p>One whose real estate is taken in fee by the metropolitan park commissioners under St. 1894, c. 288, and St. 1895, c. 450, is entitled to interest from the date of the taking, and not merely from the date on which he is required to remove from the premises.</p>

Tort by a chambermaid employed by the defendant at the Hotel Velvet at Old Orchard Beach in the State of Maine, for injuries from falling through the glass bottom óf a light shaft, set in the floor of a hallway, across which the plaintiff attempted to walk when ordered by the defendant’s housekeeper to bring an artificial potted plant which was on the other side of it. Writ dated November 16, 1899.

Tort for personal injuries as stated by the court. Writ in the Municipal Court of the City of Boston dated July 25, 1901. On appeal to the Superior Court the case was tried before Aiken, J. At the close of the evidence the defendant asked the j udge to rule: 1. That at the time of the happening of the accident the plaintiff was not in the exercise of due care. 2. That at the time of the happening of the accident the defendant was not negligent. 3.

<p>Agency. Corporation. .</p> <p>A superintendent of the cartoon department of a lithographing company, authorized to employ and discharge workmen, has no authority to bind the corporation to pay for medical or surgical treatment of an employee of the company injured by the machinery in its factory.</p>

<p>Tax, Sale. Conversion.</p> <p>A sale of land for non-payment of taxes assessed to the general owner extinguishes, after the expiration of the period of redemption, the interest of one holding a deed from a predecessor in title of the general owner giving the grantee a right to take gravel from the land down to a certain grade during a period of ten years.</p> <p>One from whose land gravel is taken without right, if it is immediately used by the trespasser, may elect to recover for the conversion of the gravel as personal property after its separation from the land, instead of seeking damages for the trespass upon his real estate.</p>

Petition, filed February 27,1901, for damages for the taking by the metropolitan sewer commissioners under St. 1899, c. 424, of Nut Island in Quincy Bay, connected with Great Hill or Hough’s Neck by a bar of sand and gravel about seven hundred feet long covered by the sea at high tide.

<p>Tort by a card stripper for injuries in the defendant’s mill at East Dedham, from being struck by a loose pulley alleged to have come off a shaft owing to a screw not being tightened properly. Writ dated March 16, 1901.</p> <p>In the Superior Court the case was tried before Mason, C. J. The jury returned a verdict for the plaintiff in the sum of $1,200; and the defendant alleged exceptions.</p>

<p> Insurance, Accident. Evidence. </p> <p>In an action on a policy insuring against death from accident, excluding injuries received while “walking or being on any railroad bridge or roadbed, except at-established crossings ”, the plaintiff cannot recover if it appears, that the insured of his own motion had gone upon a railroad track and while walking on the roadbed fell because his ankle gave way, and that while he was trying to get off the track he was struck by an engine and killed.</p> <p>In an action on a policy insuring against death from accident, excluding injuries received while “ walking or being on any railroad bridge or roadbed, except at established crossings ”, evidence properly is excluded which is offered by the plaintiff to show, that the part of the railroad track along which the insured was walking when the accident occurred had been continuously and openly used for a long time by the residents of the district as a common pathway, without objection on the part of the railroad company, as such a use, if proved, would make the track none the less a roadbed of a railroad within the prohibition of the policy.</p>

<p>Contract by the treasurer of the Commonwealth against the city of Boston for $68.25 for the board of a pauper, alleged to have a settlement in Boston, at the School for the Feeble Minded at Waltham during a period of twenty-one weeks. Writ dated November 9, 1893.</p> <p>In the Superior Court the case was tried before Mason, C. J., without a jury. The judge made the special finding quoted by the court, and found for the plaintiff in the sum of |105.64. The defendant alleged exceptions.</p>

<p>Contract for $130 paid by the plaintiff when an infant on a contract for the purchase of a horse, harness and buggy, repudiated by him on coming of age, with a second count for money had and received, and a third count, added by amendment, in tort for the conversion of $130 paid by the plaintiff to the defendant. Writ dated July 31, 1900.</p> <p>The case was tried before Bishop, J., without a jury. It appeared, that the plaintiff and defendant, both being minors, entered into an agreement whereby the defendant delivered to the plaintiff a horse, harness and buggy, and the plaintiff agreed to pay therefor $225 in instalments at stated times, the title to the property not to pass until the whole $225 was paid. The plaintiff paid instalments amounting to $130. He then came of age, and three days later brought this action and attached the horse, harness and buggy as the property of the defendant. On the return day of the writ the defendant came of age. The defendant had spent the $130 before the date of the writ.</p> <p>The judge ruled that the plaintiff could not recover in contract, but might recover in tort under his declaration as amended for the conversion of $130 paid to the defendant. He found for the plaintiff in the sum of $145.60; and the defendant alleged exceptions.</p>

<p>Bankruptcy, Rights of trustee. Mortgage, Of real estate. Equity Jurisdiction, Equitable lien.</p> <p>The interest of a tenant by the curtesy in land which is subject to mortgages placed on it in the lifetime of his wife, vests in his trustee in bankruptcy from the date of the adjudication, and any attempted transfer by the bankrupt of rents accruing after that time "would be void.</p> <p>A mortgagee of real estate before entry and notice to the tenants has no right to demand or receive the rents and profits of the mortgaged property, and semble that a notice to the tenants not amounting to an entry or an assumption of possession would not be sufficient to give him the right.</p> <p>It is no defence to an action by a trustee in bankruptcy, to recover the rents of certain real estate to which the bankrupt was entitled as tenant by the curtesy, that the defendant made an oral agreement with the bankrupt before the proceedings in bankruptcy, that the bankrupt should collect the rents and pay them to the defendant until he was reimbursed for money advanced to pay outstanding taxes on the property and the cost of putting a steam heating apparatus in each of the houses built on the land. Even if such an agreement could be proved under the statute of frauds, it creates no lien which can be set up as an equitable defenceto the claim of the trustee in bankruptcy.</p>

<p>Contract, Performance and breach. Fraternal Beneficiary Association.</p> <p>The holder of a certificate of a fraternal beneficiary association, by the terms of which tire association agrees to pay the holder’s wife §5,000 upon proof of his death, cannot recover from the association for a breach of the agreement, because the association by an amendment of a by-law has attempted to i-educe the amount of the benefit payable on the certificate from §5,000 to §2,000, and has refused to receive assessments for more than would be due under the new by-law, the action of the association amounting to no more than notice of an intended breach of its contract at a future time, which in this Commonwealth gives no right of action. Whether in such a case the holder has a present remedy in equity, quoere.</p>

<p> Tender. </p> <p>A tender, in order to put an end to further liability under a contract, must be of the whole amount due. Thus a tender under a general contract of indemnity of the amount of the liability which has accrued at the time of the tender, without including a further liability which is about to be incurred, is of no avail.</p>

Bill in equity, filed December 24, 1900, to remove a cloud from the title of the plaintiff to certain land in that part of Boston called Brighton, by declaring void a deed to the defendant under a sale by the collector of taxes of the city of Boston for non-payment of a sewer assessment under St. 1892, c. 402, alleged to be unconstitutional. The case was heard by Loring, J., who made a decree that the bill be dismissed with costs; and the plaintiff appealed.

Bill in equity, filed January 22, 1902, against a firm of stockbrokers to compel the delivery of certain shares of stock to the plaintiff as stated by the court. In the Superior Court the case was heard by Braley, J., who made a decree dismissing the bill with costs. The plaintiff appealed.

<p>Bill in equity, filed September 11, 1902, to restrain the collector of the city of Boston from collecting several annual instalments, for past and future years, of an assessment for the cost of the construction of Abbotsford Street in that city under the provisions of St. 1891, c. 323, and acts in amendment thereof and addition thereto.</p> <p>The defendant demurred. The Superior Court made a decree sustaining the demurrer and dismissing the bill. The plaintiff appealed.</p> <p>The case was argued at the bar in December, 1902, before Knowlton, Morton, Lathrop, Barker, $ Hammond, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Equity Jurisdiction, For an accounting, To restrain action at law.</p> <p>Where an account is of such a nature, either by reason of the fiduciary relation between the parties, or by reason of its complexity and mutuality, that there would be jurisdiction of it in a suit in equity, but there also is a concurrent remedy at law, that court which first acquires jurisdiction must decide the case.</p> <p>After a defendant in an action at law has appeared, and has engaged in a long hearing before an auditor and a long trial before a jury, as full and fair as the nature of the case admits of, semble, that he cannot maintain a bill in equity to restrain the action at law, which so far has been decided against him, on the ground that it might be settled more conveniently in equity.</p>

<p>Petition, filed February 5, 1902, for a writ of certiorari against the street commissioners of the city of Boston, to quash an assessment for street and sewer benefits from the construction of Lauriat Avenue in that part of Boston called Dorchester.</p> <p>The case came on to be heard before Hammond, J., who by-agreement of the parties reserved it for determination by the full court, upon the petition and answer with their respective exhibits and a statement of agreed facts.</p> <p>The case was argued at the bar in December, 1902, before Knowlton, Morton, Bathrop, Barker, Hammond, JJ., and afterwards was submitted on briefs to all the justices except Braley, J.</p>

