Volume 184 — Massachusetts Reports

<p>Contract, Construction, Performance and breach.</p> <p>In an action by a sewer contractor against a town for compensation for extra work, the plaintiff is not entitled to recover outside of his contract by showing that the working profiles prepared by the engineer of the town, in accordance with which the work was performed; required deeper excavations than those required by the plans referred to in the contract, if the contract provides that the engineer may make alterations in the grade and that any increase in the amount of work thus caused shall be paid for according to the quantity actually done and at the price established for such work under the contract and fixes the prices for excavations much deeper than those required by the profiles on file at the time of the contract, and it appears that the lowering of the grade required by the engineer was within the terms of the power given him by the contract.</p> <p>A contract to construct a system of sewers for a town provided that delay on the part of the sewer commissioners in furnishing materials should not give cause for claims for damages but that the time for completing the work should be so far extended as the engineer should judge necessary to compensate for such delay, and that alterations made in the form of the materials should be paid for at the price established for such work under the contract. In an action on this contract, it appeared, that there was a delay on the part of the defendant in furnishing sewer pipe and that the plaintiff was ordered by the defendant’s engineer to lay the sewer of brick until the pipe arrived. A claim was made by the plaintiff for damage caused by the delay and for the expense of getting ready to lay the brick. Held, that the plaintiff could not recover on this item, as under the contract there could be no claim for damages for delay in furnishing the sewer pipe and the contract price for the masonry included the expense of getting ready.</p>

<p>Contract, against a fraternal beneficiary association incorporated under St. 1894, c. 367, to recover $2,500 as indemnity for the loss of an arm from a railroad accident. Writ dated March 13, 1901.</p> <p>The amended declaration alleged, that the defendant was organized for the purpose of providing indemnity for its members in case of accident, the membership being limited to commercial travellers, that the plaintiff was a commercial traveller and a member in good standing, that by the certificate of membership the defendant agreed with the plaintiff that if he “ shall suffer disability caused by external, violent and accidental means, which shall leave upon the body of said member an external and visible mark, the said association, in accordance with the provisions of its by-laws, within sixty days from the receipt by its board of directors of proof satisfactory to said board of the particular disability suffered by said member, will, from the amount realized from one disability assessment of $2 levied upon each member of said association, pay to said member whose name is above written, indemnity as follows, that is to say: . . . For the loss of one leg, or one arm, or for an injury which alone, in the judgment of a competent surgeon selected by the board of directors, has caused total disability, rendering said member unable to perform any duties or follow any -occupation for a period of not less than two years, and who shall have been, by said board, adjudged to be permanently totally disabled, one half the amount realized from said assessment, not to exceed the sum of $2,500. . . .</p> <p>“Provided, that any loss above named shall have occurred within three calendar months after the accident which caused it; and provided further, that the word ‘ loss ’ as applied to arm or leg is hereby construed and agreed to mean actual amputation.”</p> <p>That on or about October 18, 1900, the plaintiff, while in the exercise of due care, accidentally fell between the cars of a moving train, and the wheels of one of the cars passed over his left arm and crushed and cut it nearly in two, so that it was necessarily and actually amputated forthwith, at a point about four inches below the elbow, and that wholly through these external, violent and accidental means the plaintiff received injuries which resulted in the loss to the plaintiff of his left arm, and caused his permanent and total disability.</p> <p>That at the time of the accident and disability, and thereafter, there were thirty-five hundred members of the defendant, legally bound to pay and willing and able to pay a disability assessment of $2 each, for the purpose of paying to the plaintiff the money to which he was entitled under the terms of the agreement and certificates, and that if the defendant or its directors had levied a disability assessment of $2 on each member for such purpose it would have received therefrom the sum of $7,000.</p> <p>And further that at the time of the accident and disability, and thereafter, the defendant had funds on hand to an amount in excess of $2,500, raised by disability assessments theretofore levied, which it could lawfully apply to the payment of the plaintiff’s claim for disability.</p> <p>That the loss of his arm caused the. plaintiff total disability, and there was due the plaintiff from the defendant by reason of the accident, loss of arm and total disability one half the amount, not exceeding $2,500, which the defendant would have received from levying the disability assessment of $2 on each member, and that if the assessment had been levied the defendant would have received $7,000 therefrom.</p> <p>That the defendant and its board of directors were satisfied by proofs of the plaintiff and otherwise that by reason of the accident and loss of arm he had been caused total disability, rendering him unable to perform any duties or follow any occupation whatsoever at any time thereafter, and had been thereby totally disabled.</p> <p>That the defendant and its board of directors, acting in bad faith and for the purpose of cheating and defrauding the plaintiff, unlawfully and without right refused and failed to have a competent surgeon pass judgment upon the disability of the plaintiff or to adjudge the plaintiff to be permanently totally disabled, or to levy any disability assessment for the purpose of paying the plaintiff, or for any purpose whatever, or to pay the plaintiff, for or on account of the accident, loss of arm and disability, any money whatsoever.</p> <p>The defendant demurred, assigning the following causes of demurrer: “ First. Because in the amended declaration counts in contract and in tort are improperly joined. Second. Because, the amended declaration shows that the plaintiff has not lost his left arm. Third. Because the amended declaration does not set forth any contract between the plaintiff and the defendant whereby the defendant has agreed to pay the plaintiff as indemnity for the loss of an arm any fixed or definite sum of money. Fourth. Because the amended declaration shows that if the defendant is liable to pay the plaintiff any sum as indemnity for the loss of an arm, the defendant is and can only be liable to pay the plaintiff one half of the amount realized from one disability assessment levied by the defendant upon its members, and the amended declaration does not allege that the defendant has levied such an assessment. Fifth. Because the amended declaration does not allege that each of the thirty-five hundred members, who are therein alleged to have been at the time of the alleged injury to the plaintiff legally bound to pay, and able and willing to pay, a disability assessment of $2, for the purpose of paying to the plaintiff money, would in fact have paid such assessment so levied by the defendant. ”</p> <p>In the Superior Court the case was heard by Bishop, J. upon the demurrer to the amended declaration. He made an order sustaining the demurrer from which the plaintiff appealed, and the judge, being of opinion that the matter ought to be determined by this court, reported the case for such determination, ordering a stay of all further proceedings except such as might be necessary to preserve the rights of the parties.</p>

<p>Bankruptcy. Insurance, Fire. Words, “ Condition.”</p> <p>An insurance policy on property of a bankrupt, containing the usual clause requiring the written consent of the insurer in case of assignment, is property which prior to the filing of the petition the bankrupt could have transferred within the meaning of § 70 of the bankruptcy act of 1898, and vests in the trustee in bankruptcy upon his appointment and qualification.</p> <p>One holding a fire insurance policy filed a voluntary petition in bankruptcy and was adjudicated a bankrupt. A week later a receiver of his estate was appointed and afterwards on the same day the insured property was destroyed by fire. Six weeks later a trustee in bankruptcy was appointed who brought an action on the policy. The defendant contended that the bankrupt had ceased to have an insurable interest in the property at the time of its loss, and also that by the petition and adjudication the property was assigned without the assent of the insurer. Held, that the title to the property remained in the bankrupt until its destruction by fire when a right of action vested in the bankrupt which passed to the trustee upon his appointment and qualification.</p> <p>A rider on a policy of fire insurance in the Massachusetts standard form contained the following provision : “ It is understood and agreed that the Automatic Sprinkler System is in complete working order and in further consideration of reduction in rate it is hereby made a condition of this policy that the assured shall use due diligence that such equipment shall continue to be maintained in complete working order during the full term of this insurance.” Held, that this stipulation was neither a warranty nor a condition precedent, but was a representation, a breach of which would be a matter of defence to be shown by the insurance company.</p>

<p> Municipal Corporations. Negligence. </p> <p>In an action at common law against a city for personal injuries, it is no evidence of negligence on the part of the city, that its employees engaged in laying a water main left temporarily on the sidewalk of a public street an iron pipe from one to two feet in diameter and ten or twelve feet long two or three inches from the curbstone and parallel with it.</p>

<p>Contract, by the highest bidder at an auction sale of certain real estate in Lowell known as the Merrimack House property, for the defendants’ failure to deliver a deed of the property. Writ dated September 25, 1901.</p> <p>At the trial in the Superior Court Aiken, J. refused to give the instructions requested by the defendants. The jury returned a verdict for the plaintiff in the sum of $12,000 ; and the defendants alleged exceptions.</p>

<p>Contract, by a sewer contractor, on a policy of insurance insuring him against loss from common law or statutory liability for damages on account of bodily injuries accidentally suffered by any person or persons not employed by the assured, caused by the negligence of the assured and resulting from the operation of the trade or business described in the application, alleging that the plaintiff had settled an action brought by one Mrs. Gallagher against the town of Hyde Park, and incurred legal expenses connected therewith, for which he was entitled to indemnity under the policy. Writ dated October 31, 1900.</p> <p>In the Superior Court the case was tried before Mason, C. J., who ruled that the action could not be maintained, and subject to the plaintiff’s exception directed a verdict for the defendant. At the request of the parties he reported the case for determination by this court. If the rulings reported were right, judgment was to be entered on the verdict; otherwise, judgment was to be entered for the plaintiff in the sum of $975 with interest from the date of the writ.</p>

Tort by a constable, who had been defendant in two actions of replevin, against another constable for negligently accepting insufficient sureties on the replevin bonds. Writ in the Municipal Court of the City of Boston dated September 11, 1901. On appeal to the Superior Court the case was tried before Hardy, J., without a jury. The judge admitted certain evidence against the defendant’s objection.

<p>Three ACTIONS OE TORT, two for personal injuries from a collision of a car of the defendant with a wagon in which the plaintiff Mary J. Kennedy was driving on Merrimack Street in Haverhill and in which her mother, the other plaintiff, was seated beside her. The third action was by the husband of Mary J. Kennedy for expenses and loss of services. Writs dated December 30, 1899.</p> <p>At the trial in the Superior Court before Hichardson, J., it appeared, that the plaintiff Mary J. Kennedy had lived in Haverhill for many years, had driven more or less for twenty years, had frequently driven through Merrimack Street and knew of the existence of the double tracks of the defendant there. The accident occurred on November 8, 1899, between four and five o’clock in the afternoon, the day being bright and clear. The street, which ran east and west at the place of the accident, was thirty-two feet in width from curb to curb, and the distance from the southerly curb to the southerly rail of the defendant’s track was nine feet. The evidence for the plaintiffs tended to prove that on the day of the accident the plaintiffs Mary J. Kennedy and Ann McFee went in an open Concord wagon to that part of Haverhill called Mt. Washington, which was at a considerable distance west of the point of the accident; that after stopping for a time they drove along Washington Street, which runs east and west, and passed into Merrimack Street, which also runs east and west from the easterly end of Washington Street; that the street was “full of teams”; that the plaintiff Mary J. Kennedy drove across the tracks diagonally for the purpose of going to a grocery store on the south side of the street; that as she crossed the tracks she saw one of the defendant’s cars a short distance to the west, which was stopped and was on the southerly track, and knew that when the car started it would move east and in the direction in which she was going; that she drove to the southerly side of the street and came to a stop, with her horse’s head at the curb and behind a team which was standing there, and left her wagon standing at such an angle with the curb that its left hind wheel was so near the southerly rail of the defendant’s tracks that the car could not pass without striking it; that while in this position the plaintiff, Mary J. Kennedy, with the intention of alighting, requested the other plaintiff, Ann McFee, to take the reins ;■ that Mrs. McFee declined to take them, saying that she would wait until the car had gone by; that from the time that the plaintiff drove up to the south curb until the collision her horse stood perfectly still; that the car was moving slowly at a pace not faster than a walk, and was stopped within a few feet from the point of the collision, the effect of which was to cramp the wheel under the wagon, raising it up on one side so as to tip the occupants into the street.</p> <p>Witnesses for the defendant testified, that as the car approached, the left hind wheel of the plaintiff’s wagon was from twelve to fifteen inches distant from the extreme overhang of the defendant’s car, and that the car had proceeded safely by the wheel almost its entire "length when the plaintiff’s horse backed the wagon so that the wheel struck the car at a point about three feet from the rear step on which it caught.</p> <p>The defendant asked the judge to rule that upon all the evidence in the case the plaintiffs were not entitled to recover. The judge refused to give this ruling and submitted the case to the jury upon instructions not otherwise excepted to. The jury returned a verdict for the plaintiff in each case; and the defendant alleged exceptions.</p>

<p>Bill in equity, filed July 31, 1902, by the surviving executor and trustee under the will of Henry 0. Howe, late of Lowell, as to his duties in carrying out the provisions of the third clause of that will.</p> <p>The case came on to be heard on October 22, 1902, before Knowlton, J., who reserved it upon the bill and answers for determination by the full court, such decree to be entered as law and justice required.</p> <p>The third clause of the testator’s will was as follows:</p> <p>“At the decease of my wife I give, devise and bequeath all that shall then remain unexpended of my estate real and personal, to my three children, to be divided among them equally, except that, whatever shall at my death be due me from Charles B. Kelley individually or from the firm of C. B. Kelley and Company of Chicago, Illinois, including in such indebtedness any and all liability incurred on account of any endorsement or endorsements of promissory notes either of or for said Charles B. or of or for said firm, shall be deducted from the share of my said daughter Nellie F. Kelley and reckoned as part of her one third in the clause given to her.”</p> <p>The testator left a wife and three children one of whom was Nellie F. Kelley, the wife of Charles B. Kelley.</p>

Tort, by a helper in the defendant’s foundry, for injuries from an iron plate falling upon him in consequence of the breaking of a rope by which it was attached to an electric crane. Writ dated September 22, 1894. In the Superior Court the case was tried before Blodgett, J. The defendant offered no evidence, and the judge ruled that upon all the evidence the plaintiff could not recover, and ordered a verdict for the defendant.

<p>Contract on a policy insuring certain wool, wool bags and bagging of the plaintiff against fire. Writ dated September 10, 1898.</p> <p>In the Superior Court Sheldon, J. ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The rider of April 30, 1898, mentioned by the court began as follows:</p> <p>“ Boston, Apr. 30, 1898.</p> <p>“Permission is hereby given to remove the within insured property to Brick & Stone Building adjoining and communicating occupied by Dennis & Lovejoy for storage situate opposite the Railroad Station, Ballard vale, Mass., and during removal this Policy shall attach in each location in proportion as the value in each bears to the value in all, and after removal in new location only, and not as heretofore.</p> <p>“New Rate 501. Return premium $2.72.”</p> <p>There was another paragraph in regard to various matters not material.</p> <p>The “ binder ” containing the temporary contract mentioned by the court began as follows :</p> <p>“ Boston, April 30th, 1898.</p> <p>“ The undersigned Insure for account of G. H. Goodhue & Co. in amount specified below, on Wool, Wool Bags and Bagging located at Ballard vale.</p> <p>“ As per form C.</p> <p>“ This certificate binding until policy is delivered to J. W. Porter & Co.</p> <p>“Any loss occurring before Policy is written, to be settled concurrent with any other Insurance on same property at the time of loss.”</p>

Contract, by the administratrix of the estate of William H. Cary, for $841.50 paid by the plaintiff’s intestate under a contract in writing by which the defendant agreed upon such payment to transfer certain shares of mining stock to the plaintiff’s intestate, alleging a failure of the defendant to deliver the shares as a total failure of the consideration for which the money was paid. Writ in the Municipal Court of the City of Boston dated December 18,1901.

<p>Three actions of tort, the first action by Ethel S. Sampson against the city of Boston for injuries from an alleged defect in Washington Street, a highway in that part of Boston called Forest Hills, consisting of a ■ pile of paving stones on the sidewalk of that street, the second action by the same plaintiff against Gow and Foss, contractors, for negligently piling and leaving the stones on the sidewalk, and the third action by Robert M. Sampson, husband of Ethel, against the same contractors for damages by reason of her injuries. Writs dated in August, 1900.</p> <p>In the Superior Court the cases were tried before Sherman, J. It appeared that at the time of the accident the defendants Gow and Foss had a contract with the city of Boston under which they were laying house connections from the sewer in the centre of Washington Street to the building line on the easterly side of the street. The gutters of Washington Street and the spaces between the railway tracks were paved with square paving stones. The employees of the defendants Gow and Foss, in order to excavate a ditch for one of these connections, had removed twenty-five or thirty of the paving stones from the space where they were to dig and piled them along the edge of the easterly sidewalk between a trolley post and a telegraph pole and to some, extent beyond each. The accident happened from the plaintiff tripping and falling over some of these paving stones when about to step from the easterly sidewalk to an open electric car. The plaintiff Ethel and a companion were on the way from Boston to Hyde Park. They had come in an electric car from Boston to Forest Hills and were on the sidewalk of Washington Street waiting to take a car of the Norfolk Suburban Railway from Forest Hills to Hyde Park. As the car approached they were walking in the direction of Hyde Park to meet it. When the car passed them going in the direction of Boston they turned and walked back to overtake the car when it stopped. The plaintiff and her companion walked toward the rear of the car behind other people. The plaintiff testified “We were almost the last ones to get on, and I was behind a lot of people and I didn’t see the stones.” She further testified that she was looking for a vacant seat, and that when she fell she was about to take hold of the stanchions of the car “to get up on the step.”</p> <p>At the close of the evidence the defendant city requested the judge to rule that upon all the evidence it could not be held liable, and that there must be a verdict for that defendant in the action against it. The judge refused so to rule. The defendants Gow and Foss requested the judge to rule that upon all the evidence the plaintiff Ethel was not in the exercise of due care and could not recover. This request was refused. The cases were submitted to the jury under instructions to which no exceptions were taken by either of the defendants other than their exceptions to the above refusals to rule as requested.</p> <p>The jury found for the plaintiff in each case ; and the defendants alleged exceptions.</p>

<p> Bills and Notes. Agency. </p> <p>Where a bank receives from another city for “collection and remittance” a note of one of its depositors payable at that bank and properly indorsed, having authority to pay notes of the maker out of his deposit when made payable there, and at the maturity of the note, after writing a check on a bank in the other city for remittance of the amount, stamps on the face of the note the word “ Paid” with the date, cancels the note by perforation, and files it witli the paid checks, tliis constitutes payment of the note as against an assignee for the benefit of creditors of the maker who gives notice to the bank by telephone of the assignment before the transaction has been entered on the permanent books of the bank and before the letter of remittance has been mailed.</p>

Tort, under St. 1897, c. 416, and St. 1898, c. 565, (R. L. c. 171, § 2,) by the administratrix of the estate of Frederick W. Lutolf, late of Springfield, for the death of her intestate alleged to have been caused by the negligence of the defendant and the gross negligence of the defendant’s servants and agents. Writ dated September 10,1901.

