Volume 186 — Massachusetts Reports

<p>Petition, filed in the Superior Court for the county of Suffolk on July 29, 1901, under Pub. Sts. c. 178, for partition of certain real estate in Boston which belonged to Jane Nugent at the time of her death.</p> <p>In the Superior Court the case was heard by Schofield, J., who found that the petitioners were entitled to a partition. He made an interlocutory order for a partition and ordered that the partition be made by a sale at public auction. The respondents Jane Patterson, Charles B. Woolley and Prank Nugent appealed.</p> <p>As the appeals from the interlocutory orders might affect the price bid at the auction, and might, if sustained, invalidate the sale of the property ordered by him, the judge was of opinion that the validity of such orders ought to be determined by this court before any further proceedings in the Superior Court, and with the consent of counsel on both sides reported the case for such determination. If the orders and decrees appealed from were right, they were to stand and the sale was to be made by the commissioner in accordance with the order of the Superior Court; otherwise, they were to be set aside, and such order or decree was to be entered as justice and equity might require.</p>

<p>Municipal Corporations. Evidence, Collateral issues. Witness, Cross-examination, Questions to expert. Practice, Civil, Exceptions.</p> <p>In an action against a city for alleged negligence in improperly maintaining tlie gate at the end of an overflow pipe, so that after a heavy rainfall there was an overflow from a sewer through a connecting drain into the plaintiff’s cellar, the plaintiff offered to prove that there had been an overflow two years before'the one in question with the same system of sewerage, for the purpose of showing notice to the defendant that such an accident was likely to happen. The presiding judge excluded the evidence. Held., that the exclusion of this evidence as too remote was within the discretion of the presiding judge.</p> <p>The extent to which a witness may be cross-examined as to collateral matters for the purpose of testing his accuracy and understanding is largely within the discretion of the presiding judge. In this case that discretion was exercised rightly.</p> <p>While a purely hypothetical question to an expert may be better in form, yet, if there is no dispute about the facts, a witness may be asked to state his opinion on the assumption that the evidence is true.</p> <p>In an action against a city for alleged negligence in improperly maintaining the gate at the end of an overflow pipe, so that after a heavy rainfall there was an overflow from a sewer through a connecting drain into the plaintiff’s cellar, the defendant asked its engineer the following question: “ Assuming the rainfall to be in the nature as testified to by Mr. S., and as former witnesses testified, and assuming the gate in the Metropolitan to be closed, if the tidal gate in the overflow was closed at that time, what, in your opinion, would happen to the sys- ' tem 1 ” The witness answered that the sewer would overflow, as in his opinion it was not of sufficient capacity to carry off such an amount of rain water. There appeared to have been no conflicting evidence on the question of the nature of the rainfall. Held, that there was no error in allowing the question to be put to the engineer in this form.</p> <p>The refusal of a presiding judge to allow a witness for the plaintiff on rebuttal to contradict certain evidence for the defendant, on the ground that the testimony should have been put in as part of the plaintiff’s case, is not a matter of exception, being within the discretion of the presiding judge.</p>

<p> Agency. Broker. </p> <p>If the owner of real estate employs a broker to lease it on terms to be approved by the owner, and the broker procures an oiler which the owner rejects, and thereupon the owner in good faith revokes the authority of the broker and ceases to employ him, if the owner afterwards honestly changes his mind and leases the real estate to the tenant originally procured by the broker, the broker is entitled to no compensation for the lease made after the termination of his employment.</p>

<p>Two bills IN EQUITY filed respectively November 19, 1900, and August 6,1900, one by Nathan Matthews, Jr., administrator with the will annexed of the insolvent estate of Edward Thompson, seeking to set aside, as fraudulent and void as against the creditors of that estate, a conveyance of certain land on Huntington Avenue, made by Edward Thompson through a third person to the defendant V. Mabel Thompson, or, in the alternative, to have the defendant V. Mabel Thompson declared a trustee for the benefit of the plaintiff as administrator; the other by Henry Thompson, Elizabeth B. Thompson and Frances M. Thompson, the brother and sisters of Edward Thompson, seeking to establish a trust in the land for their benefit.</p> <p>The cases were heard together by Barker, J., who reported them for determination by the full court, such decrees to be entered as justice and equity might require.</p> <p>The material portion of the will of Edward Thompson, held to cut off his widow’s right of dower on its acceptance by her, was as follows:</p> <p>“ 1st. I direct that all my just debts be paid.</p> <p>“ 2d. I give and bequeath all my real and personal estate except as hereafter provided to the Boston Safe Deposit and Trust Company as Trustees, to be held by them for the following purposes.</p> <p>“ 3d. I direct said Trustees to pay the income derived from my real and personal estate as above, in the following manner, viz: to my wife, V. Mabel Thompson during her life one-third of the income derived from said estate; to my daughter Mary E. Thompson during her life one-third of the income from said estate.</p> <p>“ 4th. I also direct that one-third of the income derived from said estate shall he held by said Trustees for the benefit of my daughter, Maud Y. Thompson, to be paid by said Trustees in the following manner: a sum not exceeding such an amount as may be deemed expedient by the said Trustees for her necessary living expenses, together with any expenses for educational purposes until she arrives at the age of twenty-two when she is to receive the income in the same manner as provided for my wife and daughter, Mary E. Thompson.</p> <p>“ 5th. In the event of the decease of my wife or either of my daughters their third of said estate shall be added to the principal and the income derived to be paid to the survivor or survivors of my said wife and two daughters.</p> <p>“ 6th. Upon the decease of my wife and two daughters the income from said estate to be divided in such a manner as to give each of my children or their issue an equal amount. Upon the death of all my children the estate to be divided in accordance with the laws of the Commonwealth of Massachusetts.”</p> <p>The remaining portion of the will disposed of articles of personal and household use.</p>

Bill in equity, filed October 16, 1903, by the trustee under the will of Ella A. Delgado, appointed in place of the trustees named in that will, for instructions as to his power to distribute one half of the trust fund to Marina Elena Parke, one of the children of the testatrix, who had attained the age of twenty-five years and had requested such distribution.

<p>Trust, Sound discretion of trustee as to investments, Negligence of trustee.</p> <p>There may be circumstances under which an investment in a second mortgage by a trustee is not inconsistent with sound discretion.</p> <p>A trust small in amount consisted principally of a farm. For the purpose of the • trust it became necessary that the farm should be sold and the Probate Court authorized its sale. The trustee sold the farm subject to a first mortgage of $1,300 at a valuation of $4,300 including the first mortgage. The purchaser assumed the first mortgage, paid $1,000 in cash, and gave his note for the balance of $2,000 payable in annual sums of $200 each, secured by a second mortgage on the property. The farm was on the main street of a town and there was no reason to anticipate its decrease in value. By the terms of the trust such portion of the principal as might be necessary might be expended for the support of the cestui que trust for life. The purchaser of the farm became insolvent and a sale of the property under the second mortgage, subject to the first» mortgage, produced only $800. In a suit against the executor of the trustee for an accounting, it was held, that the court could not say that, under the .circumstances then existing and acting in the light which he had, the trustee did not exercise a sound discretion in making the loan secured by the second mortgage.</p> <p>A trustee, holding the mortgage and note of an insolvent debtor, by agreement with the assignee of the insolvent sold the property, indorsed the amount of the proceeds on the note and filed a claim for the balance against the estate of the debtor in insolvency.' The Court of Insolvency rejected the claim for the balance because the sale had been made without the assent of that court. It did not appear that the assignee had any property in his hands belonging to the estate of the insolvent. In a suit against the executor of the trustee for an • accounting, it was held, that it did not appear that any loss was suffered by the trust from the failure of the trustee to obtain the assent of the Court of Insolvency to the sale.</p>

<p>Corporation, Authority of officers. Agency. Contract, What constitutes. Evidence, Remoteness.</p> <p>Whether the general manager of a manufacturing corporation had authority to employ a superintendent of the corporation’s factory, properly may be treated as a question of fact.</p> <p>In an action against a manufacturing corporation by a superintendent of its factory for alleged breach of contract in discharging the plaintiff from its employ, it appeared, that the plaintiff worked for the defendant as superintendent for one year at a salary of §3,500 a year and in the following year, in which he alleged that the defendant again employed him, he continued to work as superintendent for about seven months and was paid at the same rate up to the time of his discharge. Held, that this was evidence of some contract express or implied on the part of the defendant to employ the plaintiff as superintendent in the second year, and that the fact that the employment was continuous had an important bearing on the matter.</p> <p>In an action against a manufacturing corporation by a superintendent of its factory for alleged breach of contract in discharging the plaintiff during a second year after he already had been employed as superintendent at a certain salary for one year, if the presiding judge correctly instructs the jury that the plaintiff, to prevail, must prove that both parties must have understood that there was a contract for the second year, it does not matter that he also gives other instructions as to what the plaintiff had the right to understand, especially where these instructions also are correct.</p> <p>In an action against a manufacturing corporation by a superintendent of its factory for alleged breach of contract in discharging the plaintiff, where the defendant contended that the discharge was justified because the plaintiff had neglected or wilfully failed to perform the duties for which he was employed, there was evidence that the plaintiff while superintendent had full charge of the operation of the defendant’s factory and that the factory was equipped sufficiently for properly furnishing the goods required in the defendant’s business. The defendant offered to show that during a period of six months before the plaintiff’s discharge there was a loss of about §20,000 in the business and that the general manager, from an investigation made on his return from Europe during the period in question, would testify that the cause of the loss was largely the result of not properly furnishing the gobds for the business and that it was traceable to the factory. The evidence was excluded. Held, that the exclusion was right, the plaintiff’s neglect or wilful failure to perform his duties, if a fpct, being susceptible of direct proof, and the loss or profit of a manufacturing company being dependent on so many conditions as to have no necessary bearing on the conduct of the superintendent.</p>

<p>Replevin for a piano. Writ dated December 30,1902.</p> <p>At the trial in the Superior Court before Bichardson, J., without a jury, the plaintiff and one Edwards, under whom he claimed, were the only witnesses called and the facts were not in dispute. It appeared that before August 26, 1901, the piano was the property of the defendant and was in the defendant’s house at Chatham, where it remained until taken by the officer on the replevin writ. On August 26,1901, the defendant signed the following instrument in writing: “Chatham, Mass., Aug. 26th, 1901. On demand I promise to pay Luther S. Edwards of Chatham, Mass., or order Thirty-five Dollars for value received with interest at 6 per cent for one year from date and having pledged with said Luther S. Edwards as security for payment my piano named the Woodward and Brown number as recorded in the Woodward and Brown office, Boston, and I give said L. S. Edwards full power to sell said piano at public or private sale at any time after one year, giving three weeks’ notice and applying proceeds of sale for payment of note accounting to me for surplus, if any. Lottie M. Eldridge. Witness, A. Thacher.”</p> <p>The piano never was delivered to Edwards but remained in the possession of the defendant. Edwards recorded the paper signed by the defendant in the office of the town clerk of Chat-ham. More than a year after the date of the paper Edwards, not having received the $35 upon demand and having given to the defendant three weeks’ notice, sold the piano at private sale to the plaintiff for $48.</p> <p>In the Superior Court the plaintiff contended that the paper signed by the defendant was a mortgage or other instrument under which the plaintiff obtained such a title that he was entitled to maintain the action, and the defendant contended that the transaction was an attempt to pledge which was not consummated because there was no change of possession. The defendant requested the judge to rule that upon the evidence the defendant was entitled to a finding. The judge after taking the case under advisement filed the following memorandum of his finding: “ It is not necessary to determine whether the paper which the defendant gave to Mr. Edwards on Aug. 26, 1901, is technically a pledge or a mortgage; but the purpose and intent of the defendant upon the evidence is clear, which was to give to Edwards the right and power to take the piano and sell it — ‘after one year, giving three weeks’ notice’ — and thereby to give to the purchaser a good title to it. This power was complied with, and I find that the plaintiff acquired a good title to the piano.” The judge refused to rule as requested by the defendant and found for the plaintiff. The defendant alleged exceptions.</p>

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

<p>Negligence, Employer’s liability, Res ipsa loquitur.</p> <p>In an action for personal injuries by a saleswoman employed in the department store of the defendant, it appeared, that it was part of the plaintiff’s duty to sell medicine chests, that these chests were kept on a shelf two feet and a half wide, sixty feet long and six and one half feet from the floor, supported by posts twelve feet apart and extending about three feet beyond the last post, that there was a perceptible slant of two or three inehes at the end of the shelf, that while the plaintiff in the performance of her duties was standing near this end, one of the chests fell and striking her caused the injuries, and that about three months before a similar chest had fallen from the same part of the shelf. It further appeared that during the employment of the plaintiff and when the first chest fell a person was present whose duty it was to tell the saleswoman what to do “ if there was anything out of order around the place,” and to give directions from time to time, but who was not intrusted with the duty of constructing or repairing the shelves. Held, that ther§ was no evidence of the defendant’s negligence in maintaining the shelf; also, that the condition of the shelf was obvious and if it involved a danger the risk was assumed by the plaintiff; also, that there was no evidence of any negligence on the part of the person in charge.</p> <p>The fact that in a department store a medicine chest falls from a shelf two and a half feet wide with a slant of two or three inches at the end from which it falls, other chests on the same shelf remaining in place and it having been the practice when the chests were taken off to show to customers to put them back if not sold, is not sufficient in itself to constitute evidence of negligence. To make it such evidence the plaintiff must show that causes other than the inclination of the shelf which might have produced the accident did not operate.</p>

<p>Tort for the alleged conversion of certain household furniture, removed by the defendant for alleged breach by the plaintiff of a condition in a contract of conditional sale called a lease. Writ dated July 1, 1901.</p> <p>At the trial in the Superior Court before Hitchcock, J., it appealed, that the property was delivered originally by the defendant to the plaintiff at No. 4 Alexander Street in that part of Boston called Dorchester, and afterwards was removed by the plaintiff to No. 123 Blue Hill Avenue in that part of Boston called Roxbury, without the knowledge or consent of the defendant before it was so removed. There was put in evidence an instrument purporting to be a copy of the lease-which was sent by the defendant to the plaintiff at the address 123 Blue Hill Avenue.</p> <p>The contract contained the provisions in regard to the removal of the property which are stated in the opinion.</p> <p>The defendant requested the judge to rule as follows : “ If the plaintiff removed the property from No. 4 Alexander Street, Dorchester, without the consent of the defendant in writing he thereby forfeited all right to said goods, and to further use of the same, and to all moneys paid, and the defendant would have the right to enter into and upon any premises occupied by him, and remove the goods without notice or demand, and without being deemed guilty of any trespass or wrong, and without being liable for appropriating the property to its own use.”</p> <p>The judge refused to make this ruling and gave other instructions one of which is quoted in the opinion. The jury found for the plaintiff in the sum of $20; and the defendant alleged exceptions.</p>

<p>Subrogation. Way, Defect in highway. Commonwealth. Municipal Corporations, Officers.</p> <p>Certain judgments were recovered against a city for injuries from a defect in one of its highways, consisting of an excavation made and left unguarded by a contractor laying a water pipe under a contract with the metropolitan water board. The Commonwealth, being liable under St. 1895, c. 488, § 12, to indemnify the city for this loss, paid the amounts of the judgments directly to the judgment plaintiffs. The city then brought an action of tort for the benefit of the Commonwealth against the contractor whose acts and omissions caused the defect. Held, that the Commonwealth was subrogated to the rights of the city against the contractor, and could recover the amounts of the judgments in the name of the city although the Commonwealth had discharged the liability of the city by paying the judgments directly.</p> <p>If a city is sued for injuries from a defect in a highway consisting of an excavation made and left unguarded by a contractor laying a water pipe under a contract with the metropolitan water board, and if the Commonwealth, being liable under St. 1895, c. 488, § 12, to indemnify the city for any judgment recovered against it on account of this defect, undertakes the defence of the action and employs the city solicitor as its counsel, the city solicitor having the right to engage in business outside of and in addition to his work for the city, the counsel fee paid by the Commonwealth to the city solicitor in compensation for his services is paid for its own benefit, and, after the Commonwealth has paid the amount of the judgment against the city and has brought an action in the name of the city against the contractor whose fault caused the defect in the highway, the Commonwealth0 cannot include such counsel fee in its claim of subrogation to the rights of the city against the contractor.</p>

<p>Practice, Civil, Exceptions. Witness, Cross-examination. Words, “I may have.”</p> <p>The admission of immaterial evidence furnishes no ground of exception unless the excepting party was harmed by its admission.</p> <p>Where a witness is asked on cross-examination whether he did not make a certain statement in testifying in another court and answers “ I don’t know. I may have”, the words “I may have” do not necessarily or even probably mean that his best recollection is th&t he so testified, and the answer properly may be understood to be a statement that the witness does not know and has no recollection about his former testimony.</p>

Writ oe entry, dated October 15, 1902, under R. L. c. 146, § 17, for a certain parcel of land in Quincy with the buildings thereon, which the plaintiff alleged that he was licensed to sell as administrator of the estate of Isabella S. Whicher, and which he alleged had been fraudulently conveyed by his intestate to the tenant.

Petition, filed August 31, 1900, for the assessment of damages for the taking on September 14, 1899, by the board of park commissioners of the city of Boston of a lot of land containing one hundred and twenty-nine thousand seven hundred and forty square feet, on the westerly side of Chestnut Hill Avenue near the Chestnut Hill Reservoir in that part of Boston called Brighton.

<p>Evidence, Self serving statements.</p> <p>A plaintiff having testified that he had a certain conversation with the defendant by telephone, a witness for the plaintiff may be allowed to testify what he heard the plaintiff say as a part of that conversation, although the witness had no personal knowledge that the plaintiff was talking with the defendant or that he was talking with any one. Whether the conversation testified to by the plaintiff took place as alleged or was fictitious is a question of fact for the jury.</p>

Tort, for alleged false and fraudulent representations whereby the plaintiff was induced to purchase certain shares of the Basin and Bay State Mining Company, a corporation organized under the laws of the State of Montana and owning a copper mine and smelting works at Basin in that State, which shortly after the purchase of the shares by the plaintiff went into the hands of a receiver. Writ dated April 11, 1901.

<p>Bill in EQUITY, filed June 8,1902, to establish a precatory trust under the will of Mebitable W. Blodgett, who left all her property to the defendant Samuel W. George upon the terms therein stated, the plaintiff being a nephew and the defendants a nephew and a niece of the testatrix and the plaintiff and defendants being all of the heirs at law and next of kin of the testatrix.</p> <p>The case came on to be heard before Lorinc/, J., who at the request of the parties reserved it upon the pleadings and ah agreed statement of facts for determination by the full court, such decree to be entered as equity and justice might require.</p> <p>The will of Mehitable W. Blodgett was as follows:</p> <p>“ Know all men by these presents, that I, Mehitable W. Blodgett of Haverhill in the Commonwealth of Massachusetts, widow, being of sound and disposing mind and memory do hereby make this my last will, hereby revoking all former wills by me at any time heretofore made.</p> <p>“ I hereby' constitute and appoint my nephew Samuel W. George, the 'sole executor of this will and I respectfully pray the honorable judge of probate to exempt him from furnishing any sureties on his official bond.</p> <p>“ After the payment of all my debts and funeral charges and the expenses of administration upon my estate I give, bequeath and devise all the rest, residue and remainder of my estate both real and personal unto my said nephew Samuel W. George; to have and to hold the same unto him, his heirs and assigns forever.</p> <p>“ I make this disposition of my estate as I have heretofore expressed to my said nephew my desires concerning the division and disposition of my estate and I have full confidence that he will respect my wishes and will carry them out so far as possible.</p> <p>“ I request him to make testamentary disposition of such portion of my estate as may call for the same in his judgment.</p> <p>“ I understand this request has no legal effect, and rely wholly upon the confidence I have in my said nephew.</p> <p>“ In witness whereof I hereunto set my hand and declare this to be my last will in the presence of the witnesses whose names are subscribed below, this 28th day of July 1899.”</p> <p>Here followed the signature of the testatrix with an attesting clause followed by the signatures of three witnesses.</p>

<p>Bill in equity, filed May 1, 1886, in the Supreme Judicial Court, to recover compensation for four house lots on the corner of Church Street and Pleasant Street in Boston taken by that city on May 9, 1868, under St. 1867, c. 308, authorizing the taking of the territory described in that act, known as the Church Street district, for the purpose of raising its grade and filling it with good materials, to abate a nuisance and for the preservation of the public health.</p> <p>The answer was filed on April 8, 1887. Issue was joined on October 17,1903. In December, 1903, the case came on to be heard before Braley, J.</p> <p>The petitioners offéred the followingamendment to their bill:</p> <p>“ Your petitioners in the above entitled cause respectfully ask this Honorable Court for leave to amend their bill of complaint by adding thereto the following :</p> <p>“ Respectfully represent your orators that the case of David Cobb v. City of Boston was filed under authority of Chapter 308 of the Acts of 1867 in behalf of all persons interested in the taking of land by the City of Boston but that because of the facts recited in their bill your orators have not joined in said case.</p> <p>“ Wherefore your orators pray that this Honorable Court will reopen the case of Cobb v. Boston and allow your orators to become parties thereto.”</p> <p>The justice ruled that as matter of law the case of Cobb v. Boston could not be reopened, and declined to allow the amendment. Upon the evidence he ruled that as a matter of law the plaintiffs were not entitled to maintain their bill, and at the i-equest of the plaintiffs reported the case for determination by the full court.</p> <p>If the plaintiffs were entitled to maintain their original bill, or if they were entitled to the amendment prayed for and could maintain their bill as amended, the case was to stand for trial upon the question of damages; otherwise, the bill was to be dismissed.</p> <p>The case of Cobb v. Boston is reported in 109 Mass. 438, where St. 1867, c. 308, is printed in full in a footnote. The final decree in that case, entered on April 4, 1882, was “ Bill dismissed without costs and without prejudice.” The bill in equity in that case was brought by David Cobb under St. 1867, c. 308, § 2, in behalf of himself and all others interested in the land taken by the city and was filed within a year from the taking. Many parties joined in the suit, but none of the record owners of the land in question .in this suit joined therein. By an order of court notice to all parties interested to join in that suit as required by § 2 of the act was published for three successive weeks in two newspapers in Boston. This was the only notice ordered. The plaintiffs were minors residing outside of the Commonwealth and had no actual notice of the suit brought by Cobb and no knowledge of the taking of the land until within one year of the time of filing their present bill in 1886.</p>

<p>Jurisdiction. Patent. Equity Pleading and Practice, Report of facts under R. L. c. 1S9, § 23.</p> <p>On a bill in equity against a resident of another State the court has no jurisdiction to proceed against the defendant in personam if the only service upon him lias been by the delivery to him in the State in which he resides of a copy of the bill and an order of notice.</p> <p>A patent right granted by the United States recorded in the name of a citizen of another State has no situs in this Commonwealth on which to found jurisdiction of a suit in equity to obtain possession and control of the patent, where no jurisdiction in personam has been acquired over the owner of record.</p> <p>Where a suit in equity comes to this court by appeal from a final decree of the Superior Court, and the judge of the Superior Court makes a report of facts under R. L. c. 159, § 23, to complete the presentation of the questions of law raised, it is not proper for his report to end with a statement of terms of reservation such as would be appropriate in the conclusion of a report under § 29 of the same chapter.</p>

<p>Bill in equity, filed February 18,1904, by the Trustees of the Ministerial Fund in the First Parish in Cambridge, a corporation, holding a fund as trustee under the will of Susan E. W. Brackett, late of Cambridge, for instructions.</p> <p>The case came on to be heard before Loring, J., who at the request of the parties reserved it upon the plaintiff’s bill, the answers • of the several defendants and the agreed facts for determination by the full court, such decree to be entered as law and justice might require.</p>

Bill in equity, filed as amended December 7,1903, by tlie Otis Company, a manufacturing corporation, to enjoin the Ludlow Manufacturing Company and the Ludlow Cordage Company from flooding the plaintiff’s mill site at Palmer by backing upon it the waters of the Chicopee River by means of a dam constructed and maintained by the Ludlow Manufacturing Company. In the Superior Court the case was referred to Honorable James R. Dunbar as master.

