Volume 185 — Massachusetts Reports

<p> Intoxicating Liquors. Cider. </p> <p>By R. L. c. 100, § 2, cider is an intoxicating liquor within the meaning of that chapter without being shown to contain more than one per cent of alcohol.</p> <p>On the trial of a complaint under R. L. c. 100, §§ 1, 2, for maintaining a certain tenement for the illegal sale and illegal keeping of intoxicating liquors, there was evidence that the defendant kept a grocery and had sold cider there without a license during the time covered by the complaint. The judge instructed the jury, that if they found this to be the fact the defendant would be guilty of the offence charged, “ as the sale of all cider, unless under a license, is prohibited by law in this Commonwealth.” Held, that the first part of the instruction was correct, and that the reason given in the portion quoted, although stated too broadly, did thé defendant no harm, as he did not come within the valid exceptions of R. L. c. 100, §'l. St. 1903, c. 460, was not then in force.</p>

<p>jEquity Pleading and Practice, Decree. Interest.</p> <p>A sum of money ordered by a decree in equity to be paid as damages bears interest from the date of the decree although the amount in part is made up of interest. A decree in equity will not be set aside for a defect in form in not stating the amount of the costs.</p>

<p>Deed, Delivery. Equity Jurisdiction.</p> <p>In a suit in equity seeking the cancellation of a deed of release of restrictions on the lots of land shown on a certain plan, where the bill alleged, that the deed by its terms was not to take effect until executed by all the grantors, and that the defendant being one of the persons named as grantors did not execute the deed, having signed it but failed to deliver it to the plaintiffs or to record it, the defendant alleged in his answer “ that the said deed was executed by all the parties named as grantors.” Held, that this was an allegation that the defendant had delivered the deed.</p> <p>In a suit in equity seeking the cancellation of a deed of release of restrictions on the lots of land shown on a certain plan, where the bill alleged, that the deed by its terms was not to take effect until signed by all the grantors, and that the defendant, being the owner of one of the lots, signed the deed but did not deliver it to the plaintiff, the owner of another of the lots, and did not record it, a finding that the defendant signed the deed but did not deliver it to the plaintiff and did not record it, but retained it in his custody refusing to record it, is not a finding that the deed was not delivered by the defendant, the owners of many lots being parties to the deed and each of them being a grantor and a grantee. If on such a state of facts the plaintiff has a remedy, it is founded on a right as one of the grantees to have the deed recorded.</p>

<p>Bill in equity, filed December 4, 1902, and amended June 10,1908, by the members of the metropolitan water and sewerage board, under St. 1895, c. 488, § 28, to restrain the defendant from polluting the waters of the Quinepoxet River in the town of Holden, as stated in the opinion.</p> <p>In the Superior Court the case was heard by Hardy, J., who ruled, as matter of law, that the plaintiffs were entitled to the relief sought, and ordered that an injunction should issue as prayed for in the amended bill. At the request of the parties, he reported the questions raised for determination by this court, such decree to be entered as this court should deem proper.</p>

<p>Appeal, from a decree of the Probate Court for the County of Middlesex, disallowing two items in an account of the petitioners as trustees under the will of Eliza I. Greenough. Petition in the Probate Court filed December 17, 1902.</p> <p>On appeal the case came on to be heard before Braley, J., who, at the request of the parties, reserved .it upon the record of the Probate Court, the objections to the decree, and an agreed statement of facts, for the consideration of the full court, such order to be made therein as justice and equity might require.</p> <p>The items disallowed were dated January 31,1902, and were under the heading “ Changes in Investments since last Account.” One was a charge of a commission of five per cent on a sum received from the sale of rights to subscribe to new shares to be issued by the American Telephone and Telegraph Company, and the other was the charge of a like commission on dividends made by the Boston and Roxbury Mill Corporation, whose entire assets consist of real estate and whose dividends are treated on the books of the corporation as dividends of capital.</p>

Bill in equity, filed August 13, and amended October 20, 1903, by John P. Squire and Company, a corporation organized under the laws of New Jersey, to reach and apply, in satisfaction of a debt from the defendants Tellier and Chausse to the plaintiff, a stock of merchandise alleged to have been sold by the defendants Tellier and Chausse to the defendant Hudon without compliance with the provisions of St. 1903, c. 415.

<p>Petition, filed August 6, 1903, in the Probate Court for the county of Norfolk, for the appointment of an administrator de bonis non of the estate of John E. Humphrey, late of Weymouth.</p> <p>The Probate Court made a decree dismissing the petition. On appeal, the case was heard by Braley, J. He ruled that on the facts, which are stated in the opinion, the Probate Court had no jurisdiction to make the appointment, and affirmed the decree of the Probate Court dismissing the petition. At the request of the petitioner he reported the case for determination by the full court, such decree to be entered as law and justice might require,</p>

<p>Tort for personal injuries alleged to have been received from being run over by a team negligently driven by a servant of the defendant: Writ dated October 10,19Ó0.</p> <p>At the trial in the Superior Court Lawton, J. at the close of the plaintiff’s evidence ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Contract, on a covenant in a lease, for four months’ rent. Writ dated March 23, 1900.</p> <p>In the Superior Court Sheldon, J. ordered a verdict for the plaintiff. The jury returned such a verdict in the sum of $38 and interest; and the defendant alleged exceptions.</p>

<p>Probate Court. Executor. Evidence. Practice, Civil. Trust, Duties of trustee as to investments. Words, “Before approving the same.”</p> <p>St, 1889, c. 311, providing, that after any account of an executor, trustee or other person required by law to render an account in the Probate Court, has been filed, .the judge of that court may, “ before approving the same,” appoint one or more auditors, authorizes the appointment of an auditor to report upon accounts of an executor previously approved by the judge, upon an application by the beneficiaries to reopen those accounts, made before the executor’s final account has been allowed.</p> <p>An expenditure by executors, from the funds of an estate, of $80,000 in two years, in an attempt to develop a tract of vacant land upon the outskirts of a city in a distant State, appraised at only $12,000, resulting in a net loss of $40,000 at the end of three months after the two years, rightly is disallowed as an investment, even if the money had been lying in the hands of the executors uninvested and the executors would have been justified in temporarily investing it.</p> <p>Even if oral directions, given by a testator in bis lifetime to one who is expected to act as his executor, ever will justify that person when appointed executor in making an expenditure otherwise improper, yet if in giving such oral directions the testator stated that he had made arrangements in his will, he must be understood to have referred to that instrument as the guide, and unless the will provides otherwise the executor will be held to the liabilities imposed upon him by the general law.</p> <p>On the issue of disallowing in an executor’s account the expenditure of a large sum of money in attempting to develop a tract of vacant land upon the outskirts of a city in a distant State, no exception lies to the exclusion of evidence, that men . of prudence, discretion and intelligence in the East, especially in Boston, as well as conservative institutions for savings, were making investments similar to that in question.</p> <p>No exception lies to the exclusion of evidence of a fact afterwards found in favor of the party offering the evidence.</p> <p>In an account of an executor, an investment properly is disallowed of $2,600 from the funds of the estate, made by depositing that amount with a loan and trust company organized in a distant State upon the understanding that an unsecured debenture bond should be issued for the deposit, where the trust company has failed and the bond is of no value.</p> <p>An assent in writing by the beneficiaries of an estate to the allowance of a series of accounts, filed by two executors before their final account, does not operate as a ratification of improper investments stated in the accounts, if the accounts were not true, containing misrepresentations wilful on the part of one of the executors and which the other executor did not know to be true.</p> <p>Two executors, one of whom was sole trustee under the same will, made an improper investment of §80,000 which proved to be worth only $40,000. This investment was turned over by the executors and received by the trustee at the value of §80,000. Later the trustee rendered a series of probate accounts covering nearly seven years, in which he stated the investment at the same value. Both of the executors, one of whom was the trustee, acted in bad faith. Held, that, not only were the executors liable for the loss on the investment, but also the trustee as such was liable for the same amount. Hammond, Loring, & Bralet, JJ. dissenting.</p> <p>Where executors are found to have acted in bad faith in making an improper investment of the funds of the estate, it is right to charge them with interest at the rate of six per cent upon the amount of the loss on the investment.</p>

, that in a set-off, under R. L. c.' 170, § 2, of judgments recovered respectively by the plaintiff and the defendant in independent actions, there should be allowed to Franks as not subject to set-off the sum of $92 recovered by him as taxable costs in an action against Edinberg in the State of New York.

CONTRACT on a promissory note for $173 and interest, begun by a trustee process in which Elmer C. Willison was summoned as trustee. Writ in the Municipal Court of the City of Boston dated September 5,1901. The defendant was defaulted, and on June 25,1902, the trustee filed an answer showing funds in his hands amounting to $121.38. On June 28,1902, William Reynolds was admitted as an adverse claimant, claiming the funds in the hands of the trustee by virtue of an assignment.

<p>Bankruptcy. Words, “Lien.”</p> <p>A temporary injunction, upon a bill under Pub. Sts. c. 161, §2, cl. 11, to reach and apply equitable assets of the defendant in payment of his debt to the plaintiff, issued more than four months before the defendant is adjudicated a bankrupt, creates a lien good against the trustee in bankruptcy under the bankruptcy act of 1898.</p>

<p>Indictment, found on February 10, 1902, for maintaining a nuisance at common law.</p> <p>The indictment was as follows: “The Jurors for the Commonwealth of Massachusetts on their Oath present, that Gran-ville L. Packard of Brockton in the County of Plymouth, on the first day of October, in the year of our Lord one thousand nine hundred and one, and on divers other days between said first day of October and the date of the finding of this indictment, at Brockton, in the.County of Plymouth, near dwelling houses occupied by divers citizens of the said Commonwealth, and also near divers public highways and divers ways commonly and lawfully used by divers citizens of the said Commonwealth, said public highways and ways being then and there situate, then and there did keep and maintain a building and premises for the storage of, and did store, a large quantity of naphtha; by reason whereof large quantities of offensive, noxious and unwholesome smells on the days aforesaid then and there were emitted, and the air thereabouts on the days aforesaid was greatly filled and impregnated with said offensive noxious and unwholesome smells, and was corrupted and rendered unhealthy, to the great damage and common nuisance of all the citizens of said Commonwealth there being and residing and passing and repassing through the said public highways and ways; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided.”</p> <p>At the trial in the Superior Court before Bell, J., a motion to quash the indictment was overruled by the judge. The jury returned a verdict of guilty; and the defendant alleged exceptions, raising the questions stated in the opinion.</p>

<p>Trust, Duties of trustee as to investments.</p> <p>In this Commonwealth the only rule as to the duty of trustees in making investments is that they should act in good faith and exercise a sound discretion.</p> <p>Although the investment of trust funds in the purchase of real estate in another State would not be the exercise of a sound discretion by trustees without some good reason to justify the investment, yet where the trust fund is very large and only a small part of it is invested in such real estate, and where it is found expressly that the investment “ will not cause any loss to the estate, and that the trustees acted in good faith and with sound discretion ”, an appeal from a decree allowing the investment in an account of the trustees will not be sustained.</p>

<p>Complaint for bastardy under R. L. c. 82, signed and sworn to in the Police Court of Holyoke on February 4, 1902. Supplemental complaint filed in Superior Court on October 28, 1902.</p> <p>At the trial in the Superior Court before Mason, C. J., the jury returned a verdict of guilty; and the defendant alleged exceptions.</p> <p>The illustration in the judge’s charge excepted to by the defendant was the second of the illustrations contained in the following portion of the charge: “Now, it is not true that because a witness is inaccurate as to some of the circumstances and incidents connected with the story, the story is necessarily false as to the main fact. Illustrations might be given without number, of this principle. If one of your friends tells you that he has been fishing and proceeds to tell you how many fish he caught, and what they weighed, you may distrust somewhat the accuracy of his count, or the correctness of his scales, without disbelieving the main fact that he went fishing. The weight or significance of such discrepancy is always a question of fact. It' may be such as to induce distrust of the whole story, but it is not necessarily so.</p> <p>“Now, in further illustration, any one having experience in this kind of a case, knows that it is a very common thing for the complainant to cling to the story that she was forced, that the connection by which the child was begotten, was, in fact, a rape. Now jurors, in finding a defendant guilty, do not always accept that portion of the story. The obvious explanation of the reluctance of a complainant to admit that the connection was voluntary, furnishes ordinarily all the explanation that would be required with reference to a statement of that kind, and the jury might well, and in many instances undoubtedly have, accepted the truth of the main statement without accepting as perfectly accurate, the recital of how it took place. But all this is a matter of fact for you to"weigh as men of common experience in the world. You are to test the stories and determine what is true. The issue before you is simply as to the paternity of the child, not whether all that has been said about it is true, but whether, on the whole testimony, it is clear that this defendant is the father of this child. If he is, there should be a verdict of guilty; if you are not satisfied on this point, there should be a verdict of not guilty.”</p> <p>The case was submitted on briefs at the sitting of the court in September, 1903, and afterwards was submitted on briefs to all the justices.</p>

<p> Insurance, Accident. </p> <p>Under an accident insurance policy insuring a cotton manufacturer against injuries ■ not caused by “ voluntary exposure to unnecessary danger ” the assured cannot recover for an injury received while riding in an amateur steeple chase. Semble, otherwise of an injury incurred while engaged in an ordinary sport or amusement.</p>

<p>Negligence, Employer’s liability.</p> <p>A railroad company is not liable to a section band in its employ for an injury from being struck in the eye by an old spike which flew up when struck with an old hammer by a second foreman of the railroad company, if the company furnished plenty of good spikes and good hammers, especially where it does not appear that either the old spike or the old hammer was defective.</p>

Tort, under the employers’ liability act, for injuries received by the plaintiff from having his right hand drawn into a snatch block while assisting in setting poles of the defendant on Rod-man Street in Fall River. Writ dated September 23, 1901.

<p>Practice, Civil, Exceptions, New trial. Rules of Court.</p> <p>Rule 48 of the Superior Court, providing that, when further instructions" are given in the absence of counsel after the jury have retired, the presiding judge may permit exceptions thereto at any time within twenty-four hours next following, is to enable counsel to ascertain what has passed in their absence and to give them an opportunity to except, and the time for taking an exception is not enlarged by the failure of counsel to ascertain what happened in their absence. Rule 44 of the Superior Court requiring a motion for a new trial on account of any opinions or decisions of the judge, given in the course of the trial, to be filed within three days after verdict is returned, unless the time for filing such motion is extended by the judge, does not permit an exception to the denial of such a motion for a new trial filed after the three days.</p> <p>Further instructions, in the absence of counsel, to a jury after they have returned a verdict which the judge considers imperfect in form, and still further instructions after the jury have been sent out- for a second time and again have come into court, are “ opinions or decisions of the judge, given in the course of the trial,” within the meaning of Rule 44 of the Superior Court requiring a motion for a new trial to be filed within three days after the verdict is returned. •</p>

<p>Tort, at common law, for personal injuries sustained by the plaintiff’s testator, a lineman, in falling from a pole of the defendant while at work there in the defendant’s employ. Writ dated May 31,1898.</p> <p>In the Superior Court Sheldon, J. ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Information, in the nature of quo warranta, filed by the Attorney General on March 12, 1908, to determine by what authority the respondents Hutchinson, Taylor and Spaulding held the offices of selectmen of the town of Lexington, and praying for an order to set aside their election as such selectmen.

Complaint, received and sworn to on May 25, 1903, against • an expressman under R. L. c. 100, § 50, for illegally transporting intoxicating liquors into the city of Everett, a no license city.

