Volume 187 — Massachusetts Reports

<p>Negligence, Employer’s liability.</p> <p>If a workman, in crossing the end of a pit at the place of his employment instead of going around it, chooses to step upon a timber plainly inserted as a brace to hold a piece of machinery in place and not intended as a bridge, he does so at his own risk, and it does not matter how often the same risk has been taken by himself and others, including the superintendent in charge of the work.</p>

<p> Negligence. Railroad. </p> <p>One who is employed by a shipper to assist in putting merchandise into a freight car on a spur track of a railroad, and in pushing the freight car to the place of loading is struck and injured by another car started down a grade by a high wind, the grade not being noticeable and not known to him, can be found to be in the exercise of due care.</p> <p>To leave an empty freight car with the brakes not set at the top of a down grade on a spur track, on which it is the practice for shippers to move cars by hand, can be found to be negligence on the part of a railroad company, for which it is liable to the employee of a shipper who when pushing another car into the place for loading is struck by the car first mentioned started down the grade by a high wind; and in such a case it is no excuse for the railroad company ttiat the car with the brakes not set was held in place on the grade by the car below it, which had its brakes set and which was moved by the employee of the shipper after loosening its brakes, because such a moving of the supporting car ought to have been foreseen.</p>

<p>Contract on a policy issued by a life insurance company, organized under the laws of the State of Maine, upon the life of one George D. Ferguson, late husband of the plaintiff. Writ dated May 15, 1908.</p> <p>In the Superior Court the case was heard upon the pleadings and an agreed statement of facts by White, J., without a jury. The judge refused to rule as a matter of law that upon all the evidence the plaintiff could not recover. He found that the plaintiff’s husband, under the paid up non-forfeiture clause of the policy set out in the declaration, had fully paid six consecutive annual premiums within the meaning and requirements of the policy, and that the plaintiff was entitled to recover in this action $600, less $99, the amount due on the premium note given in the sixth year, with interest from the date of the writ. He accordingly found for the plaintiff in the sum of $527.39; and the defendant alleged exceptions, raising the questions stated by the court.</p>

<p>Two COMPLAINTS, received and sworn to in the Police Court of Fitchburg on June 6, 1904, charging that each defendant “ unlawfully did transport for hire and reward, for delivery in said Fitchburg intoxicating liquor, said Fitchburg then being a city where licenses of the first five classes to sell intoxicating liquors, are not granted, and said [Beck and Murphy respectively] not then and there regularly and lawfully conducting a general express business.”</p> <p>On appeal to the Superior Court the cases were tried before Bell, J. Before the jury was impanelled each defendant moved that the complaint against him be dismissed, for the reason that it set forth no offence known to the laws of this Commonwealth. The judge denied the motions and the cases proceeded to trial. The jury in each case returned a verdict of guilty; and the defendants alleged exceptions.</p>

<p>Negligence, Employer’s liability. Railroad.</p> <p>A section foreman of a railroad company, having charge of a gang of five men whose duty it is to transfer freight from one car to another, while the foreman selects the cars that are to be unloaded and checks the freight as it is transferred, can be found to be a person intrusted with superintendence over the five men within the meaning of the employers’ liability act.</p> <p>In an action, by a freight handler against the railroad company employing him, for injuries from falling between two freight cars standing side by side on parallel tracks, while working as one of a gang of five in transferring freight from one car to the other, it appeared, that the freight was to be wheeled in trucks over a wooden brow connecting a loaded car with the empty one to which the freight was to be transferred, that one end of the brow had iron hooks, with a cleat on the under edge, while the’other end of the brow was bevelled so that the loaded trucks could be wheeled upon it without concussion, that by mistake the brow was placed wrong end to, so that, instead of the bevelled end, the end with the hooks rested on the car to he unloaded and the surface of the'brow at that end was two inches or more above the floor of the car, that one of the men discovering this was about to reverse the brow when the superintendent in charge of the work said “the brow is all right, let it alone,” that the plaintiff, who was not present when the brow was adjusted, was ordered by the superintendent with the other men of the gang to unload the car, that after two or three loads had been taken out by the other men, the plaintiff went upon the brow pulling a heavily loaded truck after him, when the brow fell, throwing the plaintiff with his load between the cars and causing the injuries. Held, that there was evidence of negligence on the part of the superintendent, and of due care on the part of the plaintiff, and that the plaintiff by using the brow under the orders of the superintendent did not assume the risk of injury from its being placed improperly.</p> <p>A workman by his contract of service does not assume the risk of an accident caused by the negligence of a superintendent.</p>

<p>Tort, by a delivery clerk in the freight house of the defendant at Leominster, for injuries caused by bis stepping into a hole in the floor of an empty freight car used as a passageway in unloading freight from another car and transporting it to the platform of the freight house, with a count under the employers’ liability act alleging a defect in the ways, works or machinery of the defendant, and a count at common law alleging a failure to furnish the plaintiff with safe instrumentalities or a safe place in which to work. Writ dated December 13, 1902.</p> <p>In the Superior Court Gaskill, J. 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 for the defendant; otherwise, judgment was to be entered for the plaintiff in the sum of $1,500.</p>

<p>Appeal from a judgment ordered in the Superior Court by Hardy, J. upon the report of an arbitrator to whom the parties had submitted their differences by an agreement of submission under R. L. c. 194, dated April 15, 1902.</p>

<p>Evidence, Admissions and confessions. Landlord and Tenant. Elevator. Practice, Civil, Exceptions, Discretionary power of presiding judge, Verdict.</p> <p>In an action for injuries from the alleged negligent operation of an elevator in an apartment building owned by the defendant and let to various tenants, if the defendant denies that he was in control of the elevator at the time of the accident, the plaintifí for the purpose of proving süch control may show that shortly before the accident the defendant procured a policy of indemnity insurance against loss or damage from accidents arising in operating the elevator, and that such insurance was in force when the plaintiff was injured.</p> <p>The exclusion of material evidence is none the less a ground for exception because there was uncontradicted testimony which if believed was amply sufficient to .establish the fact which the excluded evidence was offered to prove.</p> <p>It is not within the discretionary power of a presiding judge at a jury trial to exclude material evidence because he thinks that evidence already has been introduced sufficient, if believed, to establish the fact to be proved.</p> <p>After a general verdict for the defendant in an action of tort, an exception of the plaintiff to the exclusion of evidence will be sustained if the rejected evidence was material on any of the issues submitted to the jury, as the verdict may have been rendered on the issue on which the evidence was offered.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action by a carpenter against his employer for injuries alleged to have been caused by the negligence of the defendant’s superintendent, it appeared, that the plaintiff was engaged with others, under the orders of a foreman in charge, in moving a heavy hard pine timber forty-two feet long, and that as the men were holding the timber for a minute and a half or more, a little longer than at other times, while a barrel beneath the timber was being rolled forward, the timber being too heavy for the men came down with them, injuring the plaintiff. Before this the men had said to each other, but not to the superintendent, that they had to exert more strength with this timber, and that there were not men enough. It appeared that fewer men were used in moving this timber than had been used in moving two similar timbers. On exceptions by the plaintiff after a verdict had been ordered for the defendant, the plaintiff disclaimed any complaint as to the number of men employed, but contended that he had a right to go to the jury on the ground that the superintendent was negligent in not ordering the men to lower the timber before it fell. Held, that in the ■ absence of any evidence to show why the number of men was reduced there was not sufficient evidence to warrant a finding that the superintendent ought to have known that the slightly longer strain to which the men were subjected was beyond their strength, especially in view of the plaintiff’s express disclaimer of any complaint that too few men were employed, and that the verdict rightly was ordered for the defendant. i</p>