Tort, by the owner of the coal barge Western Belle, for injury to that vessel by grounding on a ledge of rock embedded' in the mud at the bottom of the defendant’s dock at Rockland,Maine. Writ dated May 4, 1901. In the Superior Court the case was tried before Fox, J., without a jury. Norton mentioned below was the defendant’s foreman at the dock. The plaintiff requested the judge to make the following rulings: “1.

<p> Negligence. Street Railway. </p> <p>In an action by a woman passenger against a street railway company for an injury sustained in alighting from a car of the defendant upon a narrow gravel embankment, if it appears that the embankment was not in a highway but on private land acquired by the defendant and within its exclusive control, that the conductor had stopped the car fifty feet beyond a level crossing at which the plaintiff seasonably had requested him to stop it, that within a few hours loose gravel had been deposited on the embankment, that the plaintiff was not cautioned in any way as to the security of the footing, and that when she stepped with one foot on the edge of the embankment it gave way, causing the injury, there is evidence on which a jury would be warranted in finding that the defendant was negligent in not notifying the plaintiff of the yielding nature of the recently deposited gravel upon its own roadbed where it had invited her to alight. Whether the conductor was negligent in failing to stop at the crossing is immaterial, that not being the proximate cause of the. injury.</p> <p>The provision of R. L. c. 112, § 44, requiring notice of the time, place and cause of an injury incurred in connection with the maintenance of the tracks of a street railway company in a public street, has no application to an action against a street railway company for an accident which occurred on a portion of its roadbed on land not in a highway and within the defendant’s exclusive control.</p>

<p>Summary process under R. L. c. 181, for the possession of five parcels of land at Millis with the buildings thereon. Writ dated May 16, 1902. .</p> <p>In the Superior Court the case was tried before Braley, J., without a jury. He found that the plaintiff was entitled to the possession of the premises described in the writ and ordered judgment and execution therefor. The defendant alleged exceptions.</p> <p>The judge made certain findings of fact by which it appeared that the plaintiff had acquired possession of the premises under a certain agreement with one Pillsbury dated October 14, 1899, which is printed below. This.agreement was made on the same day that Pillsbury acquired his title, and the judge found that Pillsbury was never in the actual possession of and never occupied the premises at any time. On May 19, 1901, the plaintiff being thus in possession leased the premises to the defendant by a lease which expired on April 1, 1902. After June 28, 1901, the defendant refused to pay rent under the lease, having received a notice from Pillsbury not to pay rent to the plaintiff. Before the expiration of the lease the defendant made certain payments to Pillsbury, and after the expiration of the lease and before the date of the writ she paid to Pillsbury a certain sum of money for use and occupation of the premises for one month. The judge found that no demand on the part of either Pillsbury or the plaintiff was made upon the other under the agreement of October 14, 1899, and that the agreement was of full force and effect between the parties to it, that Pillsbury knew of the lease by the plaintiff to the defendant at the time it was made and assented to it, and that the plaintiff never assented to the agreement made between Pillsbury and the defendant.</p> <p>The agreement of October 14, 1899, was executed under seal by Pillsbury as party of the first part and one Jefferson, an agent of the plaintiff, as party of the second part. The agreement was as follows:</p> <p>“ The party of the first part hereby agrees to sell to the party of the second part or to whom said second party may designate in writing a certain estate situated in Millis, said County and State, being five parcels of land and buildings thereon and bounded as follows: ” [Description.]</p> <p>“ Said premises are hereby to be conveyed subject to the existing rights of way as shown in deed of Henry L. Houghton to Carl J. Brunan and to a mortgage to the Medway Savings Bank for five thousand dollars, if the same has not already been paid by said second party. Being all and the same property in Millis conveyed by Shepard and Fuller of Lowell, said State, to said second party. Said premises are to be conveyed on demand by a good and sufficient quitclaim deed of the party of the first part, conveying a good and clear title of the same free from all incumbrances made by said first party or suffered to be made by said first party, except as above. For the sum of One Dollars and other valuable considerations to be paid by said second party, in a manner and at times hereinafter mentioned, and the first party further agrees that on demand of said second party or his order, he, said first party, shall and will at the Registry of Deeds for said Norfolk County at Dedham, at noon, or some other place agreed to in writing by the said parties, and upon payment and executing the deed such as stamps making, conveying and recording, and all usual expenses of a conveyance, if any are required. And upon the further payment of said second party of the sum of Four Thousand Dollars and the interest of said sum, at five per cent per annum and the interest on said five thousand dollar mortgage and interest on its interest at five per cent per annum, and the taxes, water rates, repairs, if said second party approves of the same in writing, by said second party his order, his heirs, administrators, and assigns, said first party shall execute and deliver to said second party the above described deed or to his order, being a proper deed of conveyance duly acknowledged for the conveying and assuring to them the fee simple of the premises, free from all incumbrances made by said first party, except as are hereinafter or heretofore agreed upon in writing, at the time and place above mentioned. It is still further agreed that said first party shall or will not suffer any waste of or use of the product of the said estate or receive any benefit therefrom, nor cut any wood therefrom, except he first obtains consent in writing from said second party and first party agrees to give said second party the use and benefits, profits, income and general rights in said estate, and it is agreed that said first party shall not lease, nor rent, nor sell the estate nor any part thereof to any other person, persons, corporations or individuals, or mortgage or incumber the same, or allow it to be incumbered, unless with the consent of the second party, and said first party agrees to protect the property against the lawful claims of all parties, and pay if so requested by the Bank, the Medway Savings Bank mortgage. It is further agreed hereby that the above stipulations aforesaid are to apply to and bind the heirs, executors, administrators, or assigns of said second party and said first party. And it is still further agreed that if the party of the first part shall fail or refuse to execute and deliver a proper deed of conveyance in the manner and at the time and place above specified for the purpose, provided the second party shall be ready to fulfil the covenants then to be fulfilled on his part, provided said first party shall he ready to deliver such deed as aforesaid, then the party so failing shall and will pay the other party or his assigns the sum of Twenty-five thousand dollars, which sum is hereby declared, fixed and agreed upon as the liquidating amount of damages by the party so failing as aforesaid for his non performance.</p> <p>“In witness the said parties to these presents have hereunto set their hands and seals on this fourteenth day of October, A. D. 1899.”</p>

<p> Covenant, heed. Practice, Civil. </p> <p>In this suit in equity to restrain the defendants from injuring the plaintiffs’ land by maintaining a dam above the height prescribed by the terms of a certain indenture it was held that upon the facts stated in the opinion the covenant sought to be enforced did not apply to the parcel of land owned by the plaintiffs.</p>

Petition, filed January 5,1903, for partition of certain real estate on Thorndike Street in Cambridge, formerly owned by Sarah Banfield and disposed of by her will, being the only real estate mentioned therein. The case was tried in the Superior Court before Richardson, J., without a jury. He reported it for determination by this court.

<p>Tort, under Sfc. 1887, c. 270, and acts in amendment thereof and in addition thereto, by the administratrix of the estate of Roger P. S. Jones, for the death of the plaintiff’s intestate. Writ dated August 8, 1899.</p> <p>In the Superior Court the case was tried before Richardson, J., who at the conclusion of the plaintiff’s evidence, at the request of the defendant, ruled that the plaintiff was not entitled to recover, and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Contract against a surety on the recognizance of one John Berry, a poor debtor, taken by the first special justice of the First District Court of Eastern Worcester. Writ dated March 18, 1898.</p> <p>In the Superior Court the case was tried before Lawton, J., without a jury. The recognizance was in the sum of $400. The plaintiff had obtained judgment against Berry for an amount in excess of this sum.</p> <p>The judge ruled that the plaintiff could not recover, refused all the rulings requested by the plaintiff and found for the defendant. The plaintiff excepted, and the judge reported the case for determination by this court. If upon the evidence the judge was not justified in finding a breach of the recognizance, judgment was to be entered for the defendant. If on the evidence as it stood, or as it would stand after striking out any evidence objected to and inadmissible, the plaintiff was entitled to recover, judgment was to be entered for the plaintiff in the sum of $400, and interest from the date of the writ if the plaintiff was entitled to it; otherwise, judgment was to be entered on the finding for the defendant.</p>

<p>TWO ACTIONS OF CONTRACT OR TORT, under St. R. I. June 20,1836, § 2, for damage to property of the respective plaintiffs at Providence in the State of Rhode Island by fire alleged to have been communicated from engines of the defendant. Writ dated September 18, 1899.</p> <p>In the Superior Court on June 19, 1901, on motion of the defendant both cases were referred to Henry S. Dewey, Esquire, as auditor. Both parties agreed to his appointment. Hearings were had before the auditor, extending over a period of about six months. Evidence was introduced by both sides on all questions involved in the cases, and the defendant incurred an expense exceeding $200 in bringing" witnesses from Rhode Island to testify.</p> <p>On January 25, 1902, the hearings were completed and the cases were argued by counsel before the auditor. On April 8, 1902, before the auditor had filed his reports, the plaintiff in each case filed a motion to become nonsuit. On October 16, 1902, the auditor filed his reports, finding for the defendant in both cases. On November 24,1902, the plaintiffs’ motions were heard by Braley, J., who ruled, against the objection of the defendant, that as a matter of law no trial had been begun within the meaning of the rule as to the right to become nonsuit at anytime before trial, and that the plaintiff in each case had an absolute right to become nonsuit, and so ordered. He stayed all proceedings, and reported the cases for determination by this court.</p> <p>The cases were argued at the bar in January, 1903, before Enowlton, C. J., Morton, Hammond, Boring, $ Braley, JJ., and afterwards were submitted on briefs to all the justices.</p>

<p>Bill in equity, filed March 30, 1903, by the executor and trustee under the will of Mary S. B. Thompson, for instructions.</p> <p>The case came on to be heard before Braley, J., who by agreement of parties reserved it upon the bill and answer for determination by the full court, such order to be made therein as justice and equity might require.</p>

<p> Grade Crossing. Damages. Limitations, Statute of. </p> <p>Where the report of commissioners appointed under St. 1890, c. 428, on a petition to abolish certain grade crossings, requires a new location of a railroad passenger station at a point thirteen hundred feet from the old station, and the new station is constructed by the railroad company practically of the same size as the old one at a cost which an auditor finds to be fair and reasonable, the railroad company is entitled to be allowed the cost of the new station as part of the cost of the alterations and should not be restricted to the actual cost of reproducing the old station. In such a case the railroad company cannot be compelled to account for the value of land owned by it in fee on which the old station stands and which after the alterations is used by the railroad company for freight purposes.</p> <p>In proceedings under St. 1890, c. 428, for the abolition of certain grade crossings in a town, the town is not entitled to be allowed as part of the cost of the alterations a sum paid in settlement of land damages which were barred by the limitation of the act, the town having no right to waive the statutory bar as against the railroad company and the Commonwealth, even if it might do so for itself.</p> <p>In proceedings under St. 1890, c. 428, for the abolition of certain grade crossings in a town, the town is not entitled to be allowed as part of the cost of the alterations the amount of expenses incurred by it for counsel and expert witness fees in disputing the allowance of certain items in the account presented by the railroad company and disallowed by the auditor in that account.</p>

<p>Evidence, Extrinsic as affecting writings. Agency.</p> <p>A seller of goods who accepts from a broker a sale note stating an absolute sale to a certain purchaser cannot show that the sale was conditional, if the broker had authority to make an absolute sale.</p>

<p>Bill in equity, filed July 5, 1901, in the Probate Court for the County of Suffolk, by the executors under the will of Mellen Chamberlain, late of Chelsea, for instructions as to the construction and effect of a codicil to that will.</p> <p>The testator died June 25, 1900, at the age of seventy-nine years. His wife had died on August 25, 1896. The will was dated March 26,1900, and contained the following paragraphs :</p> <p>“ My estate real and personal, I give and bequeath as follows: To Mrs. John Whitman my faithful housekeeper, five thousand dollars to be paid to her out of the first moneys that shall come into the hands of my executors out of my estate, and without delay for the final settlement of my estate.</p> <p>“ To my brother in law, Hale E. Crosby, my brother Henry Chamberlain, both of Three Oaks, Michigan, and to my brother William Chamberlain, of said Michigan, I give each one thousand dollars ($1000).</p> <p>“ To Mrs. Mattie Fielding, daughter of my brother in law, John M. Putnam, to Miss Alice M. Putnam, niece of my late wife and to Mrs. Sarah W. Fuller, sister of my late wife, all of Danvers Mass. I give each the sum of one thousand dollars ($1000).</p> <p>“ To my name sake Mellen Chamberlain Hatch, son of Rév. George B. Hatch formerly of Chelsea, to Miss Mary A. Jenkins formerly of the Boston Public Library, to Miss Elisabeth Porter Gould of Boston and to Miss Mary F. Colesworthy of Chelsea, I give each the sum of five hundred dollars ($500).”</p> <p>Then followed bequests to the city of Chelsea of twelve volumes of real estate titles, real estate plans and a photograph, to the Massachusetts Historical Society of the manuscript of the testator’s uncompleted history of Chelsea, with plans and copyright, and $5,000 for revision and completion of the work, to Dartmouth College of his library of printed volumes and $500 for binding and repairs, and to the Trustees of the Boston Public Library of his collection of manuscripts, except that given to the Historical Society, also autographs, portraits and photographs and certain papers, books and pamphlets. Then after gifts of certain pictures and other personal effects, not material, the will, omitting the attesting clause, concluded as follows:</p> <p>“All legacies in this my will lapse with the death of the legatee. All the rest, residue and remainder of my estate including lapsed legacies, I direct my Executors to sell and dispose of at private sale, or at public auction, as they may deem for the interest of the estate. When said residue and remainder are reduced to money I direct my executors to divide them into nine equal parts and pay to the following parties: To Mrs. John Whitman aforesaid one part; to Pembroke Academy Pembroke, N. H. two parts; to the Third Congregational Church, Chelsea, two parts; to the Massachusetts Historical Society, two parts; to Dartmouth College, N. H. one part; to Mary F. Colesworthy, Mrs. Henry A. Tenney, Miss Elizabeth Porter Gould and Paul Mellen Chamberlain all aforesaid, each one fourth part.”</p> <p>The codicil was dated May 31, 1900. After naming an executor in substitution for one of those named in the will, it proceeded as follows:</p> <p>“ My estate real and personal I bequeath as follows:</p> <p>“To Mrs. John Whitman my faithful housekeeper, Three thousand dollars to be paid to her out of the first monies that shall come into the hands of my executors or to my estate and without delay for its final settlement and the further sum of two thousand dollars which shall first appear to be a residue thereof.</p> <p>“ To my brother in law, Hale E. Crosby, my brother Henry Chamberlain both of Three Oaks, Michigan, and my brother William Chamberlain of Jackson, said Michigan, eight hundred dollars each.</p> <p>“ To Mrs. Mattie Fielding, daughter of my brother in law, John M. Putnam, to Miss Alice M. Putnam niece of my late wife, and to Mrs. Sarah M. Fuller, sister of my late wife, all of Danvers, Massachusetts, the sum of eight hundred dollars each.</p> <p>“To Miss Mary A. Jenkins formerly of the Boston Public Library, to Miss Elizabeth Porter Gould, of Boston, to Miss Mary F. Colesworthy of Chelsea, the sum of five hundred dollars each.</p> <p>“ To Miss Dora J. Murray, of Revere, the sum of one hundred dollars.”</p> <p>Here followed the attesting clause.</p> <p>In the Probate Court McKim, J. made a decree to the effect that the testator never intended to revoke or change in any way the legacies in the will except those specifically mentioned in the codicil, and that the testator intended the legacies in the codicil to be substituted for the legacies given to the same legatees in the will. The heirs at law named as legatees appealed.</p> <p>The case was heard by Knowlton, J. The heirs at law waived their contention made in the Probate Court that the codicil was a revocation of the will, and relied upon their further contention that the legacies to them, as well as the legacy to Mrs. Whitman, were cumulative.</p> <p>It appeared that the testator’s heirs at law were the defendants Henry and William Chamberlain, brothers of the testator, and his nephews, Henry C., Josiah B. and John A. Crosby. The defendant Mrs. John Whitman, at the time of the testator’s death and for fifteen years preceding it, was his housekeeper and his friend. The defendants Mattie Fielding, Alice Putnam and Sarah W. Fuller were relations of the testator’s wife. Mary A. Jenkins, Elizabeth Porter Gould and Mary Colesworthy were not relations of the testator. They were his friends, and were members of the local club to which he belonged. Dora J. Murray nursed the testator during his last illness. Mellen Chamberlain Hatch, mentioned in the will, was living at the date of the testator’s decease.</p> <p>At the time of the testator’s decease his personal estate, including the manuscripts, was valued at $53,448, and his real estate at $19,625. The collection of manuscripts given to the Boston Public Library by the will of March 26,1900, was valued at $28,500. Substantially all the remainder of the personal property was in savings bank deposits, bonds and securities.</p> <p>Against the objection and subject to the exception of the heirs at law, the other defendants were allowed to introduce evidence upon which the justice found, that on and after August 1, 1898, the testator, as he well knew, was living on a steadily diminishing principal, and that his expenses annually exceeded his annual income at the rate of $800 a year; that, subsequent to the execution of the will and prior to the making of the codicil, the testator’s attending physician told him that with good care he would live through the summer of 1900 and probably into the fall, and that the testator replied that in such case he would make greater inroads upon his principal than he had expected to.</p> <p>Against the objection and subject to the exception of the heirs at law, the other defendants introduced evidence tending to show that on two different occasions after the execution of the testator’s will and before the execution of the codicil, he consulted one or more of his proposed executors upon the question whether his estate was sufficient to carry out the provisions of the will, and, against the objection and subject to the exception of the heirs at law, introduced evidence on which the justice found, that, on these two different occasions, after the execution of his will and before the execution of the codicil, the testator said that he doubted whether his estate was sufficient to carry out the provisions of his will.</p> <p>There was no evidence tending to show, more definitely than as above stated, the dates of these conversations. The objections and exceptions of the heirs at law were made in each instance solely on the ground that the evidence objected to was not competent on the question of the interpretation of the codicil.</p> <p>The justice reported the case for determination by the full court, concluding his report as follows:</p> <p>“ I find and report that it was the intention of the testator that the legacies given by the codicil to each of the heirs at law, and to Mrs. Whitman, should be substitutional and not cumulative, and in so finding I am materially influenced by the aforesaid evidence introduced under the objection and exception of the heirs at law.</p> <p>“ If there was error in admitting the evidence introduced, subject to the exception of the heirs at law, the order affirming the decree of the Probate Court that the legacies in question are not cumulative is to be reversed, and such disposition to be made of the cause by the full court as the law may require, unless the full court determines upon the will and codicil and evidence reported, so far as competent, that the decree of the Probate Court in this respect should be affirmed.”</p>