<p>Tort for injuries received by the plaintiff on Main Street at the corner of Eaton Avenue in the city of Woburn. Writ dated October 30, 1901.</p> <p>The declaration was as follows:</p> <p>“ And the plaintiff says on Tuesday, the 8th day of October, 1901, at or about 7.30 o’clock in the evening while in the exercise of due care, he attempted to cross Main Street, a public street in the city of Woburn, when owing to the neglect and carelessness of the city of Woburn, or its employees, he fell into an unlighted and unguarded excavation which the defendant or its employees had made on the southeast corner of said Main Street and Eaton Avenue, a public street, on the westerly side of the sidewalk on Main Street at or near the corner of said streets which the defendant had carelessly left unlighted, unfenced and unguarded; that the plaintiff knew nothing of said excavation, and while attempting to cross said street at said point, fell into said excavation and thereby received great and severe bodily and mental injuries, which said injuries are permanent:</p> <p>“ And he further says that on account of said fall, he has suffered great and severe pain and mental anguish, and has suffered great loss in not being able to attend to his customary work and has been put to great expense for necessary nurses, medical care and attendants and medicine.</p> <p>“ He further says that on the 26th day of October, he caused a written notice to be served upon John H. Finn, city clerk of the city of Woburn, stating the time, place and cause of said injuries, and that he should look to the city for compensation for the damages he had thereby sustained.”</p> <p>In the Superior Court the case was tried before Bishop, J.</p> <p>In opening the case the plaintiff’s counsel stated that the action was for a defect in the highway, and that the defect consisted in an excavation at the corner of Main Street and Eaton Avenue in Woburn, which had been left insufficiently guarded and protected and into which the plaintiff fell, and described the excavation.</p> <p>The defendant admitted that Main Street was a public highway in the city of Woburn.</p> <p>The defendant admitted the service, but not the sufficiency, of the following notice: “ Boston, Oct. 29,1901. John H. Finn, City Clerk of the City of Woburn. Dear Sir: — I, Thomas Weston, for and in behalf of Daniel Cronan of Woburn, in the County of Middlesex and Commonwealth of Massachusetts, hereby give you notice that the said Daniel Cronan received serious injuries by reason of the neglect and carelessness of the city of Woburn and by certain persons to me unknown, employed by the city of Woburn who neglected to guard by fence, lights or otherwise, an excavation which the said city and its employees had made at the corner of Eaton Avenue and Main Street, in that part of Woburn known as Central Square. The said Daniel Cronan, on Tuesday, the 8th day of October, 1901, at or about half past seven in the evening while crossing Main Street, on account of the said neglect of the city of Woburn and its servants, fell into an unguarded excavation which was situated on the southeast corner of said Main Street and Eaton Avenue, on the westerly edge of the sidewalk on said Main Street at or near said corner; that by reason of said carelessness in leaving said excavation unfenced, unlighted and unguarded, said Daniel Cronan was greatly injured, and he hereby gives you notice that he will claim damages for the said injuries he has sustained. Yours truly, Thomas Weston, for and in behalf of Daniel Cronan.”</p> <p>At the close of the evidence, the judge, among other rulings, stated that if necessary the declaration could be amended at any time before final judgment to support the action for the cause for which it was intended to be brought.</p> <p>The jury returned a verdict for the plaintiff in the sum of $3,000. After verdict the plaintiff moved to amend his declaration by adding the following: “ Second count. And the plaintiff says there is in the city of Woburn a public highway leading through said city known as Main Street, which said defendants are bound to keep in repair;</p> <p>“ That the same was negligently suffered by the defendants to be out of repair whereby the plaintiff travelling thereon and using due care was hurt and that due notice of the time, place and cause of injury was given.”</p> <p>The motion was allowed by the judge. The defendant alleged exceptions.</p>

<p>Evidence, Private conversations between husband and wile.</p> <p>In a criminal case in which the defence is insanity, the wife of the defendant is prohibited by R. L. c. 175,.§20, cl. 1, from testifying to a private conversation in which the defendant told her that he would drown himself, although the statement thus excluded is relevant to show the defendant’s state of mind.</p>

<p>Bill in equity, filed December 6, and amended December 17, 1901, against J. Sumner Holt and Russell S. Holt, both of Boston, copartners doing business under the name of J. S. Holt and Company, and Myron L. Whitcomb and Howard L.' Clark, both of Haverhill, copartners doing business under the name of J. H. Winchell and Company, to obtain possession of twenty-six lasting machines leased by the Boston Lasting Machine Company, whose rights had been acquired by the plaintiff, to J. H. Winchell and Company and sold by them to the defendant J. Sumner Holt, who, as alleged in the amendment to the bill, had sold the machines to persons unknown to the plaintiff and shipped them to places outside of this Commonwealth.</p> <p>The proceedings in the case are stated in the opinion. Upon the presentation of the master’s report and the exceptions thereto, the Superior Court made a final decree overruling a motion of the defendant J. Sumner Holt to recommit the master’s report, and overruling the same defendant’s exceptions to the report, also overruling the plaintiff’s exceptions to the master’s report, and ordering that the report be confirmed, declaring that the defendants J. Sumner Holt, Myron L. Whit-comb and Howard L. Clark were jointly and severally liable to the plaintiff in the sum of $5,070, with interest from March 4, 1901, $680.22, a total of $5,750.22, and ordering that the plaintiff have execution for that sum and costs to be taxed by the clerk.</p> <p>The plaintiff appealed from the decree, claiming a larger amount than that given by the decree.- The defendant J. Sumner Holt also appealed from the decree.</p>

<p> Equity Pleading and Practice. Assignment. Bankruptcy. Insurance, Life. </p> <p>In a suit in equity coming to this court by report, where the evidence was not taken by a commissioner and is not reported in full, the conclusions of fact stated in the report must be taken to be true.</p> <p>One who voluntarily assigns a policy of insurance on his own life cannot maintain a bill in equity for a cancellation of the assignment on the ground that the assignee has no insurable interest in his life.</p> <p>A trustee in bankruptcy, under the bankruptcy act of 1898, has the same rights against the assignee of a policy of life insurance, taken out by the bankrupt and assigned by him in good faith before he was insolvent, that the bankrupt himself would have and no greater.</p> <p>Under St. 1894, c. 522, § 73, (R. L. c. 118, § 73,) the beneficiary of a policy of life insurance issued before April 11,1894, cannot sue on the policy in his own name, and a policy taken out by the assured before that date, if otherwise valid, is none the less so for want of an insurable interest on the part of the beneficiary. In the absence of evidence of a gambling contract, it is not necessary to the validity of an assignment of a policy of life insurance that the assignee should have an insurable interest in the life of the assured.</p>

<p>Partition. Disseisin. Evidence, Of ancient deeds, Extrinsic affecting writings. Deed, Registration, What included by. Practice, Civil, Auditor’s report. Judgment.</p> <p>Under Pub. Sts. c. 178, §§ 14,15, (R. L. c. 184, §§ 8,9,) the persons interested in the land of which partition is sought, who have a right to appear in the proceedings, include persons who had been in possession of portions of the land for nearly twenty years when the petition was brought and have been in such possession more than twenty years at the time of the trial and have erected buildings and made other valuable improvements on the land.</p> <p>The bringing of a writ of entry against the occupant of land, before the expiration of the twenty years of his possession by reason of which the occupant claims title by disseisin, does not interrupt his possession, where the action has not been prosecuted to judgment and it appears that the tenant ultimately must prevail.</p> <p>Where it is shown that a deed, dated in 1776, was found in the possession of an heir of one of the grantees, and various records of the Probate Court tend to show that the possession and claim of title of the parties to the deed was for a long time in conformity with it, the deed may be admitted in evidence without formal proof of its execution.</p> <p>Whether the provisions of Pub. Sts. c. 120, §§ 7, 8, 13, (R. L. c. 127, §§ 10,11,16,) as to the manner of proving and certifying for record an unacknowledged deed after the death of the grantor, apply to a deed executed in 1776 and recorded in 1896, quaere.</p> <p>An unrecorded deed is competent evidence to show that the premises thereby conveyed were not included in certain later deeds executed by some of the heirs of the grantor by which they released and transferred all right and interest which they had in any estate real and personal of their ancestor, the grantor of the unrecorded deed.</p> <p>An auditor, who was not directed to report the evidence taken before him, concluded his report as follows: “ The testimony is in four volumes marked . . . All said exhibits and testimony are hereby referred to for full particulars as to all matters therein contained and shown.” Held, that the reference in the sentence last quoted did not make the evidence a part of the auditor’s report.</p> <p>A judgment, in reference to collateral rights of the parties not necessarily included in the action, is conclusive only as to matters which were put in issue and adjudicated.</p> <p>In proceedings upon a petition for partition, where there were a number of petitioners and a number of respondents, it appeared, that all the petitioners but one had brought a writ of entry against one of the respondents. Held, that the petitioner who was not a party to the writ of entry could not avail himself of a judgment upon it, but that the judgment was conclusive between all the other petitioners and that respondent who was the tenant in the real action.</p>

<p>Two petitions to the Superior Court, filed September 27, 1900, and amended March 4, 1903, under St. 1890, c. 127, (R. L. c. 12, §§ 78-81,) appealing from decisions of the assessors for the city of Lowell refusing to abate certain taxes imposed upon the respective petitioners in the year 1899.</p> <p>In the Superior Court the cases were heard together by Mason, C. J., without a jury. At the close of the hearing the respondent requested the judge to rule:</p> <p>“ 2. The petitioners, not having introduced or offered any evidence of the value of the machinery, have not shown that the mill yards, including buildings and machinery therein, were overvalued, and said petitioners have not shown that they are aggrieved by the assessors’ valuation in such mill yard.</p> <p>“ 3. The land, buildings and machinery in the mill yards are all parts of one parcel, and unless such parcel taken as a whole has been overvalued by the assessors the petitioners are not entitled to an abatement, even though the land or buildings, or both, were overvalued.</p> <p>“4. On all the evidence, the land included within the alleged railroad location is taxable to the Hamilton Manufacturing Company.”</p> <p>The judge refused to make any of these rulings.</p> <p>Upon the matter referred to in the request last above quoted, numbered 4, there was a statement of agreed facts, by which it appeared, that there was included in the assessment of the mill yard of the Hamilton Manufacturing Company about thirteen thousand square feet of land, the fee of which was in the Proprietors of the Locks and Canals, and which was within the location filed by the Boston and Lowell Railroad Company for the portion of its road which was used only to carry goods and merchandise to and from the mills of the Hamilton Manufacturing Company; that on a portion of this land the last named company maintained a wall which furnished a partial support for one of its mill buildings which extended on an arch over a part of the location and track of the railroad company; that the use of this land by the manufacturing company, under certain indentures, was authorized by the railroad company, and was assented to by the Proprietors of the Locks and Canals so long as the railroad company retained its location there.* It was contended by the respondent, that this land within the railroad location properly could be assessed to the Hamilton Manufacturing Company as in its possession within the meaning of Pub. Sts. c. 11, § 18, (K,. L. c. 12, § 15.) The judge ruled that upon the agreed facts the Hamilton Manufacturing Company was not taxable for the land within the railroad location.</p> <p>The judge found that, on the first petition, the tax of the Hamilton Manufacturing Company should be abated in the sum of $5,293.80, and that, on the second petition, the tax of the Appleton Company should be abated in the sum of $960.49. The respondent alleged exceptions in both- cases.</p>

<p>Writ of entry, dated December 7, 1900, for a lot of land and the buildings thereon on East Highland Street, formerly known as Rockland Street, in Lynn.</p> <p>At the trial in the Superior Court before Wait, J., it appeared, that the title of the demandant depended on her right to redeem from a tax sale under which the tenant claimed as stated in the opinion. The purchaser at the tax sale, through whom the tenant claimed, was one Stephen P. Weld. The notice given by Weld to Neal referred to in the opinion was as follows: “Mr. Edward C. Neal, No. 1022 Washington St., Lynn, Mass. Dear Sir: I hold by deed from the City of Lynn the property No. 16 Highland Avenue, Lynn, on which you hold a mortgage. Have you any interest in the property now ? Please let me know at once. Yours truly, S. P. Weld, Per B.”</p> <p>The jury returned a verdict for the demandant; and, at the request of the tenant, the judge reported the case for determination by this court.</p>

<p>Evidence, Admissions. Joint Tortfeasors. Equity Jurisdiction. Receiver.</p> <p>One who gives a receipt in writing for money is not estopped to deny that he received the amount named, but, if he does not contradict the terms of the receipt by competent evidence, he will be held to account for the money.</p> <p>In an action by the receiver of the property of a fraternal beneficiary corporation for money alleged to have been received by the defendant as treasurer of the corporation and not accounted for by him, it became material to determine whether certain checks drawn by the secretary of the corporation to the order of the defendant should be charged to the defendant in addition to the amounts appearing in the receipts signed by the defendant. The counsel for the plaintiff admitted that the defendant was not liable for a part of the amount covered by the checks, on the express ground that the defendant could not be charged twice for the same debt. An auditor found that the amount of the checks was received by the defendant in addition to the amount shown by the receipts. Held, that in view of this finding, the plaintiff’s claim was not diminished by the admission of his counsel.</p> <p>In an action by the receiver of the property of a fraternal beneficiary corporation for money alleged to have been received by the defendant as treasurer of the corporation and not accounted for by him, it appeared, that the secretary of the corporation held the receipt of the defendant for a certain sum of money with which the defendant had charged himself by mistake, as this money had not been paid by the secretary to the defendant although it was the defendant’s duty to have collected it from him. It further appeared that the money in question had been paid by the secretary to the plaintiff as part of a suspense fund representing money of the corporation wrongfully' appropriated by the secretary, and that under the by-laws of the corporation the secretary was primarily liable to account for the money in question, but that the plaintiff had received it with the understanding that if the defendant was liable for this sum the secretary should not be made to pay it. Held, that the fact that the secretary also was liable for the money did not relieve the defendant from his liability in this action at law, it having been the defendant’s duty to collect and account for the money. Semble, however, that the plaintiff as receiver holding this money as an officer of the court, the defendant might file a petition in the suit in equity in which the receiver was appointed, for an adjustment of the equities of the parties as to this portion of the fund.</p>

<p>Master and Servant. Negligence, Employer’s liability.</p> <p>An expert workman in the employ of a machinery company, furnished by that company to the proprietors of a power plant to make repairs on their machinery under the direction and control of their superintendent, is while engaged in this work the servant of the proprietors and the fellow servant of an engineer in their employ, and cannot recover from the proprietors for personal injuries caused by the negligence of the engineer.</p> <p>In an action against the proprietor of a power plant by a servant in his employ, for personal injuries alleged to have been caused by the negligence of the defendant in employing an unfit and incompetent engineer, it is no evidence of the defendant’s negligence that the engineer had been known to drink intoxicating liquor, if there is no evidence that he ever was intoxicated and no evidence that the defendant knew that he drank intoxicating liquor to excess or otherwise.</p>

<p>Tort, by a boy eight years three and one half months old, when injured, for injuries from jumping off a freight car when ordered to do so by a servant of the defendant. Writ dated January 22, 1900.</p> <p>In the Superior Court the case was tried before Harris, J. The judge refused to order a verdict for the defendant, and submitted the case to the jury, framing also four questions, which, with the answers given by the jury, were as follows:</p> <p>“1. Was the plaintiff, at the time the brakeman spoke to and moved towards him, in a position of safety? ” “ He was.”</p> <p>“ 2. Was the car, at the time that the brakeman spoke to the plaintiff, moving at such a rate of speed as to make it dangerous for the plaintiff to get off?” “It was moving at a dangerous rate of speed for the plaintiff.”</p> <p>“■3. Did the plaintiff use due care in attempting to get off the car in obedience to the command of the brakeman ? ” “ He did use all the care he was capable of at the time.”</p> <p>“ 4. Did the plaintiff attempt to leave the car because of fear of injury from the brakeman, or because he knew he was a trespasser and wanted to escape the consequences of his own act of trespass ? ” “ He left on account of fear of injury from the brakeman.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $21,000; and the defendant alleged exceptions.</p>

<p>Tax, Arrest for non-payment. Words, “ Causing to be given.”</p> <p>A person arrested for non-payment of taxes has a right to require that the provisions of the statute shall have been followed strictly.</p> <p>Under St. 1889, c. 334, §§ 1, 4, requiring that before a person could be arrested for non-payment of a tax a demand should be made upon him “ by causing to be given ”, or sent postpaid through the mail, as provided by the act, a notice of the tax to the person assessed, the words “ causing to be given ” refer to a notice delivered to the taxpayer in person, and are not complied with by an actual notice received by mail but not addressed as required by the act in case of a notice by mail. Otherwise under the present statutes. R. L. c. 13, §§ 1, 3.</p>