<p>Negligence, On street railway.</p> <p>If a passenger standing in an electric car, who has started to get out hut finds that his stopping place has not been reached, puts his hand against the jamb of the doorway of the car with his thumb in the slot in which the door slides, to support himself against a sudden starting of the car, and the conductor, standing on the platform facing the passenger with his face not more than twelve inches from him and nearly opposite the passenger’s hand, slams the door on the passenger’s thumb and injures it, there is evidence warranting a finding of due care on the part of the passenger and of negligence on the part of the railway company.</p>

<p>Two actions OE TORT against Henry Weed and the Winchester Manufacturing Company, also originally against two other defendants as to whom the plaintiffs discontinued their actions, for personal injuries sustained while in the employ of the defendant Weed. Writs dated March 13, 1903.</p> <p>In the Superior Court the cases were tried together before De, Gourcy, J. At the close of the evidence the judge ruled that the plaintiffs could not recover against the Winchester Manufacturing Company and directed a verdict for that defendant. He refused to rule that the plaintiffs could not recover against the defendant Weed, who was one of the incorporators of the Winchester Manufacturing Company, a corporation manufacturing gelatine, and was its superintendent. The defendant Weed employed the plaintiffs and four other men for the work described in the opinion.* The jury returned a verdict for the plaintiff Beatty in the sum of $2,000 and for the plaintiff Lydon in the sum of $1,000. The defendant Weed alleged exceptions.</p>

<p>Husband and Wife. Evidence, Presumptions and burden of proof. Practice, Criminal, Exceptions.</p> <p>The presumption that a crime committed by the act of a married woman in the presence of her husband is the crime of the husband and not of the wife is not conclusive, and evidence of the woman’s conduct even in her husband’s presence ■ may be sufficient alone to rebut it.</p> <p>No exception lies to a refusal to give a ruling although correct if the subject of the ruling was covered sufficiently by the instructions given, or if an instruction was given more favorable to the excepting party than that refused.</p> <p>A defendant in a criminal trial has no more right than a party to a civil action to pick out a portion of the evidence and ask for a ruling upon it, and the refusal of a request for such a ruling is no ground for exception.</p>

<p>Appeal by tbe surviving husband of Nellie M. Scofield, deceased intestate, from a decree of tbe Probate Court for the county of Hampden allowing in the account of the administrator of her estate an item, in the schedule showing payments, charges and distributions, of “ Savings Bank deposits claimed by Charles M. Scofield, $2,207.18.”</p> <p>The appeal was heard by Lathrop, J., who found “ on the agreed facts and the evidence, that Mrs. Scofield delivered the bank books in question during her lifetime to Mrs. Bronson, in trust for the benefit of her adopted son, Charles M., and that the delivery was not intended as a clonatio causa mortis ; and that said books formed no part of the estate of Mrs. Scofield at the time of her death.”</p> <p>The justice made a decree affirming the decree of the Probate Court, and remitting the case to the Probate Court for further proceedings. The respondent appealed.</p>

<p>Tort for personal injuries incurred while alighting from a car of the defendant. Writ dated December 24, 1900.</p> <p>At the trial in the Superior Court before Sherman, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions. The judge, after stating that he was disposed to allow the exceptions if he properly could do so under the circumstances which appear in the opinion, certified upon the exceptions “ Allowed, if the court had the right to do so on statement in the bill of exceptions.”</p>

<p>Way, Defect in highway. Negligence, Contributory. Street Railway. Boston Elevated Railway Company.</p> <p>If the sidewalk and street in front of a building in process of construction are obstructed as far as the tracks of a street railway but the tracks and the other side of the street are open for travel, and if between the rails of the track next to the obstruction there is an unguarded deep trench filled with soft mud as high as the level of the street and looking like the rest of the street when wet and muddy, a woman, who seeking to pass along the street is forced to go around the obstruction and thinking that she is taking the best and nearest way, after looking down and ahead to see where she best can walk, seeing no barrier and hearing no warning, steps into the mudhole and is injured, can be found to be in the exercise of due care both in relation to the city maintaining the highway and to a railway company maintaining the tracks which by statute is bound to keep the surface of the portions of the street occupied by its tracks in repair.</p> <p>So far as a street is suffered to remain open for travel the duty of the city maintaining it, to take proper precautions to make it safe for travellers, extends to the portions of the street occupied by the tracks of a street railway company which is bound by statute to keep the surface of the portions of the street occupied by its tracks in repair.</p> <p>A deep trench crossing the tracks of a street railway company, dug for the purpose of laying a drain under a permit from the city maintaining the highway, which has been in existence for four or five days and is left unguarded in a portion of the street open to travel, filled with soft mud and looking on the surface like the rest of the street when wet and muddy, can be found to be a defect in the highway.</p> <p>The provision of Pub. Sts. e. 113, § 32, requiring street railway companies to keep in repair the surface of the portions of the streets occupied by their tracks, which has been repealed as to street railway companies generally, remains in force as to the Boston Elevated Railway Company until June 10, 1922, when St. 1898, c. 578, § 26, repealing the provision is to apply to that corporation. See § 28.</p> <p>Whether a street railway company, which by statute is bound to keep the surface of the portions of streets occupied by its tracks in repair, is liable for an injury to a traveller, who in the exercise of 'due care falls between its tracks into a deep trench filled or partly filled with §oft mud, depends on the questions of fact whether the trench had been filled to a point where the company became responsible, whether, if it had, the company had been negligent in attending to the duty of repair, and whether such negligence contributed to the injury.</p>

<p>Equity Jurisdiction, Equitable mortgage, Lacbes. Trust. Frauds, Statute of. Limitations, Statute of.</p> <p>If a creditor with the consent of his debtor takes on execution and also by a judgment on a writ of entry certain real estate of the debtor to hold as security for the debt, an equitable mortgage is created which will be enforced in equity as a trust.</p> <p>The statute of frauds is no defence to a bill in equity to establish an oral trust by showing that the defendant holds certain real estate as an equitable mortgage or in trust for the plaintiff,on being paid the debt for which it is held as security.</p> <p>Where one holds real estate by an absolute legal title subject to an oral trust which makes him in equity a mortgagee, the statute of limitations does not begin to run against the equitable mortgagor until the equitable mortgagee repudiates the trust.</p> <p>The mere fact that for a period of twenty years no bill in equity was brought to establish an oral trust in real estate held by an absolute legal title does not amount to laches, if during the whole of that period the trust was recognized by the parties and the delay was not accompanied by any change for the worse in the situation of the holder of the legal title.</p>

<p>Equity Jurisdiction, Laches, Acquiescence, Accounting. Equity Pleading and Practice, Parties. Corporation.</p> <p>In a suit in equity for an accounting, by a bondholder for himself and other bondholders against trustees appointed by the bondholders to enforce the mortgage securing the bonds and turn over the property to a new corporation to be organized for the purpose, if the plaintiff was ignorant of the matters complained of and had no notice to put him on inquiry until shortly before the filing of his bill, there can be no defence of laches, nor is it a defence that in such ignorance he accepted securities of the new corporation in satisfaction of his claim.</p> <p>In a suit in equity for an accounting, by a bondholder for himself and other bondholders against trustees appointed by the bondholders to foreclose the mortgage securing the bonds and turn over the property to a new corporation to be organized for the purpose, alleging that such a corporation was formed but that the defendants failed to turn over to it a part of the proceeds of the property that came into their hands as trustees, and were guilty of negligence or misfeasance causing loss to the plaintiff, the new corporation is not a necessary party. Hammond & Braley, JJ. dissenting.</p>

<p>Constitutional Law. Statute, Construction. Tax, Exemption, Sale.</p> <p>St. 1896, e. 821, authorizing the commissioners appointed under St. 1890, c. 428, on a petition for the alteration of the grade crossings of the railroad of the Old Colony Railroad Company on Tremont Street in Boston, to prescribe the manner in which other grade crossings on the Providence division of the New York, New Haven and Hartford Railroad Company in Boston should be abolished, is not unconstitutional as an attempt of the legislative department to interfere in judicial proceedings, but merely gave the commissioners additional powers to be exercised under the direction of the court.</p> <p>St. 1896, c. 321, authorized commissioners, previously appointed, to prescribe the manner in which certain grade crossings shall be abolished, and “to consider whether public necessity and convenience require any additional land to be taken for railroad and highway purposes in connection with the abolition of such crossings, and if so to prescribe the limits within which the same may be taken ” and further provided that the acceptance of the supplemental report of the commissioners “ shall be a taking of the land required to be taken for railroad and highway purposes, as therein specified.” Held, that this gave the Superior Court authority in accepting the report of the commissioners to take the additional land required for the erection of a passenger station outside of the location of the railroad as designated in the report.</p> <p>Land taken under the right of eminent domain for a highway or for railroad purposes is not taxable to the owner of the fee.</p> <p>Land taken for a highway and for railroad purposes by a decree of the Superior Court accepting a report of commissioners under the provisions of St. 1896, e. 321, authorizing the abolition of certain grade crossings, cannot be taxed to the former owners although a copy of the decree is not filed in the registry of deeds until after the first of May when the tax is assessed.</p> <p>A parcel of land was sold for taxes assessed upon the whole parcel. Before the assessment, by proceedings under a grade crossing act a part of the land had been taken for a highway and was exempt from taxation and another part had been taken for railroad purposes but was outside of the railroad location and was taxable to the railroad company. A third part still belonged to the owners from whom the other parts had been taken and to whom the, whole parcel was assessed. Held, that the sale was void, as no part of the land was subject to a lien for the collection of one undivided tax on the three portions.</p>

<p>Damages. Way. Pleading, Civil, Parlies.</p> <p>A petition for damages from the “ alteration of ” a certain street in a town “ by widening, straightening and relocation of the same, for the purpose of granting a location therein" for the tracks of a certain railway company, alleging that on a certain day the county commissioners adjudged “ that the common convenience and necessity ” required that the street should be “ widened, straightened and relocated, as prayed for in said petition ”, is a petition for damages from an alteration of a highway to be paid by the county under R. L. c. 48, § 1, and not a petition for damages from the mere relocation of a highway which the county commissioners can order to be paid by the town under § 12 of the same chapter.</p> <p>The misjoinder of a defendant in an action at law is not a good ground of demurrer for another defendant against whom a good cause of action is stated.</p>

Contract for $16.50 for use and occupation of a tenement during June, July and August, 1903. Writ in the Police Court of Holyoke dated October 7, 1903. The American Writing Paper Company, a corporation organized under the laws of New Jersey, was summoned as trustee by the delivery of a copy of the writ to its treasurer and of another copy' to its paymaster.

<p>Devise and Legacy, Construction.</p> <p>A bequest to the brothers and sisters of the testator, after a life interest in one of them, means a bequest to the brothers and sisters of the testator living at the time of his death including the beneficiary for life, unless there is something in ,the will to show a different intention.</p> <p>A testatrix bequeathed a certain sum of money to a trustee as follows : “ in trust for N. R. wife of H. R., . . . the interest of said sum to be paid to her annually and in case of the death of H. R. the principal to be paid to her thus terminating the trust. In ease of the death of N. R. before the death of her husband the property is to be paid to the brothers and sisters of the testator.” N. R., who was a sister of the testatrix, died before her husband. A brother of the testatrix died after the testatrix and before N. R. Held, that the bequest in remainder, contingent on the death of N. R. before her husband, was to the brothers and sisters of the testatrix living at the time of her death including the deceased brother and N. R.</p>

<p>Mortgage, Of chattels. Words, “ Household furniture.”</p> <p>A mortgage of furniture in a boarding house of twenty-three rooms carried on by a husband and wife, including furniture which had belonged to the wife before they kept the boarding house and was in seven or eight rooms used for living purposes by the husband and wife and their family, includes “ household furniture ”, within tlie meaning of St. 1892, c. 428, § 3, (R. L. c. 102, § 53,) and if the mortgage is at a greater rate of interest than eighteen per cent per annum and does not comply with the requirements of that statute it is wholly void. Whether iu such a case the furniture in the rooms used by the boarders is “household furniture ” within the meaning of the statute above cited as it would be for the purpose of exemption from taxation to the amount of $1,000 under R. L. c. 12, § 5, cl. 11, queere.</p>

<p>Tort for injuries from being run down by an electric surface car of the defendant. Writ dated September 12, 1901.</p> <p>In the Superior Court the case was tried before Bishop, J. It appeared that the plaintiff was injured by coming in contact with a car of the defendant which was going in a southerly direction on Atlantic Avenue in Boston, about one o’clock p. m., on-March' 11, 1901. On the west side of the avenue was a temporary wooden structure, which had been erected by contractors who were putting up a new building, and which extended from the westerly line of the avenue across and six feet beyond the sidewalk into the street. Along the easterly front of this structure was a temporary plank walk one foot and eight inches wide, the outer edge of which was two feet two and one half inches from the westerly car rail of the defendant’s railway. This plank walk connected with another temporary plank walk two feet six inches wide leading from the end of the temporary structure to the sidewalk. The shop from which the plaintiff started adjoined the temporary structure on the south.</p> <p>The plaintiff testified that he went to Goldberg’s shop on Atlantic Avenue, and left it to go to Union Street, “so when I was coming right from the sidewalk I was taking the plank board to go towards home this way, and I was meeting there a man that come side of this rail, and I twisted this way around him, and the car struck me and knocked me helpless, — I was n’t knowing where I was. That’s all I know.”</p> <p>The judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tort for alleged libel contained in two letters mailed by tbe defendant in January, 1901, and addressed to the plaintiff. Writ dated May 18, 1901.</p> <p>At tbe trial in the Superior Court before Gtaskill, J., it was admitted that the defendant wrote and mailed the letters and that they were libellous. It appeared that the letters were opened and read by the plaintiff’s daughter. The evidence in regard to publication is described in the opinion.</p> <p>At the close of the evidence, the judge ordered a verdict for the defendant on the ground that there was no publication of the letters by the defendant, and reported the ease for determination by this court. If the ruling of the judge was correct, judgment was to be entered on the verdict; if not correct, the verdict was to be set aside and a new trial granted.</p>

<p>Practice, Civil. Nonsuit.</p> <p>Where in an action in the Superior Court an auditor has been appointed under E. L. c. 165, § 55, and upon application o£ the defendant the court under § 59 of the same chapter has appointed a certain day for the hearing of the case, and the plaintiff after notice fails to appear at the hearing and likewise fails to appear at successive adjournments of the hearing made necessary by his absence, of each of which he was notified, this furnishes good ground for ordering a non-suit in accordance with the provisions of the section last named.</p>

<p>Tout for personal injuries alleged to have been caused by a defect in Bennington Street, a public highway in Boston. Writ in the Municipal Court of the City of Boston dated October 18, 1901.</p> <p>On appeal to the Superior Court the case was tried before Pierce, J., who at the close of the plaintiff’s evidence ordered, a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Practice, Civil, Amendment. Limitations, Statute of.</p> <p>Under R. L. e. 173, § 48, a plaintiff in an action of tort for personal injuries incurred while a passenger on a car of a street railway company, the property of which soon after was leased to and operated by another company, who has brought his action against the operating company, may be allowed to amend his writ and declaration by substituting the leasing company as defendant.</p> <p>It is no ground for refusing to allow an amendment to a writ and declaration at law by substituting one sole defendant for another, that if the amendment is not allowed the action against the defendant to be substituted will be barred by the statute of limitations, and this may be an additional reason for allowing such an amendment where the original action was brought seasonably for the same cause.</p>

<p>Contract on certain guaranties in writing described in the first paragraph of the opinion. Writ dated September 10, 1901.</p> <p>In the Superior Court the case was tried before Fox, J., without a jury. The defendant requested the following rulings: “1. On all the evidence the plaintiff is not entitled to recover. 2. The demand note for $907.75 given by Simmons and Company to the plaintiff, dated May 1, 1899, was payment pro tanto and discharged the defendant to that amount. 8. The delivery of the merchandise or bills of lading representing it by the plaintiff to Hiram Simmons [the defendant’s husband], exonerated the defendant from all liability on her several guaranties.”</p> <p>The judge refused to rule as requested, and found for the plaintiff in the sum of $6,330. The defendant alleged exceptions.</p>

<p>Tort for personal injuries incurred while in the defendant’s employ through the alleged negligence of the defendant’s superintendent. Writ dated June 14, 1902.</p> <p>In the Superior Court the case was tried before Hardy, J., who refused to order a verdict for the defendant and submitted the case to the jury in the manner stated in the opinion. The jury returned a verdict for the plaintiff in the sum of $400 ; and the defendant alleged exceptions.</p>

<p>Mortgage, Of real estate. Bills and Notes.</p> <p>If the holder of a note, secured by a second mortgage on land, purchases the land at a foreclosure sale under the first mortgage and the mortgagor releases the land to him as purchaser, and thereupon he makes a new first mortgage to the original first mortgagee, and if the proceeds of the foreclosure sale after paying the first mortgage and other charges when applied toward the payment of the note which was secured by the second mortgage leave a balance still due, the holder may recover this balance in an action on the note, as the extinguishment of the second mortgage has not extinguished the debt.</p>

<p> Agency. Bills and Notes. Bank. Damages. </p> <p>If one, to collect a debt, makes a draft on his debtor payable to the order of a certain bank, and delivers it to that bank for collection, and the bank sends it for collection to another bank which fails to use due diligence in its collection, the first named bank is the agent of the maker of the draft and the maker as principal can maintain an action against the last named bank for any loss he has suffered through its negligence.</p> <p>If a bank receives a draft for collection in a letter of instructions saying “ Return at once all items unpaid at maturity. They must not be held for the convenience of parties,” and accompanied also by a slip requesting that the draft should not be protested, unless a custom of all banks to retain no protest items even when accompanied by such instructions is proved, it may be found that a failure to return the draft at once when not paid at maturity and holding it for the convenience of the drawee show negligence on the part of the bank, making it liable to the owner of the draft for the damages caused by the failure to return the draft promptly.</p> <p>In an action against a bank for a failure to return at once on non-payment at maturity a draft which had been sent to it for collection with instructions to do this, if it appears that when the draft matured the acceptor had property open to attachment to an amount much larger than the amount of the draft and did not intend to fail or make an assignment, and that the bank held the draft uncollected for nearly a month when the acceptor failed and made an assignment, the loss of the balance of the amount of the note over the dividend received from the estate of the debtor can be found to be a natural consequence of the failure of the defendant to return the draft promptly and not too remote to be recovered as damages.</p>