<p>Contract or tort, on a bill of lading, for failure to forward to the consignee at Havre, France, three cases of belt knives of the value of $980 to be transported by the steamship John Sanderson, with a second count alleging that the defendant negligently and in violation of its agreement placed the goods on the steamship Pauillac for transportation, which vessel was unsea worthy and by - reason of such unseaworthiness was lost with the goods on board, and with a third count for an alleged conversion of the goods. Writ dated October 31, 1900.</p> <p>The defendant in an amended answer set forth the facts relied upon to show a mutual mistake which appear in the report.</p> <p>In the Superior Court the case was heard before Fox, J., without a jury. He found for the plaintiffs for the full value of the goods, and at the request of the parties reported the case for determination by this court. If the finding was warranted, judgment was to be entered for the plaintiffs upon the finding. If not, the finding was to be set aside and a new trial ordered.</p> <p>The report was in substance as follows:</p> <p>The plaintiffs were manufacturers of machine knives, having their place of business in Woburn. The defendant was a corporation engaged in the business of forwarding express matter to foreign countries, and having one of its places of business in Boston.</p> <p>The defendant was permitted to show, against the plaintiffs’ objection, that before January 13, 1900, the plaintiffs had sent to the defendant, at its office in Boston, packages of their goods to be forwarded by the defendant to addresses in foreign countries, without directions as to the particular steamship or line by which the goods were to be transported, other than that the goods were to be forwarded by the first steamer from New York sailing for the port to which the goods were consigned, and in accordance therewith the defendant had always forwarded such packages by the first steamer sailing for such port of consignment.</p> <p>The judge found the following facts: On or about January 13, 1900, the plaintiffs sent by a local express to the defendant’s office in Boston three cases of belt knives, addressed “ L. C. Beaudry, Havre, France,” with no other or special instructions as to the manner of forwarding the goods to Beaudry at Havre. The defendant thereupon shipped the goods to New York on a steamship belonging to a local line, and there caused the goods .to be put on board the steamship first sailing for Havre from the port of New York after the delivery of the goods to the defendant. This vessel was the Pauillac.</p> <p>About January 20, 1900, the plaintiffs received from the defendant’s office in Boston a bill of lading of the goods, reciting that the goods were received by the defendant “to be transported on the good steamship John Sanderson, now lying in the port of New York and bound for Havre.”</p> <p>As a matter of fact, the John Sanderson was not bound for Havre, did not sail to Havre, and had not been advertised to sail for that port, but was at that time lying in the port of New York bound for South America, and sailed for South America on January 27, 1900. The name John Sanderson was inserted in the bill of lading by the defendant’s agent in Boston, under the mistake and misapprehension that the John Sanderson was the next steamship to sail for Havre from New York after the arrival of the plaintiffs’" goods in New York. The officers and agents of the defendant in New York did not know that the name John Sanderson was inserted in the bill of lading, and forwarded the goods by the first steamer in accordance with their previous practice in regard to the plaintiffs’ shipments. It was agreed that the bill of lading was to be treated in all respects as if made by the defendant. The mistake was not discovered until after the Pauillac had sailed and the plaintiffs had been advised by their consignees in Havre of the non-arrival of the goods and the loss of the Pauillac. The Pauillac, carrying the plaintiffs’ goods, sailed from New York for Havre on February 3, 1900, and was never after heard from. There was no evidence as to the cause of the loss of the Pauillac. A witness testified in behalf of the defendant, against the plaintiffs’ objection, that the Pauillac was rated Al and had the same rating as the John Sanderson.</p>

<p>Bill in equity, filed June 25,1901, by the administratrix of the estate of Joseph I. Hutchinson for an accounting from the defendant as surviving partner of the late firm of Ira A. Nay and Company, which consisted of the defendant and the plaintiff’s intestate.</p> <p>The Superior Court made a decree confirming a master’s report, except as to the computation of certain interest corrected by agreement, overruling the plaintiff’s and the defendant’s exceptions to the master’s report, and ordering that the defendant pay the plaintiff the sum of $623.11 and costs. The plaintiff appealed.</p>

<p>Equity Pleading and Practice, Demurrer, Costs. Assignment, For benefit of creditors. Equity Jurisdiction, To compel an accounting.</p> <p>On demurrer to a bill in equity brought by a creditor of an absconding debtor against a committee of creditors to recover and distribute the debtor’s property, if tlie bill alleges, that tlie defendants have performed their obligations to all creditors other than the plaintiff and have received discharges from them, so that none of the other creditors are interested in the suit, the defendants, having admitted these allegations by their demurrer, cannot take the ground that the bill should have been brought in behalf of all the creditors.</p> <p>In a suit in equity for an accounting, by a creditor of an absconding debtor against a committee of creditors to recover and distribute the debtor’s propertjr, it appeared, that the plaintiff refused to accept without an accounting a check sent to him by the defendants as a final dividend. By a final decree for the plaintiff the defendants were directed to pay interest on the amount of the final dividend for which the check was sent and on the plaintiff’s share of the balance found to be due in their hands. Held, that being in fault in not accounting to the plaintiff, and in not declaring a dividend of all the funds in their hands for distribution, the defendants could not complain of being charged with interest from a date at least as early as the bringing of the bill.</p> <p>A committee to recover the money of an absconding debtor and distribute it among his creditors cannot pay out of the fund a gratuity to police officers for having performed their duty in bringing back tlie debtor and the money.</p> <p>In a suit in equity for an accounting, by a creditor of an absconding debtor against a committee of creditors to recover and distribute tlie debtor’s property, it appeared, that the plaintiff refused to accept as payment, without an accounting, a check sent to him by the defendants as a final dividend, but retained the check in his possession unindorsed, until it appeared at a hearing before a master that more than the amount of tlie check was due to the plaintiff when he surrendered it to the master. Held, that such a retaining of the check was not like a retaining of money and did not preclude the plaintiff from maintaining his bill.</p> <p>A committee of the creditors of an absconding debtor, for the benefit of themselves and other creditors, to recover and distribute the debtor’s property, are entitled to a reasonable compensation for their services in causing the debtor, who had gone to Canada carrying his property with him, to be brought back together with a large sum of money, resulting in a dividend to creditors of over fifty-two per cent, and for their services in distributing this sum. The right to such compensation is not forfeited, because the committee were wrong in refusing to render a proper account and in paying a gratuity to the police officers who brought tlie debtor back from Canada, there being no-claim of dishonest or fraudulent conduct in the custody of the money which came to their hands or otherwise.</p> <p>The fact that the costs prescribed by the Legislature are not in reality an indemnification is no ground for allowing the prevailing party in a suit in equity to recover his expenses for counsel fees.</p> <p>In a suit in equity for an accounting, against a committee for the benefit of creditors, who have made what purported to be a final distribution of the funds for which they were accountable, the fact, that the creditors other than the plaintiff have made no claim to any share in further funds for which the defendants are accountable or have released their rights to any such share, does not enlarge the plaintiff’s rights, and he can recover only his ■pro rata share in any balance for distribution which he shows to exist in the hands of the defendants.</p>

<p> Widow. Executor. </p> <p>A widow cannot maintain a bill in equity to recover personal property alleged to liave been conveyed by her late husband during his lifetime without consideration and in fraud of the plaintiff’s rights. If the property was conveyed wrongfully, the executor or administrator may recover it for the benefit of the persons entitled to it.</p>

<p>Bill in equity, filed October 2,1901, by two attaching creditors of the Endicott Granite Company, the first named being also a stockholder, to set aside a certain mortgage and note for $1,000 executed in behalf of the defendant corporation to the defendant Mclntire, the only consideration being alleged to be $750 advanced by the defendant Mclntire for the purpose of paying salaries to certain .officers of the corporation.</p> <p>In the Superior Court Hardy, J. overruled the defendant Mclntire’s exceptions to the master’s report, and also the exceptions of the plaintiff Lamb to the report, and found for the plaintiffs, confirming the master’s report 16 with' the exception that the plaintiffs in equity and good conscience ought to pay the sums that have been advanced for the taxes on the property which have preserved it, so that the attachments of the plaintiffs have now some value.” He made a decree, that upon the payment by the plaintiff Lamb to the defendant Mclntire of the sum of $143.73, taxes upon the property for the years 1900 and 1901, with interest, the mortgage set forth in the plaintiff’s bill of complaint was declared to be null and void as against the attachments of the plaintiffs, and the defendant Mclntire was ordered to discharge it from the record, and that the plaintiff Lamb should recover from the defendant Mclntire his costs as taxed by the clerk. The defendant Mclntire appealed.</p>

<p>Contract, Construction. Equity Jurisdiction, Specific performance.</p> <p>A contract in writing stipulated that the defendant, having a secret process of manufacturing grease from oils and desiring to place the product on the market, agreed with the plaintiff “to allow him the first and sole opportunity to secure capital as may he necessary, it being provided that this sole option is to be held by and for” the plaintiff “for sixty days from the date of this instrument; and further that in the event of any arrangement being made satisfactory,” the plaintiff should receive a commission of twenty per cent “of the moneys, stock of a company, if formed " or of any advantage secured by the plaintiff and accepted by the defendant, to be paid to the plaintiff “ as payment for services.” The plaintiff failed to secure any capital or make any arrangements within sixty days, and later brought a bill for specific performance of the contract, claiming twenty per cent of the capital stock of a corporation organized by the defendant. Held, that the contract provided for the payment of the twenty per cent commission only in case a satisfactory arrangement by which capital was secured was made in the exercise of the option within the sixty days. If the plaintiff rendered services later, or if his services within the sixty days resulted in some kind of benefit to the defendant after the expiration of that period, the plaintiff, if entitled to recover at all, must recover outside of the contract.</p>