<p>Equity Jurisdiction, To enforce liability of stockholder in foreign corporation. Conflict of Laws. Equity Pleading and Practice, Parties.</p> <p>A bill in equity cannot be maintained to enforce the statutory liability of a stockholder in a corporation organized in another State, upon a claim not yet reduced to a judgment, without making the corporation, or its assignee, and all the stockholders parties to the suit.</p> <p>In a suit in this Commonwealth to enforce the statutory liability of a stockholder in a corporation organized in another State, the decisions of the highest court of that State as to the meaning of the substantive provisions of the statute creating the liability must be followed, but tbe mode of procedure and practice in giving the remedies provided by the statute depend upon the law of this Commonwealth where the relief is sought, and a decision of the other State that neither the corporation nor its assignee is a necessary party to such a suit would not be binding on this court.</p> <p>Whether a creditor of a corporation organized under the laws of another State, in a suit in that State to enforce the statutory liability of stockholders, can obtain a decree against non-resident stockholders upon whom no service has been made, establishing everything that need be established in the home of the corporation, so far as to furnish a foundation for a subsequent suit against such stockholders in this Commonwealth, qucere.</p>

<p>Equity Jurisdiction, Suit by member to restrain corporation. Religious ■ Society, Powers of trustees, Corporate powers.</p> <p>If a bill in equity by a member of a corporation, to restrain the corporation from doing certain acts, does not allege that the plaintiff sought redress from the corporation itself or its officers before resorting to the courts, but the bill is not demurred to, and a master subsequently finds that if such an application had been made it would have been unavailing, the bill will not be dismissed on this ground.</p> <p>The trustees of a Roman Catholic church organized under Pub. Sts. c. 38, §§ 48-50 (R. L. c. 36, §§ 44-46) have complete control of the corporate doings, and no other communicant or member of the corporation or of the parish can take part in the corporate action.</p> <p>It is within the power of a religious society organized under our statutes to devote its general funds to the aid of other churches or religious societies or to home or foreign missions. Thus it is within the general scope of the corporate powers of a Roman Catholic church organized under Pub. Sts. e. 38, § 48, (R. L. c. 36, § 44,) to transfer a part of its funds to a new parish set oif from itself.</p>

Sis petitions, filed July 16 and 17, 1901, and January 23, August 11 and December 11, 1902^ for damages from changes required to abolish grade crossings in Fall River under St. 1900, c. 472, and the statutes referred to therein. The cases were referred to Charles W. Clifford, Esquire, as auditor.

<p>Tout by an employee in the defendant’s tack factory at Taunton, for personal injuries described in the opinion. Writ dated June 30, 1902.</p> <p>In the Superior Court Wait, J. ordered a verdict for the defendant ; and the plaintiff alleged exceptions.</p>

<p>Tort, by one injured while travelling in an automobile; by an alleged defect in Bedford Street in Pall River, consisting of a rope stretched across one side of that street from an iron stake at the side of a trench being opened in the middle of the street, to connect a house with a sewer, to a telegraph pole in the sidewalk. Writ dated June 6, 1903.</p> <p>At the trial in the Superior Court before Sehofield, J. the jury answered special questions, submitted to them by the judge, as follows: “1. Was the plaintiff in the exercise of due care? Yes. 2. Was the automobile running at the time of the accident at a speed exceeding ten miles an hour? No.” The jury-returned a verdict for the plaintiff in the sum of $175 ; and the defendant alleged exceptions, raising the questions stated by the court.</p>

<p>Equity Jurisdiction, Laches. Equity Pleading and Practice.</p> <p>A bill to redeem real estate from a foreclosure under a mortgage, voidable because of fraud and mismanagement by the mortgagee while in possession, cannot be maintained if filed more than ten years after the foreclosure, of which the mortgagor had knowledge during the whole of that period.</p> <p>Where laches appears on the face of a bill in equity that defence can be set up by demurrer.</p> <p>It is not a sufficient excuse for the laches of the heirs at law of a mortgagor, in delaying for ten years to bring a suit in equity to redeem real estate from a foreclosure alleged to be voidable by reason of fraud and mismanagement by the mortgagee while in possession, that “the plaintiffs have been delayed in the bringing of this action by the negligence and misconduct of certain attorneys whom they have employed to protect their interests therein, but who have either done nothing or have so unskilfully managed the said action that the plaintiffs have wholly failed to secure the relief to which they are and were entitled; said attorneys being at no time able to respond in damages for their said negligence and misconduct.” The foregoing allegation in a bill in equity otherwise bad for laches is too general to put on the defendants the burden of a trial.</p>

<p> Deceit. Husband and Wife. Dower. </p> <p>A married woman may maintain an action of tort for deceit against the brother of her husband for a false representation that the plaintiff’s husband was to receive one half of the proceeds from the sale of certain real estate owned in common by the two brothers, whereby the plaintiff was induced to release her inchoate right of dower in one undivided half of the real estate, when in fact the plaintiff’s husband by a previous secret conveyance had released his interest in the real estate to his brother and was to receive no part of the purchase money.</p> <p>A married woman, if induced to give .up an inchoate right of dower in certain real estate by false and fraudulent representations, has been deprived of a valuable right in property and is entitled to damages.</p>