<p> Municipal Corporations. </p> <p>A city is not liable for an injury caused by snow and ice negligently thrown from the roof of its city hall by men employed by its superintendent of public buildings, if the whole building is used and occupied for municipal purposes, although portions of the building are used by the water, sewer and other departments.</p>

<p> Bastardy. Evidence. </p> <p>On the trial of a complaint under the bastardy act, the complainant can be asked by her counsel whether the defendant is the father of her child, and can answer that he is, this being admissible as an accusation of paternity competent under R. L. c. 82, § 16, to prove constancy in that accusation on the part of the complainant.</p>

<p> Factor. Payment. </p> <p>In an action by a manufacturer against the assignee for the benefit of the creditors of a factor who had become insolvent, to recover a balance alleged to be due for amounts received by the factor in payment for the plaintiff’s goods consigned to him for sale, it appeared, that by the course of dealing between the plaintiff and the factor the factor sold the plaintiff’s goods, consigned to him, for cash or on credit to such customers .as he pleased without disclosing the name of his principal, and credited the plaintiff with the amount of the purchase money ■ whether it then had been received or not, guaranteeing the sales and receiving a commission for doing so, that when the factor made remittances to the plaintiff from time to time they were credited generally without reference to any particular consignment, that with quarterly statements and adjustments of interest the account ran on continuously from month to month and year to year, and that during the entire period up to the time of the factor’s insolvency the factor was indebted largely to the plaintiff on the whole account as would have appeared if a balance of the whole account had been struck at any time. The defendant contended that he was' entitled to retain the balance claimed by the plaintiff because it represented a sum which the factor had paid to the plaintiff in excess of the amount which the factor’s books showed to be due to the plaintiff at a certain date, and the defendant claimed the right to retain the proceeds of the sales made during a period of about three weeks and a half from that date, on the ground that the payments made by the factor to the plaintiff should be appropriated to the sales made by the factor in the order in which they were made, and that this would leave the balance in question as the property of the factor, so that the plaintiff could claim the amount only as a general creditor of the factor. Held, that the payments by the factor should be applied on the open running account in accordance with the course of dealing between the parties, and as the balance on the general account was at all times against the factor the money retained by the defendant belonged to the plaintiff.</p>

<p>Tort under Pub. Sts. c. 102, § 93, (R. L. c. 102, § 146,) against Catherine C. Dyer, and Thomas Dyer her husband, for double the amount of damages sustained by the plaintiff from the bite of a dog of which the defendants were alleged to be the owners and keepers. Writ dated'May 28, 1901.</p> <p>At the trial in the Superior Court before Sherman, J., it appeared, that the plaintiff was a junk dealer living at Walpole who had two teams and carried on business by going around to see what was for sale, that on April 17, 1901, he was on Mylod Street in Norwood, and, leaving his horse standing in the road, went upon the defendant’s premises, stopped and picked up a large rope that the defendant Thomas had used for tying loads of hay and for other purposes, and as he picked it up and had it in his hand was bitten in the calf of the leg by a watch dog, a large St. Bernard, belonging to the defendant Catherine.</p> <p>The plaintiff asked the judge to make the following rulings:</p> <p>“ First. There is not evidence in this case that there was not such due care on the part of the plaintiff in this case as not to enable him to recover damages for the injuries received.</p> <p>“ Second. There is no evidence in this case which would warrant the jury in saying that the defendant was taking up said rope with any unlawful intent such as would preclude him from recovering damages for the injuries inflicted by the defendant’s dog.</p> <p>“ Third. If the jury believe that the act of the plaintiff in picking up the rope was prompted by unlawful intent, or with the unlawful purpose of taking the rope, such act is not a contributing cause, but a mere condition, and the defendant is liable for the injuries done by her dog.”</p> <p>The judge refused to rule as requested. He ordered a verdict for the defendant Thomas, and submitted the case to the jury as against the defendant Catherine, leaving to the jury the questions quoted in the first paragraph of the opinion, upon which the jury found that the plaintiff was not in the exercise of due care at the time he was bitten by the dog, that the plaintiff was taking up the rope at the time he was bitten but had no intent to steal it, and that the plaintiff suffered damage from the bite to the amount of $150. The jury returned a general verdict for the defendant; and the plaintiff alleged exceptions.</p>

Bill in equity, filed in the Probate Court for the county of Worcester, June 3, 1902, by the executors under the will of Ellen H. Worcester, late of Clinton, for instructions.

<p>Marriage. Polygamy. Statute. Constitutional Law. Words, “In force.”</p> <p>If a man against whom a decree for divorce has been obtained under Pub. Sts. c. 146, making it illegal for him to marry again within two years from the entry of the final decree, marries within that period a woman who marries him in good faith in the full belief that his former marriage has been annulled by divorce, and the parties continue living together as husband and wife in good faith on the part of the wife until the impediment is removed by the expiration of the two years, their marriage becomes valid under St. 1895, c. 427, and a third marriage by the husband while the second wife is living is polygamous.</p> <p>Under St. 1895, c. 427, making valid certain marriages where the parties continue to live together after the removal of an impediment, which applies to eases where at the time of the marriage ceremony' “a former husband or wife of one of the parties was living, and the former marriage with such person was still in force ”, the words “in force” include a case where the former marriage although annulled for all other purposes by a final decree of divorce under Pub. Sts. c. 146, was in force under § 22 of that chapter for the purpose of making illegal a marriage of the husband within two years from the time of the entry of the final decree.</p> <p>St. 1895, c. 427, making valid certain marriages where the parties continue to live together after the removal of an impediment, applies to a case where a final decree of divorce against the husband under Pub. Sts. c. 146, entered before the passage of the act made it illegal for him to marry again within two years from the entry of the decree and he having done so the impediment was removed by the expiration of the two years after the enactment of the statute; and so applied the statute is constitutional. Eollowing Lufkin v. Lufkin, 182 Mass. 476.</p>

<p>Limitations, Statute of. Bond. Trust, Termination.</p> <p>A trustee gave a bond to the beneficiaries interested in a certain sum of money received in trust by him, with the condition, that in the event of his ceasing to hold the sum as trustee by reason of death or otherwise Ills executors or administrators should pay the sum with all income therefrom then due to such person as the beneficiaries or the Probate Court should designate “ to receive said sum ”, and in the meantime the trustee should pay to the beneficiary for life, a net income of at least five per cent per annum on the fund. On the same day the trustee and the beneficiaries executed an agreement in writing that the trustee instead of investing the fund should lend it to a firm consisting of himself and the sureties on his bond. The trustee died and executors under his will were appointed, filed bonds and gave notice of their appointment. Seven years thereafter a new trustee was appointed to hold the fund, and in three months made a demand for the fund on the executors of the first trustee. Within a year from the appointment of the new trustee the beneficiaries of the trust brought an actioh against the executors of the first trustee on the bond of their testator. Before this action was brought the new trustee liad petitioned the Probate Court for an order to the executors of the first trustee to retain sufficient property in their hands to satisfy the claim, and that court made the order, the accounts of the executors not having been settled. Held, that the action of the beneficiaries against the executors was not barred by the special statute of limitations because there was no default on the bond until demand was made for the money after the appointment of the new trustee; also, that the petition for the retention of assets was presented seasonably, and being for the same claim it did not matter that it was presented by the new trustee instead of by the plaintiffs; also, that the agreement permitting the first trustee to use the trust fund in his business did not terminate his liability as trustee, except so far as it was changed by the agreement; also, that the action was not barred by the general statute of limitations, for, although no demand was made until more than six years after it could have been made, the action was brought within twenty years from the execution of the bond; also, that it was no bar to the action that the accounts of the first trustee were not fully settled when it was brought, as the bond was not a general one to secure the faithful discharge of the trust, but was given to secure the payment of a specified sum of money.</p> <p>An executor who also is trustee under the same will is liable as executor for assets in his hands until his account as executor has been filed and allowed in the Probate Court.</p>

<p>Negligence, Res iqjsa loquitur. Practice, Civil, Exceptions.</p> <p>In an action against a street railway company for an injury received by a passenger in a car of the defendant from a collision with another car of the defendant moving in an opposite direction on the same track, no exception lies to the refusal of the presiding judge to rule that the mere fact of the collision is not evidence of negligence, if there is the additional fact that the defendant offered in evidence no explanation of the collision.</p> <p>In an action of tort against a street railway company for personal injuries alleged to have been caused by the defendant’s negligence, where the defendant has not demurred to the declaration and has tried its case on the issue of negligence, it cannot, by an exception to the refusal of a ruling that on the pleadings and the evidence the plaintiff is not entitled to recover, raise the point that the declaration contains no allegation of negligence or intentional harm on the part of the defendant.</p> <p>No exception lies to the whole charge of a judge.</p>

<p>Negligence, Employer’s liability. Evidence, Remoteness.</p> <p>In an action by a workman in an iron foundry against his employer for injuries from the fall of a freight elevator on which he was standing, after the plaintiff has shown that the clutches of the elevator were defective and practically useless, he may show by the testimony of experts, who made an examination of the elevator the day after its fall, that there were defects in the car and in the uprights, and that either the car would not have fallen had the clutches been in working order, or that one of the uprights was sprung so that the clutches could not catch on it, there being nothing to show that any change had occurred between the time of the accident and the examination of the elevator Jjy the experts.</p> <p>It is evidence of a failure in duty on the part of the proprietor of an iron foundry maintaining a freight elevator on which his workmen ascended and descended in going up with loads of iron to the furnace and returning for other loads, that the elevator car with workmen on it fell, either because the clutches of the elevator were out of order and failed to'work or because the posts on which it ran were out of repair.</p> <p>In actions by two workmen in an iron foundry against their employer for injuries from the fall of a freight elevator, it appeared, that the plaintiffs had taken up a load of iron to the furnace and stepped on the elevator car to descend. On pulling the operating cord in the usual way the car instead of descending remained stationary. One of the men, experienced in operating the elevator although he was ignorant of the method by which the power was applied, stepped off to ascertain whether the operating machinery was running and, finding that it was, went back to the car. As he stepped upon its floor it fell. The second man had remained in the car and did not know that the machinery was running until the first man told him so on his return, the announcement being practically simultaneous with the fall of the car. Held, that the plaintiff who stepped off the car and returned to it incurred the danger voluntarily and could not recover, but that the plaintiff who remained in the car could be found to have been in the exercise of due care.</p>

<p>Way, Laying out of highway.</p> <p>The order of the county commissioners of Norfolk County made in 1844, laying out what was formerly the causeway over Mill Creek in Dorchester as a highway, required only that the road as then existing should be put in proper repair, and does not require that a certain jog about one hundred and nineteen feet long which originally was left unfilled should be included in the highway so as to make it of a uniform width of forty feet, the fact that this was the contemporaneous construction of the order by all who had occasion to work under it and that it remained unquestioned for sixty years being considered of much weight in arriving at this conclusion.</p> <p>The owner of land abutting on a highway has no right to require the construction of the highway to the line of his land for convenience of access.</p>

Tort by a foreman of fcbe treeing and dressing room of the defendant’s shoe factory at Brockton for injuries caused by the plaintiff’s sleeve being caught by a set screw in a revolving shaft while he was doing some whitewashing near it. Writ dated January 9, 1903. At the trial in the Superior Court Harris, J., at the close of the evidence, ordered a verdict for the defendant, and at the request of the plaintiff reported the case for determination by this court.

Contract on two promissory notes for $10,000 each, made by the Driggs-Seabury Gun and Ammunition Company to its own order and indorsed by that company, by James B. M. Grosvenor and by the defendant in the order named. Writ dated0 April 23, 1902. At the trial 'in the Superior Court before Harris, J., the defendant made the offer of proof stated in the first paragraph of the opinion.

Contract against the city of Boston with a count to recover $2,753.96 alleged to be due for extra materials and labor not included in the contract price named in a contract between the plaintiff and that city for the erection and completion of a municipal building at the corner of Columbia Road and Bird Street in Boston, for which it was alleged that by the terms of the contract the defendant was hound to pay, with a second count for work done and materials furnished and a…

<p>Tort by an employee of the Whittier Machine Company for injuries from the falling upon him of a staging used by the employees of the Hecla Iron Works through the alleged negligence of the servants of that corporation. Writ dated April 17, 1900.</p> <p>In the Superior Court the case was tried before Fessenden, J., who ruled as stated in the opinion. The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Contract, with five counts, as stated in the first paragraph of the opinion. Writ dated April 27, 1899. In the Superior Court Bell, J. ordered a verdict for the defendant, making the rulings stated in the opinion, and by consent of the parties reported the case for determination by this court. If there was no error in the rulings judgment was to be entered on the verdict.

Indictment for murder in the second degree returned by the grand jury in the Superior Court for the county of Suffolk on November 2, 1903. At the trial in the Superior Court before White, J., a verdict of guilty of murder in the second degree was returned against the defendants Wong Chung and Charlie c£in, a third defendant who had been indicted with them not having been apprehended.

<p>Charity, What constitutes, Administration cy pres. Trust. Devise and Legacy. Joint Tenants and Tenants in Common.</p> <p>A gift to the pastor and deacons of a church and their successors forever for the support of the church in its religious worship creates a public charitable trust.</p> <p>A will contained the following provision: “ At the death of my said Sisters and Brother I do give bequeath and devise all my interest in my said real Estate in two parts to the Pastor & Deacons of High Street Church and to the Pastor and Deacons'of John Street Church to be by them disposed of for the support the said churches in their religious worship to be equally divided between the said churches — by creating a permanent fund, the interest and income of which whether in the improvement of the said lands or converting the same into-funded securities yielding interest thereon — to the said Pastor & Deacons of High St. Church & to the said Pastor & Deacons of John St. Church and their successors forever — the division & enjoyment thereof to be in peace and harmony between the said churches.” After administering one half of the fund for a time, the John Street church ceased to exist and the society voted to discontinue religious worship and to make proper disposition of their funds and other property. The High Street church originally was established by the aid and co-operation of the John Street church, and many former members and attendants of the John Street church attended worship there. The two churches were of the same religious denomination. Held, that the bequest was to the respective pastors and deacons of the two churches as tenants in common and not as joint tenants; that each gift was a public charity; and that the administration of the fund given to the pastor and deacons of the John Street church having become impracticable in the precise manner provided by its creator, the fund should be applied cy pres by paying it to the pastor and deacons of the High Street church to be administered by them for the support of religious worship in that church as nearly as might be in the manner in which the testator directed that it should be used for religious worship in the John Street church.</p> <p>Although it is usual in applying a charitable fund cy pres to refer the matter to a master to report a scheme this court may frame a scheme directly or adopt one that is proposed.</p>

<p>Devise and Legacy, Construction.</p> <p>Words omitted from a will presumably by mistake can be supplied by the court only when the words used by the testator show by necessary implication what words were omitted. Following Child v. Child, 185 Mass. 376.</p> <p>A testator having a son and a daughter left to his son $100 “ if in the opinion of the trustees he is worthy of it,” and left the bulk of his property to trustees, to convert it wholly into personal property and pay the net income to his daughter “ for her sole use and benefit during her natural life.” At the time of the testator’s death his next of kin were his son and- daughter. Held, that as to the disposition of his property after the death of his daughter the testator died intestate.</p>

Bill in equity, filed September 16, 1908, to enforce an agreement, under which the plaintiff was trustee for William Dillon, against Ida S. Dillon, the wife of William, by restraining the further prosecution by the defendant of a petition for support in the Probate Court for the county of Suffolk. The defendant demurred to the bill.

Bill in equity, filed January 2, 1903, to restrain the city of Cambridge from interfering with the lawful acts of the plaintiff in maintaining and repairing its railroad within the limits of grade crossings in that city and particularly from interfering with the acts of the plaintiff or its servants and agents in digging up the surface of Cambridge Street within its railroad location for the purpose of repairing the gates at the grade crossing of that highway.

Bill in equity, filed January 20, 1902, described in the second paragraph of the opinion, and a cross bill, filed March 17, 1902, described in the third paragraph of the opinion.

<p>Executor. Contract, Implied.</p> <p>Where executors under the will of a testator who had been conducting a mercantile and manufacturing business on borrowed capital, not being authorized by the will to carry on the business, but carrying it on by agreement of all parties interested for the purpose of preserving the business as a going concern, in good faith borrow .money from the mother of one of the executors to use in the business, the son under authority from the other executors signing the note in the name under which the testator conducted the business, by himself “ as executor”, and the money is used in discharging debts of the business, and later the executors sell the business to a purchaser who agrees to assume and pay all debts incurred by the executors in carrying on the business, the lender can maintain a suit in equity to recover the amount of the loan from the purchaser, the executors being liable for this indebtedness as money lent or money had and received, if they are not liable on the note.</p>

Tort for the conscious suffering and death of the plaintiff’s intestate alleged to have been'caused by a load of lumber falling upon him from the giving way of a defective hoisting apparatus maintained by the defendants, who were contractors engaged in building a two story structure on Goat Island in the harbor of Newport in the State of Rhode Island, by whom the plaintiff’s intestate was employed. Writ dated December 17, 1901.

Contract on a guaranty in writing. Writ dated April 16, 1901. At the trial in the Superior Court before Sherman, J., without a jury, the judge refused certain requests of the defendants stated in the opinion, and found for the plaintiffs in the sum of $822.97. The defendants alleged exceptions.

<p>Street Railway. Way, Repair of highway. Boston Elevated Railioay Company. Words, “Tracks.”</p> <p>In §§ 32, 33 of Pub. Sts. e. 113, requiring street railway companies to keep certain portions of highways in repair, which are still in force as to the Boston Elevated Railway Company, (R. L. c. 112, § 1,) the phrase “ occupied by its tracks ” means the rails and the space between them over which the cars pass and does not include the space occupied beneath the surface by the sleepers supporting the rails.</p>

<p>Equity Pleading and Practice, Decree, Costs, Appeal. Trade Name. Assignment. Equity Jurisdiction, Equitable mortgage, Equitable attachment.</p> <p>In a suit in equity an interlocutory decree for the plaintiff appealed from by the defendant should be vacated in spite of the appeal when a final decree is entered dismissing the bill.</p> <p>Property in a trade name cannot be assigned in gross apart from the business which it designates.</p> <p>!A.n agreement of a debtor with his creditor that in addition to other security named he will not “sell, dispose of or exchange in any way” his interest in a certain trade name without the consent in writing of the creditor is not an assignment and does not create an equitable mortgage. And the same is true of an agreement that the debtor so long as his indebtedness continues “will not assign, transfer, or sell” the trade name without the consent in writing of the creditor, and that if a certain note is not paid at maturity he will assign and transfer the trade name absolutely to any person named in a written demand of the creditor.</p> <p>Where a bill is dismissed with costs, a defendant who on his own petition has been admitted as a party erroneously is not entitled to costs.</p> <p>Whether a debtor’s interest in the good will of a business can be reached in a suit of equitable attachment under R. L. c. 159, § 3, cl. 7, quaire.</p> <p>Under R. L. c. 159, § 19, an appeal from a final decree in equity stays all proceedings.</p>

<p>•Bill in equity, filed August 28, 1902, by an owner of land and a dwelling house in Everett against the mayor and the members of the board of health of that city, to restrain them from erecting and maintaining a hospital on land adjoining that of the plaintiff for the care of persons suffering from smallpox and other contagious diseases.</p> <p>In the Superior Court Hardy, J. made a decree dismissing the bill with costs; and the plaintiff appealed.</p>

<p> Municipal Corporations. Way. Res Judicata. </p> <p>If the metropolitan park commissioners by a mistake unlawfully fill in an old archway under a highway thus stopping the flow of a branch of a river, and the city .maintaining the highway, assuming that it has a right to place solid construction across this branch of the river, adopts the filling put there by the park commissioners and completes the street upon it, it becomes the duty of the city to remove the filling from the archway and construct the necessary culvert.</p> <p>Where the Commonwealth as against a city has the right to have the city remove the filling from a certain old archway under a highway and construct a culvert there, and seeks to enforce this right in a suit in equity in which a certain manufacturing corporation properly is joined as a defendant, the fact, that the corporation is precluded, by a decree in a former suit brought against the metropolitan park commissioners for damages, from maintaining that the city should construct the culvert, is no defence for the city as against the Commonwealth whose claim against the city was not involved in the former suit.</p>