<p> Metropolitan Water Supply Act. Damages. </p> <p>An owner of real estate in the town of West Boylston not taken but indirectly decreased in value by the metropolitan water supply act or the doings of the water board under the act, who is entitled to damages under § 14 of the act, is not entitled to have those damages determined by a jury under the provisions of the last sentence of § 15 of the act. Following Sawyer v. Commonwealth, 182 Mass. 245.</p>

<p>^ Petition, filed March 12,1900, under Pub. Sts. c. 191, (R. L. c. 197,) to enforce a mechanic’s lien for labor and materials furnished under a contract to construct and install a system of Dry and Wet Pipe Grinnell Automatic Sprinklers in the slaughtering, curing and packing houses of John P. Squire and Company in Cambridge and Somerville, for the price of $16,644 for the work specified.</p> <p>In the Superior Court Sheldon, J. gave and refused various rulings, and found the lien to be established in the sum of $11,369.60, and interest. At the request of the parties, he reported the case for determination by this court.</p> <p>If all the rulings and findings were right, judgment was to be entered for the petitioner. If there was error in the ruling that upon the findings of the judge the petition could be maintained, judgment was to be entered for the respondent. If the finding as to the cost or value of the work and materials after the filing of the petitioner’s certificate was not warranted by the evidence, or in any other event, such order was to be made as justice might require.</p>

<p>Contract on nine promissory notes declared upon in twelve counts. Writ dated September 18, 1900.</p> <p>In the Superior Court the case was tried before Fessenden, J., without a jury. At the close of the evidence the defendant requested the judge to rule: 1. There is no sufficient evidence of demand and notice of non-payment to entitle the plaintiff to a finding upon the second, third, fourth, fifth, seventh or eighth count of the plaintiff’s declaration. 2. Upon all the evidence in the case the plaintiff cannot recover upon the tenth count in its declaration. 3. Upon all the evidence in the case the plaintiff cannot recover in this action upon the sixth, eleventh or twelfth count in its declaration.</p> <p>The only point argued at the trial upon the first request was whether the notices were sent to the proper place.</p> <p>The judge found for the plaintiff in the sum of $16,092.35, and found for the defendant on the fifth count, on the ground that demand of payment and notice of non-payment were not seasonably made and given, and for the defendant on the sixth, eleventh and twelfth counts on the ground that the note declared on in those counts was lost by the plaintiff.</p> <p>The defendant alleged exceptions, raising the questions stated by the court.</p>

<p>Writ op entry, dated February 13, 1899, under Pub. Sts. c. 161, §§ 66, 67, 128, for certain real estate numbered 73 on Allen Street in Boston, attached by the demandant in an action against Morris and Bernard Silberstein, the Silbersteins having conveyed the premises through their respective wives to the tenant who was the mother-in-law of one of them.</p> <p>At the trial in the Superior Court before Sherman, J., the jury returned a verdict for the demandant; and the tenant alleged exceptions.</p>

<p>Negligence, Employer’s liability. Evidence, OpinionExperts, Materiality..</p> <p>It is the duty of a proprietor of coal teams toward his drivers to- see- that- tlie handle of the gearing of a wagon, used to raise the body of- the-wagon when unloading coal, is suitable and safe, and thereafter by reasonable inspection to ascertain whether it needs repairing, and, if so,, to-see-that such repairs are made.</p> <p>An experienced driver of a coal team does not assume- the risk of injury from a defective welding in the iron handle of the gearing of the wagon used to raise the body of the wagon when unloading coal.</p> <p>It is a question of fact for the jury whether the- driver of" a coal team is negligent in not knowing from the appearance of the iron- handle of the gearing used to raise the body of the wagon in unloading coal, that it is insufficiently welded.</p> <p>It is not the duty of a servant to examine the tools furnished by his master to discover whether there are latent defects in them.</p> <p>R. L. c. 106, § 77, does not require an employee to give notice to his employer of a latent defect of which he has no knowledge.</p> <p>Whether an iron crank or handle is welded properly, is not a matter of common knowledge, and the opinion of experts is competent to show the character of the weld and whether it was done properly.</p> <p>In an action for injuries caused by the breaking of an iron handle insufficiently welded, by way of illustration a small handle, not the one which broke, was put in evidence. Later the plaintiff was allowed to make use of this in framing questions for his experts to show the character of the weld in the handle which broke. Held, that this was allowed properly.</p> <p>In an action by the driver of a coal team against his employer for injuries caused by the breaking of the handle working the gearing by which the body of the wagon driven by the plaintiff was raised in unloading coal, the plaintiff may be allowed to testify, upon the issue of his due care, that he did not appreciate any danger from the condition of the handle, especially after the defendant has argued, that from the appearance of the handle the plaintiff with his experience and as a matter of common knowledge ought to have known that it was defective and unsafe for use.</p>

<p>Bill in equity, filed July 7, 1902, to enforce the specific performance of a contract to convey certain real estate in Lawrence.</p> <p>In the Superior Court the case was heard by Sherman, J. He declined to rule as requested by the defendants, and entered an order for a final decree that Bridget Larkin and Maria Larkin convey their interests in the property to the plaintiff upon payment to them of the sum, of $1,535.49, being eleven twelfths of the price named in the memorandum, after deducting the sum of $25 already paid, and found that there was not sufficient evidence to justify a decree against Martin Larkin. The defendants Bridget and Maria alleged exceptions.</p>

Two actions oe tort, under Pub. Sts. c. 112, § 213, the first by Mancy M. Daniels for injuries to his person and property, and the second by Mary E. Daniels, executrix under the will of Mancy, for his death, from a collision with an engine and cars of the defendant at a grade crossing of the defendant’s railroad in the town of Franklin, called Stoekbridge Crossing, across which Daniels was driving in a covered milk wagon.

<p>Bankruptcy, Suits by trustee, Jurisdiction of referee. Words, “Closed.”</p> <p>In the provision of the bankruptcy act of 1898, § 11, cl. d, that “ suits shall not be brought by or against a trustee of a bankrupt estate subsequent to two years after the estate has been closed ”, the word “ closed ” means properly and finally closed, and the provision is no bar to a suit brought by a trustee in bankruptcy, when the estate of the bankrupt has been reopened under § 2, cl. 8, of the bankruptcy act, upon a petition filed more than two years after the estate has been declared closed.</p> <p>A referee in bankruptcy has jurisdiction of a petition, under § 2, cl. 8, of the bankruptcy act, to reopen the estate of the bankrupt after he has made an order closing it and returned his complete record to the court.</p>

<p> Adoption. Descent. </p> <p>A child, whose father is domiciled in a foreign country, if born in this Commonwealth may be adopted here under the provisions of Pub. Sts. c. 148, (R. L. c. 154).</p> <p>Under Pub. Sts. c. 148, § 7, (R. L. c. 154, § 7,) an adopted daughter inherits as a sister from a son of one of her parents by adoption.</p>

<p>Judgment, When a bar.</p> <p>An action was brought in a municipal court for a balance due for furnishing and setting up a heating apparatus in the defendant’s factory. The answer was a general denial. The defendant then brought an action in the same court against the plaintiff for a breach of a special warranty as to the quality of the heater. In this action also the answer was a general denial. The cases were tried together. In the first action judgment was given for the defendant, and in the second action for the plaintiff in the sum of $1. The plaintiff in the first action appealed to the Superior Court, and paid and satisfied the judgment for $1 against him in the second action. The defendant in the first action then filed in the Superior Court an additional answer setting up the satisfied judgment as a bar. Helot, that the first action was unaffected by the defendant’s claim for damages, there having been no attempt to set it up in recoupment, and that the satisfied judgment in the action for breach of warranty was no bar to a recovery for the unpaid balance of the price of the heater.</p>

<p>Contract on a promissory note for $15,000 against Joaquin K. Souther, as maker, and the Souther Brewing Company, a corporation, and the members of the firm of J. IC. 'Souther and Sons, as indorsers. Writ dated May 15, 1900.</p> <p>At the trial in the Superior Court before Fessenden, J., the individual defendants admitted their liability, and the defendant corporation defended only on the ground that the alleged indorsement by it was unauthorized and had not been ratified. At the close of the evidence the defendant corporation requested the judge to direct a verdict for it on this ground. The judge refused to do so. He ruled and instructed the jury, that the indorsement was unauthorized and that the defendant corporation was not liable unless the indorsement had been ratified, and submitted the question of ratification to the jury with instructions, which were appropriate if there was any evidence of ratification and to which no exceptions were taken. The jury returned a verdict for the plaintiff; and the defendant corporation alleged exceptions.</p>

<p>Tout for personal injuries, including a displaced or detached kidney, alleged to have been caused by a collision of two electric cars of the defendant in one of which the plaintiff was a passenger. Writ dated March 19, 1900.</p> <p>At the trial in the Superior Court before Fessenden, J., it appeared that the accident occurred on September 10, 1899, at about 10.30 A. M. The plaintiff was seated on the third seat from the front of an open car, which was run into by a car from behind as it was entering the subway in Boston. By the force of the collision the plaintiff was thrown forward against the seat in front and then backward against the back of the seat on which she was sitting. The liability of the defendant was admitted at the trial.</p> <p>The jury returned a verdict for the plaintiff in the sum of $15,000; and the defendant alleged exceptions.</p>