<p>Way, Defect in highway.</p> <p>Cobble stones six inches in height supporting the edge of a concrete sidewalk, their upper surfaces being even with the line of the concrete walk, cannot be found to be a defect in the highway because a foot traveller coming upon the concrete ' walk from an intersecting street without a sidewalk has to step up six inches in the manner of stepping upon an ordinary curbstone.</p>

<p>Four actions oe tort against the Boston and Northern Street Railway Company, the Middleton and Danvers Street Railway Company and Loring N. Farnum, for personal injuries from explosions of dynamite, as stated in the first paragraph of the opinion, which occurred on a highway called the Old Salem Turnpike in North Andover, where the defendant Farnum was engaged in laying a line of track under a contract with the Middleton and Danvers Street Railway Company. Writs dated March 21 and April 16, 1902.</p> <p>In the Superior Court all the cases were tried before Law-ton, J., those of Hooe, Welch and Lane being tried together, and that of Donahue separately. In each of the eases the judge allowed the plaintiff to become nonsuit as to the defendant the Boston and Northern Street Railway Company, and ordered the jury to return a verdict for the defendant the Middleton and Danvers Street Railway Company: He submitted the cases to the jury against the defendant Farnum. In each case the jury returned a verdict for the plaintiff against the defendant Farnum, for Hooe and for Lane each in the sum of $1,500, for Welch in the sum of $4,000, and for Donahue in the sum of $2,700. The defendant Farnum alleged exceptions in each case.</p>

<p>Writ of entry, dated August 21, 1903, for a certain parcel of land with the buildings thereon on Main Street in Haverhill.</p> <p>The tenant pleaded nul disseisin. In the Superior Court, Holmes, J., sitting without a jury, found for the demandant; and the tenant alleged exceptions.</p>

<p>Deed, Confirmatory. Evidence, Extrinsic affecting writings. Practice, Civil, Exceptions.</p> <p>A purely confirmatory deed, given to replace one of the same tenor supposed to be lost, conveys no title and is merely evidence of the original deed. Oral evidence is admissible to identify the lost deed referred to and to show the time of its delivery, such evidence having no tendency to contradict or enlarge the meaning of the new deed.'</p> <p>The admission of incompetent evidence which did no harm to the excepting party is not a ground for exception.</p>

<p>Tort by the administratrix of the estate of Martin Evensen, under R. L. c. 111, § 267, for the use of herself as widow and of seven minor children, for causing the death of the plaintiff’s intestate through the alleged gross negligence of the defendant’s servants, in running down the intestate while he was being driven in a farm wagon by one Helchier, whose guest he was, down Academy Lane and across the tracks of the defendant on Sudbury Road in Concord. Writ dated April 25, 1902. '</p> <p>In the Superior Court Graskill, J., at the close of the plaintiff’s evidence, ruled, that the plaintiff had not shown due care on the part of her intestate, and had not shown gross negligence on the part of the defendant’s servants and agents, and ordered a’ verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Contract for alleged breach of the covenants of warranty in a deed of certain land on Locust Street in Attleborough. Writ dated March 3, 1903.</p> <p>At the trial in the Superior Court before Hitcheoek, J., it appeared, that in April, 1857, one Peter Thacher conveyed the premises to one Albert Goff in fee, by a deed which contained no exception or reservation in either the granting or the habendum clause, and contained the following covenants ; “ and I the said Peter Thacher for myself and my heirs, executors and administrators, do covenant with the said Albert Goff and his heirs and assigns, that I am lawfully seised in fee simple of the aforegranted premises, that they are free from all incumbrances except a right to pass and repass in the road leading from the barn to the swamp where we get mud by our putting up bars, with teams and otherwise; that I have a good right to sell and convey the same to the said Albert Goff, his heirs and assigns forever as aforesaid, and that I will and my heirs, executors and administrators shall warrant and defend the same to said Albert Goff, his heirs and assigns forever, against the lawful claims and demands of all persons.”</p> <p>At the time of this conveyance the premises wex-e. bounded upon one side by the highway and upon the other three sides by the remaining land of the grantor. The “ road leading from the barn to the swamp ” mentioned in the deed was a road or path running across the land conveyed from one portion to another portion of the grantor’s remaining and adjoining land. The defendant derived title to the premises through mesne conveyances from Albert Goff, and conveyed the premises to the plaintiff. All the deeds contained full covenants of warranty. When the action was brought, Peter Thacher was dead and his son John Thacher was the owner of the land surrounding the premises on three sides.</p> <p>The plaintiff offered in evidence a written agreement executed by Albert Goff and John Thacher, acknowledged on November 19,1900, but not recorded, a part of which was admitted against the objection and subject to the exception of the defendant. The part admitted was as follows :</p> <p>“ This agreement made this twelfth day of February 1869 between John Thacher of Attleboro of the one part and Albert Goff of said town of the other part witnesseth;</p> <p>“And whereas there is a right of way across said Goff’s farm for said Thacher to use as occasion may require, now in order to make and establish said way certain, and to establish the bounds thereof for us and our heirs and assigns forever, do hereby agree to establish said way as follows,” [here followed a description of the way by courses and distances.] “John Thacher” (seal) “Albert Goff” (seal).</p> <p>Evidence also was offered by the plaintiff showing that the defendant knew of the execution and existence of this agreement, having been told by Thacher and other persons that the agreement was in existence. Evidence also was produced showing that the way in question had been used continuously and uninterruptedly by Thacher and those in his employ for different purposes since 1857, and that the defendant knew that the right of way had been used by Thacher since 1857, and was told by Thacher and others in his employ that Thacher had such a right of way, and also showing that when the plaintiff bought from the defendant he constructed a wire fence across the location of the way, and that Thacher cut the fence, and then informed, the plaintiff of his right of way over the property; that thereupon the plaintiff went to see the defendant and told him of the right of way in question, and of the agreement, and that the defendant stated that he knew of the existence of the agreement, and had known it when he bought thé premises, but that he would make things right.</p> <p>No evidence was produced by the defendant in contradiction of the foregoing testimony.</p> <p>At the conclusion of the evidence the defendant asked the judge to rule as follows: 1. That the plaintiff must rely upon a sufficient reservation of a right of way in the deed of Peter Thacher to Albert Goff offered as evidence. 2. That the exception under the covenant against incumbrances is not a reservation of a right of way. 3. That the deed does not contain any reservation of a right of way. 4. That, if the judge rules that the exception contained in the covenant against incumbrances is a legal reservation of a right of way, such reservation was a personal right of the grantor and did not descend to his heirs at law or pass to his grantees. 5. That if the judge rules that the exception inserted in the covenant against incumbrances is an effective reservation of a way, such reservation is limited to the life of the grantor and does not pass to his heirs and assigns, and a reservation in fee was not created.</p> <p>The judge refused to give these rulings, but instructed the jury that they might consider the deed of 1857 from Peter Thacher to Albert Goff as establishing a right of way still existing across the plaintiff’s land.</p> <p>The jury returned a verdict for the plaintiff in the sum of $1,030.80; and the defendant alleged exceptions.</p>