<p>Two BILLS IN EQUITY, both filed February 10, 1904, one by Moses Williams as trustee under the will of William Gr. Thacher, late of Boston, and the other by the same person as trustee under the will of Rebecca C. Billings, late of Boston, both for instructions.</p> <p>The two cases came on to be heard before Lathrop, J., who reserved each of them upon the bill, answers and agreed facts for determination by the full court, such decrees to be entered therein as justice and equity might require.</p> <p>The will of William G. Thacher was dated September 14, 1883, and proved October 15, 1883. Omitting the introductory and attesting clauses and the signatures, it was as follows:</p> <p>“ First. I hereby constitute and appoint my sister Caroline B. Thacher and my sister in law Maritta B. Thacher and the survivor of them to be the executors and executor of and trustees and trustee under this my last will directing them to pay all my just debts and funeral expenses out of my estate, and I hereby direct and request that they or either of them shall not be required to give any bond or bonds or any surety or sureties on any bond or bonds as such executors or as such trustees but that they be exempt and excused therefrom.</p> <p>“Second — All the rest, residue and remainder of my estate and property real, personal and mixed of which I shall die seized or possessed or to which I shall be entitled at the time of my decease, I give devise and bequeath to the said Caroline B. Thacher and Maritta B. Thacher and the survivor of them and her heirs and assigns in trust and to hold the same to the uses and upon the especial trusts hereinafter mentioned and expressed of in and concerning the same that is to say</p> <p>“Third — To permit my said sister Caroline, B. Thacher during and for the term of her natural life free from any charge for rent or occupation to use, occupy and improve the mansion hojise of my late father Thomas Thacher and the out buildings land and garden thereto appertaining meaning thereby the dwelling house barn stables and out buildings and all the land on the Northerly side of Alleghany Street between lands now or late of Bouvé on the east and lands of Rebecca C. Billings on the west in that part of Boston lately known as Roxbury now owned by my said sister and myself in equal shares and I direct my said trustees to pay all taxes and assessments which may be assessed on said premises, meaning hereby the taxes and assessments on my undivided half of said premises during the said term of my sisters natural life or until said premises shall be sold and conveyed under the power hereinafter given my trustees.</p> <p>“ Fourth —Also to permit my said sister Caroline B. Thacher to have the use and enjoyment during said term of her natural life, of all the personal property belonging to me or in which I have any interest and contained in said mansion house at the time of my decease, comprising household furniture, paintings, engravings statuary maps books silver ware and plated ware kitchen utensils crockery hardware ornaments jewelry etc. excepting books of accounts and evidences of property also the use and enjoyment .of the horses, carriages, wagons, harnesses stable furniture garden farming tools and utensils' hay and grain which shall be in said stables barns and out buildings at the time of my decease also the use and enjoyment of all the property in my billiard room and bowling alley.</p> <p>“Fifth — That the said trustees or the survivor.of them or their successors in said trust shall take and receive the rents profits interest and income accrueing from all the rest residue remainder and reversion of my estate and property real personal and mixed of which I shall die seized or possessed or to which I shall be entitled at the time of my decease and therewith make all necessary repairs pay all taxes and assessments and other necessary charges and expenses in and about the same and after all such payments deducted to expend such portion of the said net rents, profits interest and income as in their judgment shall be deemed necessary for the proper support maintenance and education of my children in such proportion as to each child and in such manner as they may deem wise and prudent until my said children shall arrive at the age of twenty one years and the residue of such rents profits interest and income to add to the principal and to invest and keep invested in such manner as they shall deem best and when and as often as my said children shall arrive at the age of twenty-one years to pay over to them as they shall respectively arrive at the age of twenty-one years an equal share proportionate to the number of my children then living and issue of any deceased child such issue to represent their deceased parent of the income derived from my said property and of the income of the increase thereof, until the youngest of my said children who shall live, shall arrive at the age of twenty-one years, or in ease my said trustees or whoever shall succeed them in said trust shall think it more for the benefit or interest of said children or either of them after they shall have arrived at the age of twenty-one years it is my will that they should appropriate to the maintenance and support of my said children or either of them after their arrival at the age of twenty-one years her or their proportion as aforesaid of said net rents, interest and income of said trust property instead of paying it over to my said children or child and I expressly declare that any sale, transfer, assignment or alienation made by said children or either or any of them of said net rents interest or income or any parts or part thereof before it shall have been actually paid to or appropriated for her or them shall be utterly void and not binding on my said trustees.</p> <p>“ Sixth — If either of my children shall die before the distribution of the principal of the trust fund as hereinafter provided leaving issue surviving her then I direct that such proportionate part of the income of said trust fund which would in her life time be payable to or expended for the benefit of such deceased child of mine be paid by my trustees to such deceased child’s surviving issue, such issue to take by right of representation. ■</p> <p>“ Seventh —■ If either of my children shall die before the distribution as hereinafter provided of the principal of said trust fund leaving no issue surviving her or if leaving issue they all die before the said distribution then I direct that such income as would otherwise be payable to or expended for the benefit of such deceased child of mine or her issue if living be appropriated by my said trustees in manner as aforesaid respecting the income of my estate to the benefit of my surviving children and the issue of such as have deceased such issue of a deceased child to take its parent’s share by right of representation, but for those of my children who are living and under the age of twenty-one years the income is to be appropriated by my trustees in such manner and proportion as they my trustees think wise and prudent.</p> <p>“ Eighth — And when the youngest of my children who shall live shall arrive at the age of twenty-one years then I direct and request that my said trustees or whoever shall succeed them in said trust shall convey assign transfer set over and convey and pay to my children then living and to the issue then living of such as have deceased such issue of a deceased child of mine to take its deceased parents share by right of representation all the estate and property then remaining in their hands or possession and all increase thereof if any to have and to hold the same to them and their heirs and assigns to their use and behoof forever in fee simple.</p> <p>“Ninth — If none of my children live to arrive at the age of twenty one years or if after arriving at the age of twenty one years and before the distribution of the principal of said trust property they all die leaving no issue or if leaving issue surviving them such issue all die before the distribution of the trust property as aforesaid, then and in such case, I give devise and bequeath all the said trust property then remaining in the hands and possession of said trustees or their successors in said trust to such persons as shall at that time be my heirs at law.</p> <p>“ Tenth — I hereby authorize and empower my said trustees Caroline B. Thacher and Maritta B. Thacher and the survivor of them and such other trustees as shall be legally authorized to act as such from time to time to demise lease and let upon such terms and conditions as they shall think reasonable the whole or any part of my real estate given in trust as aforesaid and to sell and convey at any time or times the whole or any part of said real estate and the whole or any part of the personal estate and trust property which shall at any time be in their hands as trustees as aforesaid for such sum or sums price or prices as they shall think proper with full power and authority without applying to any court for that purpose to sign, seal execute acknowledge and deliver any lease or leases for any term of years or any deed or deeds which shall be effectual in law to pass a complete absolute and perfect title in fee simple to all or any part of said real estate devised in trust as aforesaid to the purchaser or purchasers thereof or to make any deed or deeds on condition or conditions to be afterward avoided or performed which my said trustees may deem necessary or proper to be executed with full power to make purchases investments and exchanges to take and receive deeds to conyert real into personal and personal into real estate and that again to exchange and re-exchange in such manner as to them shall seem expedient it being my intention to give to my said trustees and those who may be made such the same dominion and control of said trust property as I now have, provided however that all money received for sales all property purchased by the proceeds of any sold or exchanged and all property received in lieu of that sold by the authority aforesaid shall be held for the like trust and purposes and to the like uses and none other as that parted with sold or exchanged and as herein-before fully declared and none other.</p> <p>“ I direct and request that my said sister Caroline B. Thacher shall be appointed guardian of my minor children and that she have the custody and care of their persons and property and I direct and request that she be not required to give any bond or bonds or any surety or sureties on any bond or bonds as such guardian but that she be exempt and excused therefrom. And in case my said sister Caroline B. Thacher should decease during the minority of my said children or either of them then I direct and request that my said sister in law Maritta B. Thacher shall be appointed guardian of my minor children and that she have the custody and care of their persons and property and I direct and request that she be not required to give any bond or bonds or any surety or sureties on any bond or bonds as such guardian but that she be exempt and excused therefrom.”</p> <p>There also was a codicil dated September 15, 1883, ratifying the provisions of the will ánd further directing that the executors and trustees should be excused from giving sureties on their bonds.</p> <p>In the second case' it was agreed that the provisions in the will of Rebecca G. Billings in regard to which the plaintiff prayed for instructions were substantially in the same language as the corresponding provisions in the will of William G. Thacher.</p>

<p> Habeas Corpus. Practice, Criminal. </p> <p>Where proceedings on a petition for a writ of habeas corpus are adjourned into the full court by the order of a single justice, and the facts although uncontroverted are not agreed in writing, they must be brought before the full court by a report of the single justice.</p> <p>Under R. L. c. 191, § 1, cl. 2, one who has been sentenced to imprisonment for a misdemeanor upon a default when asking for a trial, is not entitled to prosecute a writ of habeas corpus, his remedy being by writ of error if his restraint is illegal.</p>

<p>Contract for alleged breach of a contract in writing to employ the plaintiff as exclusive agent in a certain territory to sell “ certain kinds of electric vehicles ” manufactured by the defendant., Writ dated January 1, 1902.</p> <p>At the trial in the Superior Court before Aiken, J., without a jury, the plaintiff testified in his own behalf that he had had some years’ experience as a salesman of electric vehicles, and that, before the date of the contract in writing, he had been employed by the defendant as a salesman, introducing and selling its vehicles. The plaintiff sought to introduce oral testimony as to the meaning in the contract of the words “ certain kinds of electric vehicles,” but upon objection of the defendant such oral testimony was excluded. Thereupon the plaintiff made the following offer of proof: “ That the certain kinds of vehicles mentioned in the contract between the parties was understood and agreed between them to mean and include motor vehicles used for business' and pleasure, propelled by means of electricity and electrical batteries, motors and mechanism, with the speed, capacity and desirability, and at the prices described and set forth in catalogues and printed circulars and price lists furnished by the defendant to the plaintiff to be used by him in pushing the sale of their goods.”</p> <p>The judge excluded the evidence stated in the foregoing offer of proof, and also excluded other evidence offered by the plaintiff to show that on account of defects and imperfections a certain company refused to buy an electric delivery wagon sent by the defendant upon an order procured by the plaintiff.</p> <p>The judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The contract declared on was as follows:</p> <p>“ Memorandum of agreement made this thirty first day of December A. D. 1900, between the American Electric Vehicle Company, a corporation organized under the laws of the State of New Jersey, hereinafter called ‘the Company,’ party of the first part, and A. F. Neale, of Boston, in the State of Massachusetts, party of the second part.</p> <p>“Whereas, The Company is the manufacturer of certain kinds of electric vehicles, and</p> <p>“ Whereas, The party of the second part is desirous of securing the exclusive agency for the sale, in the following territory namely all of Massachusetts east of a straight line drawn at right angles to southern boundary of Massachusetts and passing through Springfield, Mass, of electric vehicles so manufactured by the Company. ,</p> <p>“Now, therefore, in consideration of the premises and of the sum of One Dollar to each of the parties in hand paid by the other, and of other good and valuable considerations, and of the mutual covenants and agreements herein contained, it is hereby mutually agreed by and between the parties hereto as follows: t</p> <p>“ First: That, until this agreement shall be terminated, the party of the second part shall have the sole and exclusive right to sell, in the territory aforesaid, namely, all of Massachusetts east of a straight line drawn at right angles to southern boundary of Massachusetts and passing through Springfield, Mass., all electric vehicles or parts or equipments thereof or accessories thereto, manufactured by the Company.</p> <p>“Second: That the party of the second part shall faithfully and vigorously apply himself, during the continuance of this agreement, to the business of selling, within the territory aforesaid vehicles, parts, equipments or accessories thereof manufactured by the Company, and that the party of the second part will not, during such period, engage, directly or indirectly, in the sale, within said territory or elsewhere, of any vehicles, parts or equipments of any kind other than those manufactured by the Company.</p> <p>“ Third: That the party of the second part shall bear all expenses in any way connected with the agency or business to be undertaken by him, hereunder, whether such expenses shall arise in connection with the selling or handling of the Company’s vehicles in the territory or otherwise, except in such cases as where the Company may place any of the vehicles on trial in said territory for the purpose of demonstration, which will not be under control of the party of the second part, in which case, it is understood and agreed that the party of the second part shall not be held liable for any expense arising therefrom.</p> <p>“ Fourth : That the party of the second part shall not sell or take orders for the Company’s vehicles at lower prices than list prices at the time such orders are taken and accepted, as liereinafter provided, except upon the specific authorization of the Company, which list or other prices the Company will furnish to the party of the second part upon reasonable request therefor, and any change in said list prices shall be immediately communicated to party of the second part.</p> <p>“Fifth: All orders taken or sales made for or of the Company’s vehicles, by the party of the second part, shall be taken and made subject to the acceptance and approval thereof by the Company, and notwithstanding anything hereinbefore contained, the party of the second part shall have no power to bind the Company to any orders taken or sales made until the same have been accepted and approved by the Company.</p> <p>“ The Company, however agrees to accept all orders of vehicles or parts thereof, or accessories thereto, so far as it, the Company, shall be liable to execute the same, provided the parties placing such orders are satisfactory to the Company in every way; viz, financially responsible of good repute and bona fide purchasers.</p> <p>“ Sixth: That the party of the second part shall receive, as full compensation for any and all services to be performed by him hereunder a commission of twenty per cent (20%) of the purchase price of each of the Company’s vehicles sold by the Company on orders secured by the party hereto of the second part hereunder and accepted by the Company from purchasers resident in the territory assigned unto the said party of the second part, in paragraph, 1, of this contract, and such compensation to be computed, as aforesaid, on the purchase price of such vehicle or part or equipment thereof so sold.</p> <p>“ Seventh: That this discount, commission or reduction of 20% shall be paid by the said Company to said party of the second part immediately upon receipt of the purchase price by said Company for any vehicle part or equipment thereof, that is to say, twenty per cent (20%) of all or any payments, whether in whole or in part of the full purchase price, shall be immediately paid to said party of the second part, or the said party of the second part, may, at his option, remit to said Company eighty per cent (80%) of the purchase price of any said Company's products as payment in full for same.</p> <p>“Eighth : It is also agreed that said Company shall supply to said party of the second part a reasonable amount of catalogues, to be used in pushing Company’s business in above territory, which catalogues shall be furnished by said Company free of expense to said party of the second part.</p> <p>“ Ninth : This agreement shall continue for the period of one year from this date, provided that the party of the second part shall, during said year, have sold vehicles to the Value of fifteen thousand ($15,000) dollars, manufactured by the party of the first part, and shall have performed all the terms and conditions hereunder mentioned, then the said party of the second part, shall have the option of continuing this agreement for another year on the same terms, and provided further, that during said second year said party of the second part shall have sold at least thirty thousand ($30,000) dollars' worth of said goods, and in like manner, shall have kept and performed all aforesaid terms and conditions, then the party of the second part, shall have the option of continuing this agreement for a third year.</p> <p>“ In witness whereof the party of the first part has caused its corporate seal to be hereunto affixed and these presents to be signed by its Vice-President and the party of the second part has set his- hand and seal, the day and year above written.</p> <p>“American Electric Vehicle Co.</p> <p>“ By Geo. T. Risley</p> <p>“ Vice-President.</p> <p>“ Signed, sealed and delivered in presence of;</p> <p>“Louise B. Faisant</p> <p>“A. F. Neale”</p>

<p> Equity Jurisdiction. Pledge. </p> <p>An attempted pledge invalid for want of delivery cannot be enforced in equity.</p> <p>In a suit in equity to enforce an alleged equitable pledge, it appeared, that the defendant’s testator owed a certain sum of money to the plaintiff for which he gave the plaintiff a note and set aside as security for the note certain certificates of stock which he retained in his own possession and afterwards sold, that at his death an envelope was found in a trunk belonging to him containing two certificates of membership in cotton exchanges with a statement signed by him to the effect that these certificates were security in part for cash borrowed by him from the plaintiff, and had been so held since he had sold the shares of stock which previously had been the plaintiff’s security. His estate was insolvent. Held, that, as it did not appear that the certificates of stock originally regarded as security ever were delivered to the plaintiff, there was no pledge on which to base an equitable claim to the certificates found in the trunk as having been substituted for a former security.</p>

<p>Practice, Civil, Exceptions. Conversion. Landlord and Tenant.</p> <p>The burden is upon a party excepting to the admission of evidence to show that he was prejudiced by its admission.</p> <p>When the lessee under a lease in writing rightfully removes the goods of a tenant at sufferance he has the right to put them off the premises, but he has no right to remove the goods to a storehouse at his own expense to be held there for safe keeping subject to the order of the owner, if the owner is present and objects to this.</p>

<p>Practice, Civil, Agreed statement of facts. Savings Bank, By-law. Contract, Validity, Construction.</p> <p>Where an agreed statement of facts provides that the “ court may draw such infer- ■ enees of fact as are warranted " and the Superior Court makes a finding thereon, an appeal presents only questions of law, and this court cannot draw inferences of fact.</p> <p>A by-law of a savings bank provided as follows: “No person shall receive any part of his principal or interest, without producing the original book, that sucli payments may be entered therein, unless it is proved to the satisfaction of the trustees or the treasurer that such book shall have been lost or destroyed, in which case a legal discharge shall be given.” Held, that, even if intended to do so, this by-law could not oust the courts of their jurisdiction by substituting the trustees or treasurer as the tribunal to determine whether a bank book was lost or destroyed, and in an action to recover a deposit alleged to have been made by the plaintiff’s intestate in a savings bank having such a by-law, where the bank book is not produced, a finding for the plaintiff can be sustained if there is evidence sufficient to satisfy the mind of a reasonable man that the bank book has been lost or destroyed.</p>

<p>Negligence, Contributory, On highway.</p> <p>The owner of furniture being transported in a wagon cannot recover from a street railway company for injury to the furniture by a collision with a car of the railway company if the driver of the wagon was not in the exercise of due care.</p> <p>One who driving from an intersecting street approaches a street on which he knows that electric cars run in both directions and looking only in one direction is struck by a car coming from the other direction is not in the exercise of due care.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action by a night watchman and fireman against his employer for injuries from a fall caused by the canting over of a plank runway up which the plaintiff •was wheeling ashes in an iron barrow, it appeared, that the plaintiff had been in the defendant’s employment as night watchman and fireman for about twelve years, that for about a month before the accident the runway had been warped and twisted and the plaintiff had been accustomed to trig up with a wooden wedge one of the corners of the runway resting on the floor, that when the wedge was in the plank was firm but that it was rickety without it, that three or four days before the accident the plaintiff told the defendant’s superintendent that the plank was warped or “rockety” and that it was not fit to wheel on, and the superintendent said that he would see to it. The plaintiff testified that he supposed the wedge was in when he started up the plank because he “ generally looked every barrel.” Held, that the plaintiff could not recover, as he fully knew the condition of the runway and assumed the risk, and there was nothing to show that liis continuing to work was induced by any statement of the superintendent.</p>

<p>Bill in equity, filed July 20, 1903, by the trustee under the will of Maria L. Phillips, late of Swampscott, for instructions.</p> <p>The case came on to be heard on the bill and answers before Loving, J., who decided that, according to the true construction of the will of the testatrix, the share of the trust fund to the income of which her son, Warren W. Phillips, was entitled during his life, was divisible only among the five children of the testatrix that survived him, the shares of her daughters to be held by the trustees upon the trusts provided in the will concerning the original shares, and that the defendant Eben B. Phillips, the son of John C. Phillips, who died before Warren W. Phillips, was not entitled to participate in the division of this share. The justice directed that a decree should be entered accordingly, and with the consent of the parties reserved the case for determination by the full court.</p>

<p>Bill in equity, filed December 17, 1901, to restrain tbe defendant from building or completing any wall or other structure over or upon the land of the plaintiff, for an order to remove such structures already built, and for damages.</p> <p>The case was referred to a master who filed a report. The Superior Court made a decree denying a motion of the defendant to amend the order of reference to the master by ordering him to report such portions of the evidence as either party might request, and ordered that the exceptions to the master’s report be overruled and the master’s report be confirmed. The Superior Court made a decree giving relief to the plaintiff in accordance with the prayers of her bill; and the defendant appealed.</p> <p>A reduced copy of the plan mentioned in the third paragraph of the opinion is printed on the following page.</p> <p>The case was argued at the bar in December, 1903, before Knowlton, C. J., Morton, Lathrop, Barker, & Braley, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Petition to the Superior Court, filed November 1, 1903, under St. 1897, c. 510, § 4, by an owner of a farm on the shores of Assawompsett Pond in Lakeville, alleging that the petitioner was aggrieved by certain rules, regulations and orders adopted by the State board of health on December 5,1901.</p> <p>The respondent demurred to the petition. ín the Superior Court Hardy, J. sustained the demurrer and gave judgment for the respondent dismissing the petition. The petitioner appealed.</p>

<p>Bill in equity, filed May 6,1903, by one of the heirs at law of John G. Terhorst, late of Boston, deceased testate, in behalf of herself and the other heirs at law of that testator, against certain persons holding under a deed from George Wilner and against the executor and the devisees under the will of Clara Marsh, deceased, praying for the establishment of the alleged title of the plaintiff and the other heirs at law of John G. Terhorst to certain real estate as devisees under item twenty-two of his will, which item, with the exception of an additional clause appointing executors, is quoted in full in the opinion.</p> <p>In the Superior Court the case came on to be heard before Richardson, J., who by agreement of all the parties reserved it upon the pleadings and an agreed statement of facts for determination by this court.</p> <p>John G. Terhorst died August 19, 1870. His will was dated November 2, 1867. On October 31, 1870, George Wilner being unmarried conveyed by deed his undivided interest in the premises to Anna Maria Bockmann. On May 6, 1881, Anna Maria Bockmann conveyed her interest in the premises to William H. Marsh, husband of Clara Marsh. William H. Marsh died on December 28, 1883. He left one child, Waldon G. Marsh, who died unmarried and intestate on February 4,1894, leaving as his sole heir at law his mother Clara Marsh. Clara Marsh died on May 22,1902, testate.</p>