<p> Damages■ Wag. </p> <p>A person, whose real estate is entirely cut off for a period of four months from access to the public streets of the city in which it is situated by the construction of a highway on which it does not abut, to which he owns a legal right of access from his lot, has suffered a special and peculiar damage for which he is entitled to compensation.</p>

<p>Deed, Construction.</p> <p>A man eighty years of age having real estate worth about $6,000, conveyed by deed to his housekeeper, in consideration of her past and future services, “ all tlie residue of my property real and personal that has not otherwise been signed to her for like services, which may be remaining in my name and ownership at time of my death." Held, that the deed was good as a covenant on the part of the grantor to stand seised of the real estate belonging to him at the time of its execution, to his own use for life, or to the use of such persons as during his life lie might appoint, and after his death to the use of the granteé in fee, except so far as the power to shift the use should have been exercised.</p>

<p> Gift. Assignment. </p> <p>One who was considering suicide, but had not fully determined to commit it, placed in an envelope an agreement under which a certain person was bound to pay him §1,000 a month during the period of a certain lease and an order to that person to pay §500 of each monthly payment to the plaintiff. He then sealed the envelope and placed it in the hands of a third person with a direction written upon the envelope that it was to be opened by the depositary or by the plaintiff “ only by my direction or on my death.” Two days later he committed suicide. Held, that there was no gift to or for the plaintiff either inter vivas or causa mortis, as there was no delivery, the depositary holding the papers for the deceased and not for the plaintiff, and that for the same reason the transaction could not take effect as an assignment. The questions whether such property could be the subject of a gift causa mortis and whether a gift lawfully could be made in contemplation of suicide were not considered.</p>

<p>Tort for personal injuries from being run down by an engine and tender of the defendant while the plaintiff was walking on the track of the defendant at the Reformatory Station in Concord. Writ dated January 15, 1901.</p> <p>In the Superior Court Fox, J. ordered a verdict for the defendant ; and the plaintiff alleged exceptions.</p>

Tort for the loss of a portion of one of the fingers of the plaintiff’s right hand from being caught between two gears of a sterilizing machine on which the plaintiff was working under the orders of a superintendent in the defendant’s brewery in Lowell. Writ dated November 16, 1901. At the trial in the Superior Court before Aiken, J., the jury returned a verdict for the plaintiff in the sum of $600.

<p>Bill in equity, filed January 28, 1903, by a firm of confectioners, proprietors of an unpatented machine for pulling candy, for an alleged violation of their rights by the malicious acts of the defendant.</p> <p>A petition and bond, for removal of the case to the Circuit Court of the United States for the District of Massachusetts, were filed by the defendant in the Superior Court on January 30, 1903, and were approved by that court. From the order approving the petition and bond the plaintiffs appealed.</p>

<p>Corporation. Agency. Practice, Civil, Exceptions.</p> <p>A letter dictated by the general manager of a corporation to the stenographer of the corporation, who also is its secretary, and who wrote out and signed it in typewriting in the name of the corporation, as she did the other letters sent by the manager, properly is admitted in evidence against the corporation, if the manager had authority to write it.</p> <p>In an action by a real estate broker against a corporation for a commission for procuring a purchaser for certain land of the defendant, the plaintiff offered in evidence a letter from the general manager of the defendant admitting that the plaintiff was entitled to a commission on the sale of the land. The evidence was admitted against the defendant’s objection. It appeared, that the directors of the corporation voted to employ the writer of the letter as managing director of the sales stores of the corporation, and also that they voted to sell the lot of land in question to the purchaser. The president of the corporation testified that lie had never objected, nor ever had known of any objection being made to anything the managing director did for the corporation in the management of its business. Held, that the letter was admitted properly; that the jury were warranted in finding that the corporation was content to leave the management of its entire business, with all matters incidental thereto, to its general manager, that the employment of a,broker to make the sale was incidental to the sale, and that the ratification of the sale by the directors ratified everything incidental to it, no vote to authorize the employment of a broker being necessary.</p> <p>No exception lies to the charge of a presiding judge upon a matter which was not pointed out to him by the excepting party at the trial so that he could have the opportunity of correcting any error in the presence of the jury.</p> <p>No exception lies to the refusal of a judge to pick out a single piece of evidence and instruct the jury what its effect' would be standing alone.</p>

<p>Conflict of Laws. Child, Statutory legitimation.</p> <p>The statutory legitimation of a child by acknowledgment without marriage depends on the law of the domicil of the father when the statute was passed and the acknowledgment was made.</p> <p>The acknowledgment of an illegitimate child without marriage with the mother, which by a statute of the domicil of the child in another State where the acknowledgment took place would make the child legitimate, cannot have that effect if the domicil of the father both when the statute was passed and when the acknowledgment took place was in this Commonwealth, the laws of which require marriage in addition to acknowledgment in order to effect legitimacy.</p>

<p> Partnership. Equity Pleading and Practice. </p> <p>Where persons associate themselves together to carry on a joint business for their common benefit, to which each contributes property or services, and the profits arising from the business are to be shared among them, a partnership may be found to exist.</p> <p>In a suit in equity by an alleged partner for a partnership accounting, it is no defence that the agreement by which the plaintiff was admitted into the partnership did not fix the share lie was to receive, where the parties agree at the trial that the plaintiff, if entitled to recover, is to receive a certain sum.</p> <p>A plaintiff in equity may maintain a supplemental bill, either-as such or as an amendment to his original bill, which brings into the case facts which have arisen since the original bill was filed, and which refer tó and support the matters already before the court. Thus of a supplemental bill alleging that after the filing of the original bill, for an accounting among partners, the parties entered into an oral agreement as to a partnership accounting between the plaintiff and the defendants, and praying for the enforcement of that agreement.</p>

Contract for a balance alleged to be due on a promissory note made by the defendant and payable to the plaintiff or his order, the Natick Five Cents Savings Bank being summoned as trustee, and John J. Scott appearing as claimant. Writ in the First District Court of Southern Middlesex dated April 18, 1901.

<p>Indictment, found and returned August 10, 1901, under St. 1899, c. 409, § 24, (R. L. c. 218, § 40,) for larceny in obtaining by false pretences the sum of $2,500 from the New York Central and Hudson River Railroad Company in settlement of a claim for damages from a collision on the road of that company.</p> <p>In the Superior Court the defendant was tried before Bell, J., and was found guilty on November 5, 1902. The defendant alleged exceptions, which were allowed by the judge on February 24,1903. There also was pending a motion for a new trial, and on March 3, 1903, the judge declared his action upon this motion to be as follows :</p> <p>“ The defendant having filed a motion for a new trial on the ground that the verdict is against the evidence, I am of opinion and find that it was not proved beyond a reasonable doubt that the defendant did not receive a substantial injury in the collision at East Buffalo which would sustain an action against the railroad. I find that there was evidence upon which the jury would be justified in finding against the defendant as to all the other elements of the crime of which the defendant was found guilty as alleged in either of the specifications including the finding that the injuries received by. the defendant in the collision were not serious. I am in doubt whether this deficiency of evidence upon the matter of substantial injuries requires me to grant the motion and I reserve that question for the Supreme Judicial Court on my finding stated above and the facts and evidence stated in the hill of exceptions filed in the case. If my finding requires that the verdict should be set aside, although • there was sufficient proof before the jury that substantial injuries were wilfully, fraudulently and intentionally represented to be serious injuries, a new trial is to be granted, otherwise the motion for a new trial is to be overruled.”</p>

<p>Libel. Evidence. Fire Marshal. Practice, Civil, Exceptions. Words, “Refused.”</p> <p>In support of the defence of truth to an action for libel, it is sufficient for the defendant to show that the statements in the alleged libel were true in substance.</p> <p>If the answer of a witness to a question calling for a categorical answer is stricken out as not responsive, but to a subsequent question the witness answers that the explanation stricken out conveys his meaning better than either yes or no, this restores his first answer as evidence.</p> <p>A statement in an alleged libel, that an insurance company “ refused ” to insure the plaintiff’s property again, is proved by evidence that the representative of the insurance company had given orders in the office not to take any more insurance for the plaintiff, without proof of a request for further insurance on the part of the plaintiff.</p> <p>' A statement in an alleged libel that an insurance company refused the plaintiff insurance and considered his property “ peculiarly susceptible to fire ”, without an innuendo in the declaration to that effect is not to be treated as a statement that tlie plaintiff intentionally burned his property for the purpose of obtaining insurance, especially if this point was not taken at the trial.</p> <p>The provision of St. 1896, c. 303, that the record of a fire marshal, including his statement of the origin of the fires, “ shall at all times be open to public inspection ”, makes it a public record and its publication privileged.</p> <p>In justification of an alleged libel a defendant put in evidence an envelope produced from the fire marshal’s office on the back of which was written an entry after each of the words, Number, Name, Location, Date, Time and Cause, and under the word “ Remarks ” was entered an expression of opinion as to the origin of the fire. This memorandum was undated and unsigned, and it did not appear in whose handwriting it was. The fire marshal’s stenographer testified that the memorandum on the outside of the envelope was the finding of the fire marshal in the case in question and the only finding of the fire marshal in that ease. Held, that the memorandum was identified sufficiently as the record of the fire marshal under St. 1896, c. 303.</p> <p>A fair statement in a newspaper of the proceedings in a municipal court on a complaint against a certain person and of the record of the Superior Court that no bill was found against him by the grand jury is privileged. And if the publication states that the case was nol pressed, instead of stating that no bill was found by the grand jury, this does not make the account of the proceedings unfair, as each signifies a disposition of the case without a final adjudication on the merits, and the substance of the statement is the same whether the result was brought about by the action of the district attorney or of the grand jury.</p> <p>Where in an action for libel the record of a police inspector had been admitted improperly against the plaintiff’s objection, but was identical with a record of a municipal court which also had been admitted and was admissible, it was held that the plaintiff could not have been harmed and had no ground for exception. Under our statutes allowing recovery for the publication of libellous words although true if actual malice is proved, in a case where it does not appear that the plaintiff made no contention of actual malice and where all the evidence is not reported, an exception to the admission of evidence showing the defendant’s sources of information will not be sustained.</p>