<p>Contract, Construction.</p> <p>By a contract in writing the plaintiff agreed to excavate certain material, preparatory to the erection by the defendant of a building for the city of Boston. The contract provided that the plaintiff should " excavate all material, load and cart same to Columbia Road ” at a designated place, the price for excavated material except loam to be sixty-two and one half cents per cubic yard, the loam to be placed on lot as directed by the defendant and to remain the property of the defendant, and the price for loam so placed to be twenty-five cents per cubic yard. Certain of the material not loam was excavated by the plaintiff but was not loaded or carted to Columbia Road. Held, that for this portion of the material excavated the plaintiff could recover only a reasonable price, which was found to be twenty-seven and one half cents per cubic yard, as the price of sixty-two and one half cents per cubic yard fixed by the contract included the loading and carting to Columbia Road as well as excavating.</p>

<p> Negligence. </p> <p>A child six and one half years old, passing over a cross walk from one side of a street to the other on her way to school, and following other children across an electric car track without looking to see whether a car is coming or listening for the ringing of a gong, is not as matter of law necessarily negligent, and, in an action by her against the railway company for injuries from being struck by the car, the question of her due care is for the jury.</p>

<p>Contract for $2,406.45 for an elevator, including a car and working appliances, installed by the plaintiff in a building of the defendant at his request. Writ dated September 30, 1897.</p> <p>At the trial in the Superior Court before Craskill, J., the jury returned a verdict for the plaintiff in the sum of $2,365.50. The defendant alleged exceptions.</p>

<p>Contract, by a claim adjuster, for an agreed compensation for services, of ten per cent on all moneys received by the defendant in a certain suit against an accident insurance company above the sum of $2,000, the suit having been settled for $4,750. Writ dated February 18, 1900.</p> <p>At the trial in the Superior Court before Maynard, J., the plaintiff testified that he went into bankruptcy on July 17, 1901.</p> <p>At the close of the evidence the judge ruled that upon the evidence as to the bankruptcy proceedings the action could not be maintained, and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Devise and Legacy, Construction. Words, “Their natural Ufe”, “Their decease.”</p> <p>A will gave a fund to trustees to pay the income to the testator’s three children named “ equally, annually, or semi annually, as they may prefer during the term of tlieir natural life and to divide after their decease the rest and residue of the trust premises aforesaid under their charge equally among my children then living, and the issue of any deceased child or children giving to the issue of any deceased child the share to which the parent if living would have been entitled.” Held, that each of the testator’s three children was entitled to the income of an undivided third of the trust fund during his or her life, and that on the death of each there was to be a distribution of one third of the principal among the children of the testator then living and the issue of deceased children per stirpes, including the issue of the beneficiary for life of the third of the fund being distributed.</p>

<p>Tort for personal injuries from an alleged defect in a walk alleged to be part of a highway of the defendant. Writ dated November 18, 1899.</p> <p>At the trial in the Superior Court before Hardy, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p> <p>The following is taken from the plan referred to by the court, which was printed as part of the plaintiff’s brief and was used by both parties at the argument. The passage from the present Lowell Street on the west to Harnden Street on the east was called for convenience Short Street during the trial and at the argument.</p> <p> </p>

<p>Trust, Resulting. Equity Pleading and Practice. Words, “Aliquot.”</p> <p>In a suit by a widow to establish a resulting trust in certain land standing in the name of her late husband, it appeared, that the plaintiff had contributed $1,000 toward the purchase of the land for §2,500, that the plaintiff stipulated that her name should be in the deed and that it should appear in the deed for her interest in the property, and that her husband agreed to this but instead of keeping his agreement took the whole title in his own name. The trial judge found that it was understood between the plaintiff and her husband that she should have a two fifths interest in the land and that it was on that understanding that she parted with her money. Held, that on the finding a resulting trust was established.</p> <p>Findings of fact by a judge sitting in equity wifi not be reversed on appeal unless plainly wrong.</p>

<p>Tort, by a conductor in the employ of the Wakefield and Stoneham Street Eailway Company,* for injuries caused by an alleged defect in Main Street, a highway of the defendant, consisting of a maple tree with which the plaintiff’s head came in contact while he was attempting to pass around a superintendent of the railway company, who was standing on the running board of the open car of which the plaintiff was in charge. Writ dated December 19,1898.</p> <p>In the Superior Court Lawton, J. ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Tort, under Pub. Sts. c. 109, § 12, (R. L. c. 122, § 15,) for personal injuries against a corporation authorized to construct and maintain telephone and telegraph lines. Writ dated February 1, 1900. At the trial in the Superior Court before Holmes, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions.

<p> Negligence. Street Railway. </p> <p>In an action against a street railway company by a passenger for personal injuries, the ordinary burning out of a fuse on an electric car is not prima facie evidence of negligence, but when there is evidence that the burning out of a fuse was attended by unusual results which would not have occurred if the fuse had been in proper condition, and that the fuse was so placed in the car that if there should be a harmful flame from its burning out it reasonably might be apprehended that the flame would reach and injure a passenger, there is evidence to go to the jury of negligence on the part of the defendant.</p> <p>In an action against a street railway company for injuries from an explosion and flame attending the burning out of a fuse in a box placed directly under the seat of an open electric car on which the plaintiff was sitting, there was evidence which would warrant the conclusion that the intensity and duration of the flame produced by the explosion was greatly in excess of what could have been the result if the fuse had been in proper condition and that this imperfect condition of the fuse could have been discovered by the use of reasonable care. Held, that the defendant was not entitled to a ruling that the doctrine of res ipso loquitur did not apply, and that the jury properly were instructed that it was for them to decide how far negligence could be inferred from the accident itself.</p> <p>In a case where the doctrine of res ipso loquitur applies, an unsuccessful attempt by the plaintiff to prove by direct evidence the precise cause of the accident does not estop him from relying on the inference of negligence from the accident itself.</p> <p>In this action against a street railway company for injuries from an explosion and flame attending the burning out of a fuse in a box placed directly under the seat of an open electric car on which the plaintiff was sitting, it was held that the evidence stated by the court was sufficient to justify the jury in finding that the plaintiff was physically injured by the flame or electricity or both combined, ' and not merely frightened.</p>

<p>Way. Evidence. Words, “Highway”, “Road.”</p> <p>In an action for trespass to the plaintiff’s close on a neck of land reached by a causeway, the defendant contended that at the time of the alleged trespass he was in the rightful use of a public way. Ancient records put in evidence showed that there was at the time of those records a highway over and beyond the causeway and that a gate across the causeway was put up to keep cattle in, there being evidence that it was maintained there only during the pasturage season and removed at other times. There was testimony of old men of a road reported to be ancient and of the use of this road from time immemorial by many persons under a claim of right and of repairs made by such persons and by the surveyor of the district, and that the way in controversy was identical with this ancient road. The jury found for the defendant. Held, that the verdict was justified, there being evidence to show a public, way by prescription or dedication before the enactment of St. 1846, c. 203.</p> <p>On the issue of the existence of an ancient public way leading to a neck of land, United States coast survey charts are admissible to show the existence of a way without regard to the question of whether the way was public or private.</p>

<p> Practice, Civil. Devise and Legacy. </p> <p>A will, after giving certain legacies, contained the following: “I give, devise and bequeath to my niece, S. my present housekeeper, all the rest and residue of my estates, both real and personal that I may die possessed' of, after paying the above named legacies and my funeral expenses and all other debts that I may be owing at my decease (if any) and after the payment of the above named debts and legacies I hereby give her, my said niece, S. full power to do with the remainder of my said estates as she may deem most proper during her natural life.” By a codicil the testator gave $500 to the treasurer of a certain cemetery for designated purposes “ providing there should be so much remaining or whatever there might be remaining at the decease of my niece S. and the payment of all her funeral and legal expenses are paid.” Held, that S. took a fee in the real estate and an absolute estate in the personal property, the words as to the power to dispose of the property during her life being superfluous, and that the bequest in the codicil to the treasurer of the cemetery was void as an attempt of the testator to control after the death of S. property which he had given to her absolutely.</p>

<p>Twelve actions of contract by the same plaintiffs against different fire insurance companies on twelve several policies, eleven of them in the Massachusetts standard form and the twelfth in the Rhode Island standard form, each action for a balance alleged to be due upon a partial loss by fire of the Advertiser Building on Washington Street in Boston. Writs dated September 11, 1901.</p> <p>In the Superior Court the cases were heard by Richardson, J., without a jury. He found the facts to be as stated in an agreed statement of facts filed in the case, and on those facts found for the defendant in each case. By agreement and at the request of the parties he reported the cases for determination by this court.</p> <p>The fire occurred on March 15, 1901. The policies were issued on or about February 1, 1899. The building laws of Boston, St. 1892, c. 419, St. 1894, c. 443, were passed after the erection of the building. The amount of the loss was referred to three disinterested referees under the terms of the policies, with the agreement that they should find what sum would be an indemnity to the assured in the absence of the building laws, and another sum which would be an indemnity if the building laws were to be considered in their finding, that the smaller sum should be paid to the assured within sixty days, and that the plaintiffs should bring actions for the difference.</p> <p>On May 1, 1901, the referees made the following award: “We award $30,610 as indemnity to the assured in case we have no right as a matter of law to consider said building laws. But if we have a right as a matter of law to consider said building laws, we award $45,792.” The smaller sum was paid to the plaintiffs by the insurance companies, and the plaintiffs brought these actions for the balance.</p> <p>It was agreed, that if the referees had the right in determining the amount of damages to which the plaintiffs were entitled to take into consideration the increased cost of repairing the building by reason of the building laws, judgments were to be entered for the plaintiffs against the several defendants for the amounts respectively declared on, with interest from May 1,1901; otherwise judgments were to be entered for the defendants.</p>

<p> Assignment. </p> <p>When a contract to do work for a city is assigned as a whole after a part performance', the assignment includes all sums due for work previously done under the contract which have been retained by the city to ensure performance</p>

<p>Contract, Performance and breach, Construction.</p> <p>In an action for the breach of an executory contract in writing in which no day of performance is named, the plaintiff, if he was not in default and was ready to perform, may recover without showing performance on his part, if he shows that the defendant left the Commonwealth in order to evade a tender of performance, or that the defendant wholly had repudiated the contract.</p> <p>In an action for an alleged breach of an agreement in writing, it appeared, that the plaintiff, a builder, wishing to purchase a parcel of land on which was a mortgage for §10,800 and to build on it certain houses, applied to the defendant for a construction loan, that the defendant agreed to lend the plaintiff §36,000 on the houses to be erected, §20,000 when the houses, except the front walls, were built to the second floor, and the remaining §16,000 in instalments as the houses reached specified stages of completion, and the plaintiff agreed to build forthwith the houses on the land, and to give the defendant forthwith “a mortgage on said land which shall be a first mortgage when the first payment is called for”, except that the defendant “may, if he desires, allow the present first mortgage of §10,800 with interest at four per cent per annum to remain on the land, provided he will assume same and pay interest thereon from date of first payment to us, which shall then be §9,200.” The plaintiff purchased the land subject to the mortgage named, giving a second mortgage of §7,800 for the purchase money. He then gave to the defendant a mortgage for §36,000 on the property, and constructed the houses to the stage required for the first payment, when the alleged breach of the contract by the defendant occurred. Held, that the parties contemplated the payment of the pre-existing mortgages out of the first payment of §20,000 by the defendant, and that the plaintiff was entitled to look to that payment to make the mortgage for §36,000 a first mortgage.</p>

<p>Complaint, received and sworn to in the District Court of Northern Berkshire on March 21,1903, under R. L. c. 212, § 39, charging the defendant with drunkenness by the voluntary use of intoxicating liquor at North Adams on March 20, 1903.</p> <p>On appeal to the Superior Court the defendant was tried before Schofield, J., who ruled as stated in the opinion. The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Lottery. Pleading, Criminal. Constitutional Law. Words, “Turkey.”</p> <p>The provision of R. L. c. 214, § 8, that whoever “knowingly suffers money or other property to be raffled for” in a house, shop or building controlled by him, “or to be won there by throwing or using dice or by any other game of chance” shall be punished as therein provided, describes only one offence.</p> <p>A complaint under R. L. c. 214, § 8, charging that the defendant at Northfield “ in a building occupied by him and under his control, to wit, the hotel building known as the Loveland House, knowingly did suffer a certain turkey to be raffled for and to be won by throwing dice ” sufficiently designates the place where the offence is alleged to have been committed.</p> <p>A complaint under R. L. c. 214, § 8, charging the defendant with suffering a turkey to be raffled for and to be won by throwing dice in a certain building occupied by the defendant and under his control, need not set forth the names of the persons permitted to raffle for the turkey or the name of the person who was suffered to win it by throwing dice.</p> <p>R. L. c. 214, § 8, providing a punishment for one who “ in a house, shop or building owned or occupied by him or under his control” knowingly suffers money or other property to be raffled for or to be won there by throwing dice or any other game of chance, applies to one who occupies and controls a part of a building where he suffers the prohibited acts to be done.</p> <p>Under R. L. C. 214, § 28, providing that on a complaint or indictment for violation of any law relative to lotteries or any form of gaming no variance shall be deemed material if the complaint or indictment is sufficient to enable the defendant to understand the charge and to prepare his defence, a complaint will not be held insufficient for failing to aver that the defendant’s occupation and control of a certain hotel building, in which a raffle for a turkey was alleged to have occurred, did not include one small room on the ground floor let to another person, nor will such a complaint be held to be insufficient in using the word “ turkey ” to describe a dead turkey.</p> <p>Article 12 of the Declaration of Rights, securing to an accused person the right to have his crime or offence “fully and plainly, substantially and formally, described to him" is not violated by R. L. c. 214, § 28, providing that no complaint or indictment for violation of any law relative to lotteries or any form of gaming shall be held insufficient, if it is sufficient to enable the defendant to understand. the charge and to prepare his defence.</p>

<p>Tort for the death of the plaintiff’s intestate from being run into by a car of the defendant in the southerly part of Greenfield, known as Cheapside, upon the highway leading from Greenfield to Deerfield. Writ dated October 10, 1900.</p> <p>In the Superior Court the case was tried before Holmes, J., who ruled that upon all the evidence the plaintiff was not entitled to recover and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

Contract for the price of milk alleged to have been furnished to the defendant in March and April, 1900. Writ dated December 15, 1900.