<p>Railroad. Negligence, Gross negligence.</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, alleged to have been caused by the defendant’s failure to give the signals required by § 188 of the same chapter, there was evidence, that the plaintiff’s intestate, being awake and sober, was driving a quiet horse late at night in a covered wagon carrying bottles which rattled, that when near the crossing he shouted “ whoa ” to his horse, that there was no bell or whistle to warn him, that his view of the track was obstructed by freight cars, that it was somewhat foggy, that the gates seemingly intended to warn travellers of approaching trains were up, and that while thus crossing the track a train of the defendant decapitated his horse, broke his wagon and instantly killed him. Held, that the case properly was submitted to the jury on the questions, whether the signals required by law were given, whether their absence contributed to the collision, and whether the defendant had proved gross negligence on the part of the plaintiff’s intestate.</p>

<p>Tort, by a girl twenty-three years of age employed in the defendants’ jewelry factory at Attleborough, for personal injuries from a pail of hot water which had been attached to a steam pipe at the top of the room falling on her head. Writ dated September 8, 1902.</p> <p>At the tidal in the Superior Court Hitchcoch, J. at the close of the evidence ordered a verdict for the defendants; and the plaintiff alleged exceptions.</p>

<p>Evidence, Competency.</p> <p>At the trial of an indictment for uttering a forged promissory note, the defendant, who was the chief of police of a certain town, in order to discredit one R., the principal witness for the government, introduced evidence tending to show hostility of R. toward the defendant. The government then put in evidence to the effect that R. was trying to get possession of a hotel which had been leased to persons for whom the defendant was manager, and evidence that the defendant said that he wanted R. to take possession of the property and run it, and that “he need not be afraid of being arrested for illegal sales of intoxicating liquors.” The jury were instructed that the evidence was admissible only to show an attempt on the part of the defendant to conciliate R. Held,, that the evidence was admissible for the purpose to which it was limited by the instruction.</p>

<p>Carrier. Evidence, Presumptions and burden of proof. Practice, Civil, Agreed statement of facts.</p> <p>There is a presumption of fact that a loss of articles from a package transported by express occurred in the hands of the last of two successive carriers.</p> <p>Where a case is submitted on an agreed statement of facts with the power to draw inferences, a finding of the court below on a matter of fact is conclusive unless the facts agreed show it to be erroneous as a matter of law.</p>

Contract, at common law, by a workman in tbe paper mill of tbe defendant at Holyoke, for injuries alleged to have been caused by the negligence of tbe defendant, in failing to furnish tbe plaintiff with a reasonably safe and suitable place in which to work, and in setting him to work upon a certain floor so insecure, unsafe and dangerous, that, while the plaintiff was working there under the defendant’s orders and in the exercise of due care, the floor gave way, causing the…

<p>Devise and Legacy, Construction.</p> <p>A will contained the following: “I devise to my wife A. the cottage house and the land ‘ appertenant ’ thereto. Being the house I now live in and situate on William Street in Eall River.” Then followed an attempted description, which gave the boundaries only of the lot first owned by the testator on which the house originally was built and omitted a strip of land belonging to the testator, extending twenty-three feet farther on William Street, on which stood the greater part of an ell, which had been added by the testator to his house, and all of his barn, with a path and also a plank walk between the house and the barn, used as an outside kitchen, and a vegetable garden. Held, that- the erroneous description must yield to the intention of the testator that his wife should have not only the whole of the house and the land under it but also the rest of the twenty-three feet used as appurtenant to the house, extending to a lot sold by the testator before his death, revoking by such sale a devise of the last named lot contained in his will.</p>

<p>Contract on a guaranty in writing, by which it was alleged that the defendant agreed to guarantee the payment on demand after sixty days of all sums of money due to the plaintiff from one Joseph Sherin for goods purchased of the plaintiff up to the amount of $300. Writ dated August 20, 1903.</p> <p>The answer, among other things, alleged that the defendant’s guarantee of the account of Joseph Sherin with the plaintiff was for sixty days only from the date of the purchasing of his first bill of goods sold by reason of the defendant’s guarantee and after the date thereof and that the plaintiff was paid in full for all goods purchased by Joseph Sherin from the plaintiff to the amount of $300 within sixty days of such sale after the date of the defendant’s written guaranty.</p> <p>In the Superior Court the case was heard by GasTcill, J., without a jury, upon an agreed statement of facts. The judge found and gave judgment for the defendant; and the plaintiff appealed.</p> <p>By the agreed statement of facts, it appeared, that in January, 1902, Joseph Sherin was conducting business at Webster, and that the plaintiff, a corporation, was conducting business in Providence in the State of Rhode Island, and was a wholesale dealer in the same kind of goods in which Sherin was a retail dealer; that Sherin went to the plaintiff in the latter part of January, 1902, and desired to open an account with it and to purchase goods on credit, when the following correspondence ensued :</p> <p>“ Providence, R. I., Jan. 24, 1902.</p> <p>“ Mr. John Flint, Webster, Mass.</p> <p>“ Dear Sir: Mr. Joseph Sherin of your town wishing to buy a few goods of us to-day informs us that you have told him that you would guarantee any purchase he might make from us.</p> <p>“If this is correct, please send such guarantee, and greatly oblige,</p> <p>“ Yours truly, Callender,'McAuslan & Troup Company.”</p> <p>“ Jany. 25th, 1902.</p> <p>“ Callender, McAuslan & Troup Co.,</p> <p>“ Gents: Your letter of the 24th received. Will say I am very much surprised that you should ask me to guarantee any purchases that Mr. J. Sherin might make from you, not because I do not think him good, for I think him a good, straight, honest man, and one that will pay all of his bills. I have known him for several years and have yet to learn of anyone having lost by him in any way. Mr. Sherin has been in my store for four months, has paid his rent prompt. The store he occupied before moving in to my store for one year rent was paid promptly. If I was selling goods I should not hesitate in giving him Cr. for I consider him an honest and fair dealing man. But at my time of life I do not propose to be responsible for goods bought by any one.</p> <p>“Yours truly, John Flint.”</p> <p>“Providence, R. I., Jan. 27th, 1902.</p> <p>“Mr. John Flint, Webster, Mass.</p> <p>“ Dear Sir, — Yours of 25th inst. at hand regarding the guarantee we ask for on Mr. Sherin’s purchases in which you say you are very much surprised we should ask for such a guarantee. It is no wonder you were surprised at this request unless you had made a previous agreement with Mr. Sherin; this we understood him to say you had done, so for this reason we wrote for the request, he distinctly telling us to hold the goods which he might select until we received the guarantee. We beg pardon for any trouble we have caused you and remain,</p> <p>“Yours very truly, Callender, McAuslan & Troup Company.”</p> <p>“ Webster, Mass., January 31st, 1902.</p> <p>“ Callender, McAuslan & Troup Co.,</p> <p>“ Gents: after talking with Mr. Joseph Sherin I have decided to help him in purchasing goods of you, he says, he can buy of you on (60) sixty days. If so, I will guarantee the payment of goods he may buy of you, not to exceed three hundred dollars ($300), on terms as above. I think his prospects are good, and he will come out all right.</p> <p>“ Yours truly, John Flint.”</p> <p>“ (N. B.) Please sell him low so he can make a dollar.</p> <p>“ Received Feb. 1, ’02 A. M. eight o’clock.”</p> <p>It further appeared, that at the time of bringing this action there was due from Sherin to the plaintiff the sum of $333.29, and that the goods for which this sum was due were sold and delivered by the plaintiff to Sherin more than sixty days before the bringing of the action. It was agreed, that no part of this sum could be recovered unless the guaranty was a continuing one ; that the first bill for goods was about $197, that goods to a much larger amount than $800 in the aggregate were bought by Sherin from the plaintiff after the giving of the guaranty, and that Sherin had paid the plaintiff as much as $300 for goods.</p> <p>The case was submitted on briefs at the sitting of the court in October, 1904, and afterwards was submitted on briefs to all the justices.</p>