<p>Tort, under the employers’ liability act, for the conscious suffering and death of the plaintiff’s intestate. Writ dated April 21, 1902.</p> <p>At the trial in the Superior Court DeCourcy, J. at the close of the evidence ruled that the plaintiff could not recover and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p> Municipal Corporations. Fall River. </p> <p>Under the revised charter of the city of Fail River, St. 1902, c. 393, the mayor of that city has no authority to order the construction of a sewer without a previous adjudication by the board of aldermen. The fact, that an appropriation has been made in general terms for sewer construction and that the superintendent of streets has been authorized to expend it under the general control and supervision of the mayor, does not give the mayor authority to construct a sewer ■without an adjudication by the board of aldermen that it is necessary for the public health or convenience.</p> <p>Under the revised charter of the city of Fall River, St. 1902, c. 393, the board of aldermen, as successors of the mayor and aldermen, have charge of the construction of sidewalks including the laying of curbstones, but if in a particular case the aldermen neglect to order curbing to be laid where it is necessary to render a street safe and convenient for travel, the mayor may direct the superintendent of streets to lay the curbing, or the surveyor of highways may lay it of his own motion.</p> <p>Changing the surface of Durfee Street in Fall River from macadam to granite block paving, and the surface of Granite Street in the same city from cobblestones to a brick pavement, were held to be specific repairs which must be authorized by the board of aldermen under the revised charter of that city, St. 1902, c. 393, as distinguished from ordinary repairs of an administrative nature which might be ordered by the mayor to be made by .the superintendent of streets.</p> <p>A petition of not less than ten taxable inhabitants, under R. L. c. 25, § 100, is the proper remedy to restrain the mayor of a city from expending money or incurring obligations in behalf of the city for the construction of certain' sewers and sidewalks and the paving of certain highways, ordered by the mayor in excess of his authority.</p>

<p>Practice, Civil, Amendment. Employers’ Liability Act.</p> <p>Under the employers’ liability act, R. L. c. 106, §§ 72, 73, an action for causing the death of an employee after conscious suffering must be brought by his legal rep. resentatives, while for causing his instant death an action can be brought only by his widow, or if he leaves no widow, his next of kin, who were dependent upon his wages for support. A declaration by an administrator under that act alleged that the plaintiff’s intestate was killed instantly and that he " left no widow but three children for whose use and benefit this action is brought.” The plaintiff asked to amend by substituting as plaintiffs the widow and children of the deceased and alleging that they were dependent upon his wages for support. The trial judge ruled that the amendment introduced a new cause of action and the court had no power to allow it. Held, that the ruling was wrong, and that the court had power to allow the amendment. The 'mistake of the plaintiff was not in regard to the cause of action but in regard to the party in whose name the action should be brought.</p>

<p> Release. </p> <p>The widow and children of one deceased, in settling a claim of his mother upon his estate, which his estate was insufficient to pay in full, executed a release under seal of all their claim upon the estate of the mother if she died intestate. The mother so died, and, four years after her estate iiad been settled, new assets were discovered consisting of a savings bank deposit in the mother’s name. The widow and children of the deceased son claimed their distributive share in this deposit, on the ground that its existence was not known when they executed the release. Held, that, to establish such a claim, they must show that, if the deposit had been known when the settlement with the mother was made, it would have been included in the settlement as a part of the mother’s estate, and, as this did not appear, the release must be held to be a bar to their claim, and, in a suit in equity brought by the other children of the mother, the widow and children of the deceased son were enjoined from asserting a claim to their distributive share of the deposit.</p>

<p>Devise and Legacy, Construction, Attending circumstances.</p> <p>A testator gave to his wife all of his estate “ to have, hold and enjoy during her life: with power to change it into any other form of investment that may be deemed by her, beneficial, and to sell and dispose of any or all of it at her pleasure and discretion, whenever she may think it necessary or expedient for her own comfort and happiness, without accountability to any person whomsoever,” and then gave the “ reversion and residue of my said estate, if any, after my beloved wife’s life interest therein, as stated above, is terminated by her decease,” to two sisters, the issue of a deceased brother, and a brother in law of the testator. Held, that the discretionary power of the testator’s widow to expend the principal of the property during her life was unlimited, and that her comfort and happiness for which she was free to use the property included not only physical comfort but mental satisfaction in devoting the money to charitable and philanthropic purposes. Held, also, that the fact, that the testator’s widow had a private fortune of her own amply sufficient for her support, did not restrict the force of the testator’s language. Held, also, that, in interpreting the language of the testator, it was proper to consider the extent of his estate, the mode of life in which his family had been reared and the means provided by him during his lifetime for their culture and happiness.</p>

<p> Damages. Grade Crossing Acts. </p> <p>Under St. 1892, c. 433, a special act providing for the abolition of certain grade crossings, which was made subject to the provisions of St. 1890, c. 428, §§ 1-8, so far as they did not conflict with its provisions, the Old Colony Railroad Company, which was compelled to hire money to meet the obligations imposed by the special act, is not entitled to have the interest paid by it for such money allowed as part of the “ expenses ” of the alterations and improvements to be paid by the railroad company of which the Commonwealth is to repay forty-five per cent of the “cost incurred."</p>

<p>Devise and Legacy, Construction.</p> <p>A testatrix, after making a large number of pecuniary legacies, provided that, in case her estate should be more than sufficient to pay the legacies in full, the residue should be paid to the several legatees in proportion to their legacies. By a codicil she left a dwelling house for life to one of the legatees named in her will on condition that she should make it her permanent home, and provided that “at her [the life tenant’s] decease and before that event if, and whenever she shall have abandoned it as her permanent home, said house . . . shall fall into the rest and residue of my estate and he disposed of as is by said will provided for the disposal of said rest and residue.” The estate of the testatrix was sufficient to pay all legacies in full and distribute a surplus among the legatees. The life tenant made the house her permanent home until her death. An administrator de bonis non with the will annexed was appointed, and filed a bill for instructions as to the distribution of the proceeds from the sale of the house. Held, that the remainders in the proceeds of the house vested in the legatees, including the life tenant, upon the death of the testatrix, and must be determined as of that date.</p> <p>There is nothing inconsistent in a life tenant holding a vested interest in a remainder to take effect at his death, and the fact that a life tenant is one of a class to take under a will at his decease, is not enough to show that the testator intended the remaindermen to be ascertained at the termination of the life tenancy rather than at the time of his own death. ,</p>

<p>Petition, filed October 20, and amended October 28, 1903, for a writ of prohibition, addressed to the defendant as a justice of the peace, prohibiting and enjoining him from proceeding further with the taking of the deposition of the petitioner in an action pending in the Superior Court between one Torrey E. Wardner and one Albert C. Bur rage, from requiring the plaintiff to answer the questions propounded to him by the attorney for the plaintiff in that action, and from committing or punishing the petitioner for contempt' on account of his refusal to answer certain questions.</p> <p>The case came on to be heard before Braley, J., who at the request of the parties reserved it, upon the petition as amended and the answer, for determination by the full court. If the respondent, as a matter of law, had no power to commit the petitioner for contempt in accordance with his order as set forth in the petition, or for any limited period of time, the writ of prohibition was to issue; if, as a matter of law, the respondent had power to commit the petitioner for contempt in accordance with his order as set forth in the petition, or for any limited period of time, the petition was to be dismissed.</p>

<p>Evidence, Extrinsic affecting writings. Husband and Wife. Easement. Way. Practice, Civil, New trial.</p> <p>Oral evidence of the actual occupation and use of land by different owners is admissible to show what was meant by the words “ in front of the house ” in a series of deeds conveying respectively the lower half and the upper half of “the small piece of land in front of the house.”</p> <p>A husband cannot acquire by prescription a right of way over land of his wife who is living with him on adjoining land of his own.</p> <p>Where, in two cases tried together involving various issues, exceptions.were sustained upon one issue only, it was ordered that the new trial should be confined to that issue.</p>

<p> Insolvency. Surety. </p> <p>Under Pub. Sts. c. 157, § 26, (R. L. c. 168, § 31,) a judgment against an administrator on a debt due from the estate, on which no demand for payment has been made upon the administrator, is not a debt “ absolutely due ” from a surety on the administrator’s bond, and therefore a discharge in insolvency of the surety is no bar to an action against him brought on the administrator’s bond by the judgment creditor, where the administrator has committed a breach of his bond by failing to administer the estate according to law, but where no demand for the payment of the judgment had been made on the administrator at the time of the first publication of the notice of the issuing of the warrant in insolvency.</p>

<p>Tort for injuries from the bite of a dog of which the defendant was alleged to be the owner or keeper. Writ dated September 22, 1902.</p> <p>At the trial in the Superior Court before Schofield, J., the jury returned a verdict for the plaintiff, assessing double damages in the sum of $250. The defendant alleged exceptions.</p>

<p>• Street Railway. Contract, What constitutes.</p> <p>Under St. 1898, c. 578, § 13, the board of aldermen of a city or the selectmen of a town, in granting a location to a street railway company, cannot impose a condition regulating and restricting the fares to be charged.</p> <p>A street railway company by accepting a location granted by the board of aldermen of a city or the selectmen of a town, does not make a contract with the granting board or the municipality to fulfil a condition of location illegally imposed.</p>

<p>Petition, filed March 26, 1900, for a writ of certiorari to quash the proceedings of the county commissioners of Norfolk County in laying out a private way, to give access to a quarry, on the petition of one Neil McNeil, under Pub. Sts. c. 189, §§ 19-28.</p> <p>The case came on to be heard before Braley, J., who, at the request of the parties, reserved it for determination by the full court upon the following questions: “ 1. Did the county commissioners of Norfolk County have original or concurrent jurisdiction to lay out a private way under the petition of McNeil ? 2. Did the commissioners have authority to lay out a private way under Pub. Sts. c. 189, over the land so located by the Old Colony Railroad Company as aforesaid?” The land referred to was situated entirely in the town of Braintree, and was purchased by the Old Colony Railroad Company for a gravel pit. If either question was answered in the negative, the writ was to issue. If both questions were answered in the affirmative, the petition was to be dismissed.</p>

<p>Contract, under St. 1890, c. 437, for money alleged to have been paid on wagering contracts between April 15 and May 1, 1901,* alleging, that the plaintiffs contracted with the defendants to buy and sell upon margin certain securities and commodities, having at the time of the contract no intention of performing the same by the actual receipt or delivery of the securities or commodities and the payment of the price, and that the defendants had reasonable cause to believe that no intention to actually perform the contract existed. Writ in the Municipal Court of the City of Boston dated January 9, 1902.</p> <p>On appeal to the Superior Court the case was heard on an agreed statement of facts by Holmes, J., without a jury. The agreed statement of facts disclosed no affirmative intention of the plaintiffs at the time of the contract that there should be no actual purchase or sale of securities. The judge found for the plaintiffs and assessed damages in the sum of $1,256.15. Judgment was entered for the plaintiffs; and the defendants appealed.</p>

Petition, filed June 17, 1902, under St. 1882, c. 145, § 9, for the appointment of three commissioners to determine the price to be paid by the town of Gardner for the corporate property, rights and privileges of the Gardner Water Company. On August 19, 1902, Hosea M. Knowlton, James P. Jackson and George W. Wiggin were appointed such commissioners. On January 27, 1903, after the death of Mr. Knowlton, Nathan Matthews Jr. was appointed in his stead.

Bill in equity, filed June 8, 1903, by the executors and trustees under the will of John W. Bemis, late of Boston, for instructions. The case came on to be heard before Morton, J., who, at the request of the parties, reserved it upon the bill and answers for determination by the full court, such decree to be entered as equity and justice might require.

<p>Damages, Grade Crossing. Taunton.</p> <p>By St. 1901, c. 205, the East Taunton Street Railway Company was authorized to intervene in proceedings then pending for the abolition of certain grade crossings in Taunton, and it was provided that if the commissioners appointed in those proceedings should decide that the abolition of the grade crossing on Middle-borough Avenue and Richmond Street was necessary, the street railway company should pay such part of the total cost of the abolition of the crossing on Middleborough Avenue as the commissioners should find to be just and equitable, and should prescribe in their report. The commissioners determined that it was just and equitable that the street railway company should pay twenty-five per cent of this cost¡ and so prescribed in their report. By order of the commissioners Middleborough Avenue was carried by a bridge over the tracks of the Old Colony Railroad Company, the part of Richmond Street at the previous grade crossing was discontinued, and a new way was substituted for it which entered Middleborough Avenue at a point convenient for crossing the railroad on the bridge constructed on that avenue. The street railway company contended that for this reason only one half the cost of. the bridge should be charged on account of Middleborough Avenue and that the other half should be charged on account of Richmond Street. Held, that the action of the commissioners was authorized directly by the statute, and that they had a right to treat all the cost of the bridge as belonging to Middleborough Avenue.</p>

<p> Trust. Attachment. </p> <p>No action can be maintained against trustees, holding the property of an unincorporated association, on a contract made by them which by its terms is enforceable only against the property held in trust.</p> <p>No lien enforceable at law or in equity can be acquired by an attachment of the property held by trustees for the benefit of an unincorporated association, in an action against the trustees personally.</p>

Two ACTIONS OF CONTRACT by the treasurer of the Commonwealth under Pub. Sts. c. 19, § 14, for compensation for tide water displaced by the defendants in filling portions of the flats respectively belonging to them, lying in front of the upland between Medford Street and the shore of Mystic River. Writs dated respectively December 6,1901, and March 11,1902. In the Superior Court the cases were heard upon agreed facts, and judgment was entered for the defendant in each case.

<p>Tort, against a street railway company for personal injuries, by a newsboy twelve years of age when injured, from falling or being thrown from an open electric car of the defendant by reason of the alleged negligence of the defendant’s agents or servants. Writ dated September 9, 1898.</p> <p>In the Superior Court the case was tried before Richardson, J., who ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Writ oe entry, dated October 18, 1901, by the heirs at law of Robert McLaughlin, for one undivided half of a parcel of land in Boston.</p> <p>At the trial in the Superior Court before Mason, C. J., without a jury, it appeared, that the tenant claimed the whole estate, through mesne conveyances, from Jane McLaughlin, widow of Robert. The demandants put in evidence a deed dated May 2, 1878, from Samuel T. Harris, conveying the whole of the premises to “Robert McLaughlin and Jane McLaughlin and their heirs and assigns forever,” the deed containing no statement as to whether or not they were husband and wife. The demand-ants introduced evidence tending to prove that Robert McLaughlin entered into possession of the premises and continued in possession until June 20, 1879, when he died intestate and without issue, that at that time his father and mother were living in Ireland, and that they died in 1892, leaving the demandants their children and heirs at law. The demandants contended that they were entitled to recover one undivided half of the premises as heirs at law, through their parents, of their brother Robert.</p> <p>The tenant offered evidence, tending to prove the marriage of Robert McLaughlin and Jane McLaughlin, and contended that Robert and Jane took as tenants by the entireties, and that Jane, who survived Robert, became seised of the whole premises. This evidence was admitted by the judge against the objection of the demandants.</p> <p>The demandants asked the judge to rule: 1. That all evidence as to a marriage was incompetent and inadmissible. 2. That there is no sufficient evidence that Robert McLaughlin and Jane McLaughlin were husband and wife. 3. That under the deed of Harris to Robert McLaughlin and Jane McLaughlin they took as tenants in common.</p> <p>The judge refused to make any of these rulings, but made the following findings of-fact: 1. That Robert and Jane McLaughlin were husband and wife at the time of the deed from Samuel T. Harris to Robert and Jane, dated May 2, 1878. 2. That</p> <p>the intent and purpose of all the parties to that deed was that it should convey the premises described therein to Robert and Jane as husband and wife, but that the parties did not contemplate or have any intent what technical estate should be created thereby. 3. That Robert and Jane McLaughlin made no conveyance of the premises or any part thereof during their joint lives. 4. That Robert McLaughlin died on June 20,1879. 5. That Jane McLaughlin died in November, 1899.</p> <p>Upon these facts the judge ruled: 1. That Robert McLaughlin and Jane McLaughlin took an estate by the entireties. 2. That on the death of Robert McLaughlin, Jane McLaughlin, as survivor, became sole owner of the granted premises. He found for the tenant; and the demandants alleged exceptions.</p>

<p>Negligence, Employers’ liability. Municipal Corporations. Electric Light Company.</p> <p>In an action, under St. 1891, c. 370, § 16, against a town operating an electric light plant, for injuries due to the fall of a pole on which the plaintiff was at work under the direction of the defendant’s superintendent, it appeared, that the plaintiff, although he had worked for the defendant for several years as a trimmer of arc lights and a general helper about the electrical works, was not an experienced lineman, and was ordered by the defendant’s superintendent to go up the pole in question and.cut the wires, that the plaintiff after cutting two wires, felt the pole tremble, and said to the superintendent “ Don’t you think you had better guy this pole % ”, that the superintendent replied “ The pole is all right; cut them down,” and that the plaintiff cut the wires and the pole fell, causing the injuries. The pole had been set eleven years before and was rotten at the base, although the outside was apparently sound. There was nothing to show that the plaintiff knew that the life of a pole was limited or that this pole was an old one. Held, that the plaintiff did not necessarily assume the risk of the pole falling, that it was the duty of the superintendent to inspect the pole, and that the jury might find that the plaintiff, although apprehensive of danger if the pole was not guyed, was justified in yielding his judgment to that of his superior and obeying the command, and therefore that it was error to order a verdict for the defendant, and the case should have been submitted to the jury.</p> <p>Semble, that an experienced lineman sent without a superintendent to remove wires from a particular pole has no right to assume that the pole is sound, and as a matter of precaution should inspect the pole for himself.</p>