<p> Executor. Surety. Bond. </p> <p>The surety on an executor’s bond is liable for the full amount due the testator from an insolvent firm of which the executor was a member, although the firm and the executor were insolvent at the time of the testator’s death.</p> <p>If a debt from an executor to his testator is due on demand, the executor cannot set up that no such demand was made or that he could not make a demand on himself.</p> <p>In an action on an executor’s bond, where it appears that the executor is chargeable with funds in his hands for which he negligently has failed to account, to an amount in excess of the penal sum of the bond, he and his sureties are liable, for the penal sum of the bond with interest from at least the date of the writ.</p>

<p>Partnership. Contract. Words, “Expenses.”</p> <p>Although it is the rule that in the absence of an express agreement a partner is not entitled to compensation for services rendered in the business of the firm, yet the partnership may be of such a peculiar kind and the arrangement and course of dealing between the partners may be such that an agreement to pay for certain services of one of the partners may be inferred from the facts without an express agreement.</p> <p>In a suit for an accounting by the defendant as a partner of the plaintiff in the purchase, management and sale of certain real estate, the defendant claimed an allowance of $500 as compensation for his services in the care and management of the property. It appeared, that the title to the property was taken in the name of the defendant and that in the receipt which he gave the plaintiff for the money contributed toward the purchase it was stated that the plaintiff was “ to bear one third of the expenses in connection with said property ”, that the defendant took charge of necessary repairs upon the property, buying the materials and superintending the work, and that he also collected the rents. There was a third partner who retired from the partnership, and it was agreed orally by him, the plaintiff and the defendant, that the defendant should receive $1,500 for his services in connection with the property, of which the retiring partner should pay $500 and the plaintiff $500. The retiring partner paid this $500 in his settlement with the defendant. The trial judge found that the defendant was entitled to be allowed $500 for his services as against the plaintiff. Held, that the oral agreement, although as a new undertaking it would have been without consideration, was important evidence of the original understanding of the three partners in regard to the meaning of the term “ expenses ” in relation to the services of the defendant in connection with the property, and that the facts warranted the finding of the judge.</p>

<p> Equity Pleading and Practice. Equity Jurisdiction. Way. </p> <p>An objection to a bill in equity, that the plaintiff has a plain and adequate remedy at law, is waived by proceeding without objection in a hearing on the merits before a master.</p> <p>A continuing interference with the plaintiff’s right of passage over a private road entitles him to equitable relief, although he could maintain an action at law for the past trespasses.</p> <p>Where a grantor conveys land describing it as bounding on a certain street, which is a private road over land of the grantor, the grantee, in a suit in equity against his grantor to enjoin an obstruction of the road, may show that the street named in the deed extended to a certain highway at the time of the conveyance, by evidence of the existence and use of the road, of its being commonly known as the street named, and of acts and declarations of the defendant.</p> <p>In a suit in equity, by a grantee of land described in his deed as bounding on a certain street, against his grantor, to enjoin the obstruction of a private road over land of the defendant, it appeared, that at the time of the conveyance the defendant had given to the private road the name of the street mentioned in the deed, that the road then led to a certain highway, that the defendant represented to the plaintiff and other persons that it was his intention to make this road a main thoroughfare leading to the highway, and that the defendant did work upon the road in fitting it for travel. Held, that this evidence, together with other evidence as to the extent to which the road was used, warranted a finding and ruling, that the defendant was estopped to deny that the street named in the deed extended to the highway.</p>

<p>Tort, under St. 1887, c. 270, for injuries received by the plaintiff while at work in the freight yard of the defendant at Westfield. Writ dated September 23, 1901.</p> <p>At the trial in the Superior Court before Fox, J., the jury returned a verdict for the plaintiff in the sum of $4,000; and the defendant alleged exceptions.</p>

Tort, by a minor employed in the paper mill of the defendant, for personal injuries caused by the plaintiff’s arm being struck by the spikes upon the rear drum of a spike duster, a machine for beating dust out of rags, alleging negligence of the defendant in failing to instruct or warn the plaintiff concerning the dangers of his employment, and negligence of the defendant’s superintendent. Writ dated July 9, 1902.

<p>Tort, for injuries received while employed in the paper mill of the defendant, with one count under the employers’ liability act, alleging a defect in the ways, works and machinery of the defendant, and two counts at common law alleging negligence on the part of the defendant, respectively, in not furnishing and keeping in repair suitable machinery and appliances, and in furnishing the plaintiff with defective and dangerous tools and machinery. Writ dated May 31, 1901.</p> <p>At the trial in the Superior Court before Q-askill, J., it appeared, in addition to the facts stated in the opinion, that the plaintiff had been in the employ of the defendant for four or five years, working on washers and beaters, that a washer and a beater are different things, and that he went to work on a beater about á, year before he was hurt.</p> <p>At the close of the evidence for the plaintiff, the judge ruled that there was no evidence to warrant submitting the case to the jury, and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p> Prohibition. Chicopee. </p> <p>A writ of prohibition cannot be issued to prevent a proceeding which is not judicial.</p> <p>An investigation by the board of aldermen of the city of Chicopee, of the granting of licenses by the licensing board of that city, is not a judicial proceeding, and consequently a writ of prohibition will not be issued to restrain the aldermen from conducting it.</p> <p>Under St. 1897, c. 239, the board of aldermen of the city of Chicopee cannot act in a judicial capacity in an investigation of the granting of licenses by the licensing board of that city.</p>

<p>Tort for personal injuries caused while in the employ of the defendants, who were contractors constructing a heating plant at Springfield. Writ dated February 4, 1902.</p> <p>At the trial in the Superior Court, Maynard, J. at the close of the evidence ruled that the plaintiff was not entitled to recover, and ordered a verdict for the defendants. The plaintiff alleged exceptions.</p>

Tort by a workman in a picture frame factory for the loss of his arm by coming in contact with a band saw, with counts respectively alleging failure to furnish the plaintiff with a safe and suitable place to work, failure to warn the plaintiff of the dangers of his employment, negligence of the defendant’s superintendent, and a defect in the defendant’s ways, works and machinery. Writ dated August 26, 1901.

<p> Municipal Corporations. </p> <p>A city is not liable for damage caused by the insufficiency of its system of sewers.</p>

<p>Contract, on a quantum meruit, to recover $5,500 for services alleged to have been rendered to the defendant as license commissioner from June 1, 1896, to. December 1, 1901. Writ dated March 21, 1902.</p> <p>At the trial in the Superior Court before Lawton, J., the defendant tendered to the plaintiff compensation for his services at the rate of $5 a year, pursuant to the order of the city council mentioned in the opinion, with the plaintiff’s costs to the time of the tender. The tender was declined. Thereupon the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Two ACTIONS OF TORT, by carpenters against their employer, for personal injuries alleged, among other things, to have been caused by the negligence of a superintendent of the defendant in setting the plaintiffs to work upon an unsafe staging, that being the substance of the count and specification on which each case was submitted to the jury. Writs dated November 16, 1899.</p> <p>In the Superior Court the cases were tried together before Maynard, J. The jury returned a verdict for Bourbonnais in the sum of $3,300, and for Kelly in the sum of $800. The defendant alleged exceptions, which are described by the court.</p>

<p> Homicide. Practice, Criminal. </p> <p>Under R. L. c. 218, Schedule of Forma, Murder, a grand jury is authorized to present an indictment for murder in the second degree, St. 1899, c. 409, having changed the pre-existing law in this respect.</p> <p>The trial of an indictment for murder in the second degree is not a capital case, and may be held before one justice of the Superior Court.</p>

<p>Bill in equity, filed July 24, 1901, by Horace G. Westlake and James D. Bell, both of Hillsdale in the State of New York, against John H. Dunn, of the city of New York, and the Berkshire County Savings Bank, praying, that a deed from Westlake to Dunn of certain real estate in Pittsfield might be declared void, it never having been delivered to Dunn for the purpose of passing title to the premises, that the savings bank might be restrained from foreclosing a mortgage on the premises purporting to have been made by Dunn, and for further relief.</p> <p>In the Superior Court the case was heard by Fox, J. The bill was taken pro eonfesso against the defendant Dunn. The judge found for the plaintiffs, and ruled that the plaintiff Westlake was entitled to a decree requiring the defendant savings bank to discharge the mortgage. The defendant savings bank alleged exceptions.</p>

<p>Pauper, Settlement.</p> <p>Under St. 1874, c. 274, and St. 1878, c. 190, as amended by St. 1879, c. 242, a married woman of the age of twenty-one years, coming in 1869 to a town in this Commonwealth with her husband who never acquired a settlement in this Commonwealth, and living there with her husband and children for five years continuously, without receiving relief as a pauper, if alive in this Commonwealth in 1879, can be found to have had a settlement in the town, being an unsettled woman within the meaning of § 2 of St. 1879, c. 242, at the time of the passage of that act, and an unsettled person within the meaning of § 3 of St. 1874, c. 274.</p>

<p> Sale. </p> <p>In an action for the price of an engine stop, it appeared, that the stop had been placed by the plaintiff on an engine of the defendant for a certain period of trial, to be removed by the plaintiff if the defendant did not like it, otherwise to be purchased at a price named. The period expired on a Friday. On Saturday the defendant used the stop, and on Monday the stop was used but on the same day the defendant notified the plaintiff to remove it. Held, that, although the use of the stop on Monday was deprived of all force as evidence of an election to take the stop by the notice to remove it, yet the use of the stop on Saturday unexplained was evidence to go to the jury on the question whether the defendant on that day elected to take the stop and changed his mind on Monday.</p>

Tort by an infant against a street railway company for personal injuries. Writ dated July 6,1898. At a previous stage of this case, reported in 180 Mass. 8, the plaintiff’s exceptions were sustained by this court after a verdict bad been ordered in the Superior Court for the defendant. At the new trial in the Superior Court before Lawton, J., the jury returned a verdict for the plaintiff in the sum of $5,000.

<p>Negligence, Employer’s liability.</p> <p>In an action for personal injuries incurred in the defendant’s stone yard, it appeared, that the plaintiff was eighteen years of age and had been in the defendant’s employ for five months learning a stone cutter’s trade, that he had worked from time to time for four or five days on the cutting of a large stone tilted up by means of stone chips placed beneath it on the wooden blocks supporting it. He testified that he knew that if the stone was not suitably propped up he would get hurt and that he made no effort to inform himself how it was propped up. The plaintiff had finished working for the day, and was leaning over the stone in the act of picking up some tools which it was his duty to pick up, or in the act of picking up a match to light his pipe, when the stone fell upon him, causing the injury, jHeld, that the chance of the stone falling as it did was an obvious risk assumed by the plaintiff; also, that there was no evidence of due care on the part of the plaintiff or of negligence on the part of the defendant.</p>

Contract, with three counts as stated by the court. Writ dated April 24, 1900. In the Superior Court the case was tried before Aiken, J. The jury found for the plaintiff, in the sum of $137.65, assessing damages on the first count at $136.65, and on the third count at $1. The plaintiff alleged exceptions.

<p>Petition, filed in the clerk’s office of the Supreme Judicial Court for the county of Worcester on June 10, 1899, under St. 1895, c. 488, § 14, for injury to real estate of the petitioner in the town of Pepperell, including two paper mills and their appurtenances, by the taking of the waters of the Nashua River.</p> <p>In accordance with an agreement of the parties, the case was reserved by Hammond, J. for determination by the full court, upon the question stated at the beginning of the opinion.</p>

<p>Writ of entry, dated July 20, 1897.</p> <p>After the decision reported in 178 Mass. 356, there was a new trial in the Superior Court before Pierce, J. He found for the tenant; and the demandant alleged exceptions.</p>

<p>Tort, under the employers’ liability act, for personal injuries received while working in the defendant’s granite quarry at Milford. Writ dated October 14, 1901.</p> <p>At the trial in the Superior Court before Hardy, J., without a jury, the judge found for the plaintiff in the sum of $500. The defendant alleged exceptions.</p>

<p>Negligence, Contributory.</p> <p>If a person engaged in operating a stationary engine, used in constructing a sewer in a street, two feet from the track of an electric railway, steps upon the track directly in front of an approaching car eight or ten feet away, and is struck and killed by the car without regaining consciousness, no recovery can be had for his death without affirmative proof that he was exercising care to avoid being struck by the car.</p>

<p>Bill in equity, by the selectmen of the town of Gardner, to enforce a condition contained in the original location granted to the defendant, praying for a mandatory injunction ordering the defendant to take up a certain portion of its track, and substitute therefor girder rails with granite block paving between the rails and for eighteen inches outside thereof.</p> <p>In the Superior Court Q-askill, J. excluded certain evidence offered by the defendant and refused to give the rulings requested by the defendant. He reported the case for determination by this court. If any of the evidence offered by the defendant was competent and in the opinion of this court could materially affect the determination of the case, the case was to be sent back to the Superior Court for a hearing; otherwise, such decree was to be entered as this court should deem proper.</p> <p>Also TWO petitions for writs of mandamus, to enforce the same order, one by the selectmen of Gardner and the other by the town of Gardner.</p> <p>To both petitions the respondent demurred. These cases were heard by Loving, J., who sustained the' demurrers and dismissed the petitions. The petitioners appealed.</p>

<p>Fraternal Beneficiary Association. Contract, Implied.</p> <p>The rules of a beneficiary association required a member applying for reinstatement, after a suspension of more than thirty and less than ninety days, to pay all arrearages and a reinstatement fee, and to “furnish the branch, the medical examiner’s certificate as prescribed for persons on original application.” The rules for original application required the medical examiner’s certificate to be made upon a certain form and to be transmitted sealed to the supreme medical examiner whose approval was required. A member thus suspended paid all arrears and the reinstatement fee, and was examined by a local medical examiner, who made a certificate upon the prescribed form, but, instead of sealing it and transmitting it to the supreme medical examiner, gave it to the member, who delivered it to the branch. The certificate was not received by the supreme medical examiner until after the death of the member, and was never approved by that examiner. Held, that the medical examiner’s certificate to be furnished the branch as a condition of reinstatement was a certificate approved by the supreme medical examiner; therefore, that the member at the time of his death was not in good standing, and his administrator could not recover on a certificate which made the association liable only upon proof of the member’s death in good standing in the order. Held, also, that the association was not estopped by delay in forwarding the certificate from setting up this defence, as the possibility of the delay came from the intestate’s own act in receiving the certificate and giving it to the local branch.</p> <p>Upon the death of a member of a fraternal benefit association, who was suspended for failure to pay dues and assessments and was not reinstated at the time of his death, his administrator cannot recover from the association the sums paid as assessments by the intestate before his suspension.</p>

<p>‘ Petition, filed June 3, and amended June 22 and November 5, 1901, for the assessment of damages under St. 1895, c. 488, § 14.</p> <p>The case came on to be heard before Lathrop, J., upon the report of commissioners theretofore appointed, and by agreement of the parties was reserved for the consideration of the full court, such order and disposition of the case to be made as to the full court should seem meet.</p>

<p>Contract on a promissory note for $250. Writ dated March 8, 1902.</p> <p>In the Superior Court the case was tried before Hardy, J., without a jury. The judge found for the plaintiff; and the defendant alleged exceptions.</p> <p>The draft upon the defendant, described in the opinion, was as follows$250.00. August 14,1901. Mr. Wm. Tebo. Will please pay to R. J. Torpey or order two hundred and fifty dollars and charge to my account. Due Oct. 1. John Ryan.”</p> <p>The defendant wrote his name on the back of this instrument.</p>

<p>Tort for personal injuries alleged to have been caused by a defect in a highway leading from the centre of the village of West Brookfield to the town of Warren. Writ as amended dated June 27, 1902.</p> <p>At the trial in the Superior Court before Hardy, J., it appeared, that the alleged defect consisted in a plank bridge across a gutter which the plaintiff contended was too narrow, unsuitable, and improperly guarded. The accident happened when the plaintiff was attempting to drive over this bridge in a snow storm on January 7, 1902, at about six o’clock P. M. The bridge had been constructed across the gutter to connect a private driveway with the highway and was outside of the travelled portion of the street.</p> <p>At the close of the evidence, the defendant having requested a ruling that upon all the evidence the plaintiff could not recover, the judge asked the plaintiff’s counsel whether he contended that the way reached by the bridge was a public highway, and he replied that he did not. The judge ordered a verdict for the defendant, on the ground that the accident was without the limits of the highway, so far as it was wrought for public travel, and that the plaintiff was not a traveller upon the highway at the time of the accident. The defendant alleged exceptions.</p>