<p>Municipal Corporations. Way. Practice, Civil, Parties.</p> <p>Under St. 1884, c. 226, (St. 1902, c. 503,) authorizing a city or town to agree in writing with the owner of land taken for a way, to assume any betterments assessed upon the remainder of his land, if “ on such terms as may be agreed upon” he shall release to the city or town all claims for damages on account of the laying out and construction of the way, a city as part of its agreement lawfully may undertake to make a cash contribution to the landowner sufficient to pay whatever sewer assessments may be laid upon his land, and to take care of all surface water.</p> <p>A wife holding the legal title to a tract of land owned and paid for by her husband, made an agreement in writing with the city in which the land lay, to release damages for the taking of a portion of it for a highway in consideration of an agreement on the part of the city to assume betterments, pay for sewer assessments and take care of all surface water. The wife and husband sold and conveyed this land and took back a mortgage on it as part of. the consideration. The purchaser made default, and to avoid foreclosure proceedings conveyed the land to a third person solely for the benefit of the original beneficial owner. The city broke its agreement to pay sewer assessments and take care of the surface water, and the wife of the owner sued the city on its contract with her for the benefit of her husband. Held, that the action could be maintained. '</p>

<p>Bills and Notes. Evidence, Of general repute.</p> <p>The rule, that a failure to present a note for payment and to give notice of its dishonor, thereby discharging an indorser, operates as payment, does not apply to a note given as collateral security and not as conditional payment.</p> <p>If the maker of a promissory note pledges a note of another person for a larger amount as collateral security, and the pledgee fails to demand payment of the note held by him as collateral or to give notice of its dishonor, thereby discharging an indorser, this cannot be set up as payment by the maker of the first note when sued upon it, although he can show in recoupment the damages suffered by him from the negligence of the plaintiff in failing to present the pledged note or to give notice of its dishonor.</p> <p>The holder of a promissory note as collateral security cannot explain his failure to demand its payment when due or to give notice of its dishonor, by showing that tlie maker of the pledged note was reputed in tlie community to be of no financial ability, but the presiding judge in his discretion may admit such evidence of general repute for the purpose of corroborating previous testimony of tlie pledgee that the pledgor had told him that he did not know where the maker of tlie pledged note lived and that it was not necessary for the pledgee to take any further trouble to find him as tlie pledgor would very shortly pay the note for which tlie pledged note was held as collateral, this being evidence that presentment and notice of dishonor ha'd been waived.</p>

<p>Contract on a promissory note dated April 7, 1899, for $2,000, payable in two years from its date with interest at the rate of six per cent per annum, and bearing on its face United States revenue stamps to the amount of forty cents cancelled “4/7/99/ W. H. B.” Writ dated July 1, 1901.</p> <p>At the trial in the Superior Court before Maynard, J., the defendant asked the judge to rule that the evidence as to the affixing of the stamps and their cancellation by the plaintiff proved a material alteration of the note by the plaintiff and that he could not recover thereon. The judge refused so to rule. The defendant then asked the judge to rule that the note was not admissible in evidence and should be stricken from the minutes on the ground that since the note had been received in evidence it had been shown that it had been delivered originally without stamps and was accordingly inadmissible by reason of the provisions of U. S. St. 1898, c. 488, entitled, “ An Act to provide ways and means to meet war expenditures and for other purposes.” It appeared that the note in suit was given in renewal of a note dated April 7,1898, and the defendant offered to prove that at the time the last named note was given the conversation took place which is stated in the opinion of the court. The judge excluded the evidence. The defendant contended that the excluded evidence tended to show, that the note as between the plaintiff_ and the defendant was an accommodation note without consideration and that the plaintiff was not a holder in due course under B. L. c. 73, §§ 45, 69. The judge ordered a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Indictment found and returned in the Superior Court for the County of Middlesex on September 25, 1902, for unlawfully keeping within the limits of the town of Arlington one hundred and seventy-one swine each more than four months old, in violation of section two of article ten of the by-laws of that town.</p> <p>At the trial in the Superior Court before Lawton, J., the judge overruled a motion to quash the indictment. It was proved that the defendant kept more than one hundred and seventy-one swine as alleged, in addition to five swine and exclusive of ten offspring less than four months old of the five swine. It was proved and admitted that the town' of Arlington had, in the years 1901 and 1902, a duly elected and qualified board of health. The chief of police of the town, called as a witness by the Commonwealth, testified on cross-examination, that he was on the defendant’s, premises on September 25, 1902, and counted the number of swine named in the indictment kept there by the defendant, that the premises were cleanly, and the business there conducted by the defendant in keeping swine was conducted in the best possible manner. The defendant offered similar evidence, which was excluded by "the judge. The judge refused to make the rulings requested by the defendant. He instructed the jury that as matter of law the by-law was a reasonable one, and that if they found that the defendant had violated it they should find him guilty.</p> <p>The jury returned a verdict of guilty, and the judge overruled a motion in arrest of judgment. The defendant alleged exceptions, raising the questions stated by the court.</p> <p>The by-law in question was approved by the Superior Court on November 5, 1901, and was as follows: “No person shall keep any swine within a distance of fifty feet of any public way or place, or within a distance of one hundred feet of any dwelling-house not his own, or within a distance of twenty-five feet of his own dwelling-house. No person shall, after January 1st, 1902, keep within the limits of the town moré than five1 swine, exclusive of offspring less than four months old of said five swine. Whoever violates any of the provisions of this section shall be punished by fine not exceeding twenty dollars for each offence.”</p>

<p>Contract and tort, by a trader engaged in the business of buying and selling coal and wood in that part of Boston called Charlestown, against a bank for refusing to pay certain checks of the plaintiff, thereby injuring his credit. Writ dated February 25,1898.</p> <p>At the trial in the Superior Court before Richardson, J., the jury returned a verdict for the plaintiff in the sum of $25,000, of which he was required by the judge to remit all in excess of $10,000. The defendant alleged exceptions.</p>

<p>Appeal, from a decree of the Probate Court of the County of Suffolk, disallowing in part the fourteenth and fifteenth accounts of the surviving trustee under the will of Moses Day, late of Boston.</p> <p>It appearing that the appellant had died after the entry of the appeal, his executors were allowed to prosecute the appeal. The case came on to be heard before Hammond, J., who found that the testimony of all the witnesses was true in all material matters, and at the request of the parties reserved the ease for determination by the full court.</p> <p>The details of the investments in the bonds and stock of the Atchison, Topeka and Santa Fé Railroad Company, described by the court, were as follows:</p> <p>Jan. 15, 1883. $2,000 six per cent bonds........$2,000.00</p> <p>Dec. 11,1885. 5 shares of stock .... $128 12</p> <p>Reduced by sale of rights . 24.10 $104.02</p> <p>Dec. 24,1886. 45 shares of stock . . . $4,246.88</p> <p>Reduced by salé of rights . 97.65 4,149.23</p> <p>Feb. 17, 1887. 6 shares of stock .... $593.50</p> <p>Reduced by sale of rights . 13.02 580.48</p> <p>Dec. 28, 1887. 2 shares of stock .... $185.88</p> <p>Reduced by sale of rights . .94 184.94</p> <p>Total stock .... 5,318.67</p> <p>June 18,.1887. $5,000 collateral trust bonds 4,995.00</p> <p>$12,313.67</p>

<p>Bill ie equity, filed May 15, 1901, to restrain the foreclosure of a mortgage alleged to have been paid in full.</p> <p>The Superior Court made a decree overruling exceptions to a master’s report, confirming the report and ordering that the bill be dismissed. The plaintiff appealed.</p> <p>The case was submitted on briefs at the sitting of the court in December, 1902, and afterwards was submitted on briefs to all the justices.</p>