<p> Damages. Practice, Civil. Grade Crossing Acts. </p> <p>Where a statute limits the time within which a petition for damages must be brought, the court has no jurisdiction to entertain a petition brought after that time has expired.</p> <p>If a petitioner for damages, under an act providing for the abolition of a grade crossing, has a ground for equitable relief, he has no right to have the petition in the original proceedings for the abolition of the grade crossing amended by inserting the substance of his petition in it. His proper course would be to file a petition as intervenor in the grade crossing proceedings.</p> <p>The general rule of law is that where the Legislature authorizes the taking of land for a public use, and the taking is in accordance with the statute, a plain and adequate remedy for compensation provided by the statute is exclusive.</p> <p>In a taking of land under an act providing for the abolition of a grade crossing, if the provisions of the statute are complied with by proceedings in court, it is immaterial whether the landowner had in fact any notice or knowledge that his land was taken.</p>

<p>Contract, upon a guaranty in writing of a promissory note. Writ in the Municipal Court of the City of Boston dated November 26, 1901.</p> <p>The answer contained a demurrer, and set up the defendant’s discharge in bankruptcy. On appeal to the Superior Court the case was tried before Pierce, J. At the beginning of the trial,' the defendant asked the judge to rule that the declaration did not set forth any cause of action. The judge refused so to rule, and the defendant excepted. To an inquiry by the judge, in what respect the declaration was deemed insufficient, the defendant’s counsel replied that it did not seem to him to set forth any cause of action, and at no time during the trial was any specific defect in the declaration called to the attention of the judge by the defendant.</p> <p>The plaintiff was allowed to amend his declaration, and did so. The defendant asked for no ruling on the declaration as amended, and in his opening to the jury said that the only defence was the discharge in" bankruptcy, and offered evidence, which was controverted by the plaintiff, that the plaintiff had notice of the bankruptcy in season to have proved his claim. The jury were given appropriate instructions, to which no objection was made, and found for the plaintiff. The defendant alleged exceptions.</p>

Bill in equity, filed April 28, and amended June 15, 1903, to enforce an equitable restriction imposed by a certain deed on the defendant’s house lot on Walnut Street in Brookline. The case, came on to be heard before Morton, J., and, at the request of the parties, was reserved upon the bill,, answer, facts admitted, photographs and plans for determination by the full court, such disposition to be made of it as to the full court should seem meet.

Two bills IN equity, filed September 2 and 5, 1902, to obtain possession of certain promissory notes alleged to have been withheld and secreted wrongfully by the defendants. In the Superior Court the cases were heard by Hardy, J., who made a decree for the plaintiff in each case. The defendants appealed.

<p> Equity Pleading and Practice. </p> <p>Upon an appeal from a decree of a judge sitting in equity upon questions of fact arising on oral testimony heard by him, his decision will not be reversed unless it is plainly wrong. In this case the judge’s findings of fact were supported by the evidence.</p>

<p> Landlord and Tenant. Contract. </p> <p>A lease of a portion of a building to a manufacturer of confectionery included the use of steam for heating and for power, providing for an additional payment at a certain rate if more than three horse power was furnished. It further was provided, that the lessee should have the “ privilege to connect a pipe to the steam supply pipe to draw steam for use in the confectionery or in his business, when steam is in the supply pipe, provided same can be done without extra expense to lessor, or those representing her, either for making changes or for supplying steam.” At the request of the lessee the engineer of the lessor connected the cooking apparatus of the lessee with the pipe carrying the live steam from the boiler to the engine, the lessee understanding that this was the connection to which he was entitled under the provision of the lease. For more than four years monthly rent bills were presented and paid with no demand of payment for cooking steam. Thereafter upon a close examination of the steam pipes, the lessor discovered that the steam supplied for cooking had caused extra expense, and brought an action for compensation for the steam furnished for cooking during the period of the lease. It was found as a fact that the plaintiff by the exercise of reasonable care could have known the facts about the connection and the use. Held, that the meaning of the clause of the lease was that the defendant should be entitled to have furnished for cooking purposes steam, which in relation to the entire plant and the defendant’s business, should be of no considerable cost to the plaintiff, that this was a matter peculiarly within the knowledge of the plaintiff, that the defendant was entitled to notice that a charge was to be made for the steam, and that the plaintiff could not recover for steam furnished for cooking purposes before such notice was given.</p>

Tort, against a captain in the Volunteer Militia of Massachusetts by a member of his company, with three counts, respectively for alleged false imprisonment, slander and malicious prosecution. Writ dated March 24, 1902. At the trial in the Superior Court before Hardy, J., the jury returned a verdict for the plaintiff on all three counts, assessing damages respectively in the sums of $150, $200 and $300. The defendant alleged exceptions.

<p>Practice, Civil, Exceptions. Executor. Agency. Estoppel.</p> <p>Where other evidence besides an auditor’s report has been introduced at a trial, no exception lies to a refusal to rule that on the facts and findings in the auditor’s report the auditor’s general finding was not warranted, and that on the facts as stated by the auditor in his report the jury must find the other way, it being within the discretion of a trial judge to refuse a request for a ruling upon the effect of only a part of the evidence considered separately from the rest.</p> <p>In an action against a widow as executrix under the will of her late husband, on an account annexed and certain promissory notes, for liabilities alleged to have been incurred by the defendant through her son as agent, the notes being signed in the name of the estate of the defendant’s husband by the son as attorney, it appeared, that the defendant’s husband was a plumber, and that for nine months before his death the business had been wholly in charge of the son, that by his will the defendant’s husband bequeathed his business to his son, with all stock in trade, book accounts and contracts, on condition that the son should make various other payments and also pay the “ debts owing ... on account of the business ”, and directed “ that the written promise or guarantee of my said son, C., to the executrix of my will . . . that he will comply with and perform all the provisions, conditions and requirements of the bequest of the business as aforesaid, shall be sufficient to vest in my said son, C., the said business and property thereto appertaining.” The son, without executing a written guaranty and before performing all the conditions named in the will, assumed and carried on the business on his own account with the consent of the executrix. The son in carrying on the business kept a bank account in the name of his father’s estate and drew checks signed in the name of his father’s estate by himself as attorney. The defendant signed a power of attorney authorizing her son to draw as her ■attorney any check upon this account, and to indorse for deposit and collection any check payable to the estate. The son testified that he wanted this power because checks kept coming in in the name of the estate. It appeared however that the plaintiff never knew of this power of attorney, and it did not appear that the plaintiff relied in any way npon the form of check or signature. The jury found for the defendant. Held, that this verdict was justified, there being evidence on which the jury could find that the son was carrying on the business on his own account and not as agent of the defendant, and also could find that the plaintiff was not misled by the acts of the defendant so as to create an estoppel.</p>

Contract on a promissory note of the defendant for $500 dated October 9,1902, payable three months after date to the defendant himself and indorsed in blank by him. Writ dated January 31, 1903. . In the Superior Court the case was tried before Schofield, J., without a jury.

<p>Evidence. Practice, Civil. Damages.</p> <p>In an action against a street railway company for personal injuries, the defendant relied on a document purporting to be a release executed by the plaintiff. The plaintiff testified, that she was induced to sign this paper by the fraud of a certain claim agent of the defendant, and was allowed against the objection of the defendant to state the portion of the conversation that she had with this claim agent which occurred after she had signed the paper. Held, that the admission of the evidence was not error, it being part of the conversation during which the paper was signed and having a bearing upon the plaintiff’s good faitli in alleging fraud.</p> <p>On the argument of exceptions, the answer of a witness cannot be objected to as non-responsive, if at the trial the only objection to the testimony was on the ground that it was not admissible.</p> <p>Whether the climacteric of an unmarried woman about forty years old may occur before she has recovered from the results of a street railway accident and thus prolong her suffering, was held on the evidence in this case to be a question of fact for the jury.</p>

<p>Contract, alleging, after the amendment described in the opinion, a refusal of the defendant to receive and pay for a special set of Hawthorne’s works made for the defendant under a contract in writing signed by her. Writ dated October 6, 1902.</p> <p>In the Superior Court the case was tried before Sherman, J., without a jury. The trial took the course described in the opinion. The contract sued upon was as follows: “ Messrs. Houghton, Mifflin & Co., Boston. Gentlemen : I hereby subscribe for one special set of Autograph Edition of Hawthorne’s works, in twenty-two volumes, with all hand-colored plates, bound in full French Levant, with double finish and watered silk linings, with special design, hand tooled, for which I agree to pay fifty dollars per volume. C. C. Furbush, Greenfield, Mass. Date, Jan. 31, 1901.”</p> <p>Upon the amended declaration the judge found for the plaintiffs in the sum of $561; and the defendant alleged exceptions, raising the questions stated by the court.</p>

<p>Way, Defect in highway.</p> <p>Whether a grade stake fourteen inches high, standing about two feet inside of the location of a highway of a suburban town outside of the wrought roadway, near or opposite a regular stopping place of an electric car line, is a defect in the highway for which the town is liable, is a question of fact for the jury.</p>

<p>Conspiracy, Civil action.</p> <p>In an action of tort for an alleged conspiracy to injure the plaintiff in his business, it appeared, that the plaintiff was engaged in the business of quarrying granite and selling it to granite workers, and that the defendants were members of a voluntary association of granite workers, who, by the enforcement of a by-law imposing heavy fines for its violation, were coerced into refusing to trade with the plaintiff1 because he was not a member of the association, whereby his business was ruined. Held, that it was error to order a verdict for the defendants, and that the case should have been submitted to the jury.</p>

Bill in equity, filed March 14, 1872, for a partnership accounting, as described in the opinion. , The history of the case is stated briefly in the opinion.

<p> Street Railway. </p> <p>A rule of a street railway company, operating two connecting lines of railway, requiring a passenger changing from one line to the other to produce a transfer or pay his fare on the line to which he has changed, is a reasonable rule, which is binding on a passenger to whom it is known.</p> <p>A rule of a street railway company, requiring a passenger changing from one of its lines to another to produce a transfer or to pay his fare on the line to which he has changed, cannot be waived by the conductor of the car from which the passenger has come or by the conductor of the car to which he has changed.</p> <p>Semble, that it is not within the scope of the employment of the conductor of a street railway car, without express authority, to procure the arrest of a passenger on his car, for alleged violation of Pub. Sts. c. 112, § 197, (R. L. c. Ill, §251,) in fraudulently evading the payment of a fare, or to make a complaint against him before a magistrate for this offence.</p>

<p>Petition, filed January 4, 1898, for the assessment of damages for lands of the Commonwealth lying below extreme low water mark, taken in fee by the respondent under St. 1896, c. 516.</p> <p>In the Superior Court the case was heard by Hardy, J. upon the petition, a demurrer and agreed facts. The judge overruled the demurrer, and, at the request of the parties, being of opinion that the questions involved ought to be determined by this court before any further proceedings in the Superior Court, reported the case for such determination.</p>

<p> Husband and Wife. Gift. Trust. Power. Savings Bank. Will. </p> <p>A married woman may make a present conveyance of all her personal property to a trustee, retaining a beneficial interest during her life, with a gift over upon her death, subject to be varied by appointment during her lifetime upon giving notice in writing to the trustee, and such a conveyance is not invalid if made for the purpose of preventing the husband of the donor from sharing in the distribution of the property upon her death.</p> <p>A trust created by a married woman by an instrument under seal, executed in duplicate, conveying the personal property of the donor to a trustee, the donor retaining a beneficial interest during her life, with a gift over upon her death, is not terminated by the trustee, after keeping bis duplicate original of the instrument for two years, returning it to the donor at her request.</p> <p>If a married woman makes a present conveyance of personal property to a trustee, retaining a beneficial interest during her life, with a gift over upon her death, subject to be varied by appointment upon giving notice in writing to the trustee, and no mention is made of a power of appointment by will, the power can be exercised only during the lifetime of the donor, and an attempted revocation of the trust by will is void.</p> <p>Whether a deposit of money in a savings bank, in which the depositor already has deposits, stated to be in trust for another person, creates a trust for the benefit of that person, depends on the intent of the depositor and is a question of fact. The consent in writing by a husband to a will of his wife leaving him a certain sum of money does not operate as a consent to the will as modified by a subsequent codicil, which does not change the legacy to the husband but radically changes the rest of the will, and in such a case the husband can waive the provision of the will for his benefit and require his statutory share.</p>

<p>Petition, filed September 13, 1898, under St. 1895, c. 442, § 3, by the Muskeget Island Club, a corporation organized under the laws of this Commonwealth, for damages for the taking of a portion of the island of Muskeget in the town of Nantucket, west of Nantucket and the island of Tuckernuck, for a public park.</p> <p>At the trial in the Superior Court Lawton, J. excluded the testimony of Hiram C. Folger, a witness offered as an expert by the respondent, on the ground that the witness was not qualified as an expert. The jury returned a verdict for the petitioner .in the sum of $7,000; and the respondent alleged exceptions.</p>

<p>Contract for $1,105.88 paid by the plaintiff for taxes for which the defendant was liable, with four counts as described in the opinion. Writ dated December 1, 1902.</p> <p>The defendant demurred. The Superior Court sustained the demurrer, and gave judgment for the defendant. The plaintiff appealed.</p> <p>The case was submitted on briefs at the sitting of the court in September, 1903, and afterwards was submitted on briefs to all the justices except Knowlton, C. J.</p>

<p>Bill in equity, filed June 8, 1901, in the Probate Court for the County of Essex by the First Universalist Society in Salem, praying for the determination of the question of its liability to pay to the Commonwealth a succession tax under St. 1891, c. 425, of five per cent on the value of certain real estate devised to the plaintiff by the will of Walter S. Dickson, late of the town of Hamilton.</p> <p>The Probate Court found that the plaintiff was a religious society, duly incorporated, whose property is by law exempt from taxation, and made a decree that the real estate in question was not subject to the tax.</p> <p>On appeal the case came on to be heard before Morton, J., who, by agreement of the parties, reserved it for determination by the full court. •</p> <p>The case was submitted on briefs at the sitting of the court in November, 1903, and afterwards was submitted on briefs to all the justices.</p>

<p>Negligence, Proximate cause.</p> <p>If a street railway company leaves a large reel, which has been used for holding wire, lying on its side in a secure position on the grass within the limits of a highway but outside of the travelled portion, thus violating a town by-law, and children, passing along the street on their way to school, take the reel from the place where it has been left and roll it down the street so that it strikes a carriage, throwing out and injuring a woman, the railway company is not liable for the injuries thus caused, because, assuming that leaving the reel in the highway is evidence of negligence, such negligence is the remote and not the direct and proximate cause of the injury.</p>

<p> Insurance, Life. Practice, Civil. </p> <p>A life insurance policy, issued after April 11, 1894, was made payable to the wife of the insured, if living, otherwise to the legal representatives of the insured, upon the receipt by the insurance company and its approval of proofs of death of the insured. The wife of the insured survived him and submitted proofs of death, but died two days later. The proofs of death had not been acted on by the company, which furnished an additional blank to be filled out by the attending physician of the insured. The administrator of the widow procured and delivered the required certificate, and sued on the policy. Held, that the right of action had vested in the widow and passed to her administrator.</p> <p>A condition in a life insurance policy required the insured to have been in sound health at the time the policy was issued. There was evidence that at the time the policy was issued the insured was subject to epileptic fits and that lie died of epilepsy. There also was evidence in contradiction of this. In an action on the policy, the jury found that the insured was in sound health when the policy was issued, and that he did not have epileptic fits before that time. The defendant excepted to a refusal of the presiding judge to rule that, if at the date of the policy the insured was subject to fits or bad spells or loss of consciousness, he was not in sound health at that time. Held, that the finding of the jury made this request immaterial and the defendant was not harmed by the refusal. Whether it could have been ruled as matter of law, that the insured was not in sound health if subject to fits or bad spells or loss of consciousness, quaere.</p>