<p> Prohibition. Street Railway. Railroad Commissioners. </p> <p>Assuming that in this Commonwealth a writ of prohibition sometimes may be granted on the petition of a stranger, the granting of the writ in sucii a case is not a matter of right but of discretion.</p> <p>In view of the provision in R. L. c. 112, § 100, which gives to any interested party a remedy in equity in case of any erroneous ruling of any State board or commission relative to street railways, this court will refuse in any ordinary case to issue a writ of prohibition to correct an error of the railroad commissioners in regard to a street railway company.</p> <p>Whether the decision of the railroad commissioners as to the performance of the requirements preliminary to the establishment of a street railway corporation, under R. L. c. 112, § 13, c. Ill, § 46, is final, or is subject to revision by this court on questions of law, was left open in this case.</p>

<p>Negligence, On railroad.</p> <p>Whether a woman passenger, fifty-two years of age, with a jug of molasses in her left hand and a satchel suspended from her right arm is in the exercise of due care when falling or being thrown from a train which has stopped at a station and is started again as the passenger is on the steps of the car taking hold of the outer iron rail with her right hand in the act of alighting, is a question of fact for the jury.</p> <p>Whether a fireman on a passenger train, whose duty it is to receive from the conductor a signal to start the train and to convey the order to the engineer, is negligent in thinking that lie sees such a signal given by the conductor, when it is not, and instructing the engineer to start the train, is a question of fact for the jury.</p>

Tort, alleging that the defendants sold to the plaintiff a quantity of oats to be fed to her horses, as oats fit for such use, and that the oats were not wholesome or fit for use, but were unwholesome and poisonous, and were covered and saturated with paris green, a poisonous substance, all of which the defendants well knew and had good reason to know; and that the plaintiff, believing said oats to be wholesome and fit for use, fed the same to her horses, and her horses…

<p>Contract, Performance and breach.</p> <p>One who, in consideration of the agreement of a woman to serve him as housekeeper during his life, agrees that if she does so he will leave her $500 by his will, and thereafter wrongfully discharges her, depriving her of her board and lodging as housekeeper and the right to earn her legacy, commits a breach of his contract, which gives a present right of action to the person discharged.</p>

<p>Pleading, Criminal. Constitutional Law.</p> <p>A count under R L. c. 218, § 38, charging that the defendant “ did steal ” a sum of money named of the property of the estate of a certain person, deceased, sufficiently charges the defendant with the crime of embezzlement of money held by him as administrator as described by Pub. Sts. c. 203, § 46, (R L. c. 208, § 48.)</p> <p>The provision of St. 1899, c. 409, § 12, (R L. c. 218, § 38,) making a charge of “stealing" in an indictment good as a charge of embezzlement, is not unconstitutional as applied to offences committed before the enactment of the statute.</p>

<p>Indictment for larceny returned May 15,1902.</p> <p>The defendant was tried in the Superior Court before Hardy, J. At the close of the evidence the defendant requested the judge to make the following rulings, which are referred to in the opinion: “ First. That the statements of the defendant at the police station cannot be considered by the jury as evidence against the defendant. Second. If the jury find that a full statement of what was said by the defendant and the others present at the interview, at the police station, has not been given in evidence, and that some of the statements have been omitted, then the statements of the defendant cannot be considered.” The judge refused to rule as requested.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p> Bills and Notes. </p> <p>One ratifying a signature on a promissory note purporting to be his and which he knows to be forged is bound by it.</p> <p>A married woman, to shield her husband, ratified a signature on a promissory note to a bank, purporting to be hers but forged by her husband. At maturity the note was surrendered to the husband on his giving in renewal a note similarly forged which was accepted in good faith by the bank. In an action by the bank on the first note, it was held, that the substitution and acceptance of the second forged note did not constitute a payment, so as to bar an action on" the note ratified by the defendant.</p>

<p>Contract, Implied.</p> <p>A perscfn employed for one year to be paid a certain sum each week, under a contract which requires him to work overtime without extra pay not more than two hours in one day nor more than two months in the entire year, if wrongfully discharged before the end of the year, cannot sue on a quantum meruit for the overtime work alone, although he can sue on such a count for the value of all his services, crediting the amount received as part payment.</p> <p>One employed under a contract and wrongfully discharged, in suing for the value of his services, need not return the money he already has received. It is sufficient if the amount received is credited upon his claim.</p>

<p>Contract, Implied, Performance and breach, Damages. Waiver.</p> <p>One who voluntarily has made payments under a contract, and subsequently has broken the contract by failing to make other payments as they became due, cannot recover the money he has paid, if the other party did not break the contract and was ready to perform it.</p> <p>A provision, in an agreement for the sale of land to be paid for in monthly instalments, that, on the failure for a period of thirty days to pay an instalment, the vendor at his election may treat the contract as void and have the right to retain for his own use as liquidated damages all money previously paid under the contract, will be enforced as an agreement for liquidated damages, and not treated as declaring a forfeiture on such failure upon which actual damages should be assessed.</p> <p>A provision, in a contract for the sale of land to be paid for in instalments, that on a failure to pay an instalment, lasting for a certain period, the vendor at his election may treat the contract as void and retain as liquidated damages the money previously paid under it, is not waived as to future instalments by the vendor accepting payments after defaults have been made.</p>

<p>Contract, Performance and breach, Damages.</p> <p>In an action against a railroad company for wrongfully discharging the plaintiff from its employ, it appeared, that the defendant «by a contract made in Vermont agreed to employ the plaintiff as station agent at a certain station in Vermont so long as he should perform the duties of the place in a thorough, honest and businesslike manner, and that by the law of Vermont if a superintendent, having authority to do so, allowed a delinquent employee to continue in the employ of the company subject to certain discipline, such action waived the company’s right to discharge the employee for any breach of duty that already had occurred. It further appeared, that after the plaintiff had been delinquent in his duty as telegraph operator at the station, the defendant’s superintendent wrote to him as follows: “ While I should not wish to apply discipline against you on account of it if it was the first case of this kind, must do so in view of the frequent trouble we have with your office in connection with telegraphing and you must if you wish to remain there so conduct the office as to avoid these complaints.” The discipline referred to was a system of demerit marks. Held, that the defendant elected not to discharge the plaintiff for the breach of duty referred to in the letter of the superintendent, although it did not waive its right to take his delinquencies into account in connection with any future breach of duty on his part.</p> <p>In an action against a railroad company for alleged breach of an agreement to employ the defendant as station agent at a certain station, so long as he should perform the duties of the place in a thorough, honest and businesslike manner, a letter of the plaintiff, relied upon by the defendant to justify his discharge, contained the following: “ I am ready to step out for thirty days if you will send a man to relieve me. . . . Will you please send man to commence June 16.” Held, that, upon the facts appearing in the case, the passage quoted was not a notice of a refusal to act as station master for thirty days after June 16, but was merely a statement that the plaintiff was ready to “ step out” in case the defendant would send a man to relieve him for those thirty days, and a request that the thirty days should begin on June 16, and that it did not constitute a repudiation of the contract on the part of the plaintiff or an absolute refusal to perform his obligations under it, which would justify the defendant in discharging him, even if such a notice of intended future action, however construed, would justify an immediate discharge.</p> <p>An agreement by a railroad company, to employ a person as station agent at a certain station so long as he performs the duties of the place in a thorough, honest and businesslike manner, may entitle the employee thereunder to substantial damages in case of his wrongful discharge.</p>

<p>Four ACTIONS of TORT for personal injuries from a collision at a grade crossing at Forestville in Connecticut with an electrie car operated by the defendant. Writ dated October 1, 1902.</p> <p>At the trial in the Superior Court before Maynard, J., the jury returned a verdict for the plaintiff in each case; and the defendant alleged exceptions.</p>

<p> Infant. </p> <p>An infant may avoid a contract of life insurance and recover the money paid by him as premiums, however reasonable and prudent it may have been for him to take out the policy.</p> <p>In this Commonwealth an infant in order to avoid a contract is not obliged to put the other party in statu quo. Thus an infant may recover money paid by him as premiums under a policy of life insurance without any" deduction for the expense incurred by the insurer in keeping the policy in force.</p> <p>If, for an infant to avoid a contract of life insurance, the bringing of an action for the premiums paid under the policy is not in itself sufficient rescission and demand, notice of rescission and demand for the premiums through an attorney appointed by the infant are good, at any rate until avoided by him.</p>

<p>Bill in equity, filed January 30,1903, in the Probate Court for the county of Worcester, by the trustee under the will of George A. Trumbull, late of Worcester, for instructions.</p> <p>On appeal the case came on to be heard before Barker, J., who, at the request of the parties, reserved it upon the petition, the answers and the agreed facts for determination by the full court.</p> <p>The agreed facts were as follows:</p> <p>George A. Trumbull left a will admitted to probate on December 1,1868, containing the following provisions:</p> <p>“ Fifth. I give the sum of five thousand dollars to be paid out of my estate immediately on the decease of my wife aforesaid, in case my daughter Susan shall be then living, but not otherwise, to my said sons George C. and Joseph in trust and to and for the following uses and purposes, and no other, to wit: to receive, invest and reinvest the same, and to pay over the net income thereof semi-annually after deducting all current expenses and charges, to my daughter Susan, and at her decease to dispose of the principal sum as she shall, by her last will direct; or if no such will shall be presented for probate within six months after her decease, then said principal sum to go with the residue of my estate, as hereinafter specified.</p> <p>“ Sixth. As an evidence of my love and gratitude for her unceasing efforts to promote my happiness and welfare I give to my said wife the income for her life of all the personal and real estate I may die possessed of, not otherwise bequeathed, said property at her decease to be equally divided between my sons George C., Joseph, Charles P. and John, my daughter Susan and Isabella F. and my grand daughter Mary Louisa Trumbull Cogswell, as representing her deceased mother.”</p> <p>Susan Trumbull, daughter of George A. Trumbull, made a will dated May 1, 1894, before her marriage but not in contemplation thereof, and after its execution in 1902, married Harry H. Price. The executrix named in her will petitioned the Probate Court for the county of Worcester for the probate of the will, and that court made thereon the following decree on December 30, 1902: “ It is therefore decreed that said instrument be approved and allowed as the last will and testament of said deceased, to have full force and effect as such so far as the same can operate in law or in equity upon any and all property real and personal subject to her disposal by way of appointment under the will of George A. Trumbull late of said Worcester, deceased, or otherwise, and it further appearing that said testatrix married the said Harry H. Price since the execution of said will and that said will was not made in contemplation of such marriage, it is decreed that said will was thereby revoked except as to all real and personal property subject to her disposal by way of appointment. William T. Forbes, Judge of Probate Court.” From this decree no appeal was taken.</p> <p>One paragraph in the will of Susan Trumbull Price was as follows: “ To my niece Mary Louisa T. Cogswell, I give and bequeath the legacy of five thousand ($5,000) dollars given me by my father George A. Trumbull, said sum now in the hands of Winslow S. Lincoln, trustee.”</p> <p>Nathaniel Paine, the petitioner, was appointed the trustee, under the fifth clause of George A. Trumbull’s will, to succeed former trustees, and brought this bill for instructions as to the disposition of the $5,000 referred to in the wills of George A. Trumbull and Susan Trumbull Price against the husband, the next of kin, and the administrator of Susan Trumbull Price and against Mary L. T. Cogswell named in the above paragraph of the will of Susan Trumbull Price and who also was one of her next of kin.</p> <p>On this petition the Probate Court made the following decree on March 19, 1903: “ it appearing that notice according to the order of the court has been given to all parties interested and that George S. Taft as administrator aforesaid [of the estate of Susan Trumbull Price], Harry Hamilton Price and Mary L. T. Cogswell have appeared and answered to said petition it is ordered that said petition be taken for confessed against all respondents who have failed to answer and after due hearing and consideration the court doth decree that Louisa C. Trumbull, widow of said George A. Trumbull, having deceased, the entire principal of said trust estate held by said trustee as set forth in said petition, together with the income thereof since the death of Susan Trumbull Price belongs to the respondent, Mary L. T. Cogswell, free from all trusts, and said trustee, Nathaniel Paine is hereby ordered to forthwith pay over to said Mary L. T. Cogs-well the whole of said trust funds.”</p> <p>From this decree George S. Taft, administrator, appealed.</p> <p>Mary L. T. Cogswell, one of the respondents, claimed the whole of the fund, amounting to over $7,000, by virtue of the paragraph above quoted from the will of Susan Trumbull Price and of the decree of the Probate Court thereon, claiming that the paragraph was made in the exercise of the power of appointment, and constituted a valid appointment of the whole of the fund to Mary L. T. Cogswell, according to the provisions of R. L. c. 135, § 9.</p> <p>George S. Taft, administrator of the estate of Susan Trumbull Price, claimed one seventh of the fund as assets of the estate of Susan Trumbull Price on the ground that one seventh would, without the appointment, have passed to the persons who would have been entitled to it, if Susan Trumbull Price had died intestate, within the meaning of the statute.</p>

<p>Tort for personal injuries, from the breaking of a plank used as a staging, on which the plaintiff was standing while at work in the employ of the city of Worcester as a laborer in the construction of a certain sewer in that city, with a count alleging negligence of a superintendent of the defendant in regard to the construction of the staging and in ordering the plaintiff to work upon it, a second count alleging a failure of the defendant to furnish the plaintiff with suitable appliances for his work, and a third count, added by amendment, alleging a defect in the ways, works and machinery of the defendant. Writ dated June 4, 1900.</p> <p>At the trial in the Superior Court De Gourcy, J. ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Tobt for personal injuries alleged to have been received by the plaintiff’s intestate while in the employ of the defendant. Writ dated January 10, 1902.

<p> Bankruptcy. </p> <p>Under the bankruptcy act of 1898, if the holder of an unrecorded chattel mortgage, made two years before the bankruptcy of the mortgagor when he was not insolvent, first takes possession of the mortgaged property three weeks before the filing of the petition in bankruptcy, the mortgagor then being insolvent and the mortgagee having reasonable cause to believe him insolvent, the transfer dates from the time of taking possession and is voidable as a preference.</p>

Tort, under R. L. c. Ill, § 267, against a railroad company, for the death of the plaintiff’s intestate alleged to have been caused by the negligence of the defendant or the gross negligence of its agents or servants. Writ dated April 25, 1902.

<p>Negligence, Employer’s liability.</p> <p>A section hand, whose duty requires him to stand between two tracks of a steam railroad in clearing deep snow from a switch, and who has to bend down in doing his work, is not in the exercise of due care if he fails to use his eyes in looking both ways for passing trains, relying on rules, not intended for the protection of section hands, which require a whistle to be sounded or a bell to be rung on engines or trains approaching from one direction the place where he is working.</p>

<p>Charity. Boston. Franklin Fund. Words, “Congregational”, “Layout.”</p> <p>The codicil of the will of Benjamin Franklin, proved in 1790, gave to the town of Boston a charitable fund, now held by the city of Boston as trustee, and directed that the fund should be “ managed under the direction of the Select Men, united with the Ministers of the oldest Episcopalian, Congregational and Presbyterian Churches in that Town.” At the time of the death of the testator there were nine selectmen. Held, that the selectmen as managers of the trust did not act as officers of the town, that the aldermen of the city of Boston were not their successors as such managers, and that, the selectmen having ceased to exist, the court sitting in equity would appoint, from the class of citizens indicated by the will, nine lay managers of the trust of whom the mayor of Boston ex officio should be one.</p> <p>Christ Church is the oldest Episcopalian church, the First Church is the oldest Congregational church, and the First United Presbyterian Church is the oldest Presbyterian church, in Boston, within the meaning of the terms of the trust created by the will of Benjamin Franklin proved in 1790, directing that the ministers of the oldest Episcopalian, Congregational, and Presbyterian churches in the town of Boston shall be members of the board of managers of that trust.</p> <p>The codicil of the will of Benjamin Franklin, proved in 1790, giving one thousand pounds sterling to the town of Boston as a charitable fund, contained the following provision : “If this Plan is executed and succeeds as projected without interruption for one hundred Years, the Sum will then be one hundred and thirty-one thousand Pounds of which I would have the Managers of the Donation to the Town of Boston, then lay out at their discretion one hundred thousand Pounds in Public Works which may be judged of most general utility to the Inhabitants such as Fortifications, Bridges Aqueducts, Public Building, Baths, Pavements or whatever may make living in the Town more convenient to its People and render it more agreeable to strangers, resorting thither for Health or a temporary residence.” Held, that the words “ lay out ” in the foregoing provision mean more than the adoption of a plan for the use of the money in the way directed, and include the actual expenditure of it in the establishment of public works of the kind described, all of which is to be done by the board of managers as distinguished from the city of Boston, now holding the legal title of the fund, although the board could not compel the city to assume any burden of maintenance or otherwise involving the use of money to be raised by taxation.</p> <p>A board of managers of a charitable trust may act by a majority vote.</p> <p>The provision of R. L. c. 149, § 1, requiring the giving of bonds by trustees appointed by a probate court under a will, is not applicable to the managers of a charitable fund created by will.</p>

<p>Contract for alleged breach of a covenant against incumbrances in a deed from the defendant to the plaintiff dated August 8,1897, conveying a lot numbered 91 on a certain plan, dated. November 5, 1868, of land at Chester Hill, a portion of Mount Vernon, in the State of New York. Writ dated May 14, 1900.</p> <p>At the trial in the Superior Court Mason, C. J. at the close of the plaintiff’s case ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>It appeared at the trial, that the southerly line of "Mount Vernon is the northerly line of the city of New York, that Mount Vernon is about thirteen miles and a fraction from the Grand Central station and is almost entirely a residential city of detached houses, a suburb of New York; that Chester Hill is the chief residence portion of Mount Vernon, having the best buildings and high priced lots; that Mount Vernon had at the time of the trial about twenty-five thousand inhabitants, and that the population in 1897 was probably about eighteen or nineteen thousand. On page 389 is a reduced copy of the plan of November 5,1868, omitting the dimensions of the lots, and on page 390 is a sketch showing the situation and surroundings of lot 91 on a larger scale.</p>

Petition, filed April 24, 1900, in the Superior Court for Dukes County, praying that the respondent be adjudged in contempt, for failure to comply with a decree entered in that court ordering the respondent to pay the petitioner $10 a week in monthly payments. The respondent filed a motion that the petition be dismissed for want of jurisdiction. In the Superior Court Aiken, J. denied the motion to dismiss, and adjudged the respondent to be in contempt.