<p>Contract, by the city of Taunton, under St. 1882, e. 113, substantially re-enacted in R. L. c. 81, § 9, against a former inmate of its almshouse, for board and care from January 15,1897, to September 3, 1902, at $2 a week, amounting to $586. Writ in the First District Court of Bristol dated August 16, 1902.</p> <p>The defendant filed a declaration in set-off alleging that the plaintiff owed him $586 for work done by the defendant for the plaintiff according to an account annexed, in which he charged $2 a week for his services.</p> <p>On appeal to the Superior Court the case was heard by Harcly, J. upon an agreed statement of facts, the substance of which is stated in the opinion. The judge found for the plaintiff and ordered judgment to be entered for it in the sum of $602.41. He found that the defendant was not entitled to recover on his declaration in set-off and gave judgment for the plaintiff thereon. The defendant appealed.</p>

<p>Contract against George Wheatland and Frederick C. Warren jointly, alleging that the defendants owed the plaintiff a balance of $2,338, under an alleged oral contract for doing the plastering of two houses on Beacon Street in Boston, with an additional count on an account annexed for $32.50. Writ dated November 29, 1899.</p> <p>In the Superior Court the case first came on for trial before Maynard, J. The defendant Warren rested on the opening statement of the plaintiff’s case, and no 'further evidence was admitted against that defendant. The plaintiff’s testimony was taken as against the defendant Wheatland, until the judge ruled that upon the opening as then made and the evidence as then offered the plaintiff could not proceed against the two defendants jointly, and that the plaintiff might elect which defendant he would proceed against and discontinue as to the other. The plaintiff thereupon elected to discontinue as to the defendant Warren, and the judge ordered the case to be continued, and allowed the plaintiff- to file an amended declaration against the defendant Wheatland.</p> <p>Later the case was tried before Gasldll, J., who refused to order a verdict for the defendant and submitted the case to the jury. The jury returned a verdict for the plaintiff in the sum of $2,664.55, and in answer to a special question submitted to them by the judge found “that in August Wheatland agreed to pay.” The judge reported the case for determination by this court upon the terms of reservation quoted in the first paragraph of the opinion.</p>

<p> Frauds, Statute of. Partnership. </p> <p>Two partners dissolving a partnership, with only two bonds as assets and with no debts except for the purchase money for the two bonds, which had been advanced by one of the partners, orally agreed that each partner should take one of the bonds at its cost price, the partner who had advanced the purchase money agreeing to carry the bond of the other partner for a week or two to enable him to sell it or raise the money to pay for it. On his failing for several months to do either, he who had advanced the money sold the bond at public auction after notice to his former partner, and, the price realized being less than the firm paid for it, sued- his former partner for the difference. Held., that this was not a contract of sale within the statute of frauds, and that the plaintiff should have judgment.</p>

<p>Petitiok, filed November 11, 1901, by Charlotte Bean, executrix under the will of James Bean, late of Medford, and by the said Charlotte individually and seven other persons, her brothers and sisters, all children of James, for damages under St. 1893, c. 407, for the taking by the metropolitan park commissioners of certain wharf property on Mystic Eiver.</p> <p>At the trial in the Superior Court Bishop, J. excluded certain evidence against the objection' and exception of the petitioners Elizabeth Bean Lane, James Harvey Bean and Arthur Benjamin Bean, and ruled that Charlotte Bean, in her capacity as executrix under the will of James Bean, was the only person entitled to maintain a petition to recover damages for the taking of the land as alleged in the petition. He ordered a verdict for the respondent as against Elizabeth, James and Arthur above named, and ordered a verdict for the petitioner Charlotte Bean in her capacity as executrix in the sum of $20,000. The petitioners Elizabeth, James and Arthur alleged exceptions.</p> <p>The material portions of the will of James Bean were as follows:</p> <p>“ Seventh: I authorize and direct my said daughter, Charlotte Bean, as executrix, to carry on my business of selling coal and grain and other articles at my wharf off 50 Main Street, in said Medford, for the term of five years from my decease, or for any shorter term from my decease, according as she in her uncontrolled discretion may deem best. In order to furnish her, the said Charlotte, with the capital necessary for the carrying on of said business, I direct that she have the two funds or sums arising from the above mentioned sale of my lot on Salem Street, and from the collection or sale of the said William P. Treat mortgage, all of the two said funds or sums to be used as the said Charlotte, in her uncontrolled discretion, shall deem best, in the conduct of said business. And if she considers it necessary at any time to have more capital for carrying on said business, I hereby authorize and direct her, in her discretion, to apply the assets of my estate so far as needed for that purpose. In the conduct of said business, and in the matter of the. receipts and disbursements made in connection with or in the course of said business, it is my will that the said Charlotte shall have absolute power, uncontrolled by any one, and without accounting to any one. And said business shall be carried on at the risk of my estate, and not at the risk of said Charlotte personally. I direct that the said Charlotte at her own personal expense, shall keep the buildings at said number 50 Main Street in repair, and maintain the personal property in use in said business in as good condition reasonable wear and tear excepted as the same may be in at my decease, and that she pay the insurance and taxes on the said premises so long, only, as she carries on the said business. I direct that the profits, if any, of said business for the said term of five years, or, if discontinued before five years, then for such shorter term, shall belong absolutely to the said Charlotte personally. The said Charlotte may, at any time before the expiration of the said five years, discontinue the said business, if she in her uncontrolled discretion, sees fit so to do. I direct that she be required to pay no rent for said premises used for my business, nor compensation for the use of the personal property used in carrying on the same.</p> <p>“ Eighth: At the end of five years from my decease, I direct my said executrix to sell the assets and good will of the said business and to sell the said premises number 50 Main Street. And I direct that the proceeds of the sale of the assets and good will of said business, and of said land and building, and what may then remain of my real and personal estate, shall be divided equally among all my children, namely, Charlotte Bean, Mary Wilson, Elizabeth Lane, George H. Bean, James Harvey Bean of Pocatello, Idaho, Arthur Benjamin Bean, of Pocatello, Idaho, Frank E. Bean, of Chicago, Illinois, and Charles E. Bean, of Charlestown, Massachusetts, the issue of any deceased child to take by representation the share which that child would have received if living at the time above fixed for the distribution. If the said Charlotte should die before the expiration of the said term of five years from my decease, I direct that the assets and good will of the business and the land and buildings at said 50 Main Street be sold as soon as may be, and that the distribution as above set forth be made at once.</p> <p>“ I nominate my said daughter, Charlotte Bean, to be the executrix of this will, and I request that she may be exempt from giving a surety or sureties on her bond as such executrix, or on any bond or bonds that may be required of her.”</p>

<p>Street Railway. Carrier, Of passengers. Negligence, On highway.</p> <p>A foot traveller on a highway who is approaching and intending to board a street car, which in response to a signal from him has stopped to receive him, is not a passenger on the car before he reaches it, and until he begins to enter the car the company operating it owes him only the duty which it owes to all persons lawfully upon the street.</p>

<p>Contract by Agnes Cheney Fish, executrix under the will of Person C. Cheney, late of Manchester in the State of New Hampshire, for a balance alleged to be due under a policy insuring the life of Person C. Cheney in the sum of $3,000, made payable as stated in the first paragraph of the opinion, on which the defendant already had paid one half of the sum named in the policy. Writ dated June 18, 1903.</p> <p>In the Superior Court the case was heard by G-askill, J.'on an agreed statement of facts. He found for the plaintiff in the sum of $1,695, and gave judgment for that amount. The defendant appealed.</p>

<p>Practice, Civil, Findings of commissioner on appeal for abatement of taxes, Exceptions. Tax, Abatement.</p> <p>The findings on matters of fact of a commissioner appointed under R. L. c. 12, § 80, on an appeal to the Superior Court for an abatement of taxes, are not open to revision by this court on exceptions.</p> <p>Where in a case before this court on exceptions, the report of a commissioner appointed by the Superior Court on an appeal for an abatement of taxes reported the evidence, although the rule to the commissioner ordered him only “ to hear the parties and report the facts to the court,” and the Superior Court treated the evidence as before it upon the commissioner’s report, this court considered the case as if the rule had required a report of the evidence as well as of the facts.</p> <p>On an appeal to the Superior Court for an abatement of taxes the commissioner’s report stated that no evidence was offered as to whether or not the assessors issued or published any notice to bring in returns under R. L. c. 12, §§ 41, 74, there was in evidence, produced by the respondent, a list of the petitioner’s property on a blank in the usual form indorsed for filing as such and sworn to by the petitioner before one of the assessors on May 31 of the year in question, and it appeared that the assessors had abated a certain sum from the petitioner’s tax as originally assessed. Held, that, taking into account the presumption that the assessors proceeded according to law in all their official doings, the evidence justified the commissioner in finding that the petitioner brought in a list of his real and personal estate as required by R. L. c. 12, § 41, seasonably filed within the requirement of § 74. «</p> <p>Under R. L. c. 12, § 73, an application to the assessors of a city or town for an abatement of taxes need not be in writing.</p> <p>On an. appeal to the Superior Court for an abatement of taxes, the facts, that a partial abatement was made by the assessors, that interest was charged upon the tax bill only from January 20, and that the assessors by a letter in February informed the petitioner that the board had voted to take no action toward reducing the assessed valuation of his estate, are evidence justifying a finding that the petitioner made a sufficient oral application for an abatement within six months from the date of his tax bill as required by R. L. c. 12, § 73.</p>

<p>Practice, Civil, Amendment. Negligence, In driving. Pleading, Civil, Variance.</p> <p>An amendment inserting in a writ the name of a minor as plaintiff instead of that of his next friend, filed on the day the writ was entered but not acted on by the presiding judge, although read to the jury by the plaintiff as part of the pleadings, can be allowed by the judge after a verdict for the plaintiff, when first called to his attention by the defendant on a motion for a new trial.</p> <p>One driving a two horse furniture team at the rate of five or six miles an hour in an empty street, so near a sidewalk that the hub of the wheel extending over the sidewalk hits a boy standing about a foot and a half inside of the curbstone in a place of apparent safety, can be found to be negligent, and his master to be liable to the boy for injuries thus caused if the boy is in the exercise of due care.</p> <p>A declaration, alleging that the plaintiff was injured when “ crossing the junction ” of two streets named, may be supported by evidence that the plaintiff was injured when he had been standing for two or three seconds on the sidewalk at the corner of the two streets looking across one of them.</p>

<p>License. Landlord and Tenant. Agency. Evidence, Admissions.</p> <p>If a woman owning a tenement house with a shed, the roof of which is fiat with a railing around it and is used by the tenants, also owns an adjoining shed with a pitched roof having a skylight but no railing, and tells the tenants not to allow their children in the street, and that if they want air the roofs are there for them, and says that the mother of certain children has nothing else to do but to sit on the roofs and mind them, and if this can be construed as an invitation to any one to allow children to go on the roofs unattended, it amounts to no more than a license, and the house owner making the statements is not liable to a child six and a half years old, an inmate of the tenement house, injured by falling through the skylight of the pitched roof of the adjoining shed when going over to see if a little boy is coming out to play with her.</p> <p>In an action by a child for injuries from falling through a skylight in the roof of a shed belonging to the defendant, adjoining the roof of a shed of a tenement house belonging to the defendant of which the plaintiff is an inmate, if it appears that the plaintiff lives with her mother in a room of the tenement house hired from a Mrs. If. who has leased the whole house from the defendant, this does not make Mrs. K. the custodian of the roof of the shed of the defendant through the skylight of which the plaintiff has fallen, and conversations of a witness with Mrs. If. tending to show where children were allowed to play are not admissible against the defendant. ,</p>

<p>Co-operative Association. Corporation, By-laws.</p> <p>A purchase of shares in a co-operative association incorporated under Pub. Sts. c. 106, is in effect a loan upon interest. A shareholder may withdraw his money under the terms of a by-law of the corporation giving him the right of withdrawal on notice, and if the "corporation refuses to return the money he can maintain an action for it.</p> <p>A by-law of a co-operative association incorporated under Pub. Sts. c. 106, contained the following provision: “Any member of this association desiring to withdraw from the association the whole or any part of his or her stock shall make a written application to the directors, and within thirty days from the date of such application the board shall pay or cause to be paid such applicant the amount of shares he may desire to withdraw, but if the board fail to pay or cause the same to be paid within thirty days, said applicant may transfer his or her shares to any other member.” Held, that by its true construction this by-law required the association to pay to a withdrawing stockholder the par value of his shares, and so construed was walid.</p>

<p>Complaint, received and sworn, to in tlie Municipal Court of the Roxbury District of the City of Boston on October 29,1902, under R. L. c. 72, § 16, charging the defendant with the illegal use and sale of certain registered bottles as stated in the first paragraph of the opinion. •</p> <p>The defendant, having been found guilty, appealed to the Superior Court, where he was tried before Bond, J. The defendant filed in that court a motion to quash the complaint which was denied by the judge. The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Frauds, Statute of, Sale of goods, wares or merchandise. Mortgage, Of chattels. Practice, Civil, Master’s report.</p> <p>A contract between one who has advanced money, taking as security a storage ' receipt for certain goods and later a bill of sale of the goods, and the owner of the goods, by which it is agreed that the goods shall be sold by the combined efforts of the parties, on the terms and conditions agreed upon, and the proceeds applied to reimbursing and compensating the lender of the money, the balance to go to the owner of the goods, is not a contract for the sale of goods, wares or merchandise within the meaning of the statute of frauds.</p> <p>Whether a mortgage of personal property is a contract for the sale of goods, wares or merchandise within the meaning of the statute of frauds, qucere.</p> <p>Where a master’s report does not state the evidence the correctness of his findings on matters of fact cannot be considered.</p>

<p>Bankruptcy, Powers of trustee. Attorney. United Stales District Court.</p> <p>It is no defence to a suit in equity by a trustee in bankruptcy, to recover assets of the bankrupt alleged to be in the possession of the defendant, that the plaintiff did pot obtain leave to bring the suit from the court by which he was appointed.</p> <p>The rule of the United States District Court for the District of Massachusetts, that the attorney of record of the bankrupt shall not act for a creditor or for the trustee in bankruptcy, applies only to proceedings in bankruptcy, and it certainly is no defence to a suit in equity brought by the trustee in bankruptcy to recover assets of the bankrupt alleged to be in the possession of the defendant, that the plaintiff's attorney was attorney for the bankrupt in the bankruptcy proceedings.</p>

Contract, against A. W. Dodd, doing business in Gloucester as A. W. Dodd and Company, for alleged breach of an agreement in writing to deliver ten barrels of .Norwegian cod oil to the plaintiffs at the price of $33 a barrel, the defendant having delivered only seven barrels of the oil and having refused to deliver three others, the delivery of which was demanded after April 1, 1903. Writ dated May 11,1903.

<p>Equity Pleading and Practice, Decree. Equity Jurisdiction, To reach and apply equitable assets.</p> <p>A decree of the Superior Court, dismissing, a bill in equity so far as it relates to the facts stated in a certain amendment, is final unless appealed from.</p> <p>In this suit in equity under R. L. c. 159, § 3, cl. 8, to reach and apply to a debt due the plaintiff certain property fraudulently conveyed by the debtor to a certain corporation, it was held that the plaintiff was entitled to equitable relief, there being evidence of fraud on the part of the debtor and of the corporation.</p>

<p>Probate Court. Trust, Accounts of trustee. Words, “Notice.”</p> <p>Under Pub. Sts. c. 144, § 9, accounts of a trustee settled in tlie absence of a person adversely interested and without actual notice to him, where there has been no hearing, may be reopened on the application of such person at the settlement of any subsequent account of the trustee. Section 14 of the same chapter, mating a decree allowing the account of a trustee or guardian conclusive except in cases of fraudulent concealment or fraudulent misrepresentation on the part of the accountant, relates only to final accounts.</p>

<p>Negligence, Contributory.</p> <p>If a person in a rowboat permits another person to do all the rowing and have charge of the boat, he cannot recover from the proprietor of a steamboat for an injury caused by a collision with the steamboat to which the negligence of the rower contributes, especially where there is no negligence on the part of those in charge of the steamboat.</p>

<p> Gift. Savings Bank. </p> <p>A person under obligation to W. declared that he intended to give her a certain savings bank book, having previously declared his intention of leaving her something, and when about to make his will sent for the savings bank book and gave directions to his lawyer, which were not intended to pass the property immediately either as a donatio causa mortis or as a gift inter vivos to the lawyer in trust for W., but to provide for giving the property to W. by his will. He was to complete his will on the following day, but died the next morning. Held, that W. could not maintain a suit in equity against the administrator of the deceased for the possession of the savings bank book or the money represented by it.</p>

<p> Gift. Savings Bank. Assignment. </p> <p>Whether one having a deposit in a savings bank, who signs an order directing the bank to pay the deposit and the dividends thereon to a certain person, makes a gift of the deposit to the person named, or whether he merely gives the order to enable the other person to draw money for him as a matter of convenience, is a question of fact depending on the intent of the assignor.</p>

<p>Evidence, Of conduct of accomplice, In rebuttal.</p> <p>On a trial for assault and robbery, where two defendants have been indicted jointly but only one is tried, there being evidence that the robbery occurred between half past eight and nine o’clock in the evening of a certain day, and that the absent defendant was an accomplice of the defendant on trial, a witness for the government may testify that the absent defendant lived in his house about two months, that he last saw him in his house between half past nine and ten o’clock on the evening of the robbery, that he was not alone, and that the voice of the person with him was that of the defendant on trial.</p> <p>On a trial for assault and robbery, where the person robbed has testified that she recognized the defendant as the person who assaulted and robbed her, and the defendant contends and has introduced evidence to show that when the police officers called on the person robbed about half an hour after the robbery she did not mention the defendant’s name, the government after the close of the defendant’s evidence may recall the person robbed to testify in rebuttal that she told the officers it was the defendant that night, “ right off, as soon as they came.”,</p>

<p>Contract, Performance and breach. Equity Jurisdiction, Specific Performance, To relieve against forfeiture.</p> <p>Where the time for the performance of a contract for the sale of most of the property of a corporation, including its going business and outstanding contracts, is extended by the parties for a period of one month and four days, and $2,500 is paid in cash for the extension besides the giving of additional security to be forfeited on non-performance, this shows conclusively the intention of the parties to make time of the essence of the contract.</p> <p>A party to a contract of which time is of the essence who through his own fault fails in performance at the time appointed is not entitled to enforce a specific performance of the contract.</p> <p>Equity will not relieve against the forfeiture of a deposit of money and stock upon the non-performance of a contract, where a fair interpretation of the contract shows the intention of the parties to be that the deposit shall be treated as liquidated damages in case of a failure to perform, and not as mere security for the performance of the contract.</p>

<p>Insurance, Life. Limitation, By contract. Equity Jurisdiction, To relieve against forfeiture. Waiver. Estoppel.</p> <p>A provision in a foreign insurance policy insuring against death by accident, that no action shall be brought on it unless begun within six months from the death of the insured, is binding on the beneficiary to whom the policy is payable, although she was prevented by an injunction issued after the six months had begun to run from bringing her action within the time limited, and she cannot maintain an action at law on the policy, especially where a final decree dissolved the injunction before the six months expired and there was a short but sufficient time in which an action could be brought. Whether equity would grant relief from the forfeiture incurred by the failure to bring an action within the time limited in the policy was not considered.</p> <p>It is ho excuse for a failure to sue on a policy, insuring against death by accident, within the time limited in the policy that the plaintiff did not know of that provision in the policy.</p> <p>It is not the duty of a foreign insurance company insuring against death by accident to call the attention of the beneficiary of a policy, under which a liability has accrued, to a provision contained in it that an action on the policy must be begun within six months from the death of the insured, and the company does not waive the defence of a failure to comply with this limitation by its counsel taking part in interviews and making communications relating to the policy without referring to the limitation.</p> <p>A foreign insurance company insuring against death by accident does not waive the defence of a limitation requiring an action on the policy to be brought within six months from the death of the insured, by refusing on another ground to pay the insurance money after the expiration of the six months, even if such a refusal before the expiration of the six months might estop it from setting up the limitation if the beneficiary was prejudiced or misled by the statement.</p>

<p>Practice, Civil, Motion to dismiss, Appeal. Probate Court. Divorce, Alimony. Words, “ Person aggrieved.”</p> <p>A motion to dismiss an appeal from the Probate Court is a convenient and proper method of raising the question of the appellant’s right.to appeal.</p> <p>Whether a woman who has obtained a decree of divorce and an execution for alimony, but has made no attachment and has not levied her execution, is a creditor of her former husband, quaere. But, if she is a creditor, she is a creditor without a lien and as such is not a person aggrieved by a decree of the Probate Court allowing the final account of the guardian of her former husband, who was a minor, within the meaning of R. L. c. 162, § 9, giving a person who is aggrieved by a decree of a Probate Court the right of appeal to the Supreme Judicial Court.</p>

<p> Sale. Insolvency. Banker. </p> <p>Where a banker advances money to a merchant for the importation of goods on a letter of credit, under a contract by which the goods are consigned to the banker and he is to retain the title until he sells the goods in his own name, paying the surplus of the proceeds to the merchant after deducting the amount of his advances and commissions, duties and charges, the banker is the owner of the goods, and is not a mortgagee or pledgee within the meaning of Pub. Sts. c. 157, § 28, relating to the proof of a claim in insolvency by a creditor having a mortgage or pledge.</p>