<p>Damages, Remoteness. Evidence, Admissions.</p> <p>In an action by a woman against a railroad company for injuries from a collision, where the defendant’s liability was admitted and the only questions related to the damages to be recovered, it appeared, that the plaintiff by reason of her injuries from the collision became subject to attacks of dizziness, that she climbed into a pantry sink by means of a chair, to look at a leak in a water pipe above, and while standing in the sink had an attack of dizziness, fell to the floor and broke her wrist. She was allowed to testify to these facts, but the presiding judge excluded evidence of pain and inconvenience suffered from the broken wrist and instructed the jury not to consider the consequences of the broken wrist. He Id, that the exclusion and the ruling were right, as the breaking of the wrist was not due to the railroad collision but to the plaintiff’s voluntary and independent act in climbing into the sink to look at the water pipe.</p> <p>In an action of tort for personal injuries, a letter of the plaintiff to the defendant stating the claim and the amount demanded, which does not contain an offer of compromise, is admissible in behalf of the defendant as bearing upon the genuineness and extent of the plaintiff’s alleged injuries.</p>

<p> Evidence. Husband, and Wife. </p> <p>Under R. L. c. 175, § 20, either a husband or a wife can testify against the other in a criminal proceeding, if the one testifying is willing to do so.</p>

<p>Tax, Exemption. Commonwealth. Vendor and Purchaser.</p> <p>Under R. L. c. 12, § 5, cl. 2, land of the Commonwealth, for which the Commonwealth has given a bond for a deed, in possession of the obligee who will become entitled to a deed on payment of the purchase money and who has erected buildings upon the land and i| carrying on business there, is exempt from taxation.</p>

<p>Tort for personal injuries sustained when alighting from a car of the defendant in the Park Street station of the subway in Boston. Writ dated July 3,1899.</p> <p>In the Superior Court the case was tried before Bond, J., who refused to order a verdict for the defendant. The jury returned a verdict for the plaintiff in the sum of $800; and the defendant alleged exceptions.</p> <p>The accident occurred on June 22, 1899, at about seven o’clock P. M. The plaintiff’s daughter mentioned in the opinion was about ten years of age at the time of the accident. The plaintiff testified, that the starter blew his whistle when she was upon the running board of the car with one foot upon the station platform, and that the car then started and threw her down.</p>

<p> Municipal Corporations. Waterworks. Stoughton. </p> <p>Neither the water commissioners of a town as its agents, nor the town itself by a vote, can make a binding contract on behalf of the town to take water from an unauthorized source.</p> <p>St. 1886, c. 240, created the Stoughton Water Company. By § 2 the corporation was authorized to take the waters of Knowles’ Brook. By § 10 the town of Stoughton was authorized to purchase the franchise, corporate property and rights of the corporation. This it did. Thereafter the town made a contract in writing for a supply of water from wells to be driven below the sources of Knowles’ Brook and independent of them. Held, that the contract was not binding on the town, because it provided for the construction of waterworks in connection with a supply which the town had no legal authority to use. Stoughton v. Paul, 173 Mass. 148, explained.</p>

<p>Evidence, Extrinsic affecting writings. Contract. Damages.</p> <p>In an action for an alleged breach of a contract in writing, to build two houses and a stable for the plaintiff, by the defendant’s failure to put a soil pipe in the stable, oral evidence is admissible to show the meaning of the words “ all the plumbing work on . . . one stable . . . the work to be . . . accepted by the plumbing inspectors of the city of Boston”, and for this purpose the plaintiff may introduce evidence of conversations between himself and the defendant at and before the time of signing the contract, in which the various items including the plumbing of the stable were discussed in fixing the contract price, and evidence of what was necessary to be done to make the plumbing acceptable to the inspectors.</p> <p>In an action of contract for the failure of the defendant to complete a building which he agreed to construct for the plaintiff, the damages which the plaintiff is entitled to recover are measured by the cost of the labor and materials necessary to complete the designated work which the defendant has left unfinished.</p>

<p> Railroad. Receiver. Jurisdiction. </p> <p>The receivers of an insolvent railroad corporation, under a decree of court, sold and conveyed all the property in their hands to a new corporation formed for the purpose, the decree providing that the purchaser should take the railroad property “ subject to the lien, of any and all debts, obligations and liabilities, of the receivers.” A fireman, injured while employed on a locomotive engine operated by the receivers, sued the new company for his injuries. The receivers had been discharged without having recognized the plaintiff’s claim, and no permission to sue the receivers had been given by the court by which they were appointed. Held, that the plaintiff had no cause of action in tort or contract against the defendant, and that if he had any equitable right to reach and apply in satisfaction of his claim property which had come to the defendant from the receivers, this court would not assume jurisdiction of it, but he must resort to the court which administered the property and by whose decree the sale to the new company was made and confirmed.</p>

<p>Contract, Specialty, Consideration. Guaranty. Landlord and Tenant.</p> <p>A guaranty under seal of the performance of the covenants of a lease needs no consideration and is binding although executed after the lease was made.</p> <p>If a guaranty of the performance of the covenants of a lease contains no stipulation that the lessor shall obtain judgment against the lessee before demanding payment of the guarantor, such a requirement will not be implied.</p> <p>Under an absolute guaranty of the performance of the covenants of a lease the guarantor is entitled to no notice of the default of the lessee.</p> <p>A lessee of buildings, who remains in possession and use of them until the end of the term demised, cannot when sued for the rent set up eviction or a breach of the covenant for quiet enjoyment on the ground that the premises have been condemned by the board of health as dangerous and unfit for habitation.</p> <p>Where a lessor of real estate does not agree to make repairs, the lessee, in the absence of evidence of fraud or concealment, cannot set up the decay and dilapidation of the leased buildings in defence to an action for rent. Nor is such a defence open to a guarantor of the performance of the covenants of the lease.</p>

<p>Contract, Unilateral, Consideration.</p> <p>An agreement in writing to pay to the sinking fund committee of a certain parish $5 in each month for five years, in order to help in the payment of the debt of the parish, on condition that the whole amount of $10,000 shall be in like manner subscribed or otherwise provided for, and other requirements be performed, is a formal offer which on performance of the conditions by the committee becomes binding, such performance being a good consideration for the subscriber’s promise.</p>

<p>Alteration of Instruments. Practice, Civil. Evidence, Burden of proof, Self serving statements. Contract, What constitutes, Specialty, Consideration. Bond. . Damages. Guaranty.</p> <p>In an action on an instrument in writing, where the defence is set up that a material alteration was made in the instrument after execution, it is within the discretion of the presiding judge to permit the instrument to be read in evidence, after proof of execution, although it is typewritten and shows on its face that the letter “s” has been added to the word “contract” with a pen, there being evidence tending to show that more than one contract was referred to.</p> <p>Where in an action on an instrument in writing the defence is set up that a material alteration was made in the instrument after execution, after the plaintiff has proved the execution of the instrument the burden is still upon him to establish the contract on which he has declared.</p> <p>In an action on an instrument in writing, where it is apparent on inspection of the instrument that either before or after delivery there was an alteration that may have been material, semble, that the presiding judge in his discretion may require the plaintiff to offer some explanation of the alteration before permitting it to be read, although the signatures of the parties to be bound have been admitted or proved.</p> <p>In an action on a bon'd purporting to guarantee the performance of two contracts annexed to the bond, where the defence is that only one of the contracts was so annexed or referred to, if the bond is typewritten and shows on its face that the letter “ s ” has been added to the word “ contract ” with a pen, and the defendants contend that this alteration was made after delivery, and there is evidence that the bond and the two contracts in question although separate were to be treated as one transaction, the issue in substance is whether the. several papers constituting the contract shown by the bond were delivered to the plaintiff in the condition disclosed by each paper when offered in evidence.</p> <p>In an action on a bond purporting to guarantee the performance of two contracts annexed to the bond, where the defence is that only one of the contracts was so annexed or referred to, the defendants cannot put in evidence a conversation among themselves before the bond was executed, not communicated to the plaintiff, in which it was agreed that the bond was to guarantee the performance of only one of the contracts and not the other.</p> <p>In an action on a bond purporting to guarantee the performance of two contracts of a corporation annexed to the bond, where the defence is that only one of the contracts was so annexed or referred to, if one of the defendants, who was the treasurer of the corporation, called as a witness by the plaintiff, has testified to the execution and delivery of the bond and contracts, he cannot be asked on cross-examination to testify to a statement made by him to another of the defendants, before the bonds and contracts were delivered to the plaintiff and when the plaintiff was not present, in regard to the subject matter of the contract covered by the guaranty of the bond. °</p> <p>The language of a request for an instruction, although correct, need not be followed by the presiding judge in giving the instruction in substance.</p> <p>In an action on a bond purporting to guarantee the performance of certain contracts annexed to it, it does not matter that the contracts referred to were not annexed to the bond at the time of signing, if it appears that the bond and contracts formed one obligation and were to be executed and then fastened together and placed in the hands of an agent for delivery to the plaintiff.</p> <p>An action on a bond, guaranteeing the performance of a contract, is for the penalty of the bond, and the amount of damages suffered by the breach of contract is not before the court until after judgment when application is made for an execution.</p> <p>An instrument under seal is binding without a consideration.</p> <p>In an action on a bond guaranteeing the performance of a contract by a corporation to return to the plaintiff the money paid by him for a patented storage battery if its use should be enjoined and the injunction should not be dissolved within sixty days, where it appears that the defendants were directors of the corporation, the plaintiff need not show that he gave notice to the defendants of the default of the corporation.</p>

<p> Metropolitan Water Supply Act. Damages. Evidence. Partnership. </p> <p>A report of commissioners appointed under St. 1895, c. 488, § 14, to determine the damages suffered by the owner of an established business on land in the town of West Boylston decreased in value by the carrying out of that act, is not expected to set forth the evidence with more fulness than is reasonably necessary properly to present such questions of law as are raised before the commissioners. In the present case the report presented everything necessary to an understanding of the questions involved.</p> <p>On a petition under St. 1895, c. 488, § 14, to determine the damages suffered by the merpbers of a firm owning an established business on land in the town of West Boylston decreased in value by the carrying out of that act, where it appeared that the commissioners had treated the business as one which was expected to continue, and which but for the enactment of the statute would have continued until the expiration of the partnership agreement, it was held that there was no error in the exclusion by the commissioners of the testimony of an expert actuary, offered by the petitioners, as to the expectation of life of the individual members of the firm. In case of the death of a partner the good will then existing would be a part of the partnership assets.</p> <p>On a petition under St. 1896, c. 488, § 14, to determine the damages suffered by the owner on April 1, 1895, of an established business on land in the town of West Boylston decreased in value by the carrying out of that act, the damages should be based upon the business shown to exist on April 1, 1895, and should not be assessed as of the time of the passage of the act or of the filing of the taking of the water.</p> <p>The provision of § 14 of the metropolitan water supply act, St. 1895, c. 488, that in the assessment of damages thereunder “interest may be included in such damages and in such value at such rate and for such time as the commission may deem just and equitable ”, applies to the assessment of damages for decrease in the value of a business as well as to other assessments under that section.</p> <p>On a petition to determine the damages suffered by the members of a partnership owning an established business on land in the town of West Boylston decreased in value by the carrying out of the metropolitan water supply act, such sums as were allowed to the partners as a reasonable compensation for services rendered in the business should be deducted in determining the value of the business as a producer of income and in assessing damages for interference with it.</p> <p>In assessing the value of a business, the net profits of the business for several years immediately previous are important evidence of the value of the good will, but they are not conclusive, as circumstances may have existed to make the profits more or less during those years than would be likely to be earned later.</p> <p>On a petition under St. 1895, e.488, to determine the damages suffered by the members of a partnership owning an established business on land in the town of West Boylston decreased in value by the carrying out of that act, the income of the business after the passage of the act may be considered in determining the injury to the business caused by the act.</p>

Petition, filed in the Superior Court March 16, 1901, for nullity of marriage. The case came to this court on an appeal from an order dismissing the petition on two motions of the respondent.

<p>Contract, on a judgment of the Superior Court for the county of Cook in the State of Illinois. Writ dated'November 11, 1901.</p> <p>In the Superior Court the case was tried before Holmes, J., without a jury. He found for the defendant; and the plaintiff alleged exceptions.</p> <p>The principal question raised by the exceptions is staked in the opinion. The other question related to the exclusion of a part of an answer of George Sawin, a lawyer of Chicago, examined by deposition in behalf of the defendant. The question was as follows: “Was said F. DeWitt Smith [the defendant] ever notified of the case of Steele vs. the Chicago Paper Manufacturing Company, or served with any process in said ease as far as you know?” The answer was “Yes, sir. He was so served, as he told me.” The defendant asked the judge to exclude so much of the deponent’s answer as stated that the defendant told him that he had been served with process in the original bill on the ground that that part of the answer was not called for by the interrogatory. The judge ordered that part of the answer excluded, and the plaintiff excepted.</p>

<p>Contract, Performance and breach. Sale, Acceptance. Evidence.</p> <p>The plaintiff, a manufacturer of and dealer in machinery, made a contract in writing with the defendant, a cold storage company, the substance of which was, that the plaintiff was to deliver on the premises of the defendant a twenty ton evaporating apparatus of a certain type for making ice, and within one month the defendant was to pay the plaintiff $1,500, unless in the meantime it appeared that the apparatus had not a capacity of twenty tons, or unless the defendant notified the plaintiff tiiat the apparatus did not accomplish the results guaranteed by the company from which the plaintiff had procured it and requested its removal. The plaintiff delivered the apparatus of twenty tons capacity upon the defendant’s premises in the manner required by the contract, and the defendant kept and used it. The plaintiff sued for the $1,500. Held, that, in view of the facts stated above, evidence offered to show that the defendant did not accept the apparatus was immaterial, also, that evidence, offered by the defendant, that the apparatus produced bad ice was immaterial, also, that evidence, that the defendant expressed dissatisfaction and that efforts were made to improve the apparatus so that it would pi'oduce better ice, was immaterial, as the defendant did not within one month notify the plaintiff that the apparatus did not accomplish the results guaranteed by its maker and request its removal.</p>

<p> Metropolitan Park Commission. Damages. Deed. Easement. </p> <p>The provision of § 5 of the metropolitan park commission act, St. 1894, c. 288, that damages sustained by the taking of land or any right therein under the act shall he “ assessed by a jury of the Superior Court in the same manner as is provided by law with respect to damages sustained by reason of the laying out of ways ” refers only to the mode of procedure and not to the elements of damage for which recovery may be had.</p> <p>Under § 5 of the metropolitan park act, St. 1894, c. 288, providing for the payment of all damages sustained by the taking of land or any right therein under the act, the owner of land not taken cannot recover for temporary injury to his land by the accumulation of water caused by the taking of adjoining land for a parkway, Oue who gives a deed of land with full covenants of warranty cannot claim a reservation by implication of an easement of drainage through the granted land for the benefit of his remaining land.</p> <p>The owner of land adjoining lower land which has been taken for a parkway under the metropolitan park commission act, St. 1894, c. 288, cannot recover for injuries to his land caused by a drain pipe which passed through his land without right being cut on the land taken, so that the sewage from houses above no longer being carried off by the drain has flowed into his cellar. His remedy would be to stop the drain where it entered his land.</p>

<p> Contract. Evidence. </p> <p>Where the execution of a contract in writing to perform certain work for a price named is in issue, the party relying on the contract may show by experts that the price named was a fair market price for the work, for the purpose of showing the probability of the execution of the contract.</p>

<p>Devise and Legacy. Words, “Such of.”</p> <p>In construing a will omitted words cannot be supplied unless it is plain from the words used what words were omitted. Thus if a testator provides that on the death of his widow the residue of his estate shall be distributed among “such of” a brother and two sisters and the children of a deceased sister, th6 court will not undertake to complete a sentence of limitation by conjecture.</p> <p>A testator devised and bequeathed the residue of his estate to trustees in trust for the benefit of his wife during her life, and then to "pay over, transfer and convey” the trust estate “to and among such of my brother and sisters, L., S. and F., and the children of my sister M., deceased (said children of M. to take the parent’s share by right of representation), and in case my said brother F., or either of my said sisters, or any of said children of M., deceased, above mentioned die in my lifetime, or before said trust shall terminate, leaving children, such children shall take the parent’s share by right of representation.” Held, that the remainders were vested, and that the persons to whom the estate was to he distributed on the death of the testator’s widow were to be ascertained as of the time of the testator’s death.</p>