<p>Contract for the price of lumber, furnished by the plaintiff to one Thomas Griffiths, a contractor, and used in the reconstruction of the defendant’^ house at Onset, the bill for which it was alleged that the defendant upon a written order of Griffiths agreed to pay. Writ in the Municipal Court of the City of Boston dated April 18, 1901.</p> <p>The answer contained a general denial and set up the statute of frauds.</p> <p>On appeal to the Superior Court the case* was tiled before Pierce, J. The plaintiff testified that, after all the lumber which he had furnished had been put into the house, he had several conversations with the defendant, the substance of which was that he was afraid that Griffiths would not pay for the lumber and that he proposed to trustee the defendant, and that the defendant said to him that he had a perfect right to trustee but that it would make him angry, and that he then proposed to him a plan by which the plaintiff was to get his bill approved by the contractor, Griffiths, and then present it to the defendant, who would pay it at the time of the settlement with Griffiths provided there was money enough left after the payment of labor liens; that the plaintiff then went to Griffiths and presented the bill to him, and Griffiths wrote the word “Approved” on the bottom of the bill, agreeing to let the defendant pay the plaintiff the amount of the bill at the time of the settlement; that being informed of this the defendant said to the plaintiff, “ Very well, Mr. Griffin, I will pay you now in about thirty days, when we have our figuring up.” The plaintiff further testified, that the amount of the bill which the defendant was to pay was $1,152.95; and that after he got the bill approved, he looked to the defendant and not to Griffiths for payment. The plaintiff further testified that about a month after this he came to Boston and went directly to the defendant’s office to collect his bill, and that the defendant said: “ I am very glad you came in. Do you know, that affair of mine down at East Wareham has taken a very funny turn. -I find instead of my owing the contractor anything, the contractor is owing me something like $1,400. Of course as there is nothing coming to the contractor I could not pay your bill.” Later, being sued by Griffiths, the defendant paid Griffiths $1,000 in settlement, and notified the plaintiff that he had done so. The plaintiff further testified in regard to the promise of the defendant: “ He promised to pay the amount of my bill, or pay to the amount of my bill what be had in his possession after what labor liens there were were paid. He was to pay all the money left in his hands to me.” Much of the plaintiff’s testimony was contradicted by that of the defendant.</p> <p>At the close of the evidence, the defendant requested the judge to rule that upon all the evidence in the case as a matter of law the plaintiff was not entitled to recover. The judge refused to rule as requested, and submitted the case to the jury “ upon instructions not excepted to.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $1,349; and the defendant alleged exceptions.</p>

<p> Bond. Executor. </p> <p>An action on the bond of an executor may be brought under R. L. c. 149, § 20, by a creditor of the deceased to enforce a judgment against the executor, without obtaining authority- from the Probate Court.</p> <p>It is no bar to an action on the bond of an executor under R. L. c. 149, § 20, by a creditor of the deceased to enforce a judgment against the executor, that after the bringing of the action a decree of probable insolvency of the estate was made by the Probate Court appointing commissioners to receive the claims of creditors. Newcomb v. Goss, 1 Met. 333, explained.</p> <p>In an action on the bond of an executor under R. L. c. 149, § 20, by a creditor of the deceased to enforce a judgment against the executor, semble, that on a representation of insolvency of the estate the defendant is entitled to have the case continued until it can be ascertained whether the proceedings under that representation will result in an adjudication of insolvency and an order of distribution or not.</p>

Information by the Attorney General, filed January 30, 1903. The case came on to be heard before Hammond, J., who by agreement of counsel reserved it on the information, answer, replication and an agreed statement of facts for the consideration of the full court, such order to be made as law and justice might require.

<p>Equity Jurisdiction, Bill for instructions. Devise and, Legacy, Construction. Equity Pleading and Practice, Parties.</p> <p>An executor cannot maintain a bill for instructions as to what his duties will be upon the happening of a future event.</p> <p>An executor has nothing to do with a legacy to be paid out of the proceeds from the sale of real estate devised by the will, that being a charge on the real estate. This is not changed by a provision that the legacy shall be received “from my estate or my said executors,” if the executors are the persons to whom the real estate is devised.</p> <p>A testator devised his real estate to two persons, and having provided for the use of a certain portion of his real estate for five years and thereafter for its sale and the disposition of the proceeds, and having given his furniture to the two devisees, provided ■ that “ the whole of the remaining estate ” should go to the survivor of the two devisees. It appeared that there was “a small amount of personal property ” other than furniture. Held., that the executor should retain the personal property other than furniture until the death of one of the devisees, and then deliver it to the survivor. Whether the testator died intestate as to tile income of this small amount of property or whether the income was to be accumulated for the benefit of the survivor of the devisees under the provision that “the whole of the remaining” property was to go to the survivor, qucere. Whether, in a bill by an executor for instructions, joining the next of kin as a defendant in the capacity of a legatee makes him a party as the only next of kin if it does not appear by the record that he is such, qucere.</p>

<p>Petition, filed February 5, 1903, under R. L. c. 25, § 100, by more than ten taxable inhabitants, to restrain the board of public vvorks of the city of Lynn from employing Claude A. Magill as a deputy street commissioner at a compensation exceeding $100 a month, and to enjoin the treasurer of that city from- paying any person a greater compensation than $100 per month for services as deputy street commissioner.</p> <p>In the Superior Court the case was heard by Sheldon, J., who at the request of the parties reported it upon the petition and answers for determination by this court, such decree to be entered as justice might require.</p> <p>By the allegations of the petition as admitted by the answers, it appeared, that on February 11, 1902, the board of public works of the city of Lynn appointed Claude A. Magill at a salary of $100 per month, to work for the city as a subordinate in the street department, with the title of deputy street commissioner ; that on June IS, 1902, the board passed the following vote: “ Voted that commencing with the next pay rolls, the compensation of the deputy street commissioner be one hundred and twenty-five dollars per month ”; that Magill continued in the employ of the city in that capacity up to the time of the filing of the petition; that on January 13, 1903, the city council of Lynn passed the following ordinance: “An ordinance to fix the salary of the deputy street commissioner : Be it ordained by the city council of the city of Lynn: Section one. The salary of the deputy street commissioner, a subordinate in the employ of the board of public works, shall be twelve hundred dollars per annum. Section two. This ordinance shall take effect on its passage and is intended as an exercise of the right given to the city council by the charter of the city of Lynn, to enlarge, alter or diminish the powers of the board of public works by ordinance.”</p> <p>The material portions of the revised charter of the city of Lynn, St. 1900, c. 367, were set forth in the petition and are referred to by the court.</p>

<p>Bill in equity, filed in the Probate Court for the County of Suffolk on Januarjr 3, 1902, by Jacob Wirth, son of Jacob Wirth, deceased, Elizabeth Maria Wirth, a minor, daughter of the last named Jacob, and George Fred Williams as guardian of Elizabeth Maria Wirth and also as executor under the will of Maria Wirth, deceased, widow of the elder Jacob, against Henry R. Wirth, administrator de bonis non with the will annexed of the estate of Jacob Wirth, to free from trust certain property belonging to that estate.</p> <p>The will of Jacob Wirth contained the following provisions:</p> <p>“ I give to my wife, Maria and my children who shall be living at my death, such part or interest in my estate real and personal, as they would be entitled to at my death under the laws of this Commonwealth relating to the estates of intestate persons, saving as hereinafter set forth.</p> <p>“ Whereas I am now engaged in a profitable business, of which I desire my estate to have the benefit after my death, it is my will and I hereby direct my executrix, or her successor or successors to continue the business in which I shall be engaged or interested at the time of my death, whether alone or in partnership ; to use such portion of the funds of the estate as may be necessary to conduct such business. And such business or any part thereof shall be continued so long as the same shall be of profit to the estate, or the executrix upon some emergency shall be obliged to discontinue the same; and I authorize my executrix to employ persons connected with said business and if it shall prove desirable by giving a share or shares of the profits of said business as compensation. And my executrix or her successor or successors shall not be called upon to settle said estate or to distribute any portion of the principal thereof so long as she or they see fit to continue the business as aforesaid, provided always that it shall not be made to appear to the Court that such business is being conducted at a loss to the estate or those interested therein; but the profits arising out of the estate may be administered and distributed as they shall accrue according to the interests of the legatees under this will as above provided.”</p> <p>The testator then provided for a trust in his real estate to continue during the life of his wife and until his youngest child should come of age. No trustee was named for the real estate trust. He appointed his wife executrix without sureties.</p> <p>Maria Wirth, the testator’s widow, by her will left all her interest in the business to her two children above named. She also by her will requested that Henry R. Wirth, the defendant, might be “ appointed executor of the will of my late husband in my place.”</p> <p>The defendant demurred to the bill on the grounds, that the plaintiffs had an adequate remedy at law, and that it appeared by the bill that it had reference not to the termination of a trust but to the administration of an estate and an accounting for that estate and a distribution thereof, which was within the probate and not the equity jurisdiction of the Probate Court.</p> <p>In the Probate Court Grant, J., overruled the demurrer, and the defendant appealed. Thereupon the defendant answered, and the case proceeded to a hearing. Grant, J., made the following finding: “ I find that the plaintiffs are the absolute owners of the business in question, and as such are entitled to have it conveyed to them by the administrator with the will annexed free from his control. Otherwise the trust is invalid for the reason that it purports to continue forever. So, on either assumption, the administrator Wirth, should not be allowed to retain the estate against the wishes of the plaintiffs.” He made a decree ordering the business to be transferred to the plaintiffs in accordance with the prayer of the bill, and the defendant appealed.</p> <p>The defendant still insisting on his demurrer, the two appeals came on to be heard before Loring, J., and by agreement of parties were reserved by him for determination by the full court, upon the bill, demurrer, answer, a statement of agreed facts and a transcript of certain evidence taken in the Probate Court which it was agreed should be treated as though it had been taken before a justice of this court. The material facts are stated by the court.</p>