<p>Contract on an account annexed for $3,400, for wages for eleven years and four months at the rate of $25 a month, which it was alleged that the plaintiff’s father, the defendant’s testator, promised to pay to the plaintiff and hold to his use subject to his order and call. Writ dated March 3,1904.</p> <p>The nature of the defence is stated in the opinion. In the Superior Court the case was referred to Arthur M. Alger, Esquire, as auditor, with an agreement of the parties that his findings on facts were to be final, which was made a part of the order of the court appointing him.</p> <p>The auditor found for the defendant, and the plaintiff filed the following motion : “ And now comes the plaintiff in the above entitled cause and moves that the auditor’s report in said case be set aside and a new trial granted for the reason that the auditor admitted incompetent and irrelevant testimony at the hearing of said cause, against the plaintiff’s objection thereto, which testimony is set forth in the auditor’s report.”</p> <p>The case was heard by Harris, J., who denied the motion, and found for the defendant. The plaintiff alleged exceptions, raising the questions stated in the opinion.</p>

<p>Contract, on a promissory note set out in the first paragraph of the opinion, indorsed by the defendant before delivery. Writ in the Municipal Court of the City of Boston dated November 8, 1898.</p> <p>The defendant demurred and answered. On appeal to the Superior Court the demurrer was overruled, and the defendant appealed. The case then was tried before Bell, J.</p> <p>The plaintiff put in evidence the alleged note and a notary’s certificate of protest, from which it appeared that the notary made demand and protested the note on August 19, 1895, and on the same day mailed a notice of protest to the defendant, addressed to the defendant at Boston, Massachusetts, without designating any street or number. It was agreed, that all the signatures upon the instrument were placed thereon in Massachusetts, and that it then was mailed in Massachusetts to the plaintiff in South Dakota; that at the time this was done the plaintiff held a promissory note signed by Odin Fritz, the maker of the note, for a greater amount, and that the instrument in question was signed and mailed to the plaintiff, in accordance with an agreement which had been made by the plaintiff, Fritz and the defendant, in renewal of the larger note, on which a cash payment had been made by Fritz which reduced the original note to the amount of the note in suit. The plaintiff then rested and no other evidence was introduced.</p> <p>It then was agreed, that, if on the evidence the plaintiff was entitled to a verdict, the judge should direct a verdict for the plaintiff in the sum of $300; otherwise, that the judge should direct a verdict for the defendant.</p>

<p> Negligence. Elevated Railway. </p> <p>It is no evidence of negligence on the part of an elevated railway company operating a train in a subway, that while the train was stopping at a station in the subway, where a curve of the track increased the space between the platforms of the cars on the outer side of the curve, a woman passing from one car to another, and not looking down to see the width of the space between the cars, fell and was injured by reason of one of her legs going down into the space as far as her knee, and that she saw no guard or other employee of the railway company on either of the ear platforms before she fell. Whether on these facts the woman could have been found to be in the exercise of due care, quiere.</p>

<p>Appeal from a decree of the Probate Court for the county of Essex made on April 27, 1903, allowing a certain instrument as the last will and testament of Francis M. Butterfield, late of Lynn.</p> <p>The case was heard by Loring, J., who found that the testator was of sound mind, that no undue influence was exercised, and that the will was executed properly. At the request of the contestants, he reported the case for determination by the full court.</p>

<p>Tort by a workman in a cordage factory, a native of the Island of Brava tbirty-two years of age, for having three of his fingers cut off by the cog wheel gearing of a spinning frame while moving a shipper fork to shift a belt of the machine, with a count at common law alleging negligence of the defendant in setting the plaintiff at work in an unsuitable and unsafe place and near dangerous, unboxed and unguarded machinery, the unguarded condition of which was unknown to the plaintiff, and another count under the employers’ liability act alleging a defect in the ways, works or machinery of the defendant. Writ dated March 13, 1901.</p> <p>In the Superior Court the case was tried before Hitchcock, J. The evidence in regard to the happening of the accident is described sufficiently in the opinion.</p> <p>The testimony admitted against the objection of the defendant, referred to in the last paragraph of the opinion, was as follows: One Lomba, called by the plaintiff, testified that he had worked at the defendant’s factory for fifteen years but left a week before the time of the trial, and that on the morning of the accident and for some time previous he had worked on the same set of machines that the plaintiff was at work on when he was hurt. In the course of his direct examination he was asked the question “ Is it possible for your hand to come in contact with these gears when the cover is on ? ” The defendant objected, but the witness was allowed to answer the question and answered “ No.”</p> <p>One Gomez, called by the plaintiff, testified that he was no relation of the plaintiff, and that he had worked in the factory about nine years and still worked there. He was asked in direct examination “ Would it be possible for a person to get his hand caught in gears while moving the shipper fork if the cover was on the box?” The defendant objected, but the witness was allowed to answer the question and answered “ No.” The witness then was asked in direct examination “ If you were putting on the belt and supposing the cover were on the box could you get caught in the gears?” The defendant objected, but the witness was allowed to answer the question and answered “ No.”</p> <p>At the close of the evidence the defendant asked the judge to rule that on the whole evidence the plaintiff could not recover under either count of his declaration, and to order a verdict for the defendant. The judge refused to rule as requested and submitted the case to the jury. The jury returned a verdict for the plaintiff in the sum of $1,500; and the defendant alleged exceptions, to the refusal of the judge to rule as requested and to the admission of the evidence above quoted. On the last point the defendant contended that the witnesses were not experts and also that the matter testified to was not a proper subject for expert testimony.</p>