<p> Jurisdiction. Equity Jurisdiction. </p> <p>A creditor of an insolvent corporation, organized in another State, who voluntarily has become a party to a general creditors’ suit against the corporation in the Circuit Court of the United States in a district of the other State, in which a receiver has been appointed, will not be allowed to maintain a suit of equitable attachment under R. L. c. 159, § 3, cl. 7, in this Commonwealth, for the purpose of reaching funds which have been held by this court to be due to the corporation, the title of the receiver being good as a matter of comity.</p> <p>In a general creditors’ suit against an insolvent corporation in another jurisdiction, in which a receiver had been appointed, an order was made that such creditors as should indemnify the receiver for costs and expenses might prosecute certain claims of the corporation, and should be entitled to the proceeds thereof coming into the hands of the receiver to the exclusion of other creditors and persons who did not within thirty days after notice of the order join in providing security for the payment of costs and expenses. A creditor then a party to the suit did not elect to join in the prosecution of the claims. By a subsequent order the time for electing to share in the prosecution of the claims was extended. Before this extension had expired, the creditor by leave of court withdrew from the general creditors’ suit. The creditors who joined in the expenses prosecuted in this Commonwealth the claims covered by the order to a successful issue. Nearly four and a half years after he had elected not to contribute to the prosecution of these claims, and nearly three years after their successful prosecution by those who did contribute, the creditor, who had withdrawn from the general suit, brought a suit of equitable attachment in this Commonwealth, under R. L. c. 159, § 3, cl. 7, to reach the funds decreed to be due the corporation in the Massachusetts suits and prevent their passing to the hands of the receiver. Held, that the plaintiff had no standing in equity to maintain such a bill, that having elected not to contribute to the prosecution of the Massachusetts suits he in equity must yield to the prior rights of the creditors who contributed to them and prosecuted them to a successful termination.</p>

<p>Contract for breach of an alleged agreement for the charter of a tug and coal barges. Writ dated December 26, 1899.</p> <p>In the Superior Court the case was tried before Mason, C. J., without a jury. The correspondence relied on by the plaintiff as constituting the contract sued upon was as follows:</p> <p>“ Boston, Sept. 26, 1899. Messrs. Walter, Friend & Co., Boston, Mass. Dear Sirs, — We will agree to furnish four or five barges that will insure cargoes at a satisfactory rate and carry not less than 8000 tons of coal and a first class tug boat of not less than 1000 H. P. to tow these or other barges, our option of substituting one or more barges for others, without inconvenience to charterers, to carry coal from New York, Philadelphia, Newport News, Norfolk or Baltimore to Boston, beginning before November 1st, and continuing until May 1st, 1900. The price per day for the above tug and barges to be $225, to be divided proportionally, charterers to load, trim and discharge all cargoes and furnish the tug with Bunker coal at their expense. Tug to be at all times at the service of charterers to do whatever towing they may require, in addition to towing the above barges. Very truly yours, Wm. H. Mack, Manager. Above offer is good until Thursday noon.”</p> <p>“ Boston, Mass., September 28,1899. Messrs. Walter, Friend & Co., No. 129 State Street, Boston, Mass. Dear Sirs, — We herewith accept your offer to furnish us with four (4) or five (5) Barges that will insure cargoes at satisfactory rate, and carry not less than eight thousand (8000) tons of coal; and also a first class tow-boat of not less than one thousand (1000) horse power, to carry coal for us from November 1st, 1899, to May 1st, 1900, from New York, Philadelphia, Newport News, Norfolk and Baltimore to Boston.</p> <p>“ All the above as per conditions and terms named in option to you from W. H. Mack, Manager, dated September 26th, 1899. The above is to be subject to usual conditions of charter. Yours truly, Metropolitan Coal Co., by Edward Hamlin, President.”</p> <p>“ Boston, Sept. 28th, 1899. William H. Mack, Manager, Boston, Mass. Dear Sir, —■ Your offer made to us to furnish four or five barges and a tug to transport not less than 8000 tons of coal from New York to Norfolk, Newport News and Baltimore to Boston from .November 1st or earlier to May 1st, has been accepted by the Metropolitan Coal Co. to whom we made the offer in accordance with your offer to us at $225 per day, they to load, trim and discharge cargoes and furnish and pay for Bunker coal for the tug. Very truly yours, Walter, Friend & Co.”</p> <p>The telegram referred to near the end of the opinion was as follows: “ Oct. 7, To Walter, Friend & Co., State St., Boston. Consider deal off. Will be in my office Monday. Wm. H. Mack.” Another telegram on the same day was as follows: “ Cleveland, O., Oct. 7/99. Walter Friend Co., Boston. Charter with you was conditioned on my being able to get tug & Barges from here down, which cannot do. Will be in my office on Monday. Wm. H. Mack.”</p> <p>Walter, Friend and Company were ship brokers doing business in Boston. William H. Mack was general manager of the defendant, having an office in Boston.</p> <p>At the close of the evidence the defendant requested the judge, among other things, to rule: “ First. That on all the evidence no contract has been established between the plaintiff and the defendant as declared on, and the plaintiff cannot recover in this action. Second. That the purported acceptance, dated September 28, 1899, in writing, by the Metropolitan Coal Company (Exhibit 2), is not in the same terms as the offer and does not constitute a valid acceptance of the offer. . . . Fourth. That a statement of a party that there is no contract by reason of the offer having been conditional does not, in case the offer was not conditional, preclude the party from defending on the ground that there was no acceptance in the terms of the offer or meeting of minds, and therefore no contractual relation.”</p> <p>The judge refused to make any of these rulings, but upon the fourth request ruled as follows: “ The court does not rule that in every case a party by the statement suggested would waive the other defence, but that in this case, on the evidence, the court finds that the trivial variation in language, if amounting to a variation in substance, was waived.”</p> <p>The judge found for the plaintiff in the sum of $50,000, which was the ad damnum of the writ; and the defendant alleged exceptions.</p>

<p>Bill in equity, filed August 12, 1903, by the purchaser at a foreclosure sale under a mortgage of certain real estate in that part of Framingham called South Framingham, and by the mortgagee, to remove a cloud on the title of the first named plaintiff by setting aside a tax sale to the defendant alleged to be invalid.</p> <p>The following facts among others were disclosed by the record: The tax sale was advertised to take place on August 16, 1902, and on that day was adjourned until August 23, 1902, when the sale took place. The collector’s deed to the defendant was dated September 15, 1902. The entry to foreclose the mortgage was made on August 22, 1902. The foreclosure sale at which the plaintiff Melissa Abbott was the purchaser was held on September 16, 1902.</p> <p>The Superior Court made a decree dismissing the bill with costs; and the plaintiffs appealed.</p>

<p>Indictment, found and returned in the Superior Court for the county of Plymouth on October 27, 1902, for wilfully and maliciously, on August 20,1902, setting fire to a barn of one Charles W. Smith, by the burning whereof the dwelling house of Smith also was burned.</p> <p>In the Superior Court the case was tried before Harris, J. The Commonwealth offered to prove by one John H. Scott, an assistant fire marshal, and one Albert I. Simmons, a deputy sheriff, that the defendant made a confession to them, three other officers being present at the time. The jury being withdrawn, the judge heard the evidence in relation to the conversation leading up to the confession. Scott testified, among other things, as follows:</p> <p>“ Then I said, ‘ Do you expect me to believe such a story as' that ? That is about as correct as most of the stories you have told me. Every story that you have told me you have contradicted it. Now, why don’t you go on and tell it just exactly as it was? [Pausing], I want to get it exactly as it is, because here is the important part of it.’ [Pause.] I says, ‘ Why don’t you go on and tell me exactly as it is ? Don’t you think that the truth is better than a lie ? ’ Right here Mr. Simmons says — Q. Now, just a moment. Did he make any reply to that? A. He did not. Oh ! he says, £ I will.’ Yes, he says, £ I will.’ But he didn’t. Mr. Simmons says then: £ The Marshal has the evidence in the ease and knows all about it. Why don’t you go on and tell him just as it was? Of course it is not my place to advise you. If you are not guilty don’t you think that the truth is better, — that you had better tell the truth ? ’ — Q. If you are not guilty, don’t you think you had better tell the truth ? A. £ Yes.’ ■— Q. Those are the words as you recall them ? A. 6 If you are not guilty, don’t you think you had better tell the truth ? ’ Then I said, ‘ Gentlemen, I want you to understand, and I want him to distinctly understand that I offer him no inducement whatever foT anything he has a mind to say about this matter. Whatever he does say, and whatever he tells, must be of his own free will: I offer him no hope or favor whatever.’ — Q. Then he went on and told you something else, did he ? A. Then I asked him a question. [Pausing.] — Q. Now, what did you ask him ? A. I want to get that exactly, just right there. [Pausing.] I asked him if when he lit that match, he did not touch it to the hay, and he said he did. I asked him if he saw the hay blaze up and he said that he did. I asked him what he did then, and he said he left the barn and went down there, to his house, and got his wheel and rode to Whit-comb’s bicycle shop and got his bicycle repaired, and on his way home the fire was discovered. I asked him what his motive was in setting that fire, and he said he did not know. I asked him if Mr. Smith wasn’t a friend of his, and he said ‘ Yes.’ ”</p> <p>In charging the jury as to the alleged confession, the judge instructed them in substance as follows: “ The question whether or not the confession is obtained by means of the making of threats, or the holding out of inducements by the officer, is one to be passed upon primarily by the court. If the court is satisfied that the confession was obtained by means of such threat or inducement, it is his duty to exclude it, but if he is not satisfied that it was so obtained, or there is contradictory evidence upon that question, he should submit the evidence to the jury and in this case I submit the evidence to you, and if you find that the alleged confession was obtained either by threat or inducement, you should disregard it altogether; if on the other hand, you find that it was not so obtained, then you have a right to consider it as evidence, giving to it such weight as you think it ought to have.”</p> <p>At the trial, Charles A. Smith, the alleged owner of the building, was called by the Commonwealth- as a witness. On cross-examination, the defendant’s counsel asked him, for the purpose of showing that some person other than the defendant might have been the cause of setting the fire, “ Was there any indication that tramps had been in your loft ? ” The question being objected to, the judge said to the defendant’s counsel, “ Do you mean on that day, or do you mean that as a general question, covering all times ? ” The counsel replied, “ Yes, supposing I put it as a general question: If tramps were in the habit of going into his loft ? ” The judge excluded the question. The defendant then asked the question: “ Well, about the time this fire occurred, Mr. Smith, was there any indication that tramps had been in your loft, very near that time ? ” It appeared that at the time the fire occurred the witness was out of town. The judge excluded the question.</p> <p>The same witness testified on direct examination that the buildings were insured for $3,500, and that they cost $3,850. The defendant offered evidence tending to show that the buildings cost much less than the sum named, with a view of showing that some person other than the defendant had a strong motive for setting the buildings on fire, and for the purpose of impeaching the credibility of the witness. The judge excluded the evidence.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Contract by a corporation for money alleged to have been misappropriated by the defendant to his own use while treasurer of the plaintiff, with a declaration in set-off as stated in the opinion. Writ dated September 13, 1900.</p> <p>In the Superior Court the case was heard by Pierce, J., without a jury, upon an auditor’s report, under an agreement of the parties which is stated in the first paragraph of the opinion. The judge gave judgment for the plaintiff in the sum of $11,095.65, following the finding of the auditor; and the defendant appealed.</p>

<p>Contract for alleged breach of an agreement in writing to convey to the plaintiffs certain land in that part of Boston called West Roxbury. Writ dated November 4, 1902.</p> <p>In the Superior Court the case was tried before Mason, C. J., without a jury. The judge found for the defendants; and the plaintiffs alleged exceptions, raising the questions stated by the court.</p> <p>The sixth ruling requested by the plaintiffs, which is mentioned in the opinion and held to have been refused rightly, was as follows: “ If the court finds that the plaintiff was not bound under the agreement of August 28, 1902, to take a deed of said land subject to the restrictions contained in the agreement between the defendants and the city of Boston, and that the plaintiff was ready to perform his agreement if there had been no restrictions, then he could maintain this action against the defendants without making any further tender, or offer to perform on his part.”</p>

<p>Tax, Exemption.</p> <p>Under R. L. c. 12, § 5, cl. 3, the exemption of the real estate of a literary institution from taxation does not exempt real estate used to produce income to be expended for the purposes of the institution, but does exempt real estate used for one of the purposes for which the corporation was established, and if this is the dominant purpose it is immaterial that there may be incidental results of the use which would not entitle the property to exemption. The dominant purpose of the managing officers of the corporation, so long as they act in good faith and not unreasonably in determining how to use its real estate, will be given effect by the courts.</p> <p>Under R. L. c. 12, § 5, cl. 3, real estate of the trustees of Milton Academy used for dwelling houses of teachers of the academy with their families as an aid in preserving discipline and in bringing about closer relations with the pupils, the use being allowed as part of the compensation of the teachers, properly can be found to be occupied for the purposes for which the institution was incorporated, and therefore to be exempt from taxation; so can land used for a baseball field and a football field with spaces for spectators, and so can Unimproved swampy and thinly wooded land used for recreation by the pupils of the academy.</p>

<p> Insurance, Fire. </p> <p>A contract for insurance against fire, in the form prescribed by our statute, is a contract of indemnity, and the insured is only entitled to be put in the same condition pecuniarily in which he would have been had there been no fire.</p> <p>Under a policy against fire in the Massachusetts standard form, one who has paid certain instalments on a conditional contract for the purchase of a chattel, the title to which is not to pass until all payments have been made, if the chattel is destroyed by fire, cannot recover the value of the chattel at the time of the loss, but, in the absence of proof of other damage, can recover only the amount of the instalments he has paid, that being the measure of his insurable interest.</p>

<p>Corporation, Remedy of stockholder. Conspiracy.</p> <p>A stockholder in a corporation cannot maintain an action at law for an injury done to the corporation by conspiracy or otherwise. His remedy is through an action by the corporation, or, if unable to induce action of the corporation or its officers for the benefit of the stockholders, then by a suit in equity.</p>

<p> Husband and Wife. Bills and Notes. </p> <p>The signature of a married woman on the back of a promissory note payable to her husband is absolutely void, whether written before or after delivery and whether she signed as a joint maker or as an indorser or guarantor.</p>

<p>Attorney. Practice, Civil, Order denying petition.</p> <p>On a petition of a former attorney at law, for reinstatement as an attorney after disbarment, the Superior Court made the order “Petition of S. for reinstatement as attorney at law denied without prejudice to his filing another petition of like tenor after July 1, 1906.” Held, that the last part of the order relating to the filing of another petition was for the benefit of the petitioner^ and was not intended to preclude the petitioner from a hearing on the merits of another petition filed before July 1,1906, founded on facts not included in the petition denied, and therefore that the order was valid.</p>

<p> Witness. Will. </p> <p>Under our statutes a party calling an adverse witness does not hold him out as worthy of credit.</p> <p>It is error to instruct a jury, that a contestant of, a will, calling as a witness the person offering the will for probate as executor and charged with procuring its execution by undue influence, puts him forward as a person who is entitled to be believed as a witness.</p>

<p>Evidence, Extrinsic affecting writings. Equity Jurisdiction.</p> <p>The rule that oral evidence is not admissible to vary the terms of a contract in writing applies only to parties to the contract.</p> <p>A supply company lent to a company manufacturing time stamping machines a certain sum of money for which the manufacturing company gave its note, and the plaintiff, president of the manufacturing company, assigned to the supply company as collateral security a mortgage made by the manufacturing company to him personally. The supply company agreed in writing with the manufacturing company to reassign the mortgage to the plaintiff and cancel the manufacturing company’s note on receiving stamping machines at a certain discount price to the full amount of the note within three months from its date. The supply company made an additional oral contract with the plaintiff that, when it had received from the manufacturing company goods which amounted to the face value of the note, it would reassign the mortgage to the plaintiff. In a suit in equity to enforce this oral agreement, it was held, that the plaintiff was entitled to a reassignment of the mortgage on showing that goods were furnished to the supply company nearly to the amount of the note and that the balance due on the note was tendered although more than three months after the date of the note, a strict performance of the conditions not being required in equity if they were performed in substance.</p>

<p>Equity Pleading and Practice, Master’s report. Rules of Court.</p> <p>Chancery Rales 31 and 32 of the Supreme Judicial Court are in force in equity causes in the Superior Court, and exceptions to a master’s report must be taken in the manner there directed.</p> <p>This court cannot revise the findings of a master unless exceptions have been taken to his report.</p>

Bill in equity, filed March 5, 1903, by the administrator with the will annexed of the estate of Julius Adams, late of Boston, subject to an agreement of compromise confirmed by a decree made by a justice of this court, for instructions.