<p>Will. Evidence, Experts. Practice, Civil.</p> <p>On the trial of issues relating to the soundness of mind of a testator it is right for a judge, who has given proper instructions as to what constitutes soundness and unsoundness of mind, to refuse to instruct the jury, that “ weakness of the mind arising from advanced age in connection with causes suggested in this case is progressive and permanent in character,” and that “it exists in the mind itself and therefore it is, that weakness of mind at the time of making the will may be inferred from weakness subsequent as much so as imbecility of mind under similar circumstances,” as these are matters of fact.</p> <p>The decision of a presiding judge that a witness called as an expert has the necessary qualifications is not to be reversed unless clearly erroneous.</p> <p>The decision of a presiding judge that a witness is qualified as an expert to testify to the sanity of a testator will not be held to be erroneous, if the witness had been in general medical practice for more than twenty-one years, had held a position in the hospital at Blackwell’s Island, had been connected for twelve years with a hospital in Haverhill and had been for ten years medical examiner of the county of Essex, and testified that it would be safe to say that in the course of his practice he had treated a hundred insane persons and that possibly he might have treated a great many more.</p>

<p>Bill IN equity, filed December 9,1902, to restrain the city of Fall River, the Old Colony Railroad Company, and Clarence W. Blakeslee and Sons, contractors, from committing repeated and threatened trespasses on the plaintiff’s wharf and property abutting on Central Street in Fall River, and from carrying on work in Central Street in front of the plaintiff’s premises alleged to be unauthorized.</p> <p>The case came on to be heard before Loving, J., who reported it for determination by the full' court without passing on the constitutional questions involved.</p> <p>The following facts appeared by the report:</p> <p>The plaintiff, a corporation organized under the laws of the State of Rhode Island, is a common carrier operating a line of steamboats from Fall River to other points. It owns certain valuable wharf and dock property extending five hundred feet along the north side of Central Street.</p> <p>Under St. 1890, c. 428, and acts in amendment thereof and in addition thereto the mayor and aldermen of the city of Fall River filed in the Superior Court a petition for the abolition of certain grade crossings in Fall River. Thereupon commissioners were appointed who subsequently filed their report in the Superior Court. Ho further action was taken upon the report in the Superior Court; but St. 1900, c. 472, in reference thereto was passed by the Legislature. On January 1, 1902, the commissioners’ report and the plans and statement referred - to in St. 1900, c. 472, were filed and recorded in the registry of deeds of the Fall River district of the county of Bristol.</p> <p>It was provided in the report that the grade crossings at Pond and Water Streets were discontinued. The grade of Central Street was greatly altered and was raised in front of the plaintiff’s premises from nothing.at Pond Street to about nine feet near the plaintiff’s easterly line.</p> <p>The defendants Blakeslee and Sons were engaged under a contract with the Old Colony Railroad Company in doing the work prescribed in the commissioners’ report, and in accordance therewith had begun to raise the grade of Central Street in front of the plaintiff’s property. The defendants closed the street to public travel with teams, pulled up the gutters and curbing, destroyed the guard walls on the south side of the street and intend to proceed with the work relating to Central Street prescribed in the report. The ¡ closing of the street was done in accordance with the provisions of the report after a vote of the city council of Fall River and the publication of a notice to that effect in the four daily papers, published there.</p> <p>The only access to the plaintiff’s wharf had been theretofore by way of Pond Street and Water Street (which by the report had been discontinued but were not to be closed during the work on Central Street) and Central Street. The justice found and ruled that the plaintiff suffered such special and peculiar damage by the obstruction of Central Street in front of its property and the threatened work thereon as to give it a private right of action therefor, if such obstruction and work were illegal.</p> <p>“In raising the grade of Central Street, according to the commissioners’ report, it will be necessary to tear down the present retaining walls and build new ones. The present bridge in Central Street is to be removed and a new one built. In doing all this work it will be necessary and more convenient for and it is the intention of the defendants, Blakeslee and Sons, to go on the plaintiff’s land and temporarily occupy and use, for coffer dam and other purposes, a strip of the plaintiff’s land between the creek and the building marked ‘ store ’ on the plans next adjoining the north side of Central Street from two feet to six feet wide, and a strip around the abutments of the new bridge from four to eight feet wide. The work proposed cannot be done conveniently without such use and occupation, and such use and occupation is necessary for doing said work. No provision for such use and occupation is made in the commissioners’ report, unless the fact that the work therein ordered cannot be done without such use and occupation constitutes an implied taking of suclp. rights to use and occupy.”</p> <p>The evidence showed that lands and rights were acquired to a considerable extent after the passage of the act of 1900 by purchase, and that, in June, 1902, the defendants Blakeslee and Sons, under a contract with the defendant railroad company, began the work of construction and change of streets and railroad tracks as required by the report and the act of 1900, and the work had since been carried on continuously, and was so being carried on at the time of the hearing for a distance of about four miles, and that between $350,000 and $400,000 had been expended in the course of the work and the purchase of land up to the time of the hearing. Work had been done to within about three quarters of a mile on the north and to within about one half a mile on the south of Central Street. The total estimated cost of carrying out the report of the commissioners was from $1,500,000 to $2,000,000.</p> <p>Evidence also was offered tending to show that the work of abolishing grade crossings in Fall River was one general scheme, and that the work on Central Street was a part of the scheme.</p> <p>The plaintiff contended that the defendants had no right to enter upon, occupy or use its premises for the purposes above stated, and moved for an injunction pendente lite restraining such trespasses. The plaintiff further contended that the work on Central Street was illegal because it was beyond the power of the commissioners to order it for the following reasons: that the St. 1900, c. 472, was unconstitutional, that the report had never been validly confirmed, and that the St. 1890, c. 428, as well as St. 1900, c. 472, were in violation of the Constitution of the United States.</p> <p>On the hearing for the temporary injunction the justice ordered that no injunction pendente lite should issue if either of the defendants gave a bond with sufficient sureties to the plaintiff, conditioned as required by the justice. If no such bond was filed he directed an injunction pendente lite to issue as prayed for. Thereafter such a bond was filed by Blakeslee and Sons in the sum of $2,000 and was approved by the justice, and he denied the issuing of a preliminary injunction and ordered that the bill be retained for assessment of damages.</p> <p>The plaintiff stated that it did not assent to the bond or care to be heard thereon on the ground that it wished not to waive any right it might have to protect its property from trespass by action at law or otherwise.</p> <p>The ground on which the plaintiff contended that St. 1890, c. 428, and acts in amendment thereof, as well as St. 1900, c. 472, are in violation of the Constitution of the United States was as follows: “The plaintiff is not to be deprived of its property without due process of law. An essential element of due process of law is a provision for such notice as to make it reasonably certain that the owner of the property taken will be apprised of the taking. No notice was provided in the act of 1890 or in the act of 1900, except the record in the registry of deeds. This is not notice to foreign landowners requisite to constitute due process of law.”</p> <p>The case was argued at the bar in January, 1903, before Hnowlton, C. J., Morton, Hammond, Boring, and Braley, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Contract against the alleged surviving partner of one Andrew W. Mitchell upon an account annexed for work performed in making models. Writ in the Municipal Court of the City of Boston dated June 11,1901. ,</p> <p>On appeal to the Superior Court the case was tried before Aiken, J., without a jury. The plaintiff was a pattern and model maker. Mitchell had invented several devices for which the plaintiff had made models and patterns. The defendant was a clerk in the office of the United States inspectors of steamboats at the Post Office Building in Boston, and a neighbor of Mitchell, and from time to time had advanced to him small sums of money, amounting in all to about $500, to perfect a device of Mitchell to be used on electric cars. The question was whether these advances had been made by the defendant as a creditor or as a partner of Mitchell. The defendant had promised orally to pay the plaintiff. The case had been referred to an auditor who ruled that the facts found by him did not constitute a partnership between Mitchell and the defendant, and found for the defendant. The evidence on the part of the plaintiff consisted of the auditor’s report, an affidavit of testimony of one Drexel, the testimony of the plaintiff and of the plaintiff’s son. The defendant testified in his own behalf.</p> <p>At the close of the evidence, the defendant requested the judge to rule that the evidence did not disclose any partnership between the defendant and Mitchell, and that on all the evidence in the case the verdict should be for the defendant. The judge refused to rule as requested and found that upon all the evidence the defendant was a partner of Mitchell. He found for the plaintiff in the sum of $245.06; and the defendant alleged exceptions.</p>

<p>Petition, filed February 25, 1901, for registration of title under the land registration act, St. 1898, c. 562, R. L. c. 128, to a parcel of land on the corner of Denver and Central Streets in the town of Saugus, known as the Salmon Snow place and being a portion of the real estate formerly owned by William EL Twiss, late of Saugus, deceased. The respondents in their answer denied that the petitioners were seised in fee simple of the premises described in the petition, for the reason that as a matter of law the second clause of the will of William H. Twiss did not empower Sarepta Twiss, grantor of the petitioners, to give a good and valid deed of the premises.</p> <p>The case was tried before Davis, J. The second clause of the will of William IE. Twiss is quoted by the court.</p> <p>The property in question, together with other land, had been conveyed to the testator in January, 1881, by Nancy Snow, the mother of the testator’s first wife, and the great grandmother of the defendant Dora S. Jones. The testator and his second wife, Sarepta Twiss, were married in 1858. In 1878 Nancy Snow, then a widow, who had for some years lived alone and had received much care from the testator and Sarepta, having become old and feeble was brought by the testator to his own home and there cared for by the testator and Sarepta until 1887, when she died at the age of eighty-seven years, devising all her property, to the appraised value of $1,526, to William H. Twiss, with the exception of a legacy of $50 to her grandson, the father of Dora S. Jones.</p> <p>The probate inventory of the estate of William H. Twiss showed real estate to an appraised value of $5,985, and personal estate to an appraised value of $12,793, the premises in question being appraised at $1,900.</p> <p>On January 30,1901, the premises were conveyed to the petitioners by Sarepta Twiss by a full warranty deed in common form.</p> <p>On the foregoing facts the judge ruled, as matter of law, first, that under the second clause of the will of William H. Twiss, his widow, Sarepta Twiss, took a life estate in the premises in suit, with a power of disposing of the same in fee simple; and second, that the deed from her to the petitioners of January 30, 1901, was a valid exercise of such power; and filed a decision ordering a decree for the petitioners. At the request of the respondents, he reported the case upon the foregoing facts, rulings, and decision, for determination by this court.</p> <p>If the rulings were right, a final decree was to be entered for the petitioners as ordered. If the rulings were wrong, a final decree was to be entered dismissing the petition.</p>