<p>Contract upon an account annexed of forty-seven items, twenty-five items for ten per cent of the gross receipts of a restaurant paid by the plaintiff to the defendants amounting to $430.43, ten items for money paid for gas bills amounting to $218.76, nine items for money paid for electric light bills amounting to $89.03, one item for money paid for one half of the salary of a porter amounting to $128, one item for extra help employed by the plaintiff for the benefit of the defendants amounting to $287, and one item for labor performed and furnished by the plaintiff as superintendent at the request of the defendants amounting to $376. Writ dated August 21, 1899.</p> <p>At the first trial of this case before Aiken, J. the jury returned a verdict for the plaintiff, and the defendants alleged exceptions which were sustained by this court in a decision reported in 181 Mass. 256. After the bringing of the action mentioned in the opinion, in which the defendants demurred to the declaration on the ground that the plaintiff alleged an oral contract that was not to be performed within a year, this case again was tried before Aiken, J., who, at the close of the plaintiff’s case, ordered a verdict for the defendants on all the items of the account. The plaintiff alleged exceptions.</p> <p>The case was argued at the bar in March, 1904, before Knowlton, C. J., Morton, Hammond, Boring, & Braley, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Master and Servant. Negligence, Employer’s liability. Animal.</p> <p>If a baker employing a large number' of men tells the driver of one of his wagons that in his absence he can ask his brothers for any further instructions as to conducting the business that may be necessary, and in consequence of this direction the driver asks one of the baker’s brothers about an assistant to aid on the team in the delivery of goods to take the place of a boy then absent, and says that he probably can get a boy, to which the baker’s brother replies “ all right,” and if the driver previously has told the baker himself that he probably could get a certain boy named, to which the baker replied “ all right,” and thereupon the driver asks the boy whom he has named to the defendant to accompany him as an assistant and tells him that he will receive certain wages, and the boy complies, and is injured on the first day of his employment, it can be found that the boy was hired by the driver either with the knowledge and assent of the baker, or of his brother who had authority to act for him in his absence, and that the boy was the servant of the baker at the time of his injury.</p> <p>In an action by a boy employed as an assistant on a baker’s wagon against his employer, for an injury from being kicked by a horse of the defendant drawing the wagon when hit on tbe heels by tbe whiffletree upon the breaking of the breeching strap near a buckle, if it appears that the whiffletree would not have come in contact with the horse had not the breeching strap broken as it did and that the harness was an old one, there is evidence to go to the jury on the issue whether the harness was defective.</p> <p>Evidence of single instances of misconduct on the part of a horse, such as kicking and running away, is admissible to show that the general character of the horse is .vicious.</p> <p>Whether a horse on account of habits of shying and running away is more likely to behave in a vicious manner when a wagon presses against him and a whiffletree drops on his heels is a question of fact for the jury.</p> <p>In an action by a servant against his employer for injuries from being kicked by a horse of the defendant alleged to be vicious, whose viciousness it is alleged the defendant by the exercise of reasonable care ought to have known, after evidence of specific instances of misconduct on the part of the horse, such as kicking and running away, further evidence of the reputation of the horse is admissible to prove the defendant’s knowledge of his vicious qualities. For this purpose it is competent to show that because of such propensities the horse was driven with another horse by the defendant’s servants as it was not thought safe to drive him alone, and also to show a conversation in the defendant’s presence in which the horse was referred to as a “ runaway.”</p>

<p>Devise and Legacy, Construction.</p> <p>A testatrix at the time of making her will had a man P. and his wife A. in her service who had been in her employ for many years, both before and after their marriage to each other. By her will she left a fund to trustees “ to pay to P. who now works for me, the income and net profits arising therefrom during his life; and after the decease of said P. to pay the said income to his present wife, if she shall survive him, during her life, and after the decease of said P. and wife, to pay, distribute and divide the said principal fund, however the same may be then invested, to and among the children of said P. and wife and the issue of any deceased child by right of representation.” P. had a child by a former marriage, who survived both P. and his second wife A. There also were children by the second marriage who were living when the will was made and who survived their parents. Held, that the expression “ the children of said P. and wife” as used in this clause meant only tire children of their marriage, and did not mean the children of each of them, so that the child of P. by the former marriage was excluded from the distribution.</p>

<p>Bill in equity, filed June 16, 1903, by the owner and manufacturer of a proprietary medicine known as phenyo caffein, made from a secret formula originated and owned by the plaintiff, the trade mark of the medicine being registered in the United States patent office and in the office of the secretary of the Commonwealth of Massachusetts, to restrain the defendant, a retail druggist, from selling the medicine for less than twenty-five cents a box or advertising it for sale at less than that price, and from inducing and procuring one Bickford or any other person to buy the medicine from the plaintiff and sell it to the defendant in violation of the contracts made by such purchasers with the plaintiff, and for damages suffered from such wrongful acts of the defendant already committed.</p>