<p>Absentee. Receiver, Of property .of absentee. Evidence, Presumptions and burden of proof.</p> <p>On a petition under R. L. e. 144, for the appointment of a receiver of the property of an absentee, whose whereabouts were unknown, it appeared, that if the absentee was alive, he would be entitled to share in certain property under the will of his father, that when his father’s will was made he had been absent and unheard from for more than seven years, and that by the terms of the will his right to share in the income of a certain fund depended on his existence when from time to time the income was to be divided. Held, that, as no part of the property belonged to the absentee at the time of his disappearance, and as the presumption from his unexplained absence was that he never was alive at any time afterwards, the evidence failed to show that any part of the income ever belonged to the absentee, so that there was no occasion for the appointment of a receiver under the statute.</p> <p>The unexplained absence of a person unheard from for seven years raises a presumption of his death.</p> <p>There is no presumption that an absentee unheard from for more than seven years who was unmarried when he disappeared ever had issue.</p>

<p>Equity Jurisdiction, To redeem property conveyed as security by absolute deed, Survival of right to relief. Equity Pleading and Practice, Master’s report, Decree. Executor and Administrator. Survival. Interest, Words, “Mortgaged estate”, “ Equity of redemption.”</p> <p>In a suit in equity to redeem the plaintiff's interest in real and personal property held by the defendant under a deed absolute in form, the plaintiff can show that the deed was given as security for a debt due to a third person, the defendant’s fraud in claiming an absolute title being the same whether the debt secured is due to the grantee or to another.</p> <p>An intestate, owning real and personal property, left at his death a son and a daughter, who were appointed to administer his estate. The son made conveyances absolute in form to his sister of his interest in the personal estate and in certain real estate of their father, and died. The administrator of the son’s estate brought a bill in equity against the sister, as surviving administratrix of the estate of the father and also individually, alleging that the conveyances had been made merely as security for certain indebtedness of the plaintiff’s intestate to his father’s estate, and seeking to redeem. The defendant contended that the conveyances were made by her brother to her individually for her own benefit in the settlement of their father’s estate. Held, that the plaintiff could maintain his bill without waiting for the Probate Court to decide whether the property belonged to the defendant individually or as administratrix, and that the fact, that all persons interested in the father’s estate except creditors were parties to the suit and therefore the determination of the issues as to the personal property might be res judicata when the same questions afterwards were raised in the Probate Court, was accidental and immaterial.</p> <p>In a suit in equity for an accounting against an administratrix and against the same defendant individually, the defendant excepted to the refusal of a master to find that the suit could not be maintained because it was not apparent from the bill whether the plaintiff sought an accounting from the defendant in her individual or her representative capacity. Held, that such an exception does not lie, as it is the duty of a master to find the facts and not to pass on the question whether on those facts the plaintiff is entitled to a decree, still less to decide what such decree should be.</p> <p>By R. L. c. 187, § 33, a suit, to redeem land from a deed absolute on its face but in fact given as security, can be maintained by the administrator of the estate of the grantor. In the phrase “If the owner of an equity of redemption dies” the words “ owner of an equity of redemption ” in the present statute, as well as the words “person, entitled to redeem any mortgaged estate” in the original act, include the grantor of an absolute deed intended as a mortgage.</p> <p>A right to equitable relief founded on the failure of a person to perform duties arising from a fiduciary relation survives to an executor or administrator. The right to redeem property held under a deed absolute in form but intended as a mortgage is of this class.</p> <p>Under R. L. c. 187, § 33, a suit, to redeem land from a deed absolute on its face but in fact given as a mortgage, can be maintained by the administrator of the estate of the grantor without the plaintiff first obtaining a license to sell real estate.</p> <p>Where a suit is brought by an administrator under R. L. c. 187, § 33, to redeem land conveyed 'by his intestate by a deed absolute on its face but in fact given as a mortgage, if the plaintiff has obtained no license to sell, a decree in his favor enures to the benefit of the widow and heirs of the intestate, and the defendant must be ordered to make a conveyance to the heirs, subject to the right of the widow to dower if a right of dower exists.</p> <p>This court will entertain a bill under R. L. c. 187, § 33, to redeem land in another State from a deed absolute in form but intended as a mortgage, especially where the deed was made in this Commonwealth by one Massachusetts citizen to another. In such a suit by an administrator, if the plaintiff prevails, the defendant must be ordered to convey the land to those persons who are the heirs of the plaintiff’s intestate by the laws of the State in which the land is situated, subject to rights of dower if existing.</p> <p>One owning real and personal estate died intestate leaving a son and daughter. The son conveyed to his sister his interest in the personal estate and in certain real estate of their father to secure an indebtedness of the son to the estate of the father. The son died. His administrator brought a suit in equity against the daughter as administratrix of the father’s estate and also individually, to redeem the son’s interest in the property on payment of his indebtedness to the estate. Held, that although the conveyances of the son were in form to the defendant individually they were made for the benefit of the father’s estate, and were assets of the estate for which it was the defendant’s duty to account as administratrix; that the rents and profits of the real estate, which the plaintiff was entitled to redeem, which accrued before the death of the plaintiff’s intestate, belonged to the plaintiff as administrator, and that the rents and profits after the death of the plaintiff’s intestate belonged to the heirs of the intestate, but that as the administrator was redeeming in their interest he might deduct such rents and profits in paying the debt of the intestate to redeem the property; and that, as the personal property to be redeemed was the son’s interest in the personal property of his father’s estate, and as the plaintiff in order to redeem must pay his debt with interest so that the father’s estate might be set- ■ tied, the plaintiff in no event would be entitled to a credit by way of income derived from the personal property before such settlement.</p> <p>Although an equitable mortgagor who redeems must pay the whole debt, yet in a suit to redeem property transferred as security by several conveyances, if each conveyance was a separate transaction, the plaintiff has a right to redeem the property transferred by each conveyance on paying the debt which it was given to secure.</p> <p>In a suit to redeem from an equitable mortgage consisting of several conveyances absolute in form, the plaintiff to redeem must pay interest on the debt secured by each conveyance from the date when such conveyance was made and not merely from the date of filing his bill.</p>

<p>Equity Jurisdiction, To prevent clouding of title. Constitutional Law, Vested rights. Tax, Sale, redemption.</p> <p>A landowner may maintain a suit in equity to prevent a threatened clouding of his title not yet accomplished. ,</p> <p>St. 1902, c. 443, giving the right to redeem land sold for taxes by paying the taxes to the collector instead of to the purchaser, is constitutional as applying to sales for non-payment of taxes assessed before its enactment.</p> <p>Where the remedy for redemption of land from a tax sale has been enlarged by statute between the time of the assessment of the tax and the time of the sale, a purchaser at the sale takes his title subject to the law in regard to redemption as it stands at the time of the sale and not as it stood at the time of the assessment.</p>

<p>Devise and Legacy, Construction. Trust, Termination.</p> <p>A will, after giving $5,000 outright to a nephew and the same sum outright to a niece of the testator, gave to trustees, in trust for the same nephew and niece, “the sum of ten thousand dollars the net income to be paid them equally during their lives.” Held, that each of tire legatees took an equitable life estate in one half of the gift of $10,000, and that they todk this interest as tenants in common and not as joint tenants, so that, on the death of one of them, the trust should be terminated as to one half of the fund of $10,000, which should be distributed under the residuary clause of the will, this construction being confirmed by provisions in other portions of the will.</p>

<p>Tort for injuries to the plaintiff and the plaintiff’s horse and wagon, from the horse being frightened through the alleged negligence of the defendant’s servants operating a car on Washington Street in Canton. Writ dated March 26, 1900.</p> <p>At the trial in the Superior Court Fessenden, J. ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Practice, Civil, Report of referee. Referee. Contract, Implied: common counts.</p> <p>Where an action of contract on an account annexed for work and materials is sent by agreement of parties to a referee, under an order of court giving him power to decide finally all questions in the case, it is error to recommit his report on the ground that a part of his decision relates to a matter not included in the submission, merely because the matter referred to is not expressly, mentioned in the account annexed, if the report tends to show that the matter in question was a part of the work and that the declaration might have been amended by including it in the description of the work in the account annexed.</p>

<p>Negligence, In maintaining elevator, Proximate cause. Evidence, Opinion: Experts.</p> <p>Semble, that it is no evidence of negligence on the part of one maintaining a passenger elevator to permit a movable stool to remain in the elevator for the use of the operator.</p> <p>Semble, that the opinion of one who has had an extended experience in the charge of passenger elevators, that a movable stool is not a safe article to put into a passenger elevator, is not competent evidence.</p> <p>In an action for personal injuries from the starting óf an elevator while the plaintiff was alighting, caused by the operator of the elevator grasping the lever when falling back in trying to sit down on a stool which had been moved without his knowing it, the question whether it is evidence of negligence to permit a movable stool to remain in a passenger elevator is not material, as the grasping of the lever and not the presence of the stool was the proximate cause of the accident.</p>

<p>Schools and School Committee. Evidence, Competency, Of intent. Practice, Civil, Exceptions.</p> <p>In an action against a city for the alleged unlawful exclusion of the plaintiff from its public schools, the plaintiff may testify to what was said by the principal of the school from which he was excluded to the superintendent of schools, when the principal took the plaintiff before the superintendent, the interview resulting in the superintendent informing the plaintiff that he was suspended, although neither the superintendent nor the principal are parties to the action, it being a part of the plaintiff’s case to show that he did not leave school voluntarily and' to show the character of his exclusion, especially where the principal himself on cross-examination as a witness at the trial has given a narration of the proceedings before the superintendent.</p> <p>No exception lies to the admission of evidence afterwards introduced in another form without objection from the excepting party.</p> <p>In an action against a city under St. 1898, c. 496, § 9, (R. L. c. 44, § 7,) for the alleged unlawful exclusion of a pupil from its public schools, if it appears that before the pupil’s permanent exclusion the school committee gave him a fair trial at which he was allowed to present the merits of his cause, mere errors in the admission or exclusion of evidence by the committee are not enough to invalidate a final decision against him, but if it appears that evidence, offered by the pupil and material to his defence before the committee, was excluded in such a manner as to exhibit prejudice against the pupil or a wilful indifference to his rights, a jury may find that the school committee did not conduct the hearing in good faith. On the evidence in the present case it was held, that the question, whether the school committee acted in good faith in conducting the hearing given to the plaintiff before his permanent exclusion, was a question of fact for the jury under proper instructions from the presiding judge.</p>

<p>Bill in equity, filed November 23 and amended December 8, 1903, by a judgment creditor of Susan B. McCallum, of the Province of Nova Scotia in the Dominion of Canada, to obtain $2,000 alleged to have been transferred and conveyed by her to Vesta Vane MeCallum, for the purpose of delaying and defrauding the plaintiffs in the collection of their claim, and alleged to be in the possession of the defendants, Charles Adams MeCallum of Newton, and Vesta Vane MeCallum of Belmont, both in this Commonwealth.</p> <p>The answers alleged that the $2,000 in question had been held by Susan B. MeCallum, not as her own property, but in trust for her daughters Vesta Vane MeCallum and Marion MeCallum, under the will of M. Jane MeCallum, late, of Maitland in the Province of Nova Scotia.</p> <p>In the Superior Court the case was heard by Hardy, J. upon an agreed statement of facts. He made a decree dismissing the bill with costs, but at the request of the plaintiffs reported the case for determination by this court. If the court should be of' opinion that the judge’s “finding” was correct the entry was to be “ Bill dismissed with costs ” \ otherwise, such decree was to be entered as this court might consider proper.</p> <p>The will of M. Jane MeCallum, proved and allowed by the Probate Court for the County of Hants in the Province of Nova Scotia, on May 28, 1902, was as follows:</p> <p>“I, M. Jane MeCallum of Maitland in the County of Hants and Province of Nova Scotia, widow of the late Archibald MeCallum, declare this to be my last will and testament.</p> <p>“ 1. I, hereby nominate and appoint my son Charles Adams MeCallum of Newton Highlands in the State of Massachusetts, and Norman J. Layton of Truro in the County of Colchester, barrister-at-law, to be the executors and trustees of this my will.</p> <p>“ 2. I hereby devise and bequeath to my son Oscar P. Mc-Callum M. D. the homestead property formerly owned by the late Archibald MeCallum and situate at Maitland aforesaid, with all of the Dyke Marsh formerly owned by said Archibald MeCallum, and being all the real estate that was bequeathed to me under the will of the said Archibald MeCallum, to have and to hold the said lands and premises unto the said Oscar F. MeCallum his heirs and assigns forever.</p> <p>“ 3. To my said son Charles Adams MeCallum I devise and bequeath the sum of ten thousand dollars ($10,000.00) and his father’s old watch and chain.</p> <p>“ 4. To my granddaughter Ida St. Clair Douglas I devise and bequeath the sum of seven thousand dollars (7,000.00) and in addition thereto I require my executors and trustees to invest in their own names the sum of $8,000.00 and the interest or dividends arising therefrom they are to pay to my said granddaughter Ida St. Clair Douglas until she is married, and after her marriage they are to pay over the said principal sum of eight thousand dollars to the said Ida St. Clair Douglas, but if the said Ida St. Clair Douglas should die without being married then the said sum of eight thousand dollars is to revert to my estate and go to the residuary legatees under this my will.</p> <p>“ 5. To Susan McCallum wife of Hugh McCallum, I devise and bequeath the sum of two thousand dollars ($2,000.00) this amount is to be free from the control of her husband and her son Guy McCallum, and I request the said Susan McCallum at her death to give the same to her two daughters Vesta Vane McCallum and Marion McCallum, but the receipt of the said Susan McCallum for the said amount shall be a sufficient discharge to my executors therefor.</p> <p>“ 6. To Jennie McCallum daughter of Israel McCallum I devise and bequeath the sum of one thousand dollars ($1,000.00).</p> <p>“ 7. To Robert McCallum son of Israel McCallum I devise and bequeath the sum of one thousand dollars ($1,000.00).</p> <p>“ 8. To Archibald Clinch, son of D. C. Clinch of Saint John 1ST. B. I devise and bequeath the sum of one thousand dollars ($1,000.00).</p> <p>“ 9. To Oscar Á. McC. Wilson, son of Edward F. Wilson, I devise and bequeath the sum of one thousand dollars ($1,000.00).</p> <p>“ 10. To my granddaughter Minnie Urquhart daughter of Lucy Urquhart I devise and bequeath the sum of one thousand dollars ($1,000.00).</p> <p>“11. To my granddaughter Gertrude Urquhart daughter of Lucy Urquhart I devise and bequeath the sum of one thousand dollars ($1,000.00).</p> <p>“ 12. To my son Israel McCallum I devise and bequeath the sum of one thousand dollars ($1,000.00).</p> <p>“13. To my daughter Mrs. Lucy Urquhart I devise and bequeath the sum of one thousand dollars ($1,000.00).</p> <p>“ 14. To my daughters Maria Douglas, Susan Clinch and Anna N. Wilson I devise and bequeath the sum of three thousand dollars ($8,000.00) each.</p> <p>“ 15. To the Reverand Chalmers Jack formerly Presbyterian Minister at Maitland I devise and bequeath the sum of five hundred dollars ($500.00).</p> <p>“ 16. To the Reverand George Ross the Presbyterian Minister at Maitland I devise and bequeath the sum of eight hundred dollars ($800.00).</p> <p>“17. To the trustees of Saint Davids Presbyterian Church at Maitland I devise and bequeath the sum of five hundred dollars ($500.00) for the purposes of said church.</p> <p>“ 18. My said executors shall not be required to pay any legacy under this my will sooner than one year after my decease, and should there not be sufficient funds in my estate to pay all the cash legacies in full each cash legacy shall abate pro rata.</p> <p>“ 19. Should my grandsons Archibald Clinch and Oscar A. McC. Wilson or either of them not have arrived at the age of twenty-one years when my said executors are ready to pay their legacies, then I hereby authorize my said executors to pay their said legacies to either of their parents, and the receipt of either parent of the said Archibald Clinch and Oscar A. McC. Wilson for their respective legacies shall be a sufficient discharge to my said executors therefor.</p> <p>“ 20. All the rest and residue of my estate I devise and bequeath to my daughters Maria Douglas, Susan Clinch and Anna F. Wilson, whom I hereby make my residuary legatees, share and share alike. .</p> <p>“ 21. And I hereby revoke all former wills by me at any time heretofore made.</p> <p>“In witness whereof I have hereunto subscribed my name and affixed my seal this twenty-sixth day of April in the year of our Lord one thousand nine hundred and two. M. Jane McCallum.” [seal]</p> <p>“ Signed by the said testator as her last will and testament, in the presence of us, present at the same time, who at her request, in her presence, and in the presence of each other have subscribed our names as witnesses. R. F. O’Brien, Herbert Eaton, Norman J. Layton.”</p>

<p>Practice, Civil, Exceptions, Verdict.</p> <p>Until a general verdict has been returned on which a j udgment can be entered, no exception lies to the refusal of a presiding judge to rule upon facts found by the jury in answer to specific questions.</p>

<p>Railroad. Evidence, Hearsay, Presumptions and burden of proof.</p> <p>In an action against a railroad company under R. L. c. Ill, § 268, for the loss of life of the plaintiff’s intestate at a grade crossing, alleged to have been caused by the defendant’s neglect to give the signals required by §188 of the same .chapter, if two witnesses who might have heard the signals testify that they were not given, and other witnesses, who were in such positions that if the signals had been given they easily might have heard them, testify that they did not notice the signals or do not remember them, there is evidence to justify a finding that the signals were not given.</p> <p>At the trial of an action against a railroad company under R. L. c. Ill, § 268, for causing the death of the plaintiff’s intestate, a boy of seven and one half years of agej at a grade crossing, by a failure to give the signals required by law, a boy of about the same age who was coming home from school with the intestate when the accident happened, after testifying that he and the intestate did not run down a hill to see the train pass, testified that he told his father and mother about the occurrence and told them the truth about it that night. The defendant called the father and mother, who testified that their son told them that the plaintiff’s intestate said “Let’s run down and see the train go by,” that they started on a run down the hill, that the intestate ran past him half way down the hill and got there before he did, and that he next saw him lying in the snow. Held, that the statement of the boy to his father and mother was not evidence of the truth of the things stated, being none the less hearsay because the boy testified that he told his father and mother the truth, and was competent only to impeach the boy’s testimony by showing that he at other times had made statements inconsistent with his statement on the witness stand.</p> <p>In an action against a railroad company under R. L. c. Ill, § 268, for the loss of life of the plaintiff’s intestate at a grade crossing of a highway caused by the defendant’s failure to give the signals required by § 188 of the same chapter, if it appears that the required signals were not given, the plaintiff need only prove further that his intestate was killed by the train at the crossing. If the defendant relies upon gross negligence of the intestate as a defence, he must establish it by evidence.</p>

<p>Tort for personal injuries alleged to have been caused by a defect in a highway of the defendant known as East Main Street, consisting of the lack of a railing on the southerly side of Walley Bridge. Writ dated October 26, 1899.</p> <p>In the Superior Court the case was tried before jHopkins, J., who ordered a verdict for the defendant. The plaintiff alleged exceptions, which after the death of Hopkins, J. were allowed by Lawton, J.</p>

<p> Master and Servant. .Negligence, Res ipsa loquitur. Railroad. </p> <p>A brakeman and a flagman at a railroad crossing are not acting in the course of their employment when tossing a signal torpedo back and forth and afterwards leaving it on the crossing, where it is found by a boy who cracks it open and is injured.</p> <p>The fact that a railroad signal torpedo is found on the planking of a railroad crossing does not in itself warrant the inference that it was left there by the servants of the railroad company in the course of their employment, and is not evidence of negligence on the part of the railroad company in an action brought against it by a boy eight years old, who found the torpedo on the crossing and was injured while cracking it with a rock.</p>

<p>Petition to intervene in a pending suit in equity against the Easthampton Spinning Company, in which the petitioner is plaintiff, to reach and apply to the petitioner’s claim against George H. Seeley, a creditor of that corporation, any dividend which Seeley may be entitled to receive from the receiver appointed in that suit.</p> <p>The petitioner filed a motion to amend, and the respondent Seeley demurred to “the petition as amended.”</p> <p>In the Superior Court Holmes, J. made an order overruling the demurrer, and being of opinion that the interlocutory order so affected the merits of the controversy that the matter ought, before further proceedings, to be determined by this court, at the request of both parties, reported the case under R. L. c. 159, § 27, for such determination.</p>

<p>Contract for the price of street railway ties sold and delivered to the defendant. Writ in the District Court of Franklin dated April 20, 1904.</p> <p>On appeal to the Superior Court the case was tried before Fox, J., who ruled and refused to rule as stated in the opinion. The jury returned a verdict for the plaintiffs in the sum of $458.73; and the defendant alleged exceptions.</p>