<p>Contract, Performance and breach. Frauds, Statute of. Evidence, Extrinsic to vary writings.</p> <p>If a grantor of land sells a lot according to a plan showing certain streets over his land adjoining the lot, and agrees that if the grantee will buy the lot and build a house on it he will have the proposed streets constructed, a failure to do so will make him liable in damages to the grantee who buys the lot and builds a house on it.</p> <p>An oral agreement made by a grantor of land, to construct certain streets on his remaining land as shown on a plan if the grantee will buy a certain lot and build a house on it, is not a contract for the sale of land or of any interest in land, and, where there is nothing in its terms to show that it could not be performed within a year, is not within the statute of frauds.</p> <p>An oral agreement made by a grantor of land, to construct certain streets on his remaining land as shown on a plan if the grantee will buy a certain lot and build a house on it, is a collateral contract which does not vary the deed to the grantee not containing such an agreement.</p>

<p>Bankruptcy. Corporation, Liability of directors. Judgment.</p> <p>The liability of a director of a corporation under Pub. Sts. c. 106, § 60, cl. 2 (R. L. c. 110, § 58, cl. 2), for debts of the corporation contracted between the time of making a loan to a stockholder and the time of its repayment, is not provable in bankruptcy against the estate of the director under the United States bankruptcy act of 1898, because not a debt of the bankrupt, and § 63 6 of the bankruptcy act in regard to the liquidation of unliquidated claims does not make it so. Consequently under § 17 of the bankruptcy act the director’s discharge in bankruptcy after a creditor has obtained judgment against the corporation is not a bar to a bill in equity to enforce the statutory liability of the director.</p> <p>In a suit in equity to enforce the liability of a director of a corporation under Pub. Sts. c. 106, § 60, cl. 2 (R. L. c. 110, § 58, cl. 2), for debts of the corporation contracted between the time of making a loan to a stockholder and the time of its repayment, the judgment against the corporation on the debt which is the foundation of the plaintiff’s claim is conclusive, and the director cannot show in defence that when the action was brought and when the judgment was rendered he was absent from the Commonwealth and had no knowledge of the proceedings, and that the corporation had a good defence when judgment was obtained against it by default.</p>

<p>Equity Jurisdiction, Laches, Conjectural damage.</p> <p>A bill in equity by a stockholder in a shoe machinery corporation against the corporation and four persons alleged to be its directors, officers and controlling stockholders, sought to hold the individual defendants liable for losses alleged to have been suffered by the corporation from the failure of the directors, six years before the filing of the bill, to accept an offer made by a certain firm, engaged in the manufacture of shoes, that they would, if granted an exclusive right to do so, manufacture and sell or lease, for a term of five years, certain machines under letters patent held by the corporation, supply all capital needed ■ for the business and pay the corporation one third of the net earnings of the business during the term and one half of the net proceeds received from certain machines then owned by the corporation. There was no allegation that the plaintiff did not have full knowledge of all the facts at the time" of their occurrence, and there was no allegation that the machines to which the offer related were ever in use or that there was any demand for such rhachines. On demurrer held, that the plaintiff’s delay in bringing his bill was unreasonable and that it should be dismissed on the ground of loches, also, that the bill should be dismissed on the ground that the damages sought to be recovered were wholly conjectural, there being no means of showing that the venture if entered upon would have been a success.</p>

<p>Building Laws. Words, “Enlarged.”</p> <p>A building in Boston maintained as a hotel before the enactment of St. 1892, c. 419, is enlarged as a hotel within the meaning of that act as amended by St. 1900, c. 321, and required to be a first class building, if the walls are carried up and a slanting roof is replaced by a flat one enclosing a space which before the alteration was outside of the building, although the new roof is below the height of the former ridge pole.</p>

<p>Practice, Civil, Decree. Executor.</p> <p>A decree of a single justice of this court affirming a decree of the Probate Court, plainly identified, appointing one of two executors named in a will, is not affected by an erroneous recital that the decree affirmed appointed both of the executors named.</p> <p>A decree of the Probate Court under Pub. Sts. c. 129, § 3, (R L. c. 136, § 5,) appointing one of two executors named in a will, the other refusing to accept the trust, exhausts the j urisdiction of the court in the matter, and it cannot, while the decree stands, entertain a petition to appoint the other person named in the will as co-executor.</p> <p>One who is plaintiff in a pending action to recover a large sum of money from an executor on a claim against the testator’s estate is an improper person to be appointed a co-executor of that estate.</p>

<p>Witness, Cross-examination. Evidence, Materiality, Competency.</p> <p>In an action by a real estate broker for a commission for selling a mill privilege of the defendant, it is within the discretion of the presiding judge, to allow questions to be put to the defendant on cross-examination to show that a company to which the privilege was let and of which the defendant was treasurer was losing money and that the defendant knew that the president of the company had sold his stock in it, as tending to show a motive of the defendant for selling his property.</p> <p>In an action by a real estate broker for a commission for selling a mill privilege of the defendant, it is within the discretion of the presiding judge to exclude evidence offered by the defendant that in a certain conversation about the privilege in question the plaintiff’s agent asked also about a certain other mill privilege.</p> <p>Where it is competent for a plaintiff to show that his agent had knowledge of a certain fact at a certain time he may show that a conversation took place between himself and his agent on the subject.</p> <p>In an action by a real estate broker for a commission for selling certain property of the defendant, the defendant having testified that he met at a certain office the person who became the purchaser of his property together with one D., the plaintiff can call D. in rebuttal to testify that he went with the purchaser to the office in question in consequence of a talk with the plaintiff’s agent.</p>

<p>Bill in equity, filed March 23, 1903, by the trustees under the will of James Edwards, for instructions as to the application of the proceeds of the sale of a certain valuable tract of .vacant land on Huntington Avenue in Boston.</p> <p>The case came on to be heard before Braley, J., who reserved it upon the bill and answer and an agreed statement of facts for the consideration of the full court, such order to be made therein as justice and equity might require.</p>

<p> Constitutional Law. Way. </p> <p>St. 1895, c. 121, authorizing the selectmen of the town of Milton to lay-out and the town to accept and allow special space for the use of street railways in any town way or highway theretofore or thereafter laid out within that town, does not impose an additional easement on land previously taken for streets and highways, and is constitutional.</p>

<p> Waterworks. </p> <p>One whose land acquired in 1891 is injured by the action of a dam erected under St. 1886, c. 311, incorporating the Berkshire Heights Water Company of Great Barrington, amended by St. 1887, c. 381, § 1, and 1890, c. 429, § 2, has a remedy for damages only under § 6 of St. 1886, c. 811, and cannot maintain an action of tort against a fire district which acquired all the rights of the water company in 1892 under § 10 of the same statute.</p>

<p> Bond. Estoppel. Executor. Interest. Limitations, Statute of. </p> <p>One who signs an administrator’s bond as surety in blank without sealing, upon a representation in behalf of the administrator that it is a guardian’s bond and that a certain responsible person is to be the other surety, is bound by the bond as executed and delivered, if it is approved by the judge of probate in the usual course of business and appears on its face to be regularly executed, and the obligee had no notice of any irregularities in its execution.</p> <p>In an action under Pub. Sts. c. 143, § 13, (R. L. c. 149, § 23,) on an administrator’s bond, alleging mismanagement of the estate and failure to render an account after having been cited to do so, no demand is necessary before bringing the action. Nor is it necessary that a judgment should have been obtained.</p> <p>In an action on an administrator’s bond under Pub. Sts. c. 143, § 13, (R. L. c. 149, § 23,) it can be found that the administrator has not administered the estate according to law as required by the second condition of his bond, although he may have filed an account within the meaning of the bond, and is found not to have committed any wilful breach of trust.</p> <p>In an action on an administrator’s bond under Pub. Sts. c. 143, § 13, (R. L. c. 149, § 23,) alleging mismanagement of the estate and failure to render an account after having been cited to do so, it appeared, that after the action was brought the Probate Court made a decree allowing the defendant’s account by which he was charged with a certain amount due the estate. In the action on the bond it was found that execution should issue for that amount, and was held, that interest should be computed thereon not from the date of the writ but from the later date of the allowance of the defendant’s account in the Probate Court which determined how much if anything the defendant was to pay.</p> <p>The fact that the estate of a deceased person has been represented insolvent does not bar an action on the bond of the administrator, following McKim v. Roosa, ante, 510.</p> <p>An action on an administrator’s bond under Pub. Sts. c. 143, § 13, (R. L. c. 149, § 23,) alleging mismanagement of the estate and failure to render an account after having been cited to do so is not barred by the special statute of limitations which relates to suits of creditors.</p>