<p>Practice, Civil, Exceptions,- Agreed statement of facts. Municipal Corporations. Pauper. Public Health. Statute, Construction, Repeal, effect of. Board of Health.</p> <p>A party aggrieved by a ruling of law, made by a judge upon an agreed statement of facts which gives no power to draw inferences of fact, has the right to allege exceptions, under R. L. e. 173, § 106, but where such exceptions can present no questions which are not open on an appeal from a judgment on the agreed facts, the resort to exceptions is bad practice because wholly .useless.</p> <p>An erroneous ruling upon a question of law, made by a judge hearing a case upon an agreed statement of facts which gives no power to draw inferences of fact, if it is not material to the decision of the judge furnishes no ground for a reversal of the j udgment.</p> <p>The provision of R. L. c. 75, § 40, that “ each city shall establish and be constantly provided, within its limits, with one or more isolation hospitals for the reception of persons having smallpox or any other disease dangerous to the public health,” does not require that all persons ill with smallpox shall he treated in such hospitals and not elsewhere, and under the provisions of § 42 of the same chapter it is within the power of the proper officers of a city either to remove to a hospital the persons who have fallen ill of smallpox or to care for them in the houses where they reside, and no person can be removed to a hospital against his will unless in the opinion of the city’s board of health and of the attending physician the case cannot be isolated properly in the house where the patient resides. For these reasons the failure of a city to provide itself with a smallpox hospital does not prevent it from recovering in an action against another city under R. L. c. 75, § 57, for expenses incurred by its board of health for persons infected with smallpox having a settlement in the defendant city.</p> <p>In an action by one city against another, under R. L. c. 75, § 57, for expenses incurred by the plaintiff’s board of health for persons infected with smallpox having a legal settlement in the defendant, if it appears that the persons in question were the only ones who fell ill in the house in which they were eared for, the plaintiff can recover the amount of a physician’s reasonable bill, charging not only for his services required at the house but also for two weeks’ quarantine thereafter, for which the plaintiff in its contract with the physician had agreed to pay.</p> <p>In an action by one city against another, under R. L. c. 75, § 57, for expenses incurred by the plaintiff’s board of health for persons infected with smallpox having a legal settlement in the defendant, the plaintiff cannot recover expenses incurred for the services of policemen stationed to enforce the quarantine of the house in which the patients were isolated, or for supplies for other persons not ill who were quarantined in the same house, these expenses having been incurred not for the persons infected with smallpox but for the preservation of the public health.</p> <p>A statute is not to be construed as retroactive unless an intention that it should affect past transactions is expressed in its provisions.</p> <p>St. 1002, c. 213, relating to the compensation of a city or town for expenses incurred for persons infected with smallpox having settlements in another city or town, which repealed R. L. c. 75, § 57, relating to the same subject, did not destroy or affect obligations existing under the repealed section.</p> <p>Whether under St. 1902, c. 213, § 1, a city or town, whose board of health has incurred expenses for persons infected with smallpox having settlements in another city or town can maintain an action for such expenses without first obtaining the approval of its bill by the board of health of the defendant city or town, qucere.</p>

<p>Tort for personal injuries received on May 22, 1901, while the plaintiff was employed in the defendant’s factory at Haverhill, alleged to have been caused by the negligence of one Pratt, the defendant’s foreman in charge of the work at the factory. Writ dated August 24, 1901.</p> <p>In the Superior Court the case was tried before Be Oourcy, J., who refused the defendant’s requests for rulings which are quoted in the third paragraph of the opinion, and submitted the case to the jury with a special question the answer to which is stated in the same paragraph of the opinion. The jury returned a verdict for the plaintiff in the sum of $4,000 ; and the defendant alleged exceptions.</p>

<p>Contract on three promissory notes, each for 12,432.33, dated December 9,1899, payable to and indorsed by the defendant and discounted by the plaintiff, as described in the first paragraph of the opinion. Writ dated April 25, 1900.</p> <p>At the trial in the Superior Court before Harris, J. the jury returned a verdict for the defendant; and the plaintiff alleged exceptions, raising the questions stated by the court.</p>

<p>Equity Pleading and Practice, Master’s report. Deed, Delivery.</p> <p>A finding of fact by a master in a suit in equity, confirmed by an order of the court to which his report was made, will not be reversed unless the reported evidence clearly shows it to be wrong. In this case two deeds made by an aged woman and placed by her direction in the hands of one of her sons who was her confidential man of business, and who also was one of the grantees, were found by the master, on the facts as reported by him, to be void for want of delivery, • and this finding, confirmed by the Superior Court, was not disturbed by this court.</p>

<p>Contract for the amount of a tax for the year 1901, assessed npon the plaintiff as a resident of Boston and paid under protest. Writ dated September 17, 1902.</p> <p>In the Superior Court the case was tried before G-ashill, J., without a jury. The judge made the findings of fact and the rulings stated in the opinion of the court, and found for the defendant. At the request of the parties, he reported the case for determination by this court. If the finding could be sustained, judgment was to be entered for the defendant; otherwise, judgment was to be entered for the plaintiff for the amount of the tax and costs.</p>

<p> Negligence. Street Railway. </p> <p>A passenger in a car of a street railway company cannot recover from the company for injuries caused by a collision of the car with a team driven at night without lights at a pretty fairly lively gait on an unlighted street, crossing the car track from an intersecting street, from which the driver could have seen the car when it was one hundred feet or less away from the corner and when he himself was within five hundred feet of the corner, and where the car was not running at an excessive rate of speed, and the motor was reversed a second or so before the collision, apparently as soon as the team emerged from the darkness into the space lighted by the lights of the car, the only negligence shown being that of the driver of the team.</p>

<p>Tort by the assignee in bankruptcy of the estate of Frank E. Reed of Athol, against the wife of the bankrupt, for $3,500 alleged to have been placed fraudulently by the bankrupt in the hands of the defendant and by her converted to her own use. Writ dated October 7, 1901.</p> <p>In the Superior Court the case was tried before Maynard, J., who refused to rule that the plaintiff could not maintain his action, and submitted the case to the jury. The jury returned a verdict for the plaintiff for the full amount claimed; and the defendant alleged exceptions.</p>

<p>Two ACTIONS op TORT, the first by Jeanette F. Tozier for personal injuries sustained while a passenger in an open electric car of the defendant, which ran off the track on a down grade on a street in the outskirts of Haverhill and ran into a bank and the stump of a tree at the side of the road, and the second by Holey M. Tozier, as the husband of Jeanette, for damages alleged to have been incurred by him in consequence of her injuries. Writ dated July 15, 1902.</p> <p>At the trial in the Superior Court before Hardy, J. the jury returned a verdict for the plaintiff in each case, for the plaintiff in the first case in the sum of $10,000, and for the plaintiff in the second case in the sum of $2,000. The defendant alleged exceptions, raising the questions stated by the court.</p>

<p>Negligence, Employer’s liability. Railroad.</p> <p>A railroad company is not liable to a workman employed in loading freight at its freight house into cars, who is injured when hauling a heavily loaded truck over a running board or skid serving as a bridge between two freight cars, from one end of the skid slipping off its support because not fastened by a cleat and causing the workman and his load to fall, if it is the custom to fasten the ends of the skids by nailing cleats across them and this is left to the workmen, who find hammers, nails and small pieces of wood for the purpose wherever they can, by going to different parts of the freight house or a short way outside of it.</p>