<p> Sale. Conversion. </p> <p>Where there is an agreement for the sale of a specific article and something remains to be done, as weighing or measuring it, and there is no evidence tending to show an intention that the title should pass before the weighing or measuring is performed, the weighing or measuring is a prerequisite to the passing of the title. Approving the rule stated in Riddle v. Varnum, 20 Pick. 280.*</p> <p>In an action for the conversion of certain onions, it appeared, that onions are sold by weight and before weighing have to be screened to separate them from the husks and from those onions which are too small to be merchantable, that the plaintiff owning certain onions, which were stored in a warehouse, agreed to sell them to the defendant at a certain price per bushel when they were screened and weighed, and that the defendant agreed to screen the onions with the plaintiff’s help and also pay for them on a certain day, that, after the day agreed upon, the plaintiff finding the onions at the warehouse unscreened told the defendant not to take them. Whereupon the defendant said that he had sold the onions, and the next day screened and weighed the onions and shipped them away. Held, that the screening and weighing of the onions were prerequisites to the passing of the title, so that no title had passed to the defendant when the plaintiff rescinded the contract, and that the sale of the onions by the defendant before they were screened and weighed was in itself a conversion without a demand and refusal.</p>

<p>Assignment. Contract, Construction. Pleading, Civil, Variance. Vendor and Purchaser.</p> <p>On August 18 of a certain year a corporation made a bill of sale to a new corporation, for a round sum of money, of all its stock in trade and “ all its business and good will as a going concern,” with a provision that the business should be considered as belonging to the purchaser from and after December 81, of the previous year. “Accounts receivable” before the beginning of the current year were excepted from the property assigned. Unexpired insurance policies on the property were delivered to the purchaser when the papers passed. These were cancelled on August 18, and return premiums were received thereon which were credited on new policies issued to the purchaser. Held, that the insurance policies on hand at the close of the previous year were not sold to the purchaser as included in the round price, and that on an accounting between the selling and purchasing corporations the seller was entitled to credit for the pro rata value of the policies from the end of the previous year to August 18, when the bill of sale was delivered and .accepted, it having been shown that it is customary to allow pro rata value in place of surrender value when new insurance is taken out through the same agency. Held, also, that a previous contract giving the purchaser the option to purchase the property, which it exercised, and providing that the seller should keep the property insured during the period of option, did not change the rights of the parties in this regard.</p> <p>When an item in an account annexed does not describe accurately the claim relied upon, so that an objection on that ground taken at the trial would have been sustained, but where nevertheless the item describes the subject matter of the claim sufficiently to give tlie defendant information of its character, and the defendant has not suffered from the inaccuracy of the description, the plaintiff may be allowed to recover on the count without amendment.</p> <p>The rule, that in case of a decree for the specific performance of a contract for the sale of land the vendee is entitled to the profits from the day when the deed was to be delivered and the vendor is entitled to interest on the purchase money from the same date, lias no application to a contract for the purchase of real estate and personal property, together with a going business taking it from a date more than seven months before, for a round sum in cash which was paid before the day named for payment.</p>

<p>Contract on a covenant in a lease for rent. Writ dated January 24,1903.</p> <p>At the trial in the Superior Court before Hitchcock, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The portion of the deposition of Frissell mentioned in the opinion, and held to have been excluded erroneously, was as follows:</p> <p>“Int. 18. When you gave receipts personally, from whom did you acknowledge receipt of payment of the rent ? Ans. It was my opinion that I gave receipts in George W. Collins’ name, that is my best recollection.” “Int. 25. State as nearly as you can recollect the conversation which you and George W. Collins had? Ans. I can’t remember it exactly. Int. 26. Don’t .you know what you and Collins talked about? Ans. As I remember it, he came to me when he sold out to the Springfield man and wanted me to sublet it to the Springfield man and as I recollect, I refused but told him I would give him permission to sublet it to him. Int.'27. Is the talk you have mentioned in the last answer the conversation you had with Collins as near as you can remember it? Ans. That is as near as I can remember it now.” “ Int. 34. Did you deal with Collins, or his son as your tenant? Ans. His son paid the rent. Not as my tenant as I remember. Gave the receipts in George W. Collins’ name.”</p>

<p>Negligence, Employer’s liability, duty to warn, assumption of risk. Evidence, Opinion : experts.</p> <p>It is not the duty of a street railway company, employing a lineman to assist in stringing a feed wire cable on its poles, to instruct or warn him that while lie is grasping the cable in adjusting it on the arm of a pole it may slip from the pins intended to hold it and go off the arm carrying him with it.</p> <p>A lineman who has been employed in stringing a feed wire cable on poles for more than two weeks, during which time three miles of the cable llave been strung, if injured while at work in moving the cable from one pin to another on the arm of a pole from the cable slipping off the arm and carrying him with it, there being nothing to show that the method adopted in moving the wire differed from that previously adopted in stringing the other poles, cannot hold his employer liable for injuries thus caused on the ground that the method was an improper one, as ordinary care would have given the lineman knowledge of the danger incidental to the process, so that he must be presumed to have appreciated it and by continuing to work to have accepted the risk.</p> <p>The opinion of one of large experience in stringing wires on poles and in moving and repairing such wires, if this is sufficient to qualify him as an expert, is not admissible to show the proper manner of moving a feed wire cable on the arm of a pole, or that a particular manner of doing this is improper, the process of stringing such a cable on the arms of poles erected to support it being so plain and simple, and so well within the scope of common observation and knowledge, as not to be a proper subject for expert testimony.</p>

<p>Contract on two alleged promissory notes described in tbe first paragraph of the opinion. Writ in the District Court of Western Hampden dated July 11, 1901.</p> <p>Oh appeal to the Superior Court the case was tried before Maynard, J., who, at the close of the plaintiff’s evidence, ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Contract, Implied: common counts. Sale.</p> <p>A contract with, a city, for the repair of a wooden bridge forming part of a highway, provided that the timber and other woodwork of the carriage way, wherever decayed, should be replaced by sound material, the contractor to be paid a certain sum per thousand feet for new material wrought into the bridge, and that no work should be begun until material for at least one half of the repairs contemplated should be “upon the job.” Complying with this condition, the contractor distributed lumber “ all along the bridge ” and upon the river banks. While the work was proceeding the bridge and the lumber upon it were destroyed by fire. Reid, that the city was not liable for lumber thus destroyed which had been distributed for use in the work but not wrought into the bridge, its liability being confined to paying for such portion of the work and materials as had become identified with the bridge at the time of its destruction.</p>

<p>Tort, by a railroad mail clerk in the employ of the United States, for injuries from being squeezed between two mail cars while attempting to alight from a train of the defendant at its station in Worcester. Writ dated December 4,1908.</p> <p>At the trial in the Superior Court CfasJcill, J. at the close of the plaintiff’s evidence ordered a verdict for the defendant, and reported the case for determination by this court. If the ruling was right judgment was to be entered on the verdict; otherwise, a new trial was to be granted.</p>

<p>Negligence, Contributory.</p> <p>An employee of an ice company, managing the switch of an ice run so carelessly that it is struck and broken by a block o£ ice and injures him by coming against . his ankle, cannot recover from his employer for the injuries.</p>

<p>Contract for $ 100 expended by the town of Brookfield, for the support of a pauper alleged to have a settlement in the town of West Brookfield, from September 4, 1901, to March 31,1902. Writ in the District Court of Western Worcester dated March 9, 1903.</p> <p>On appeal to the Superior Court the case was tried before CasJcill, J., without a jury. He found for the plaintiff in the sum of $104.35; and the defendant alleged exceptions.</p>

<p>Tort for injuries alleged to have been caused by a defect in Millbury Street in Worcester, consisting of an unguarded excavation, into which the plaintiff fell while trying to board an open electric car. Writ dated November 31, 1902.</p> <p>In the Superior Court the case was tried before Pierce, J., who at the close of the plaintiff’s evidence ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Tort by a freight brakeman, against his employer, for personal injuries received on the evening of October 18, 1901, in Cambridge at the Cambridge Street crossing of the Grand Junction branch of the Boston and Albany division of the railroad operated by the defendant. Writ dated September 19, 1903.</p> <p>At the trial in the Superior Court Qashill, J. refused to rule that the plaintiff could not recover, and submitted the case to the jury. The jury returned a verdict for the plaintiff in the sum of |5,500, and by agreement of the parties the judge reported the case for determination by this court. If upon all the competent evidence the plaintiff was entitled to go to the jury, judgment was to be entered on the verdict; otherwise, judgment was to be entered for the defendant.</p>

<p>Bill in equity, filed in the Probate Court for the County of Worcester February 25, 1903, by the trustee under the will of Ichabod Washburn, late of Worcester, for instructions.</p> <p>In the Probate Court Forbes, J. made the following findings and decree:</p> <p>“ That all necessary parties have been joined as respondents to the petition.</p> <p>“ That under the will of Ichabod Washburn certain trusts were established for the benefit of Memorial Church and an Industrial School to be maintained in connection therewith.</p> <p>“ That said trusts were briefly as follows :</p> <p>“ 1. A devise of real estate on Summer Street in Worcester to Union Society of Worcester for a place of public worship for the support of public worship and certain other religious purposes incidental thereto.</p> <p>“ 2. A gift of $20,000, the income of which is to be applied towards defraying expenses of maintaining a Minister and public worship.</p> <p>“ 3. A gift of $5,000 to maintain an Industrial School.</p> <p>“ That Union Society resigned this trust and the City Missionary Society with two representatives chosen by it, have been appointed Trustees in place of Union Society and two deacons of Union Church.</p> <p>“It is therefore ordered and decreed that by the true and correct interpretation of the clauses as to which the petition is brought:</p> <p>“ 1. The legal title to the Summer Street real estate was vested in Union Society and is now vested in the petitioner as its successor, and that the four deacons had and their successors have exclusive control of said real estate subject to the religious uses set forth in the will and they are to care for the property and to receive and pay out the income accruing from it.</p> <p>“ 2. In regard to the gift of $5,000, for the maintenance of an Industrial School, the naked legal title to the principal was in the Union Society and now is in the petitioner as its successor, while the management and control of the fund and its expenditure are in the hands of the successors to the four deacons as trustees.</p> <p>“ 3. The fund of $20,000 shall be held by the petitioner and managed by the said successors to the four deacons, and that the gift ‘ to said Trustees ’ means that the title to this fund vests in the petitioner as trustee and is to be managed by the successors to said four deacons in the same manner as the real estate and fund of $5,000.</p> <p>“ 4. .The directions in the will as to the investment of the fund of $20,000 should be literally followed by the trustees.</p> <p>“ 5. The net income of the fund of $20,000 should be expended from year to year ‘towards defraying the expenses of maintaining a Minister and Public Worship ’ even if the trustees reasonably anticipate a loss to the principal on account of a mortgage loan, the exact value of which cannot now be determined.</p> <p>“ 6. The Trustees are not to allow the fund to be reduced below the sum of $20,000 by any intentional act of diversion, but if in fact the fund falls below that amount the net income of the fund is to be expended as above set forth and is not to be held back to make good any anticipated loss of principal.”</p> <p>The plaintiff appealed; and the case came on to be heard before Sammond, J., who reserved it upon the bill, answer and other records in the case for determination by the full court.</p> <p>The material part of the will of Ichabod Washburn was as follows:</p> <p>“ Whereas I have long felt th|t it was desirreable to devise some means by which a pretty numerous class of persons in the City of Worcester who are now living without the benefits of moral and religious instruction and restraint which grows out of an habitual attendance upon the ministrations of the gospel, should be supplyed with opportunities and inducements to enjoy the same.</p> <p>“ And whereas it has seemed to me that the readiest way of accomplishing this purpose would be to open for the use of all who may be disposed to avail themselves of the same, a suitable and respectable place of worship wherein upon the Lord’s Day and at suitable times on week days religious services may be held and conducted by some learned, pious and devoted Christian Minister, who, in addition to preaching and conducting public worship shall devote himsilfe by visits and personal influence to pursuading 'mduccing such as may be nnaeustomed to attend worship or who neglect the Sabbath'or from any cause are destitute of the healthfull restraints and moral influence of religious instructions, to attend upon the services in such place of worship.</p> <p>“ And whereas I have caused such a house to be erected in which the Rev. Henry T. Cheever is now officiating as City Missionary, I have a strong hope of aid hereafter to carry out the design I had in causing said house to be erected.</p> <p>“ How in order to give consistaneey and effect to a plan for accomplishing the purposes and views above named, I give and devise unto the Union Society, a Parish or religious society in Worcester (of which I am now a member) that real estate situate in Worcester at the intersection of Bridge with Summer ■Street, containing fifty-five hundred square feet of land, viz.: fifty-five feet in front upon Summer Street, and one hundred feet on Bridge Street with the building erected thereon, with all the privilat/es and appertenences thereto belonging, to have and hold the same to the said Parish or religious society, their successors and assigns forever. In trust, nevertheless, and to and for the purposes and trusts hereinafter declared and no other.</p> <p>“ And in order the more clearly to indicate the character and objects of these trusts, I wish to premise that the plan I have proposed to can/ out is this:</p> <p>“ First. To have a suitable and respectable place of public worship with convenient accomodation for Bible and Sunday ■School classes, and one or more tenements for the accomodation of the Minister and Sexton.</p> <p>“ The Minister to be employed to preach in said house or to be let at a reasonable rent towards keeping the premises insured ■and in repair and supporting the Minister aforesaid.</p> <p>“ Second. To have a Minister whose religious views shall substantially harmonize with what are denominated to be Evangelical in their character who shall be endowed with respectable powers of intellect and be as faith\full, pious and devoted labourer in the work of teach and preaching the word of God.</p> <p>“ Third. It is my wish and intention by this bequest to form an important auxiliary in the missionary enterprise of preaching and minintering to the destitute in the city, and to those who do not feel sufficient interest in sacred things to attend upon the preaching of other ministers.</p> <p>“ The Trusts, therefore, upon which said estate is to be held by said devises and trustees are as follows:</p> <p>•“ In the first place, That they shall suffer and permit said estate and every part thereof to be under the care and custody and management of two of the deacons of the Union Church as shall be designated by said church, and two deacons of the Mission Chapel Church recently organized, and their respective successors for the time being or of a major part of them, and shall allow said four deacons to obtain insurance upon said buildings in the name of said trustees and the said deacons, and to cause the same to be kept constantly insured to a reasonable amount, and in case of loss or damage by fire shall allow said deacons to recover said insurance money, and to apply the same according to their best discretion in repairing or rebuilding said building, as the case may be, in the name of said trustees, but without charge to them and permit said deacons from such insurance or other monies forever to keep and maintain upon said premises a house of public worship and tenements connected therewith as large and convenient as the same now standing thereon are.</p> <p>“ In the next place, That said trustees shall forever suffer and permit that portion of said premises designed for the purposes of public worship to be occupied at all reasonable and proper times for public worship under the charge and ministration of a Minister of the Gospel who has been regularly ordained or set-apart according to the usages of the denomination of Christians with which he may be connected and whose religious sentiments and opinions shall substantially conform to those now gennerally known and understood as Evangelical.</p> <p>“ And further that said trustees shall suffer and permit the parts of said building designed for the use and accommodation of the sabbath and Bible classes to be occupied for that purpose at all suitable times under the direction of such minister and deacons or a major part of them.</p> <p>And suffer and permit the house to be occupied free from rent or charge by any decent and orderly person who may resort thither for the purpose of attending worship at all times under such reasonable regulations as may be adopted by said deacons and said minister or a major part of them for preserving order and propriety of deportment in said house.</p> <p>“ And suffer and permit the minister selected as aforesaid to occupy and improve so much of the tenement in said building designed for the use of the families as in the judgment of the deacons shall be reasonably sufficient for his convenience so long as he shall be employed by them as such minister and upon such terms as-they shall judge expedient having proper reference to the use of such tenement as a means of support and encouragement of such minister.</p> <p>“ And shall permit said deacons in the name of said trustees to let such other portions of the said estate as they may judge best upon reasonable rents and collect and apply the same in keeping the premises in repair in paying the contingent expenses in conducting and manageing the same and in causing the same to be insured and appropriate and apply the surplus if any towards the support of the minister.</p> <p>“ And further shall suffer and permit said deacons in the name of said trustees to commence, and carry on to final judgment all necessary and proper suits or actions at law or in equity to enable them to manage and control said estate as hereinbefore expressed, to collect the rents thereof or remove the tenants thereof when the same shall be necessary and generally to do whatever acts or things may be necessary or proper to effect and carry out the true interest and meaning of the trusts aforesaid and accomplish the same.</p> <p>“ And whenever the said deacons or a major part of them shall shall with the approbation of the Mission Chapel Church judge it expedient to terminate the engagement of any minister who may have been employed to officiate in said house of public worship it shall be competimf for them so to do and they may thereupon proceed to select another in his stead in in manner .aforesaid and if approved as aforesaid to employ him accordingly.</p> <p>"And I further give bequeath and devise unto said trustees the sum a twenty thousand dollars to be by said trustees invested in the bonds or securities of the United States or of the ■Commonwealth or of towns within the Commonwealth if such bonds or securities can be obtained for investment, otherwise upon personal notes or bonds secured by a first mortgage of real estate or full and ample value not exceeding one halfe of, its appraised value to render the loan thereon safe and undoubted in no case is any part of the money to be so loaned on personal notes or bonds if the first named class of securities can be obtained. The fund on no condition to be reduced below the amount devised.</p> <p>“ In the event of the necessity of loaning a part or the whole of said fund on real estate, the appraisal of the same shall be made by three disinterec? and competcmi judges of such estate of which value not more than one half shall consist of buildings thereon, the interest thereon and income thereof, shall be semiannually collected and applied by said trustee towards defraying the expenses of maintain a minister and public worship as hereinabove expressed or if it shall become necessary may apply the principal toward rebuilding said house if destroyed, nor are said trustees to be held responsa&Ze for the loss of any part of said principie or interest provided the same shall be invested and applied by said trustees, nor are they to be subjected to any charge or cost on account of the same nor on account of any suit or action which may be necessary to bring to collect or recover said fund or the interest thereof.</p> <p>“ It is my further direction and devise that there should be kept and maintained in connection with the Mission Chapel aforesaid an Industrial School for children of poor parents in the City of Worcester who in the judgment of said trustees may be fit objects to share in the benefits thereof, said school to be taught on some day or days in the week and devoted to instruction in kniting, sewing makeing garments and such other domestic arts as in the judgment of those in charge of the school can be usefully and properly taught in such a school as well as to the inculcation of moral duties, the cultivation of good manners and the social intellectual and moral elevation of its pupil.</p> <p>“ And to enable said trustees to provide a portion of the means for carrying on said school and furnishing if need be to deserving destitute children who may regularly attend said school some parts of their necessary clothing.</p> <p>“ I direct that the sum of five thousand dollars in addition to what I have above given for the purpose of said Chapel be paid to be held and managed by the same persons, as are to hold and manage the trusts in respect to said chapel.”</p>

<p>Tout for damage to the plaintiff’s property, in that part of Boston called Dorchester, by the alleged negligence of the defendant in the construction and management of a surface water sewer or conduit. Writ dated January 3, 1903.</p> <p>In the Superior Court the case was tried before Graskill, J. upon the question of liability only. The judge ordered a verdict for the plaintiff, and reported the case for determination by this court, upon the terms stated in the fifth paragraph of the opinion.</p>

<p>Negligence, Employer’s liability. Evidence, Collateral issues: remoteness.</p> <p>A boy fourteen years of age who has had the ends of two fingers cut off by a power press for cutting out wire gauze, which he had been operating for two days before the day of the accident, if he testifies, that he fully understood the operation of the machine, and that the superintendent warned him to look out for his fingers, and if, when the continued operation of the machine caused the muscles of his right leg to become numb and his eyes to become strained, he continued to work without mentioning these facts, cannot recover from his employer for the injury of which he assumed the risk.</p> <p>In an action, by a boy fourteen years of age when injured, for the cutting off of the ends of two of his fingers by a power press for cutting out wire gauze, which he was operating, the plaintiff cannot be permitted to show, that in previous attempts to operate the machine by children of the age of the plaintiff the other children had been caught in the same manner as the plaintiff.</p>

<p>Contract for a balance of purchase money alleged to be due for wire sold by the pound. Writ dated April 2, 1901.</p> <p>At the trial in the Superior Court before DeQourcy, J., the defendant admitted the receipt' of the wire specified in the declaration and put in evidence a contract in writing between it and a corporation called the Bibber-White Company, for the delivery of certain wire at the defendant’s option, the amount to be delivered being stated in miles and feet and the price to be paid being by the pound.</p> <p>The jury returned a verdict for the plaintiff in the sum of $703.29; and the defendant alleged exceptions to a refusal to direct a verdict for the defendant, to the exclusion of certain evidence, and to the denial of a motion for a new trial.</p>