<p>Negligence, Contributory, of parent, or of person in charge of child.</p> <p>If a father allows his child three years and eight months of age to go into a yard shut in by a gate which is kept closed by a strong spring, to play with her older sister and a neighbor’s daughter each about ten years of age, this is not as matter of law negligence on the part of the father, which will prevent the child from recovering from a street railway company, in an action for injuries from being run over by an electric car after the children had wandered from the yard into the streets.</p> <p>In an action by a child against a street railway company for injuries from being run over by a car of the defendant, it appeared, that the plaintiff was three years and eight months of age and that a neighbor’s daughter ten years of age asked the plaintiff’s sister, a few months younger than that, to go to play, whereupon the plaintiff’s father said, “ You take E. [the plaintiff] with you, . . . and go right in the yard and play ”, the yard being shut in by a gate which was kept closed by a strong spring. After going into the yard to play, the children wandered off into the streets and the plaintiff was run over by a car of the defendant, when crossing a street on her way home. The defendant contended that there was no evidence of due care on the part of the plaintiff’s sister who it contended was in charge of the plaintiff at the time of the accident. Held, that whether the plaintiff was under the charge of her older sister after they left the yard was at least a question for the jury, depending upon the nature of the permission given by the plaintiff’s father.</p>

Contract, by the executor under the will of Rebecca L. Brightman, against the administrators of the estate of Frank W. Brightman, son of Rebecca, on a promissory note given to the mother by the son. Writ dated August 5, 1902. The answer and declaration in set-off alleged payment of $1,235 as stated by the court.

Petition, filed November 14,1901, in the Court of Registration, to register the title of the petitioners as tenants in common of a tract of land which before St. 1861, c. 187, was a part of Tiverton in the State of Rhode Island, on the Quequechan or Fall River, between the Watuppa Ponds and the dam of the respondent, in that part of the city of Fall River which formerly was the town of Troy.

Tort for alleged oral slander. Writ dated November 15, 1902.

Tout, for personal injuries alleged to have been caused by the negligence of the defendant’s servants. Writ dated March 27, 1902. At the trial in the Superior Court before Lawton, J., the following facts appeared: The plaintiff was, and had been for twelve years, master mechanic of the City Manufacturing Corporation, a corporation engaged in the manufacture of cotton yarn in the city of New Bedford.

<p>Tort, in the nature of trespass, against Charles S. Ashley and others, members of the board of public works for the city of New Bedford under St. 1889, c. 167, as amended by St. 1890, c. 342, and the superintendent of streets of that city, alleging that the defendants by their agents and servants entered the plaintiffs’ close and cut down and carried away trees and plants growing thereon, and tore down walls and fences of the plaintiffs. Writ dated April 21, 1900.</p> <p>At the trial in the Superior Court before Braley, J., it appeared that the acts complained of were done under an order of the board of public works made on April 23, 1894, as to the laying out and widening of Kempton Street in New Bedford.</p> <p>The order, after recitals, concluded as follows: “ Ordered, That the parcel of land before described be, and the same hereby taken and laid out and accepted under the provisions of the Highway Act as a public street or way of the said city, to be known as Kempton Street, and the grade thereof is established according to a plan of the. said laying out and profile of grade by W. P. Williams, City Land Surveyor, dated July 28, 1893, and deposited in the office of this Board; that this Board doth adjudge that there are no damages to the estates, parts of which .are taken as above, and that all persons ór parties, owners of land in the line of said lay out, remove and take away any and all buildings, fences, or trees from the land so taken within days from and after the adoption of this order.”</p> <p>The plaintiffs contended that the order was defective in that no time was given in which to remove the walls, fences and trees; and further contended that, even if the lay out was not invalid, it was the duty of the board to give notice to the plaintiffs before they entered on the land, to remove the walls, fences and trees of the plaintiffs, and that not having done so it was a trespass.</p> <p>The defendants contended that the legality of the lay out could not be attacked collaterally, and that the plaintiffs’ remedy was by certiorari.</p> <p>The judge ruled that for the purposes of this case the lay out was valid, and that a reasonable time had elapsed from the date of the lay out within which Nancy R. Stowell or the plaintiffs, her heirs at law, could have removed the trees, plants and wall, and that upon all the evidence in the case the plaintiffs were not entitled to recover. By agreement of parties the case was submitted to the jury to find and assess such damages as the plaintiffs actually had sustained. The jury found and assessed such damages in the sum of $427.78 and the judge ordered a verdict for the defendants. At the request of the plaintiffs and by agreement of the parties, the judge reported the case for determination by this court. If the ruling that upon all the evidence the plaintiffs were not entitled to recover was right, judgment was to be entered upon the verdict; otherwise judgment was to be entered for the plaintiffs in the sum of $427.78.</p>

Bill in equity, filed August 17, 1901, to restrain the defendant from using and maintaining a drain from certain land on the east side of Auburn Street, in Haverhill, owned by the defendant, through land on the south side of Sixth Avenue in that city owned by the plaintiff, and praying that the plaintiff be authorized to close the portion of the drain upon its land. In the Superior Court Stevens, J. made a decree granting the relief prayed for; and the defendant appealed.

<p> Negligence. </p> <p>A workman employed in a shoe factory on the second floor of a building, who on the third morning of his employment is injured by falling down an elevator well when entering the building by a rear door on an alley way, may be found to have been in the exercise of due care, as against the owner of the building in control of the elevator, if it appears, that on the first morning he entered the building by the front door, that on the second morning he followed other workmen through a rear door into a small dark entry leading by a staircase to the factory, and that on the third morning, which was dark, he was alone, and, supposing that he was entering by the same rear door, entered another similar door near it which was open and led into the elevator well down which he fell.</p>

<p> Municipal Corporations. </p> <p>An order from the proper authorities to widen a public way, making it the duty of a city or town to perform the work of construction, gives no authority to the surveyor of highways or any municipal officer to perform the work or to make any contract for its performance without a vote of the city or town.</p> <p>In order that a practice or custom adopted by a town or city should give authority to an officer to make contracts in its behalf, the adoption of the practice or custom must have been by a vote of the town or city.</p> <p>Where a person enters into a contract with a public officer, who undertakes to act for and to bind a municipal corporation, he is bound at his peril to ascertain the extent of the authority of the public officer with whom he deals.</p>

<p>Equity Jurisdiction, Fraud. Agency.</p> <p>In a suit in equity to compel a reconveyance to the plaintiff of a certain lot of land alleged to have been sold and conveyed by him upon the false and fraudulent representations of the agent of the purchaser, it appeared, that the purchaser’s agent represented that his principal was a man with a wife and two children employed by a railroad corporation at a salary of $6,000 and was able to build and occupy a good dwelling house; that the plaintiff thereupon sold and conveyed the land to the agent for his undisclosed principal, to whom the agent conveyed it; that the purchaser was the Roman Catholic Archbishop of Boston, a corporation sole, and at once proceeded to erect a Roman Catholic chapel on the lot; that the purchaser’s agent knew that the plaintiff had a prejudice against Roman Catholics, and had concealed the identity of the purchaser and the proposed use of the land for that reason. The deed contained restrictions as to the use of the land, which did not prohibit the use in question. The plaintiff paid a part of the commission of the purchaser’s agent. The purchaser was ignorant of the agent’s fraud. Held, that the representations of the purchaser’s agent constituted an actionable fraud; also, that the fraudulent deceit as to the kind of purchaser to whom the plaintiff was selling was independent of the restrictions in the deed and not affected by them; also, that the rights of the plaintiff were not diminished by the fact that he paid a part of the commission of the purchaser’s agent, and that, as it appeared that the agent was acting for the purchaser, the fact that the purchaser was ignorant of his fraud was immaterial.</p>

<p>Two actions OE contract, one by Charles P. Sumner and the other by Arthur D. Sumner both against John D. Gardiner and George B. Beardsell, of Lynn, and Charles A. Ford who was made a defendant by amendment, as copartners doing business under the name of the Boston Shoe Stock Company, for certain sums alleged to be due to the respective plaintiffs for goods sold and delivered according to accounts annexed. Writs dated September 13, 1897.</p> <p>No service' of the writs was made upon Ford, but he voluntarily came into court, and filed a suggestion of bankruptcy and his discharge therein. ,</p> <p>The cases were tried together before Wait, J. The plaintiffs requested the judge to default the defendant Ford for failure to answer interrogatories filed by the plaintiffs, and for want of an answer to' the plaintiffs’ declarations. As to this the judge reserved his decision, and the cases proceeded to trial against Gardiner and Beardsell only.</p> <p>. The plaintiffs throughout the trial contended that, before and at the time the goods mentioned in the plaintiffs’ declarations were sold, a partnership had been formed and existed between Ford and the other defendants under the name of the Boston Shoe Stock Company, or that Ford and the other defendants had held themselves' out as copartners in the business of the Shoe Stock Company, or that Gardiner and Beardsell were the principals and Ford the agent in the business.</p> <p>The defendants Gardiner and Beardsell denied that any such copartnership had ever been formed, or that they had ever held themselves out as copartners with Ford, or that he ever had acted as their agent.</p> <p>The two postal cards and a letter, sufficiently described in the opinion, were offered in evidence by the plaintiffs and were admitted by the judge against the objection of the defendants.</p> <p>The jury returned a verdict for the plaintiff Charles P. Sumner in the sum of $1,249.05, and a verdict for the plaintiff Arthur D. Sumner in the sum of $866.85. The defendants Gardiner and Beardsell alleged exceptions.</p>

<p>Practice, Civil, Exceptions. Negligence, On street railway. Evidence, Remoteness.</p> <p>In an action against a street railway company, in which the plaintiff contends that ' his intestate had his finger injured owing to an improper device for opening and shutting the door of the vestibule of an electric car, after a verdict has been ordered for the defendant and the plaintiff has alleged exceptions, it cannot be assumed in favor of the plaintiff that an inspection of the car by the jury added anything to the evidence stated in his bill of exceptions.</p> <p>In an action against a street railway,company for injuries resulting in the death of the plaintiff’s intestate who fell from the rear vestibule platform of an electric car of the defendant, the plaintiff contended that, owing to the improper construction of the door" of the vestibule, the intestate in opening the door pinched a finger of his left hand which had previously been injured and that the pain in his finger caused him to faint and fall from the car. The testimony of the only witness who saw him open the door tended to show that he used his right hand in sliding it open, and there was no evidence that his left hand came in contact with it. There was nothing to show that he fainted or, if he did, what was the cause of his fainting. Held, that a verdict rightly was ordered for the defendant, the plaintiff’s case being founded wholly on conjecture.</p> <p>In an action against a street railway company, in which the plaintiff contended that his intestate had his finger pinched in the sliding door of the vestibule of an electric car of the defendant, owing to improper appliances for opening and shutting the door, the presiding judge excluded a question by the plaintiff as to whether a witness observed any difficulty in starting the door open from the outside in this car or one like it. Held, that the evidence was excluded rightly, as on the evidence in the case there was nothing to show that the injury to the intestate’s finger was caused by any difficulty in starting the door open, and also because the door of another car like this might stick and open with difficulty and the door of this ear move freely.</p>

<p>Contract for the price of certain advertising alleged to have been done by the plaintiff for the defendant. Writ in the Supreme Judicial Court dated May 14, 1900.</p> <p>The ease was tried before Loving, J., who at the close of the plaintiff’s evidence ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Equity Jurisdiction, Fraud. Equity Pleading and Practice. Bankruptcy.</p> <p>In a suit in equity by a trustee in bankruptcy to set aside a conveyance by the bankrupt through a third person to his wife, the case for some reason not appearing on the record was sent to an auditor instead of a master. The auditor found tiiat there was no evidence that the conveyance in question was made or accepted with any fraudulent intent or for the purpose of delaying or hindering creditors. It appeared by the auditor’s report that when the conveyance was made the bankrupt was insolvent and heavily indebted and that the conveyance was without consideration. In the Superior Court the judge reached a conclusion opposite to that of the auditor and found that the conveyance was fraudulent as against creditors. Held, that on the facts reported this court could not say that the finding of the judge was wrong.</p> <p>In a suit in equity by a trustee in bankruptcy to set aside a conveyance made by the bankrupt to a third person for the benefit of the bankrupt’s wife, if it appears that the purpose of the conveyance was to prevent an attachment by a creditor who recently had obtained a judgment, a decree ordering a release of. the conveyance may be warranted, although there is no direct evidence that the specific purpose of the conveyance was known at the time to the person to whom the conveyance was made.</p> <p>In a suit in equity a decree may be made that each of two wrongdoers shall pay to the plaintiff the amount due to him by reason of the wrongful act in which.they both took part, and in such case a payment by one discharges the other.</p> <p>In a suit in equity by a trustee in bankruptcy to set aside a conveyance of an equity of redemption made by the bankrupt ,to a third person for the benefit of the bankrupt’s wife, if it appears, that the conveyance was made without consideration in order to prevent an attachment of the property by a creditor of the bankrupt, and that the grantee made a paper in the nature of a lease to the bankrupt’s wife, who continued to occupy the premises as she did before, paying interest on the mortgages, taxes and other expenses but no rent, the grantee may be held to account for the amount which he should have received as rent, and the bankrupt’s wife also may be charged with the rent which she should have paid, having by the adjudication in bankruptcy become a tenant at sufferance of the trustee in whom the title to the property then vested.</p> <p>Under the bankruptcy act of 1898, § 70 a, the property of a bankrupt vests in the trustee from the date of the adjudication in bankruptcy. In a suit by a trustee in bankruptcy an accounting was ordered as to property of the bankrupt found to have been conveyed in fraud of creditors. The decree directed that the accounting should begin on a certain day, which was two days earlier than the date stated in the auditor’s report as that of the adjudication in bankruptcy. Held, that while there might be an error of fact, the record did not disclose sufficient facts to show an error in law, or to enable the court to correct any error of fact.</p> <p>In a suit in equity by a trustee in bankruptcy to set aside conveyances in fraud of creditors made by the bankrupt through a third person to his wife and to a third person for his wife’s benefit, the suggestion of the death of the bankrupt filed in the case by his widow, one of the defendants, without further proceedings based upon it, does not bring before the court a claim of dower in the property in' question.</p> <p>In a suit in equity, where the defendants have appealed from a decree ordering them to account to the plaintiff for certain money claimed by him, and the plaintiS has not appealed, it is not open to the plaintiS to dispute credits allowed to the defendants by the decree.</p>

<p>Deed. Boundary. Way. Practice, Civil, Exceptions.</p> <p>A boundary in a deed running from "a stake and stones near an old road leading to the shore; thence by said road ... to a stake by a pair of bars ”, where the road was over land of the grantor and the use of such a way was required for the reasonable enjoyment of the land conveyed, was held to include the fee to the centre of the road, and also a right of way to the grantee in common with others over the whole road.</p> <p>A boundary in a deed by the nearer side line of a road over land of the grantor excludes the road, and the grantor is not estopped to deny its existence.</p> <p>By a deed of land bounding on a private road over land of the grantor, the grantor is estopped to deny the existence of the road, and the grantee acquires aright of way through the entire length and width of the road as it existed upon the land of the grantor when the deed was given.</p> <p>No exception lies to an erroneous instruction which could not have harmed the excepting party.</p> <p>. In an action of tort for the obstruction by a fence of a road over which the plaintiff claims a right of way, where by the bill of exceptions it is agreed, that if the plaintiff had a right of way over the road, the fence constituted such an obstruction of it as to support the declaration, it is not open to the defendant to contend that the plaintiff’s evidence showed the building of a fence across the road at a point not included in the description of the road in the declaration.</p>

<p>Tax. Corporation. Words, “ Owners ”, “ Person.”</p> <p>Shares of a domestic manufacturing corporation purchased by the corporation itself and held for its benefit by a trustee residing in a city of this Commonwealth, assuming that the shares are to be treated as outstanding, are not taxable either to the corporation or the trustee, and the city in which the trustee resides is not entitled under R. L. c. 14, § 61, to be paid by the Commonwealth any proportion of the corporate franchise tax collected from the corporation as corresponding to the amount of the stock so held.</p>