<p>Tax, On collateral inheritances. Words, “Has been.”</p> <p>St. 1902, c. 473, postponing the payment of the collateral inheritance tax on future estates until the persons entitled come into possession of them, is retrospective as well as prospective, and applies to all cases where there has been before its passage, as well as where there shall be thereafter, a devise, descent or bequest liable to the collateral inheritance tax.</p>

<p>Negligence, Employer’s liability.</p> <p>An experienced machinist cannot recover from his employer for an injury caused by his clothing catching on a set screw of a revolving shaft mounted on a flat car while he was attempting to step over the shaft on his way to carry out an order of a superintendent, especially if there was a safe way by which he could have gone to do work he had been ordered to do.</p>

Writ oe entry, dated April 17,1899, for a parcel of land in Revere. The plea was nul disseisin. The case was tried in the Superior Court before Aiken, J., without a jury. The judge found for the tenant, and, at the request of the demandants, reported the case for determination by this court.

<p> Equity Jurisdiction. Nuisance. </p> <p>The Supreme Judicial Court has no jurisdiction to entertain a bill in equity, to restrain a corporation from carrying on without a license the business of melting and rendering grease and tallow and making food for fowls from oysters and other sea shells, in a building where the business was established before May 8, 1871, the defendant never having killed horses or done any rendering of horses or other dead animals, and never having used or required in its business trucks or wagons for the removal of dead animals. Such a case is exempted from the provisions of R. L. c. 75, § 108; and semble, that § 111 of the same chapter does not apply to it, but,-if it does, it provides only for fine or imprisonment and gives no remedy in equity.</p>

<p>Contract on a promissory note for $176. Writ in the Municipal Court of the City of Boston dated September 9,. 1902.</p> <p>On appeal to the Superior Court the case was tried before Aiken, J., without a jury. The judge refused the defendant Braman’s requests for rulings which are stated in the opinion, and found for the plaintiff in the sum of $182.62. The defendant Braman alleged exceptions.</p>

Contract against the executor under the will of Hannah Etta Cogswell, mother of the plaintiff, on an alleged oral agreement made with the plaintiff by the defendant’s testatrix. Writ dated June 30, 1902. At the trial in the Superior Court before BeOourcy, J., the jury returned a verdict for the plaintiff in the sum of $9,816.41. .The defendant alleged exceptions raising the questions stated by the court.

Bill in equity, filed June 12, 1903, to restrain the defendants from using the word “ Rex ” or the word “ Rexall ” alone or with other words in connection with the manufacture and sale of dyspepsia tablets. The case was referred to Arthur D. Hill, Esquire, as master. The master found for the plaintiffs, and the case came on to be heard before Braley, J. upon the master’s report and the defendants’ exceptions thereto.

Tort for the alleged destruction of an uncut crop of ice on Salisbury Pond in Worcester by great quantities of hot water ¿toured into the pond by pipes and conduits from the defendant’s factory. Writ dated June 16, 1900. In the Superior Court the case was tried before Hopkins, J. Certain evidence described and referred to in the opinion of the court and in the dissenting opinion was offered by the defendant and excluded by the judge subject to exceptions by the plaintiff.

Tort, under the employers’ liability act, with a count at common law, as stated in the first paragraph of the opinion, for injuries from a bale of rags falling on the plaintiff while he was working in the hold of the steamer Gloucester unloading freight at four A. M. on July 14, 1898. Writ dated December 10, 1898.

Bill in equity, filed October 28, 1902, by the lessee of certain real estate numbered 81 and 33 on Winter Street in Boston, for relief from an alleged forfeiture of his lease for breach of condition in allowing the premises to be sold for taxes which he had agreed to pay, and also alleging that the defendant’s entry for alleged breach of condition was not justified. The Superior Court made a decree dismissing the bill; and the plaintiff appealed.

Tort, against a towboat company, by an employee in charge of a wrecking lighter of the defendant having a crew of three men under him, for injuries from the breaking of a pump sling used in moving a wrecking pump from the defendant’s wharf at East Boston to the lighter, causing the pump to fall on the plaintiff, who was on deck guiding it with his hands. Writ dated April 28, 1902.

<p>Estoppel. Bond. Surety. Practice, Civil. Corporation. Judgment, Oí other State. Evidence, Of foreign law, Presumptions.</p> <p>A surety on a bond to dissolve an attachment by trustee process, on the giving of which the plaintiff released the alleged trustee who thereupon paid to the defendant a debt in excess of the plaintiff's claim, is estopped when sued on the bond from setting up that the trustee could not have been held on his answer and that therefore there was no valid attachment.</p> <p>It is no defence at law to an action against a surety on a bond to dissolve an attachment, that the plaintiff has not exhausted other remedies before suing the defendant or has failed to realize on collateral security.</p> <p>Because an agreed statement of facts states that a certain witness testified that when certain notes matured he was solvent and able to pay them and that he thereafter became insolvent and unable to pay them, it is not a conclusion of law that the witness ever was solvent or that anything could have been recovered on the notes at maturity.</p> <p>The provision, originally enacted in St. 1819, c. 43, and now found in R. L. c. 109, § 53, that a corporation after dissolution shall exist for three years for the purpose of prosecuting and defending suits and settling its affairs, does not apply to corporations organized in other States.</p> <p>Whether, after the dissolution of a corporation in another State by the laws of which it was created, a creditor in this Commonwealth has no remedy in equity or otherwise hy which he can take advantage of the former corporate existence for the purpose of availing himself of assets here, qumre.</p> <p>From a statement in an agreed statement of facts, that a certain court of general jurisdiction in another State made a decree purporting to dissolve a certain corporation organized in that State, it is not a necessary inference that the corporation was dissolved.</p> <p>In the absence of evidence on the subject there is no presumption that the statutes of another State are like those of this Commonwealth. Thus there is no presumption that the statutes of New York give power to any court in New York to dissolve a corporation.</p>

<p>Contract, Damages.</p> <p>A dealer in oils made an agreement in writing with the publisher of a newspaper to pay a certain sum of money for the publication of “ our advertisement ” in the newspaper once a week during a period named. He failed to furnish the advertisement when requested to do so and forbade the publisher to publish a certain old advertisement of the dealer from another newspaper advertising among other things certain articles which the dealer then did not have for sale. The dealer although often requested failed to furnish the new advertisement and the publisher published the old advertisement during the period covered by the contract and sued the dealer in contract, with a count for breach of contract and another count for the contract price of the advertising. Held, that the defendant committed a breach of his implied agreement to furnish an advertisement to be inserted in the plaintiff’s newspaper and was liable in damages, which should include the profits that the plaintiff might have made under the contract, that the burden was on the plaintiff to prove his damages, and, if he introduced evidence that the damage would be the contract price, the jury would be warranted in assessing damages for that amount but would not be bound to do so, and it would be error to instruct the jury that as matter of law they should assess the damages at the contract price, performance of the contract by the plaintiff having been made impossible by the defendant.</p>

Tort, to recover for the loss of life of one Pope, the plaintiff’s intestate, from being run over by a car of the defendant, and also for an assault alleged to have been committed upon the plaintiff’s intestate in ejecting him from a car of the defendant. Writ dated September 28, 1898. At the first trial of this case in the Superior Court a verdict was ordered for the defendant at the close of the plaintiff’s evidence.

Two ACTIONS OE tort, the first for personal injuries to the plaintiff, and the second by the husband of the plaintiff in the first case for consequent loss of her services. Writs dated November 26, 1900. In the Superior Court the cases were tried before Braley, J., without a jury. The judge made the following findings of fact: “ On July' 7, 1900, the plaintiff Winifred Mullin, wife of Michael Mullin, was a passenger on a car operated by the defendant, which car had stopped.

Contract for $909.75 for beer and ale sold to the defendant. Writ dated January 15, 1903. The defendant in his answer set up an assignment dated May 14, 1900, from. one Frank Marotta to G. Caspar Niles as trustee and an assignment dated November 15, 1900, from Niles as trustee to the defendant as trustee. The defendant also filed a declaration in set-off for $353 for money alleged to have been paid under a mistake of fact and interest from May 19, 1900.

Tort by a woman thirty-eight years old against a street railway company for injuries from being struck by an electric street car of the defendant on Chelsea Street near the corner of Call Street in that part of Boston called Charlestown. Writ dated November 6,1899.

Petition, filed October 29, 1895, to determine the value of the petitioner’s water plant purchased by the respondent on September 24, 1895, under St. 1895, c. 451, § 16. The case was before this court at a previous stage as reported in 179 Mass. 365.

Contract for $134.30, with interest thereon from the date of demand, alleged to be due to the town of Wrentham for thirty-eight weeks, beginning in September, 1896, and ending in June, 1897, for the tuition of two children of the defendant, a resident of the town of Norfolk, attending school in Wrentham with the consent of the school committee of that town first obtained as required by St. 1894, c. 498, § 8, for which the defendant promised and agreed to pay.

Tort, against a railroad company, for personal injuries caused by a collision of trains of the defendant. Writ dated September 20, 1902. At the trial in the Superior Court before Harris, J., the liability of the defendant was admitted, and the case was tried for the assessment of damages.

<p>Tort against the Edison Electric Illuminating Company, the Old Colony Street Railway Company and the city of Boston, for injuries alleged to have been received by the plaintiff while lawfully travelling on Centre Street, a highway of the city of Boston, at or near Cass Street in that city, through the alleged negligence of the defendant corporations, by reason of which Centre Street became charged with electricity, and through the alleged negligence of the defendant city in suffering the highway to remain so charged, whereby it was rendered and remained dangerous and defective, causing the plaintiff’s injuries, with allegations of notice to the defendant city of the time, place and cause of the plaintiff’s injuries. Writ dated September 5, 1902.</p> <p>The city of Boston demurred to the declaration on the grounds, that the declaration did not state a legal cause of action against that defendant, and that the city was not liable jointly with-the other defendants upon the alleged facts.</p> <p>The Superior Court sustained the demurrer and ordered judgment for the city of Boston. The plaintiff appealed.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action for personal injuries, by an employee of the defendant, it appeared that the plaintiff, a girl fifteen years of age and immature for her years, was set to work in the defendant’s factory on a machine used to cut platinum wire, that at the back of the machine a large and a small cog wheel were geared together, and the plaintiff might have seen them as she was walking about the machine, that a workwoman who worked on the machine instructed the plaintiff how to start and stop it. The machine was stopped by pressing a lever which moved back a clutch and disconnected the power. The plaintiff testified that the work-woman who instructed her told her to take hold of the large wheel with her hand after pressing with a file on the lever, and that the workwoman was accustomed to take hold of the wheel to stop it after pressing the lever, as it would not stop at once when the power was disconnected. On the third day of the plaintiff’s employment the workwoman went away, and the plaintiff, being alone with the machine, pressed with the file to stop it, and then took hold of the rim of the wheel, but her pressure on the lever did not draw back the clutch far enough to disconnect the power, and her hand was carried over the top of the wheel and drawn into the gearing on the back side, and injured. Held, that there was evidence on which a jury might find that the instructions given to the plaintiff were insufficient or misleading to such a degree as to leave the plaintiff unreasonably exposed to danger, and might find that the workwoman representing the defendant in giving the instructions ought to have known that further instructions were needed for so young, unintelligent and inexperienced a person as the plaintiff.</p>

<p>Lord's Day. Statute. Words, “Proceeds.”</p> <p>Under R. L. c. 98, § 2, a religious or charitable society lawfully may give a public vaudeville entertainment on the Lord’s day if the excess of the receipts over the expenses is to be devoted exclusively to a charitable or religious purpose, the word “proceeds” as used in the statute meaning the net returns of the entertainment after the payment of necessary expenses.</p> <p>Criminal statutes are to be construed strictly and cannot be enlarged by implication.</p>

<p> A gency. Broker. </p> <p>If a real estate broker is employed to procure an option to purchase certain real estate at a price named, and does so, but his customer after obtaining the option decides not to purchase the property, the broker is entitled to a commission only on the price paid for the option and is not entitled to a commission on the price at which his customer acquired the right to purchase the property.</p> <p>Semble, that if a real estate broker procures for a customer an option to purchase certain real estate at a price named, and the customer avails himself of the option by purchasing the property, the broker, in the absence of an agreement as to his compensation, is entitled to a commission on the amount of the purchase money and not merely on the price of the option.</p>

<p>Damages, In tort. Animal. Interest.</p> <p>If a horse is injured through the fault of another, and the owner reasonably expends money in the expectation of curing him but notwithstanding his endeavors the horse has to be killed, the owner may recover for the money thus expended in addition to the value of the horse.</p> <p>In an action by the owner of a horse that was injured through the fault of the defendant and had to be killed after money reasonably had been expended in trying to cure him, it may not he error to instruct the jury to add interest in making up their verdict, for, although.interest as such is not allowed in such a case, the jury in determining the amount of the damages may consider the lapse of time since the injury and the fact that the assessment is to be made on the day of the verdict for an injury which occurred along time before.</p>

<p>Devise and Legacy, Construction. Real Action. Words, “Provided-.”</p> <p>A testatrix devised and bequeathed all the residue of her estate to one of her several heirs at law “ to him and his heirs forever, provided that he shall take care of me and look after me while I live.” The person named as devisee had no knowledge of the provisions of the will until after the death of the testatrix and had not performed the requirements óf the clause. Reid, that the devise was not of a fee simple, but upon a condition precedent to be performed during the lifetime of the testatrix, and that the fact that the devisee had no knowledge of the provisions of the will until after the death of the testatrix was immaterial. Colwell v. Alger, 5 Gray, 67, distinguished.</p> <p>Where a will contained a devise of land to one of several heirs at law of the testator upon a condition precedent which had not been performed by the devisee, and the other heirs at law brought a writ of entry against the devisee, who had taken possession of the land, and prevailed on this ground, judgment was entered only for the proportional undivided portions of the land belonging to the demandants, the tenant being entitled to retain his undivided share in the land as one of the heirs at law.</p>

<p>Tort for deceit, alleging, that, relying upon the false and fraudulent representations of the defendant, a broker, that certain sales of the stock of the Franklin Park Land Improvement Company in the Boston- Stock Exchange from January 1 to March 27,1893, were genuine transactions, the plaintiff revoked an order for the sale of certain shares of that stock held for him by the defendant, whereby the plaintiff suffered loss. Writ dated February 17, 1896.</p> <p>At the first trial of the ease in the Superior Court a verdict was ordered for the defendant, and the exceptions of the plaintiff were sustained by this court in a decision reported in 179 Mass. 295. At the new trial in the Superior Court before Sherman, J., it appeared that one Moody Merrill, a director and officer of the Franklin Park Land Improvement Company, absconded late in May or early in June of 1893, and that immediately upon his departure it was discovered that he had embezzled nearly $100,000 of the funds of that company, the result of which was that the market price of the stock immediately fell and the stock could not be sold; that the plaintiff from the time of the discovery of the defendant’s alleged fraud did his best to sell his stock, but was unable to do so at more than $3 a share, at which price he sold it after bringing this action.</p> <p>The plaintiff among other requests asked the judge to rule, “ That it is of no consequence so far as the defendant’s liability is concerned that an outside intervening cause has been the sole or contributing cause of the decline in price to which the plaintiff’s loss is due.”</p> <p>The- judge refused this and other rulings requested by the plaintiff, and instructed "the jury, among other things, as follows:</p> <p>“ If you find the fair market value of that stock was always above what it was fictitiously quoted, or equal to it, and that it was so on the 25th of March, 1893, and remained so and would have remained so, except for the embezzlement and absconding of Moody -Merrill, then the plaintiff is not entitled to recover.</p> <p>“ If you find that Moody Merrill’s going away did destroy the value of the stock, practically destroy its value, then the plaintiff is not entitled to recover anything.</p> <p>“ You may take all the evidence on this subject, the fact of what Moody Merrill did, and what effect it had upon the market value of this stock, and if that destroyed the market value, then, as I have told you, the plaintiff is not entitled to recover anything. If his going away and embezzlement did not affect the market value of this stock, then the plaintiff may recover the full value of it.”</p> <p>The judge submitted to the jury the following questions, which the jury answered as stated below:</p> <p>“ 1. Did the defendant make a representation to the plaintiff on or about March 25, 1893, that the quotations in the Boston Stock Exchange of Franklin Park Land and Improvement Company stock were quotations of actual and true sales ? ” The jury answered “Yes.”</p> <p>“2. Were such quotations at or about, the same sum as the quotations of actual sales and the sales at public auction ? ” The jury answered “ Yes.”</p> <p>“ 3. What was the fair market value of said stock on or about March 25, 1893 ? ” The jury answered “ $28.50 per share.”</p> <p>“ 4. What was the fair market value of said stock on the last day of May, or immediately prior to June, 1893, the day before Moody Merrill’s absconding? ” The jury answered “ $27.75 per share.”</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Way, Defect in highway. Negligence, Contributory. Practice, Civil, Exceptions.</p> <p>In an action against a town for the conscious suffering and death of the plaintiff’s intestate caused by an alleged defect in a highway of the defendant, consisting in the want of a barrier on the top of a wall level with the highway but beyond it, over which the plaintiff’s intestate drove on a very dark night, incurring injuries which resulted in his death, it appeared that the intestate was thoroughly familiar with the place of the accident, and the only direct evidence relating to due care on his part was that when asked after the accident whether his horse was getting away from him he said “No, I was driving easy but it was darker than hell,” It further appeared, that the intestate on the day of the accident, which was in winter, returned from driving at half past seven in the evening and almost immediately started out again in the dark after trying in vain to get his horse into the stable, whipping his horse and swearing, and two witnesses who saw him at that time testified that he seemed to be under the influence of liquor. Held, that there was no evidence to submit to the jury of due care on the part of the plaintiff’s intestate.</p> <p>In an action against a town for the conscious suffering and death of the plaintiff’s intestate alleged to have been caused by a defect in a highway, consisting of the absence of a barrier on the top of a wall on the level of the highway but beyond it, over which the plaintiff’s intestate drove in the dark, whether a witness for the defendant should be allowed to testify, that he was driving along the highway in question some time before the accident, that it was very dark and that “a team went by just like a shot”, is within the discretion of the presiding judge, depending upon the question of fact whether the other circumstances of the case make this circumstance of any significance on the issue of the due care of the plaintiff’s intestate.</p>