<p>Replevin for a motor cycle which had been the subject of a voting contest at a public fair of an association known as the Viking Cycle Club in Worcester. Writ in the Central District Court of Worcester dated March 30,1903.</p> <p>On appeal to the Superior Court the case was tried before Graskill, J. It appeared that the club chose a committee of five who were given full power to carry on a fair with voting contests; that the committee hired'Mechanics Hall and conducted a fair in the name of the club for several days and evenings, closing on a Saturday ; that a voting contest for “ the most popular bicycle rider in Worcester” was open to all, and that several persons, including the plaintiff, one Eld and one Nilson, were solicited by members of the committee to enter the contest, which was for the motor cycle replevied.</p> <p>The plaintiff testified that one Pope, a member of the committee, asked him to enter the contest, and gave him a book with which to solicit votes, saying that they would be ten cents apiece, and that the man who turned in the most money by eleven o’clock the last night of the fair would be the winner of the wheel. Pope, called as a witness by the plaintiff, testified that nothing was said about money excepting that the votes were to be ten cents each. Eld testified that one Pierson, a member of the committee, urged him to enter the contest, and told him that the wheel would be voted away at ten cents a vote.</p> <p>Each contestant was given a book in which persons desiring to vote wrote their names together with the amount contributed. The contestants themselves and their friends circulated these books and solicited votes. The money paid for votes remained the property of the club, whether the votes were given for a successful or an unsuccessful contestant. The motor cycle was on exhibition in the hall during the fair. At about a quarter past ten on the evening of Saturday, Nilson, who was a man of good financial standing and an owner of real estáte, went to the treasurer of the committee and showed a'promissory note-for $50, signed by himself and payable to the Viking Cycle Club on demand, proposing to turn it in for five hundred votes for himself in the motor cycle contest. The note was shown to a majority of the committee, who assented to accepting it in payment for votes. No public announcement was made as to whether notes would be accepted. It did not appear that any note was offered by the plaintiff or his friends, or that any note was refused. Before the time for voting expired, the Nilson note was placed with the cash which represented the proceeds of the voting for Nilson, and the votes purchased thereby were sufficient to give him. the highest number, although the plaintiff at eleven o’clock on Saturday evening had the most cash turned in and would have had the highest number of votes if the note had not been counted. Subsequently the full committee voted to accept and count the note, and declared Nilson to be the winner.</p> <p>Between eleven and twelve o’clock on Saturday evening the committee caused it to be publicly announced from the platform of the hall that Nilson had won the motor cycle. The treasurer then, in behalf of the committee, informed Nilson that the motor cycle was his, and delivered to him the “ spark valve,” which, as it appeared, was a small but important part of the mechanism, without which the machine would not run. The rest of the motor cycle was carried from the hall to the store of the defendants to be put in running order. The committee had bought the cycle from the defendants in the name of the club, but it then had not been paid for. Both Nilson and the plaintiff were members of the club. Eld was not.</p> <p>On the Monday morning next following, the plaintiff visited the defendants’ store and demanded the motor cycle. The de-' fendants replied that they understood Nilson to be the winner, and refused to give it up. The cycle then was replevied by a constable who had accompanied the plaintiff and previously had made a demand.</p> <p>Afterwards on the same day Nilson paid his note for $50, and on the next day the committee paid the defendants the bill incurred by the club in connection with the fair, including the price of the motor cycle.</p> <p>At the close of the plaintiff’s evidence, the defendants asked the judge to rule that the plaintiff was not entitled to recover. The judge asked the defendants’ counsel whether he rested, and the counsel replied that he did. Whereupon the judge declined to rule as requested, and upon the foregoing undisputed facts directed a verdict for the plaintiff. The defendants alleged exceptions.</p>

<p>Damages. Watercourse. Practice, Civil, Exceptions. Evidence, Collateral issues: remoteness, Opinion: experts, Of value óf real estate.</p> <p>On a petition against the city of Worcester for damages caused by its talcing of the waters of Kettle Brook under St. 1895, c. 384, the petitioner and the respondent agreed that all damages, except for the value of the use of the waters of the brook for purposes of power, should be submitted to a referee. This was done and an award was made and accepted. On a claim for the damages excepted, heard by commissioners and afterwards tried in the Superior Court, it was held, that the diminution in value in the parts of the property which had been procured or constructed in order to make the right to use the water available was included in the former award for property taken, and was not a part of the excepted claim for damages for value of the brook for purposes of power; also, that the right of the petitioner to use its dam, and its flowage rights in the lands of others conveyed to it by deeds, likewise were parts of the property taken and therefore were included in the former award ; also, that evidence of the cost of reproducing the dam, and evidence of the special value of the water for washing and scouring, rightly were excluded as immaterial in assessing the value of the water for purposes of power, the only question open.</p> <p>One lawfully using the waters of a stream in maintaining a mill cannot acquire a prescriptive right to have other riparian proprietors farther up the stream continue to maintain reservoirs which they have maintained in the exercise of their right as such proprietors and which incidentally have operated to his advantage in increasing the power at his mill.</p> <p>In-assessing the damages of a mill owner, for loss of water power by the taking of the waters of a stream as a water supply, it is right to refuse to instruct a jury, that, if the substitution of steam power for water power would be a reasonable and proper mode of using the property after the taking of the water, the measure of the petitioner’s damages due solely to the taking of the water power “ is the cost of producing annually a full equivalent therefor by the substitution of steam power for the water power taken”; because, although this would be a proper subject for consideration by the jury, it cannot be said as matter of law that the measure of damage is the cost that might result from a certain reasonable mode of repairing the damage, to the exclusion of other reasonable and proper modes; also because such an instruction would assume that present conditions would remain unchanged; and also because the cost of procuring another kind of power at great expense would include an expenditure made necessary on account of damage which otherwise would come to the other property of the mill owner, and therefore would exceed the amount of damage due solely to the taking of the water power.</p> <p>It is no ground for exception, that a presiding judge refuses to instruct the jury upon a part of the evidence and to say that there is a possible view of the evidence which would warrant them in coming to a certain conclusion.</p> <p>On a petition by a mill owner for damages from the taking of a stream as a water supply, upon the issue of the value of the water power to the petitioner, evidence as to the value of the use of water in connection with a reservoir below the petitioner’s mill receiving part of its water from a watershed which did not supply the petitioner’s pond, properly is excluded as too remote.</p> <p>On the issue of the value to a mill owner of the water power of a stream taken as a water supply, a question, as to the average daily yield in horse power from the watershed feeding the stream, including times of the highest water and of the lowest, may not be competent to show the usual available power of the stream, where it appears that at certain seasons of the year a large amount of surplus water ran to waste.</p> <p>At the trial of a petition by a mill owner for damages from the taking of a stream as a water supply, on the issue of the value of the waters for purposes of power, the presiding judge in the exercise of his discretion properly may refuse to allow a mechanical engineer having a large experience with steam power, who has no knowledge of values in the neighborhood, except that of a mechanical engineer, to state, from his knowledge of the cost of producing horse power in that locality and in other localities, what was the value per horse power of the power of the stream at the petitioner’s mill, the judge allowing the witness to give the cost of producing the power.</p> <p>At the trial of a petition by a mill owner for damages from the taking of a stream as a water supply, on the issue of the value of the waters for purposes of power, the presiding judge in the exercise of his discretion properly may refuse to allow an expert in hydraulic engineering familiar with the cost and value of water power and steam power, but having no knowledge of the value of real estate in the town where the petitioner’s mill is situated, or elsewhere, and knowing of no sales of power apart from land, to give his opinion as to the value of the waters of the stream in question and as to the damage to the petitioner’s property caused by the taking of the waters.</p> <p>At the trial of a petition by a mill owner for damages from the taking of a stream as a water supply, on the issue of the value of the waters for purposes of power, where a mechanical engineer of large experience in connection with steam engines and the production of power by steam, who made tests of the engines at the petitioner’s mill before the stream was taken, has testified at length and in detail as to what it would cost to produce steam power at this mill, and then says that to produce it with a new steam plant and under the most favorable conditions would cost somewhat less than the amount he has stated, as he made his estimates of the cost under existing conditions at the mill, and if he further says that he then cannot state how much less, the presiding judge may in his discretion order the testimony to be stricken out and give the witness an opportunity to present another estimate later. In making an estimate of the cost of production of power, as the basis of a general assessment of damages for all time, the best test would be the cost under the most favorable conditions, arid not under conditions merely temporary.</p> <p>At the trial of a petition by a mill owner for damages from the taking of a stream as a water supply, on the issue of the value of the waters for purposes of power, the presiding judge in his discretion properly may exclude the opinion of a wit- - ness founded wholly on the value of the plant of his own mill farther down the stream arrived at from an offer made for it.</p> <p>At'the trial of a petition by a mill owner for damages from the taking of a stream as a water supply, the petitioner cannot ask the trustee of a savings bank at what rate of interest, at the time of the taking, money could be invested safely for a long term of years, this being too remote and too uncertain to be of assistance in assessing the damages.</p> <p>At the trial of a petition by the owner of a mill in a small town for damages from the taking of a stream as a water supply, on the issue of the value of the waters for purposes of power, the'presiding judge properly may exclude the testimony of a witness as to the value of power in a certain city, in the absence of evidence that the value of power in the small town where the petitioner’s mill is situated is the same as its value in the city.</p>

Contract by attorneys at law for compensation for professional services, originally upon an account annexed for $2,293. Writ dated May 26,1903. In the Superior Court the case was tried before Cfaskill, J., upon an auditor’s report. The judge allowed the plaintiffs to amend their declaration by adding a second count upon an account stated, alleging an accounting together on March 23,1903, and a balance of $500 then found due to the plaintiffs.

<p>Tort by a workman in the defendants5 foundry, for the-loss of an eye from the alleged negligence of the defendants im failing to furnish a proper or suitable cutter or cutting chisel for chipping particles of metal from castings. Writ dated December 13, 1902.</p> <p>At the trial in the Superior Court GrasJcill, J. at the close of the evidence ruled that there was no evidence to warrant a verdict for the plaintiff and ordered a verdict for the defendants.. The plaintiff alleged exceptions.</p>

Tort for personal injuries from the alleged negligence of the defendant’s servants, at a station of the defendant at Lincoln Square in Worcester, in starting a train before the plaintiff had alighted, and inviting and assisting her to alight after the train began to move. Writ dated December 18, 1902. At the trial in the Superior Court Bond, J. at the close of the evidence ruled that the plaintiff was not entitled to recover, and ordered a verdict for the defendant.

Contract on a bond by which the defendant agreed to indemnify the plaintiff and save him harmless from any debts, obligations or other liabilities of the late firm of F. A. McCauliff and Company, of which the plaintiff had been a member, claiming $653.48 paic| by the plaintiff as rent reserved under a lease from Dorothy S. Bailey and others to F. A. McCauliff and Company from October 1, 1900, to January 1, 1902, with interest. Writ dated March 15, 1902. .

<p>Tort for personal injuries received by the plaintiff’s intestate, in the manner described in the opinion, while in the defendant’s employ, the original plaintiff having been the intestate, who died while the action was pending, the administratrix being substituted as plaintiff by amendment. Writ dated April 4, 1901.</p> <p>In the Superior Court the case was tried before Gaskill, J., who at the close of the evidence ordered a verdict for the defendant, and reported the case for determination by this court. If the plaintiff was entitled to go to the jury upon the evidence introduced, judgment was to be entered for the plaintiff in the sum of $3,000; otherwise, judgment was to be entered on the verdict.</p>

<p> Trustee Process. </p> <p>Under R. L. e. 189, §10, which provides that “if the goods, effects and credits in file hands of a person who lias been adjudged a trustee are not demanded of him by force of the execution within thirty days after final judgment, they shall be liable to another attachment” or “may be recovered by the defendant,” the demand on the execution must be made by an officer, and such a demand made by the plaintiff personally is not sufficient to preserve the rights of the plaintiff or to protect the trustee in paying him.</p>

<p>Appeal from a decree of the Probate Court of the county of Hampden allowing certain items in the first account of the Hampden Trust Company as executor under the will of Samuel D. Currier, late of Springfield.</p> <p>The case came on to be heard before Hammond, J., who reserved and reported it for determination by the full court. If the charges for payments made by the executor for expenses incurred by it in defending the estate from claims which it deemed unjust and in the probate or sustaining of the testator’s will and in defending an attack against the will properly were payable by the appellee as executor, the decree of the Probate Court was to be affirmed. If such charges, or any of them, should be paid by the appellee as trustee under the trust deed, and not as executor of the will, then the case was to be referred to an assessor to determine the amount of such charges.</p> <p>The clauses of the trust deed referred to in the last paragraph of the opinion, as showing the difference in the meaning of the words “ may ” and “ shall ” in those clauses, were as follows:</p> <p>“ Fourth. Within five years from the death of said Mary J. De Moe, said trustee shall sell and convey all of said real estate at public auction or private sale, as it deems best, and the proceeds of sale, less the amount of the mortgages or incumbrances on any of said tracts of real estate, and any property in its hands as trustee shall be disposed of and paid by said trustee as follows: one-quarter of said amount to the person who shall be at that time the Treasurer of Hampden Lodge of Ancient Free and Accepted Masons of said Springfield, to be made a part of the general funds of the lodge, and to be used for the general purposes of the lodge.</p> <p>“ The remaining three-fourths of said amount is to be paid to Newrie D. Winter, of said Springfield, to be his own property.</p> <p>“Fifth. Said trustee may, at any time after my death, sell and convey any and all of said trust property at its discretion, at public auction or private sale, and may invest, sell and reinvest the proceeds at its discretion.</p> <p>“ Sixth. Said trustee shall, at any time during my life, when requested by me in writing, sell and convey any and all of said property to such persons and for such sums as I shall designate, and the proceeds of such sale shall either remain subject to this trust or be free from it, as I shall in writing request.</p> <p>“Seventh. Said trustee shall re-convey any or all of said property to me or to such persons as I shall designate, without compensation, whenever I shall so request in -writing.</p> <p>“ Eighth. Upon a sale of any of the said property by said trustee, the purchaser shall take the property free from this trust, and shall not be answerable for the application of the purchase money.</p> <p>“ Ninth. After my death said trustee may use as much of the income from said property as may be necessary, or the proceeds of the sale of the property, in defending my estate from any claims which it deems to be unjust, and particularly in defending any proceedings brought to invalidate this trust; also for the sustaining of said trust and the probate, or sustaining of my will dated this day, and to defend any attack against said will.”</p> <p>“ Eleventh. Said trustee may retain out of the income or proceeds of sale, a reasonable sum for its services, for counsel fees and for its expenses, and the .services of agents, and is only to be liable for its own wilful misconduct, negligence or default and not for the misconduct, negligence or default of its agents selected with reasonable eare and diligence.”</p>

<p>Tort for personal injuries from a rear end collision while the plaintiff was a passenger on a car of the defendant on July 4, 1903. Writ dated September 3, 1903.</p> <p>At the trial in the Superior Court before Maynard, J., there was evidence of the defendant’s negligence and of due care on the part of the plaintiff, and that the plaintiff was injured by the accident.</p> <p>The jury returned a verdict for the plaintiff in the sum of $2,500; and the plaintiff deeming the damages insufficient alleged exceptions, relating to the denial of two motions made by the plaintiff at a hearing a week before the trial was begun, which are stated in the opinion of the court.</p>

<p>Contract, Implied: common counts.</p> <p>In this Commonwealth it is settled that money had and received will lie where the defendant has received money to which the plaintiff has an equitable right, and in this case it was assumed, without deciding it, that, where the plaintiff in equity can trace his money into the hands of the defendant, he can recover it from him in an action for money' had and received as well as where the defendant received the money in the first instance.</p> <p>If an action for money had and received can be maintained to recover money which in equity can be traced to the hands of the defendant, the recovery must be Confined to cases where money is received for the plaintiff by some one standing toward him in a fiduciary capacity.</p> <p>If the executor under the will of a deceased husband draws out a savings bank deposit belonging to the widow of his testator, claiming it as part of the estate, and pays it to the residuary legatee, the payment by the bank to the executor is wrongful, and the money paid is not the money of the widow, having been paid upon a demand adverse to her. Therefore neither the widow, nor the administrator of her estate, can follow the money in equity or maintain an action for money had and received for it against the residuary legatee under the will of the husband.</p>

<p>Insurance, Fire, Sworn statement of loss. Evidence, Extrinsic affecting writings.</p> <p>In an action on a fire insurance policy in the Massachusetts standard form, it appeared, that the defendant’s adjuster went to the town where the fire had occurred, saw the broker who procured the insurance, and asked for information about the loss. He refused to'look at the place where the fire occurred or to go to the broker’s office, where he was told there was a “ proof of loss,” and left the town, saying to the broker on leaving that he would see him or communicate with him again in a short time. Held, that there was no evidence that the defendant had waived the requirement of a sworn statement of loss.</p> <p>Evidence of a custom is not admissible to change the plain terms of a contract in writing.</p> <p>In an action on a fire insurance policy in the Massachusetts standard form, where the defence is a failure of the plaintiff to render to the company a sworn statement of loss as required by the policy, the plaintiff cannot vary the contract by proving a custom under which a failure of the company, upon notice that a fire has occurred, to send to the insured a blank form for the sworn statement of loss, or to send an adjuster to make an adjustment of the loss on the ground carrying with him such a blank form, is a waiver of the requirement in the policy of a sworn statement of loss, under which custom the company would be liable for the amount of the policy, without regard to the damage done by the fire, in sixty days after a mere informal notice that a fire has occurred instead of being liable for the amount adjusted according to the terms of the policy only in sixty daj)s after the sworn statement has been rendered to the company.</p>

<p> Worcester. Municipal Corporations. </p> <p>Before the enactment of St. 1886, c. 331, it was not the duty of the city of Worcester to establish an independent system of sewage purification, which would require the taking of lands and the expenditure of large sums of money, necessary to purify the sewage discharged into the Blackstone River through Mill Brook under authority of St. 1867, c. 106, and, therefore, in an action against that city for injury to the plaintiff’s land and mill pond, the fact that sewage in the water of Blackstone River caused the plaintiff’s damage, coupled with the fact that the city made no attempt to purify its sewage before .discharging it into the river, is not evidence of negligence on the part of the city before the enactment of St. 1886, c. 331.</p> <p>St. 1886, c. 331, establishing a system of sewage disposal for the city of Worcester, imposes a public duty on that city in the interest of the general public, looking particularly to the protection of the health of the people living near the Blackstone River, and does not give that city privileges for its own benefit as did St. 1867, c, 106. Therefore the city is not liable to one whose land and mill pond are injured by a negligent failure of the city properly to perform the duty imposed upon it by the first named statute.</p>

<p>Two actions OP tort, one by a married woman for personal injuries, and the other by her husband for loss of consortium and expenses, and for injuries to the buggy in which the plaintiff in the first case was sitting when the accident occurred, alleged to have been' caused by the negligence of the defendant’s servant. Writs dated May 25, 1903.</p> <p>At the trial in the Superior Court before CrasJcill, J., it appeared, that the plaintiff in the second case had gone into a bank on Central Street in Gardner, leaving his wife sitting in the buggy, when a pair of horses, attached to a tip cart belonging to the defendant and without a driver, ran into the buggy, the pole of the tip cart breaking the back of the buggy and throwing out the plaintiff in the first case; that the driver of the tip cart had left his horses standing eight or ten feet from a railroad track while he went back about six or eight feet to pick up a part of his load of stove wood which had dropped from the cart; that there was a switching engine shifting back and forth over the crossing, puffing and blowing; that the horses suddenly started and ran, the driver running after them in vain; that one Buffum tried to stop the horses by standing in front of them and holding up a wooden rake which he had in his hand; that when the horses came upon him he jumped aside hitting or touching the head of one of them with the rake ; and that the horses somewhat changed their course and ran into the buggy standing by the sidewalk as above described.</p> <p>At the close of the evidence the defendant asked the judge to make the following rulings :</p> <p>“1. Upon all the evidence, the plaintiff is not entitled to recover.</p> <p>“ 2. There is no sufficient evidence of negligence on the part of the defendant.</p> <p>“ 8. There is no sufficient evidence of negligence on the part of the driver of the horses which ran away to warrant a recovery.</p> <p>“ 4. If the horses which ran into the plaintiff would not have so collided and the injuries would not have occurred, except for the intervening attempt of Buffum to stop the horses, coupled with the blow with the rake over the head of the nigh horse, then the plaintiff cannot re'cover.</p> <p>“ 5. If the horses which ran had always before the accident been safe, docile and gentle horses-, and they had never run away before, and the driver had no knowledge of any tendency on their part to run away, and they had many times before been left without being hitched, and they had been much about railroads and were familiar with the sights and sounds about railroad trains, and the driver of the horses did what it was customary to do under similar circumstances, then the plaintiff cannot recover.”</p> <p>The judge refused to rule as requested and gave other instructions. The jury returned a verdict for the plaintiff in each case, in the first case in the sum of $100, and in the second case in the sum of $205. The defendant alleged exceptions.</p>

<p>The following communication from the Governor and Council was transmitted to the Justices of the Supreme Judicial Court on July 22, 1904:</p> <p>At a meeting of the Governor and the Council held on the twentieth day of July, 1904, it was ordered that the opinion of the Justices of the Supreme Judicial Court be requested upon the following important questions of law:</p> <p>1, Whether the act of the Legislature of Massachusetts, entitled “ An Act to provide for the payment of bounties to certain veterans of the civil war,” being chapter 458 of the Acts of the year 1904, has the force of a law, it appearing by the journal of the House of Representatives, which is the branch of the Legislature in which said act originated, that less than two thirds of the members of said House of Representatives agreed to pass the same notwithstanding the objections of the Governor thereto duly communicated to said house in writing, and it appearing further by said journal that two thirds of the members of said house who were present and voting did agree to pass the act over the executive veto.</p> <p>2. Whether the phrase in Part the Second, Chapter 1, Section 1, Article II of the Constitution of Massachusetts, “ two thirds of the said Senate or House of Representatives ” means two thirds of the members elected, two thirds of the members living, two thirds of the members present and voting, or two thirds of a quorum, though more than a quorum are present and voting.</p> <p>8. Whether, if in the opinion of the justices said bill was duly enacted, it is a constitutional exercise of legislative power.</p>