<p>Negligence, Employer’s liability.</p> <p>Where a freight elevator in a cotton mill, which goes only one floor below that on which a woman operative is working, opens a trap door automatically in going up or down, and the only warning of the starting of the elevator is the moving of the elevator ropes, it is negligence as matter of law for the operative after looking at the ropes, which are quiet and show that the elevator is below, to walk across the trap door for a purpose which could have been accomplished by taking another and longer route, and, if in doing this she is injured by the trap door opening and squeezing her against the wall, she cannot recover from her. employer.</p> <p>Evidence of the use as a passageway of a trap door, over an elevator well in the floor of a mill, opened automatically by the elevator going up or down, does not warrant a finding that the corporation maintaining the mill invited its operatives to use the trap door as a passageway, unless there also is evidence that the corporation had knowledge of such use or evidence from which such knowledge can be inferred.</p> <p>An operative in a cotton mill crossing a trap door over a freight elevator two days after a statute has gone into effect requiring a warning device to be placed on sucli an elevator, but having no knowledge of tile statute and no reason to suppose that the elevator is equipped with such a device, has no right to rely on the absence of such a warning of the opening of the trap door by the going up of the elevator, and if he so relies is negligent.</p>

<p>Negligence, On street railway.</p> <p>In an action against a street railway company for an injury incurred when alighting from a car of the defendant, it appeared, that the accident occurred at six o’clock on an afternoon in October, but that it was not very dark, that the car having reached the destination of the plaintiff, some passengers got off and others got on, and the trolley was reversed, that the plaintiff, becoming aware that the car was about to go back, started out through the door to the front platform, where the motorman then was, and stepped off the car, that as he stepped upon the ground the car started suddenly and he fell, his foot being crushed by the wheel of the car. Held, that, even if the plaintiff could have been found to be in the exercise qf due care, there was no evidence of negligence on the part of the defendant, there being nothing to show that the conductor or the motorman had any reason to suppose that the plaintiff was leaving the car when it was started.</p>

<p>Contract for alleged breach of an agreement in a bill of lading to transport twenty cases of oiled clothing from New York to Galveston, Texas, by a steamship of the defendant. Writ dated December 7, 1900.</p> <p>At the trial in the Superior Court before Maynard, J., it appeared, that the goods were shipped in a steamship of the defendant and were lost in a storm by reason of being carried on deck, having been thrown overboard when they became loose, and there was danger of their tearing the tarpaulin, which would have let water into the hold to the damage of the other cargo, and there also was danger of their interfering with the steering gear on the deck of the vessel. The only portion of the cargo lost was that stowed on the deck. The bill of lading contained the following provision: “Varnish, turpentine, cam phene, burning fluids, acids, inflammable goods, or other dangerous articles shall be distinctly so marked as to indicate their character before shipment, and be transported if the carrier chooses, on deck or elsewhere, and they shall in all cases be at the shipper’s or owner’s risk.”</p> <p>The defendant contended that according to the usage and practice under which the goods were shipped, oiled clothing was classed as inflammable, and for that reason always was stowed on deck, and not in the hold; and that the oiled clothing in question was “inflammable goods” within the meaning of the clause in the bill of lading above quoted.</p> <p>The character of the evidence sufficiently appears in the opinion. At the close of the evidence the defendant requested the judge to rule that upon all the evidence the plaintiff could not recover. The motion for this ruling was contested by the plaintiff on the ground that no custom was sufficiently proved as to oiled clothing in general, and no custom at all proved as to the oiled clothing manufactured by the plaintiff, that the effect of such proof as had been offered was for the jury, that, under the custom to mark bills of lading covering goods stored on deck so as to indicate that they were to be so stored, this particular bill of lading, which was not so marked, constituted a contract to carry the goods below deck, and that inasmuch as the loss would not have occurred if the goods had been carried below the deck, the defendant was liable for the loss occasioned by carrying the goods on deck, and that the whole case as to the evidence of custom, and as to all the facts, was for the jury and should be submitted to them.</p> <p>The judge gave the ruling requested by the defendant, and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

Two actions OP tobt by the administratrix of the estate of Charles N. Stevens, the first for the suffering of the intestate and the second for his death, both alleged to have been caused by the negligence of the defendant’s servants in operating a car of the defendant. Writs dated respectively November 19, 1900, and September 20, 1901. In the Superior Court the cases were tried together before Fessenden, J., without a jury.

Contract for refusal to honor the plaintiff’s check for the sum of $190 alleged to have been deposited in the defendant trust company, with a count for money had and received. Writ dated May 21, 1901. At the trial in the Superior, Court before Pierce, J., it appeared, that in 1901 the plaintiff was a stockbroker, doing business in Boston and elsewhere under the name of Heath and Company.

<p>Evidence, Photographs, Other crimes. Burning Insured Property.</p> <p>On the trial of an indictment under R. L. c. 208, § 10, for burning an insured building with intent to injure the insurer, photographs representing the building that was burned, after having been verified properly, may be admitted in evidence, although they also show another building belonging to the defendant that had been partially destroyed by fire at a time previous to the burning charged, there being no evidence relating to the circumstances of the previous fire and the presiding judge having instructed the jury “ that no inferences were to be drawn from the burning of any other building than that charged in the indictment.”</p>

<p> Assignment. Contract. </p> <p>An assignment of an unpaid balance due under a contract with a landowner for building a stable is not an assignment of future earnings, required by R. L. c. 189, § 34, to be recorded, to be valid against a trustee process, if the contract has been substantially performed and the landowner has accepted the stable, it having been completed with the exception of inserting a faucet for washing carriages, for which the owner has not designated the place, and some window fastenings of trifling value.</p>

<p> Superior Court. Husband and Wife. Practice, Civil. </p> <p>An appeal to the Superior Court from a decree of the Probate Court, declaring that the petitioner is living apart from her husband for justifiable cause and ordering that he be prohibited from imposing any restraint upon her personal liberty until further order of the court, does not abate on the death of the wife, testate, there being under R. L. c. 153, § 36, a question of property in regard to the husband’s right to waive tile provisions of his wife’s will which must be disposed of by the Superior Court on the appeal.</p>

<p>Petition, filed February 28,1900, by the New York, New Haven, and Hartford Railroad Company and the New England Railroad Company against the inhabitants of Blackstone, for damages under the provisions now're-enacted in R. L. c. Ill, §135.</p> <p>In the Superior Court the case was heard by De Qourcy, J., who directed the jury to return a verdict for- the petitioners in the sum of $60.85, representing the value of the land of the petitioners, subject to its use for railroad purposes, taken by the town of Blackstone for the widening of St. Paul Street as required by a decree of the county commissioners. At the request of the petitioners the judge reported the case for determination by this court. If the ruling of the judge was right upon all the questions raised, the verdict was to stand; otherwise the verdict was to be set aside, and the case was to be sent to an assessor for the ascertainment of damages in accordance with such rules as this court might determine should be followed.</p> <p>The rulings of the judge appear by the opinion. The award of the special commissioners, under the provisions now re-enacted in R. L. c. Ill, § 136, described and referred to by the court, was as follows:</p> <p>“First. Said town of Blackstone shall carry into effect so much of the decision of said County Commissioners as requires the taking of land and other property for the purpose of widening said St. Paul street.</p> <p>“ Second. All other matters, removals, excavations, works and constructions required by said decision of the County Commissioners, shall be carried into effect by said New England Railroad Company.</p> <p>“ Third. Said New England Railroad Company shall pay all future charges for the keeping in repair the abutments and foundations thereof, and the bridge over said St. Paul street.</p> <p>“ Fourth. Said town of Blackstone shall keep in repair said St. Paul street between said abutments.</p> <p>“ Fifth. Said town of Blackstone shall pay the entire expense of land damage occasioned by the taking of land and property for the widening of said St. Paul street, as required by said decree of the County Commissioners.</p> <p>“-Sixth. The costs of said petition to the County Commissioners, including the costs upon appeal, shall be paid by said New England Railroad Company to said petitioners.</p> <p>“ Seventh. All other charges and expense occasioned by carrying into effect such decision, including cost of the hearing before said special commission, are hereby apportioned two-thirds to said New England Railroad Company, and one-third to said town of Blackstone.</p> <p>“ Eighth. No portion of the charges, expense and costs of carrying such decision into effect, and of any proceedings in relation thereto are apportioned to the county of Worcester.”</p> <p>This award was returned into court, and neither party appealed therefrom.</p> <p>The offers by the petitioners of evidence excluded by the judge, which are referred to in the opinion, were as follows: The petitioners offered to show that at the time of the decree of the county commissioners and the taking under a decree of the road commissioners of Blackstone,- there was upon the land taken, a bridge abutment constructed of granite, which had a value as a structure in connection with the land taken for use in railroad purposes of $2,750; that the extra expense of the new bridge and new abutment constructed in accordance with the decree of the county commissioners, after deducting the increased value that the new structure had over the old to the railroad for use in its railroad business, was $11,878. The petitioners also offered to show that by reason of the decree of the county commissioners they now were required to maintain a bridge to span a street thirty-three feet wide in place of the old street nineteen feet wide; and that in order to compensate them for this liability they should be paid the sum of $1,940. The petitioners further offered to show that upon land adjacent to but not within the area taken by the road commissioners of Blackstone, there were located a water crane and valve pit, for furnishing water to the petitioners’ locomotives, which, by reason of the decree of the county commissioners and the construction of the new abutment thereunder, it became necessary for the petitioners to remove and place in a new location at an expense of $700.</p> <p>. The case was argued at the bar in September, 1903, before Hnowlton, C. J., Morton, Barker, Hammond Loring, JJ., and afterwards was submitted on briefs to all the justices.</p>

Tort, against William A. Fuller, and William H. Martin and James A. Martin, the last two alleged to be co-partners, doing business under the name of Martin Brothers, for alleged breaking and entering of the plaintiffs’ close, and cutting and carrying away a quantity of ice. Writ dated January 24, 1901. In the Superior Court the case was tried before Bell, J. The plaintiffs were ice dealers in the town of Clinton. The defendants Martin also were ice dealers in that town.

<p>Practice, Civil, Referee, Costs. Waterworks. Danvers. Evidence. Interest. ■</p> <p>On an award of commissioners, appointed under a statute as referees, the only questions of law open are those referred by the commissioners to th'e court.</p> <p>A full statement by referees in their award of the principles of law on which they proceeded is not enough to submit to the Court the correctness of those principles or of their application to the case.</p> <p>The town of Danvers and the commissioners of the lunatic hospital acting for the Commonwealth, on June 23,1876, made a contract by which the Commonwealth agreed to construct a reservoir near the hospital at Danvers at its sole expense and keep it in condition, and the town was to have the perpetual right to use the reservoir “ as a storage basin for a supply of water to said town and to such other places as the town may hereafter desire.” Upon the introduction of water to the reservoir by the town as agreed, the Commonwealth was to pay to the town $12,500 and annually thereafter for the term of twenty years the sum of $1,000 as full compensation for the supply of water for the hospital. At the expiration of the twenty years the Commonwealth and the town were to fix by mutual agreement the annual water rates thereafter to be paid by the Commonwealth. St. 1898, c. 564, provided that if the town and the trustees of the hospital should fail to agree as to the amount of compensation to be paid by the Commonwealth for water supplied by the town to the hospital under the contract, three commissioners should be appointed to determine the sum to be paid for such water each year from December 1, 1896, to December 1, 1899. On an award made by commissioners so appointed, it was held, that there was no error of law in a decision of the commissioners that the town was not entitled to charge the Commonwealth a profit on water consumed at the hospital, and that the Commonwealth should pay its share of the expenses actually incurred by the town in maintaining the whole system of waterworks, including extensions of distributing pipes. Held, also, that there was no error in a decision of the commissioners that no reduction was to be made from the sum awarded by the commissioners by reason of the payment of the $12,500 by the Commonwealth on the completion of the reservoir.</p> <p>At a hearing before commissioners appointed under St. 1898, c. 564, to determine the amount to be paid by the Commonwealth to the town of Danvers for the use of water furnished to the Danvers lunatic hospital during a period named, under the contract between the Commonwealth and that town, evidence of the sums paid for water at the State prison and in other towns was held to have been excluded rightly.</p> <p>On an award by commissioners appointed under a statute, to determine the amount to be paid by the Commonwealth to a certain town for the use of water annually during a period named, under a contract between the Commonwealth and the town, the Commonwealth was held to be liable for interest from the end of each year covered by the award.</p> <p>Where commissioners were appointed under a statute, to determine the amount due to a town for water supplied to the Commonwealth, on a failure of the parties to agree on the amount due, and neither the petitioner nor the respondent was satisfied with the award, the petitioner was regarded as the prevailing party, and as such entitled to costs in the proceedings before the commissioners, the award being silent as to costs.</p>

<p>Contbact, under 'St. 1890, c. 437, § 2, for $12,100 paid on margins. Writ dated August 6, 1898.</p> <p>At the trial in the Superior Court before Pierce, J., the defendants contended that by reason of the enactment of St. 1901, c. 459, re-enacted in R. L. c. 99," §§ 4, 6, the action could not be maintained. At the conclusion of the plaintiff’s opening, the judge ruled that as a matter of law the plaintiff was not entitled to recover, and ordered a verdict for the defendants. The plaintiff alleged exceptions. For the purpose of the argument of the exceptions, it was agreed that the plaintiff in his opening stated a case that would support a verdict for the amount claimed unless his cause of action under St. 1890, c. 437, was defeated in consequence of the enactment of St. 1901, c. 459, subsequently re-enacted in the Revised Laws.</p>

Contract, against the indorser in blank before delivery of a promissory note, who was alleged to be liable as a joint maker. Writ dated October 14, 1902. In the Superior Court the case was heard by Hardy, J. upon an agreed statement of facts. The note in suit was as follows: “ No. $2000. Boston, May 31, 1890.

<p>Contract for money paid for taxes on real estate leased from the defendant’s predecessor in title. Writ in the Supreme Judicial Court dated July 6, 1901.</p> <p>The case came on to be heard before Hammond, J., who made the ruling stated in the opinion and reported the case for determination by the full court.</p> <p>During the term of the original lease the plaintiffs as lessees were not bound to pay the taxes. The lease contained the following provision mentioned by the court:</p> <p>“ And it is further understood and agreed that the said parties of the second part shall have the option and right of an additional and further term of Five Years of the leased premises from the expiration of the term of this lease upon the following conditions, provided that they give written notice to the parties of the first part their heirs or assigns, of such their desire at least one year before the expiration of the first term of five years and within thirty days thereafter execute a written lease of like tenor to the present lease for such additional term and in accordance with the following conditions. The Rent for such further term shall be at the rate of Thirty-nine hundred and sixty dollars ($3,960) per year with the addition thereto for each year of such sum as shall be equal to six per centum upon the value of the Northerly Dock of the leased premises as filled up or piled and planked, if so improved, such additional rent to commence from the time when such improvement shall be completed, such value not to be estimated for this purpose above one dollar fifty cents per square foot of the area of the said dock so improved. In addition to such rent the lessees or their assigns shall pay all taxes and assessments to which said premises or any part thereof may become liable during said additional term, excepting taxes with respect to said basement office, and shall pay the same annually, commencing with the year 1893, between November 1 and November 30 in each year. All water rates also to be payable by lessees.”</p> <p>The agreement of extension mentioned by the court was executed under seal on the back of the lease, and, omitting the attesting clause and the signatures, was as follows: “ Boston, April 21, 1892. The term of the within lease is hereby extended to Charles Taft Chapin and Benjamin D. Wood doing business as Chapin Wood & Co., for five years and eight months from and including September 1st 1898, viz : —to May 1st 1899, upon the within described premises not released from said lease by Chapin, Wood & Co. by their agreement under seal with the Edison Electric Illuminating Company of Boston dated March 1st and April 21, 1892 and is extended for the same time upon the additions to said premises agreed upon between said parties by said agreement of April 21, 1892. This extension is made subject to the same conditions covenants and agreements so far as applicable contained in the within lease for the term thereof to expire August 31st 1893 except as affected by said agreements of March 1st and April 21st 1892.”</p>

<p>Contract for alleged breach of the covenants in a deed, conveying two parcels of land on or near Audubon Road in the city of Boston. Writ dated April 15, 1903.</p> <p>In the Superior Court the case was heard by Mason, C. J., without a jury. He refused the defendant’s requests for rulings, and found for the plaintiff in the sum of $14,500. The defendant alleged exceptions, raising the questions stated by the court.</p>

<p>Equity Jurisdiction, Specific Performance, Charge on proceeds of land. Executor.</p> <p>The right of a vendee to enforce specifically a contract for the sale of land, by compelling a conveyance, is not affected by the fact that the vendor’s title was imperfect when the contract was made, if later it became adequate.</p> <p>It is not within the power of an administrator de ionis non with the will annexed of an insolvent estate, to stipulate that an arbitrator under R. L. c. 194, may award damages on a claim against the estate for the conveyance of certain real estate as a preferred claim under R. L. c. 142, § 30, but if the real estate in question has been turned into money by an agreement of the parties, with a stipulation that the claim shall be paid from the fund, the fund properly is chargeable in equity with the damages which are allowed.</p>

Petition, filed September 29, 1900, for the assessment of damages for the taking by the metropolitan park commissioners under St. 1893, c. 407, of two parcels of land in that part of Boston called Dorchester. At the trial in the Superior Court before Bell, J., the jury returned a verdict for the petitioner in the sum of $12,000 with interest from the date of the taking. The respondent alleged exceptions.