<p>Contract by an advertising agent for advertising the prospectus and sale of capital stock of the Sherman-Worrell Fruit Company, incorporated on October 26, 1899, for which it was alleged that the defendant agreed to pay. Writ dated March 11, 1901.</p> <p>At the trial in the Superior Court before Bell, J., the judge refused to make the rulings requested by the defendant, and ruled “ that even upon the contract as stated by the defendant, which was in substance that the plaintiff was entitled to charge advertising bills to him for the present, the defendant had not made out a defence, because there was no competent evidence that that arrangement ‘for the present’ was terminated by either of the parties, but that it continued up to and including the incurring of the bill in suit, and .therefore the authority to charge the bill in suit to the defendant existed, when it was charged, and that being so charged and by authority, the plaintiff was entitled to recover upon it.”</p> <p>He directed a verdict for the plaintiff in the sum of $3,171.56, which was agreed upon by the parties in case the rulings above quoted were correct. The defendant alleged exceptions, raising the questions stated by the court.</p>

<p>Tobt, by an infant by her next friend, for injuries received while employed in a cotton mill of the defendant at Lowell. Writ dated December 12, 1901.</p> <p>The writ was returnable in the Superior Court on January 6, 1902. The action was duly entered in that court by the plaintiff, and the defendant seasonably entered its appearance by counsel and filed as answer a general denial. Neither party filed a claim for a trial by jury. The plaintiff caused the action to be placed upon the list of actions for trial before Wait, J. sitting without juries at Lowell on June 23, 1902. On that day the plaintiff’s counsel filed a motion in writing, requesting that the action be transferred to the list of actions for trial before a jury. The judge, finding that the plaintiff had intended to claim a jury trial, but that her counsel inadvertently and through accident had failed to do so within the prescribed time, granted the motion against the defendant’s objection, and ordered the action transferred to the jury list. The defendant alleged exceptions.</p> <p>The case then was tried before Aiken, J., who refused to order a verdict for the defendant, and also refused to give certain instructions requested by the defendant. The jury returned a verdict for the plaintiff in the sum of $875; and the defendant alleged exceptions.</p> <p>The case was argued at the bar in March, 1904, before Knowlton, C. J., Morton, Hammond, Braley, JJ., and afterwards was submitted on briefs to all the justices except Boring, J.</p>

<p> Surety. Bond. Municipal Corporations. </p> <p>It is no defence to an action by a town against individual sureties on the bond of a defaulting collector of taxes, that before the defendants signed the bond as sureties officers of surety companies had stated to the chairman of the selectmen of the plaintiff that they had investigated the collector’s character and habits, that there was a woman mixed up in the case, and that on account of his bad reputation they had refused to go on ins bond giving as their ostensible reason that they did not wish to go on collectors’ bonds, and that the chairman “ informally reported ” to the other selectmen and to one of the defendants what he was told, no disclosure being made to the other defendants.</p> <p>The sureties on the bond of a collector of taxes given for the faithful discharge of his duties during his whole term are liable for sums received during the portion of his term before the bond was given.</p> <p>If the bond of a collector of taxes of a town with two sureties has been approved by the selectmen of the town under the requirements of R. L. c. 25, § 77, c. 12, § 67, another bond with twenty sureties given later by the same collector for the same period and accepted by the town is good at common law even if the selectmen have exhausted their statutory power of approval.</p> <p>Cases cited, deciding that an instrument under seal needs no consideration, although the point that the bond in this case was without consideration as to the sureties was not open, not having been taken at the trial.</p> <p>In an action by a town against the sureties on the bond of a defaulting collector of taxes, the defendants cannot introduce evidence of statements made to them by the principal to induce them to sign as sureties which never were brought to the knowledge of the plaintiff or its selectmen.</p> <p>In an action by a town against twenty sureties on the bond of a defaulting collector of taxes, who previously had filed a bond with two sureties for the same period, it is immaterial whether the new bond was intended by the principal and the sureties as an additional bond or as a substitute for the former bond, or whether the sureties were ignorant of the existence of the former bond, if the delivery of the new bond was absolute and was not made conditional on any of these things.</p> <p>Negligence on the part of the auditors, selectmen and treasurer of a town in failing to discover the misconduct of a defaulting collector of taxes is no defence to an action by the town against the sureties on the collector’s bond.</p> <p>In an action by a town against the sureties on the bond of a defaulting collector of taxes, the defendants are liable for any deficiency in the funds to be accounted for by the collector during the term covered by the bond arising from his application of the funds in payment of previous deficiencies, if the payments were received by the town in good faith.</p>

<p>Petition, filed July 24,1903, to determine the validity, nature and extent of certain alleged restrictions on the petitioner’s land at the corner of Beacon and Bowdoin Streets in Boston.</p> <p>The case was entered on the equity docket of the Superior Court and came on to be heard before Hardy, J., upon the pleadings and an agreed statement of facts. Following the form of reservation in regard to which no question had been raised in Boston Baptist Social Union v. Boston University, 183 Mass. 202, the judge at the request of the parties reserved the case for determination by this court. The case first was argued in this court on January 22, 1904. At the argument, the counsel for the petitioner pointed out that the petition was a proceeding at law, citing Qrocker v. Ootting, 173 Mass. 68, 69, 181 Mass. 146, 153. By a rescript issued on January 25,1904, the reservation was discharged and the case was remitted to the Superior Court</p> <p> </p> <p>in order that a decree might be made by the trial judge. In the Superior Court the case was again presented to Hardy, J., who made a decree declaring that the restrictions in question were intended to apply to all buildings which at any time might be erected on the lots in question by the original grantees or by their successors in title, and that the right to enforce these restrictions was appurtenant to each of the six lots on Beacon Street mentioned in the opinion and shown on the plan printed in this report. At the request of the parties the judge reported the case for determination by this court. If the decree was right, it was to be entered ; otherwise such modification was to be made therein or such other order was to be made as law and justice might require. Coming again before this court the case was argued on March 4, 1904.</p> <p>On the foregoing page is a reduced copy of a part of the plan of Alexander Wadsworth, surveyor, dated October 13, 1843, which is referred to in the opinion.</p>

<p>Two actions OE contract for an alleged breach of a contract in writing. Writs dated March 12, 1897.</p> <p>The first of these cases was before the court at a previous stage as reported in 174 Mass. 507, the same contract having been before the court in Newton Rubber Works v. O-raham, reported in 171 Mass. 352.</p> <p>In the Superior Court the two cases were tried together before Sheldon, J. The contract declared on was as follows:</p> <p>“ We, the undersigned, covenanting that we are creditors of the Quincy Cycle Company in the amounts set against our respective names, do hereby, each for himself, in consideration of one dollar and other good and valuable considerations to us, and each of us, paid by John R. Graham, of Quincy, Mass., the receipt whereof is hereby acknowledged, agree that at any time within thirty days from the date hereof, upon the tender to us by said John R. Graham, or by any one acting in his behalf, of the sum of fifty (50) per cent of the face value of our respective claims payable in notes of said Graham, said notes to be made payable as follows: 16 2/3 per cent in two (2) months, 16 2/3 per cent in three (3) months, and 16 2/3 per cent in four (4) months, without interest, or forty (40) per cent in cash, as each designates, we will assign, transfer, and set over to said Graham, or such person as he may request, our said respective claims against said Quincy Cycle Company, and all benefit, advantage, or rights pertaining to our said claims. All claims under fifty dollars ($50) purchased under this option are to receive fifty per cent in cash; said assignment of our claims to be in the ordinary form and contain a power of attorney to enforce and collect the same, and to bring actions or proceedings on the same in our respective names, or in the name, but at the expense, of the assignee.</p> <p>“Witness our hands, adopting a common seal, this sixth day of July, 1896.</p> <p>i “ Boston, July 6, 1896.</p> <p>“ I authorize the above offer and agree to carry the same out if secured within the time named.</p> <p>“ John R. Graham.</p> <p>“ The Elastic Tip Company.</p> <p>“ The Boston Woven Hose and Rubber Company.”</p> <p>The other material facts sufficiently appear in the opinion. The plaintiffs requested the judge to rule and instruct the jury as follows:</p> <p>“ First. There is no evidence tending to show that the agreement was delivered by the defendant upon any condition other than that it was to be accepted within thirty days from the date thereof.</p> <p>“ Second. There is no evidence that the agreement was delivered to the plaintiffs with the understanding that it was not to be binding until the offer made was accepted by a certain number of the creditors of the Quincy Cycle Company.</p> <p>“ Third. If the agreement was first signed by the defendant it became a valid contract as soon as signed by the plaintiffs and delivered to the attorney who was acting for the defendant in securing the signatures of the creditors of the Quincy Cycle Company, and at any time after the plaintiffs had signed the agreement, and within thirty days from the date thereof, the defendant had a right to demand from the plaintiffs an assignment of their claims against the Quincy Cycle Company upon tender to the plaintiffs of the notes set forth in the agreement.</p> <p>“ Fourth. It is not open to the defendant to say as a matter of defence that the instrument was entered into upon the express condition that it should not be effective until the defendant should have secured the signatures of other creditors of the Quincy Cycle Company sufficient in number to control proceedings and composition in the insolvency of the Quincy Cycle Company.</p> <p>“ Fifth. On all the evidence the verdict should be for the plaintiffs.”</p> <p>The judge refused to make any of the rulings requested. In each case he submitted to the jury the following question: “ Did the defendant execute and deliver as a binding agreement the agreement declared upon ? ” The jury answered “ No.” The jury found for the defendant; and the plaintiff in each case alleged exceptions.</p>

<p>Two ACTIONS OF TORT for personal injuries from being thrown from the seat of a brewery wagon, in which the plaintiff in the first case was driving and the plaintiff in the second case was sitting by his side, by a collision, on Main Street in that part of Boston called Charlestown, caused by a car of the defendant running into the wagon from behind, through the alleged negligence of the defendant’s servants. Writs dated January 17 and 24, 1901.</p> <p>In the Superior Court the cases were tried together before Bell, J. At the close of the evidence the defendant, among other requests, asked the judge to rule as follows:</p> <p>“1. Upon all the evidence in the case the plaintiffs are not entitled to recover.”</p> <p>“ 4. There is no evidence in the case to warrant the jury in finding that the plaintiffs, or either of them, were in the exercise of due and proper care or took any precaution to avoid the accident and therefore neither of the plaintiffs is entitled to recover.”</p> <p>“ 6. There is not sufficient evidence of any negligence on the part of the motorman to warrant a verdict for the plaintiffs or either of them.”</p> <p>“ 10. If the jury find that the plaintiff Sullivan is entitled to recover damages the jury are instructed that there is no sufficient evidence that the appendicitis from which the plaintiff suffered at a time subsequent to the accident was a result of the accident or that the accident in any way contributed to the existence of that disease or in any way affected it.</p> <p>“ 11. If the jury find that the plaintiff Sullivan is entitled to recover they are instructed to disregard, in the assessment of damages, all the evidence introduced in the case in regard to appendicitis or the operation for appendicitis.”</p> <p>The judge refused to give the rulings requested, and submitted the cases to the jury, submitting to them the special question: “Were the attacks of appendicitis from which the plaintiff Sullivan suffered caused by the accident.” The jury answered “ Yes.”</p> <p>The jury found for the plaintiff Sullivan in the sum of $4,000, of which that plaintiff agreed to remit $1,000, and for the plaintiff Knox in the sum of $2,250. The defendant alleged exceptions.</p>

<p>Bill in equity, filed July 19,1902, by the owner of a lot of land on Townsend Street in that part of Boston called Roxbury, to enjoin the defendant Goode from selling a lot of land belonging to him on the same street without inserting in the deed thereof certain restrictions, and the defendant Norcross, trustee, from selling the same lot under the power of sale in a certain mortgage without inserting in the deed the same restrictions, and for a decree declaring the lot in question to be subject to the restrictions.</p> <p>In the Superior Court the case was heard by Mason, C. J., who made a decree that the bill be dismissed with costs to each defendant. The plaintiff appealed. At the request of the defendants the judge made an order under Chancery Rule 35 appointing a commissioner to take the evidence to be reported to this court.</p> <p>The advertisement of the auction at which the plaintiff purchased his lot was as follows :</p> <p>“By L. Foster Morse, Auctioneer. Office, 56 Warren St. (telephone connection).</p> <p>“ Auction sale of 8 desirable lots of land on the Harris estate, Townsend St., Between Humboldt and Walnut Avs., Ward 21, Thursday, Oct. 13, at 3 o’clock p. M., on the Premises.</p> <p>“ The lots contain about 8000 square feet each, with frontage of 68 feet, 120 feet deep, restricted to single dwelling house, to cost not less than $6000, to set back from the line of the street 25 feet, location good, 120 feet above tidewater; water, sewer and gas in street, electric cars, Warren St., a short distance to Franklin Park; plans can be seen at the office of the auctioneer; $200 to be paid on each lot at sale.”</p> <p>The memorandum signed by the plaintiff and by the two other purchasers at the auction was as follows :</p> <p>“ Boston, October 13th, 1892.</p> <p>“ I hereby acknowledge to have this day purchased at Public Auction from Joseph Stone et al. by L. Foster Morse, Agent and Auctioneer, the lot of land, number of lot, and feet of same set opposite my name for the price thereto affixed, subject to the following terms and conditions, a good title or no sale, ten days given from date to examine title unless more time is required to perfect the title, and the same to be extended in writing by the Auctioneer and Agent, $200 required as a deposit and in part payment on each lot at sale, balance cash or 1/2 cash and 1/2 on a mortgage for yrs at %.</p> <p>“ Sale made subject to the following restrictions : That until January 1st, A. D. 1910, no building, other than one single dwelling house, to cost not less than six thousand dollars, and the structures usually appurtenant thereto, including a private stable, shall be erected on each lot; and the line of all buildings other than private stables shall be placed twenty-five feet back from the street; but porticos, bay windows, piazzas and front steps, to buildings may project over said line and be placed within twenty-five feet of the street; and all private stables shall be set back at least sixty feet from any street.</p> <p>“ Purchaser to assume and pay the taxes assessed on the property for the current year 1892, and having paid into the hands of L. Foster Morse, Agent and Auctioneer, the sum of $200 as a deposit and in part payment, I hereby agree to forfeit said sum to the use of the seller should I fail to comply with the residue of the terms and conditions of sale. A forfeiture of said sum will not release the purchaser of his liability under this contract.”</p> <p>The following is taken from the plan annexed to the plaintiff’s bill:</p> <p>[[Image here]]</p> <p>Lot 301 was sold to the plaintiff at the auction. Lot 302 was sold at the auction to one H. S. Fisher, and lot 303 to one Samuel C. Keene. Lots 304, 305 and 307 were bid off at the auction but not sold. Lot 304 afterwards was sold to the defendant Goode. Lot 306 had been sold before the auction. Lots 308 and 309 were not bid off or sold at the auction.</p>