<p>Tort for alleged false and fraudulent representations, whereby the- plaintiff was induced to exchange an equity of redemption of certain real estate numbered 19 on Camden Street in Boston for a mortgage for $2,500 on certain land in Newton. Writ dated September 20, 1898.</p> <p>At the opening of the trial in the Superior Court before GrasMU, J., before any evidence was introduced, it was stated by counsel and admitted for the purposes of this action to be true, that the equity of the property on Camden Street had stood in the name of Roy E. Brock, a minor son of the plaintiff for whom she was guardian, and that induced by the representations of the defendant, alleged to be false, the plaintiff obtained leave from the Probate Court to sell the property as guardian for $2,500, and thereafter conveyed it to the defendant’s nominee by a guardian’s deed in the usual form. The plaintiff contended that, although the legal title to the property stood in the name of Roy E. Brock, the property was her own and she simply had placed it in the name of her son. She also offered to prove that since the bringing of this action Roy E. Brock had died and that the plaintiff was his sole heir at law, she being a widow and he her only child, and that there were no creditors.</p> <p>The judge ruled that the present action could not be maintained by the plaintiff in her own name, and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

Tort by a mortgagee of personal property against a constable for the alleged conversion of the mortgaged property attached and sold on execution by the defendant. Writ dated September 22, 1900. At the trial in the Superior Court before Bond, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions.

Two ACTIONS oe CONTRACT, one by the assignee in insolvency of copartners constituting the firm of Berkman Brothers, to recover a balance alleged to be due from the defendant under a contract in writing, and the other by the defendant in the first named action to recover back the money theretofore paid under the contract.

Contract, the amended declaration alleging a breach of an oral contract to sell and deliver to the plaintiff forty thousand sides of leather. Writ dated January 23, 1895. The declaration before amendment was upon the memorandum as a contract in writing. After a finding for the plaintiff, the defendants’ exceptions were sustained in a decision reported in 181 Mass. 134.

<p>Contract, by the treasurer of the Commonwealth against the city of Worcester, for the support of a pauper at the Worcester Insane Hospital. Writ dated January 16, 1903.</p> <p>In the Superior Court the case was presented upon an agreed statement of facts. That court gave judgment for the plaintiff; and the defendant appealed.</p> <p>The agreed facts were as follows: The pauper, Charles Williams, was born in Worcester, on March 26,1876. He was committed to the Worcester Insane Hospital on March 2, 1898, and was discharged therefrom on May 12,1899. His parents were Henry A. Williams and Mary A. (Jackson) Williams. His father, Henry A. Williams, abandoned his wife and children in August, 1875. He never was in Worcester after that, and never at any time had a settlement within the Commonwealth. After that date he did not live with his wife, and did nothing for her support. He resided in Connecticut, and resided for five years in Washington. In 1887 he came to Amherst for a short visit, since which time his whereabouts were unknown. After Henry A. Williams abandoned his wife and children in 1875, bis wife, the mother of the pauper, resided in Worcester continuously, without receiving relief as a pauper, with a single exception in November, 1886, when one of her children by her first husband, Arthur Jackson, was aided by the town of Shutesbury. Mary A. Williams, mother of the pauper, had a derivative settlement at birth in Northampton, Massachusetts. She married Arthur Jackson at Northampton, in 1869, and through this marriage acquired a settlement in Shutesbury. Jackson died in 1870, and in 1871 she married Henry A. Williams, father of the pauper.</p> <p>If, upon the above facts, the pauper acquired a derivative settlement in Worcester through his mother, judgment was to be entered for the plaintiff for the amount named in the declaration. If he did not acquire a settlement thus, judgment was to be entered for the defendant.</p>

Contract, for alleged breach of a contract in writing between one Holt doing business under the name of the Holt. Novelty Company and the plaintiffs, to make and deliver five hundred field of view dividers, a divider being an appliance to be placed on a camera, against Theodore 0. Gram and Henry Pletsch, assignees of the contract, alleged to have assumed its obligations. Writ dated September 11, 1896.

<p> Wagering Contracts. </p> <p>St. 1890, c. 437, § 2, giving the right to recover money paid on wagering contracts, was amended and not repealed by St. 1901, c. 459, and so far as it was unchanged by the later act remained in force as to transactions which occurred before the amendment.</p>

Tort for taking conduits, wires and cables of the plaintiff under St. 1896, c. 516, alleged to be unconstitutional. Writ dated October 18,1901. In the Superior Court the case was tried before Mason, C. J., without a jury. He found for the defendant; and the plaintiff alleged exceptions.

<p>Bill in equity, filed June 28,1902, to enforce the payment of f550 due to the plaintiff from the defendants Pope and Davis, and to set aside a contract between the plaintiff and the defendants Dowd and Tebbetts whereunder they claimed two thirds of the-amount so due.</p> <p>The contract in question was as follows:</p> <p>“ Agreement between Maria L. S. Gargano, of New York City, widow of Carmine Gargano, who was accidentally killed July 3, 1900, at,East Boston, Mass., party of the first part, and George W. Tebbetts and Frederick 0. Dowd, attorneys at law, both of Boston, county of Suffolk and Commonwealth of Massachusetts, party of the second part, witnesseth:</p> <p>“ That, whereas, said party of the first part desires to prosecute an action at law to recover damages against the Equity Associates, so-called, of East Boston, for the death of her said husband.</p> <p>“And whereas, the party of the first part has requested the parties of the second part to take such legal proceedings as may be necessary to recover such damages.</p> <p>“ Now, in consideration of the services rendered and to be rendered in the premises by the parties of the second part for and on behalf of the said party of the first part,</p> <p>“ It is agreed that said parties of the second part shall have authority irrevocable to act for the party of the first part, and to sue for, collect, release, discharge all claims due or alleged to be due to the party of the first part on account of the death of her said husband, and to adjust, compromise, settle and dispose of said claim, or damages awarded in whole or in part, precisely as the party of the first part might be bound by her own act under seal or otherwise, and further.</p> <p>“ It is agreed, that out of the moneys received before or after said settlement or compromise, the parties of the second part shall be entitled to retain for themselves, as compensation for their services, a sum of money equal to sixty-six and two-thirds per cent of the moneys so received, rendering the balance of one-third to the party of the first part, who hereby covenants and. agrees to receive and accept such proportion from the parties of the second part, in full and complete settlement and acquittance of any claim growing out of this contract.</p> <p>“ And it is further agreed that said parties of the second part shall have an express lien on any judgment or settlement of the suit of said party of the first part against said Equity Associates, for all services rendered by the parties of the second part under this agreement.</p> <p>“ The said party of the first part hereby covenants and agrees to execute all papers, releases, or other writings deemed necessary by said parties of the second part in furtherance of this contract.</p> <p>“ In testimony whereof, we hereunto set our hands and seals this third day of July, A. D. one thousand nine hundred and one. Maria L. S. Gargano. [Seal.] George W. Tebbetts. [Séal.] Frederick C. Dowd. [Seal.]</p> <p>“ Witness to all, having first faithfully interpreted the foregoing, reading the same in the Italian language to Maria L. S. Gargano: Michele Nigro.”</p> <p>The case was referred to J. A. Lowell, Esquire, as master. He found that the contract was void for champerty, that the defendants Pope and Davis should be ordered to pay the plaintiff $550, and that the contract should be declared to be void and ordered to be delivered up for cancellation.</p> <p>The Superior Court made a decree for the plaintiff in accordance with the master’s report; and the defendants Dowd and Tebbetts appealed.</p> <p>The answer of the defendants Dowd and Tebbetts referred to in the opinion contained, among other matters in the nature of a demurrer, the allegations that the plaintiff had an adequate remedy at law, that no facts were alleged to show that the plaintiff was without a remedy at law, and that the bill set forth no grounds for equitable relief.</p>

<p> Will. Evidence. Practice, Civil. Rules of Court. </p> <p>On the issue of the sanity of a testator, the contestant of the will contended that the testator was of unsound mind by reason of senile dementia, a progressive disease which continued to the time of his death. The will was executed in April, 1895. The testator died in September, 1898. The judge of the Superior Court, before whom the issues of fact were tried, fixed January 1, 1897, as the time up to which witnesses might testify in regard to the testator’s appearance, conduct and apparent condition. No objection to this was made by either party. The contestant asked the attending physician of what disease the testator died. The judge excluded the question. Held, that the exclusion was right, and that it was not the duty of the judge to receive the evidence merely because an expert would testify that in his opinion it had some significance.</p> <p>On the issue of the soundness of mind of a testator, a witness not an expert cannot be asked the question “ From these facts what did you infer in your own mind as to Mr. J’s [the testator’s] mental capacity ?”</p> <p>On the issue of the soundness of mind of a testator a witness not an expert can be asked whether he noticed any failure of memory and whether he ever noticed anything to indicate that the testator was not of sound mind. Such a witness also may be asked whether he noticed any failure of intelligence on the part of the testator and whether the testator’s memory was good or bad, if the questions are limited by the judge to observations of external manifestations and are so answered.</p> <p>On the issue of the soundness of mind of a testator, a witness not an expert cannot be allowed to testify that the testator’s “ powers seemed to be complete and perfect ” nor that so far as the witness remembered each time he saw the testator he “ should say that he was in the possession of clear faculties and mental powers.”</p> <p>Rule 48 of the Superior Court, that “ when further instructions are given in the absence of counsel after the jury have retired, the presiding justice may permit exceptions thereto at any time within twenty-four hours next following ”, is reasonable, and is binding on the parties to an action. Where instructions are so given on a legal holiday which falls on a Friday and the court does not convene again until the following Monday an exception to these instructions taken on the last named day cannot be allowed.</p> <p>Under R. L. c. 166, § 5, c. 158, §4, a presiding judge may give further instructions to a jury on a legal holiday.</p> <p>Where the circumstances attending the return of a verdict were such as to raise a doubt whether it was unanimous, but the jurors by their foreman had signed the verdict and it was affirmed, all the jurors assenting to it although one of them said that he did so under protest, there was held to be no error of law on the part of the presiding judge in refusing to treat the verdict as illegally received and recorded.</p>

<p>Insurance, Life. Equity Jurisdiction.</p> <p>The holder of an insurance policy, entitling him to a sickness indemnity of $35 a . month and $100 for funeral expenses to be paid to his estate, signed an order to the insurance company directing the company to pay all money due on account of his policy to a certain creditor, and surrendered his policy to the company. Two days later, and before the company had acted on the order, the insured died intestate, without heirs or next of kin and with no creditors other than the payee of the order. The company refused to substitute the creditor as beneficiary under the policy, and the creditor brought a bill in equity to compel it to do so. Reid, that the plaintiff was entitled to no relief, there being no privity between him and the company, and that bis proper remedy would have been to have had an administrator appointed to collect the money on the policy.</p>

<p>Way, Extent of public easement. Boston.</p> <p>Semble, that the owner of land taken for a street holds it subject to the right of the Legislature to appropriate the space above and below the surface as well as upon it, in any reasonable way, for the purposes of public travel, without providing compensation.</p> <p>Under St. 1894, c. 548, and later statutes, the construction of the subway beneath the surface of Court Street and State ^Street in Boston imposes no additional easement on land owned by the abutters to the centre of those streets, and the Boston transit commissioners lawfully can construct such subways without taking in fee the land under the streets.</p> <p>The provision in St. 1902, c. 634, § 19, that the city of Boston “ shall have, hold and enjoy in its private or proprietary capacity, for its own property,” the several subways and the tunnel built and to be built under that and former.statutes, gives a title to the subways and tunnel merely as structures, and confers on the city no ownership of the land lawfully occupied by those structures.</p>

<p> Corporation. Equity Jurisdiction. </p> <p>A stockholder, bringing a bill in equity to enforce rights of the corporation for its benefit, must show that he submitted to the directors the facts on which his bill is based, or show reason for not doing so. In such a case a naked request to the company to institute the proceedings is not sufficient.</p>

<p> Agency. Broker. </p> <p>A broker, employed to sell certain real estate and discharged by his principal after failing to sell it, is not entitled to a commission on a subsequent sale of the property through another broker to a purchaser from whom the first broker had procured an offer which was not accepted.</p>

<p>Contract, on a contract in writing between Nathan M. Garland and others on the one part and the defendant on the other part, and assigned in writing by Nathan M. Garland to the plaintiffs as collateral security for the payment of a certain judgment in a city court of New York in favor of the plaintiffs against Nathan M. Garland for $677.78. Writ in the Municipal Court of the City of Boston dated April 26, 1902.</p> <p>On appeal to the Superior Court the case was tried before Lawton, J., without a jury. The contract sued upon was dated in September, 1895, and was between John T. Garland, Jenny G. Hosmer and Nathan M. Garland, parties of the first part, and James S. Garland, party of the second part. It recited that one Smith had brought a suit in the State of Missouri against all the parties to the contract to set aside a deed to them of certain real estate in the city of St. Louis, and that the parties of the first part had conveyed to the defendant all their interest in the property and authorized him to defend the suit in 'their names, and the defendant agreed “ that he will well and truly pay to said John, Jenny and Nathan respectively, the sum of one thousand dollars each, in good and lawful money of the United States, with all convenient speed after the title of said property shall have been confirmed and possession thereof been given to the said James S. Garland, his heirs or assigns, or in case of a compromise and settlement.”</p> <p>The ruling asked for by the defendant’s second request, referred to by the court, was as follows: “ That said assignment was not an absolute but was a qualified assignment conditional upon the non-payment of the judgment referred to therein ; and there is no evidence that said judgment against said Nathan M. Garland has not been paid. Therefore the court rules that plaintiffs cannot recover in this action.” The plaintiffs did not allege in their declaration that the judgment referred to in the assignment had not been paid, and no evidence on this point was introduced at the trial. The judge refused the request.</p> <p>The ruling asked for by the defendant’s sixth request, referred to by the court, was as follows: “ That this defendant’s title was not confirmed and possession of said real estate was not given to him until the first of October, 1901, and that at the time of this assignment and of the demand made upon him thereunder, to wit, on or about the first of March, 1902, a reasonable time had not elapsed in which to pay said one thousand dollars to said Nathan M. Garland.” The judge refused this request.</p> <p>The judge found for the plaintiffs in the sum of $933; and the defendant alleged exceptions.</p>

<p>Tort for personal injuries from an alleged defect in a highway of the defendant. Writ dated November 12, 1901.</p> <p>At the trial in the Superior Court before Fox, J., the jury returned a verdict for the plaintiff in the sum of $1,300; and the defendant alleged exceptions.</p>

<p>Evidence, Best and secondary, Competency. Practice, Civil, Exceptions. Wagering Contracts.</p> <p>It is proper to exclude secondary evidence of the contents of letters offered by a plaintiff who has testified that they were written to lfim by the defendant, and who successively has testified that the letters “ might be lost, he did not know ”, that he had not any letters and that “ we did not bring the letters here ”, and where there has been no attempt to show that any search was made for the letters or that they were lost.</p> <p>In an action under St. 1890, c. 437, for money paid on wagering contracts, a plaintiff cannot be allowed to testify that when he received a notice from the defendants stating that they had “bought” certain stock on his account he did not understand what was meant.</p> <p>The exclusion of evidence on the direct examination of a witness is no ground for exception if the evidence thus excluded was brought out later on Ms cross-examination.</p> <p>In an action against a broker under St. 1890, c. 437, § 2, for money paid on margins, where it appeared that the defendant actually bought the stocks, received certificates for them and carried them for the plaintiff, although the certificates were not delivered to the plaintiff but were held by the defendant until they were sold for the benefit of the plaintiff, an instruction, that the plaintiff must show, by a fair preponderance of the evidence, that in his employment of the defendant he did not intend to have him buy any stock or sell any stock and that the defendant had reasonable cause to believe that the plaintiff did not intend to have him buy any stock or sell any stock, was held to be sufficient without using the language requested by the plaintiff.</p> <p>In an action against a broker under St. 1890, c. 437, § 2, for money paid on margins, the fact that the defendant actually purchased the stock at the request of the plaintiff, and held it subject to his own control until his lien was paid, properly may be considered by the jury upon the question whether the defendant had reasonable cause to believe that the plaintiff was carrying on a wagering contract.</p> <p>In an action against a broker under St. 1890, c. 437, § 2, for money paid on margins, the reading by the judge to the jury of an extract from the opinion of the court in Rice v. Winslow, 180 Mass. 500, 502, was approved as being a correct statement of the law which illustrated one phase of the case on trial.</p> <p>Where one employs a broker to buy and sell stocks for him, and the broker actually buys the stocks with his own money and receives the certificates for them, and later the stocks are actually sold upon the order of the customer or under authority given by him, there is no wagering contract under St. 1890, c. 437, § 2, although the transactions are conducted without actual delivery of the certificates of stock to the customer.</p>