<p> Attorney at Law. Attorney General. </p> <p>In a proceeding in which the Commonwealth is a party the attorney general may authorize an attorney at law, who is not an assistant attorney general or a district attorney and who represents a certain town in the proceedings, to take and enter an appeal for him in behalf of the Commonwealth.</p>

<p>Contract, by a firm of stevedores, on a policy insuring the plaintiffs against liability for injuries to employees “ fatal or non-fatal,” alleging such liability incurred and damages paid by reason of fatal injuries to one Garant, who fell from a defective platform of a coal run to the deck of a barge while employed by the plaintiffs in unloading coal from the barge. Writ dated March 19, 1903.</p> <p>In the Superior Court the case was heard upon an agreed statement of facts, called an agreed statement of evidence, by Stevens, J., without a jury. He found for the plaintiffs in the sum of 15,403.69, and gave judgment for that amount. The defendant appealed.</p>

<p>Practice, Criminal, Exceptions. Larceny. False Pretences. Evidence, Of other crimes to show intent, Presumptions and burden of proof.</p> <p>Where a criminal case coming before this court on the defendant’s exceptions is submitted on briefs an exception not mentioned in the defendant’s brief is considered waived.</p> <p>At the trial of an indictment for larceny, consisting of the alleged fraudulent sale of a business at an amount grossly in excess of its value by means of false pretences, evidence, that the sales of goods after the transfer of the business immediately were much less than they had been represented to be, is admissible to show that the representations as to the amount of the business before the transfer were false, as it is not to be expected that an established business will diminish seriously at once without some good reason.</p> <p>At the trial of an indictment of two defendants for larceny, consisting of the alleged fraudulent sale of a business to a certain person at an amount grossly in excess of its value by means of false pretences, if the evidence discloses a general conspiracy between the two defendants to cheat whomever they could by selling out a pretended business for cash by means of false representations, evidence of the acts of either or both of the defendants in deceiving other persons in a similar manner is admissible to show the knowledge of each of the defendants of the falsity of the representations made and of the intention of each to cheat by means of such representations.</p> <p>The following instruction in regard to the presumption of the innocence of the defendants in a criminal case was held to be a correct statement of law: “ The jury start with the presumption that the defendants are not guilty until the evidence satisfies you differently. But when the evidence . . . satisfies you beyond any reasonable doubt, the evidence introduced by the government and the evidence of the defendants,'when you are satisfied on that evidence, that'the defendants are guilty, then you should say so, otherwise you say the case is not proved and return a verdict of not guilty.”</p>

<p>Petition, filed in the Probate Court for the county of Suffolk on May 25, 1901, for an order of distribution to be made by the first petitioner, Thomas W. Merrill, as trustee under a deed executed by Sarah S. Preston and Horatio W. Preston of a certain fund held for the benefit of Frances Maria Preston during her lifetime, she having died unmarried on October 22, 1898.</p> <p>The provision of the deed under which distribution was sought was as follows: “and in trust to pay to said Frances Maria Preston the net income ascertained as aforesaid which shall during her lifetime arise or accrue from the remaining ninth part of said trust property semi-annually into her hand or upon her receipt or order therefor signed at or immediately before the payment thereon, and not by way of anticipation and so as not to be liable for or subject to her debts, contracts, engagements or liabilities and at her decease to convey the last mentioned ninth part one third thereof to said Sarah S. Preston if then living, but if then deceased to her heirs at law and the other two thirds thereof to the said Horatio W. Preston, if then living, but if then deceased to his heirs at law.”</p> <p>Horatio W. Preston died on October 18, 1878, leaving no issue, his sole heir at law at the time of his death being his mother, Sarah S. Preston, who died on July 15, 1882.</p> <p>In the Probate Court McKim, J. made a decree that the whole fund should be paid to George D. Edmands, surviving executor under the will of Sarah S. Preston. The respondents Alonzo F. Preston, Eliza L. Kendall and Charles E. Stratton, conservator of the property of Sarah A. Harris, appealed.</p> <p>On appeal the case came on to be heard before Braley, J., who at the request of the parties reserved it on the pleadings and agreed facts for determination by the full court.</p> <p>The case was argued at the bar in January, 1904, before Knowlton, C. J., Lathrop, Barker, Hammond, & Braley, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p> Poor Debtor. </p> <p>If a poor debtor, who is charged with fraud under R. L. c. 168, § 17, cl. 2, and who has entered into a recognizance for his appearance for examination, voluntarily makes default by failing to appear at the time and place appointed for the hearing, under §§ 52 and 55 of the same chapter he has forfeited the benefit of the proceedings under the provisions of the chapter, and there is a breach of his recognizance.</p>

<p>Trust, Termination.</p> <p>A testator directed that certain municipal and railroad bonds named, if owned by him at the time of his death, should be set apart by his executor to provide for the payment of a certain income to each of two nieces named so far as necessary for that purpose, and that all the other bonds which he should own at the time of his death should be held by a certain trust company, as trustee, until the death of the two nieces above referred to, that the interest therefrom should be paid to his executor for distribution to the persons entitled to receive it under his will, and that on the death of both of the nieces, the bonds might be sold and distributed with all accumulations to the persons entitled to the residue of his personal estate. While the nieces still were living, three out of four of the persons entitled to the residue of the testator’s personal estate, all being of age, filed a bill in equity praying for the termination of the trust. The fourth beneficiary and the trustee opposed the termination of the trust before the death of the nieces. Held, that, even if this court ever would terminate such a trust against the objection of one of the beneficiaries, there was no reason for doing so in this case, it being plainly the intention of the testator that the trust should continue until the death of both of his nieces, the provision to that end being lawful, and nothing having happened which the testator did not anticipate.</p>

<p>Bill in equity, filed July 14,1902, by the children and heirs at law of Henry Moore, deceased, to redeem certain land in Lynn from two mortgages made by Henry Moore in his lifetime.</p> <p>In the Superior Court the ca,se was referred to Henry Ward-well, Esquire, as master, by an order quoted in the opinion. The master found for the plaintiffs, and refused the defendant’s requests in regard to reporting the evidence as stated in the opinion. Stevens, J. denied a motion of the defendant to order the master to report the evidence, the defendant appealing from this order, as stated in the opinion. The judge then heard the case upon the master’s report and the defendant’s objections and exceptions thereto, and made the following decree: “that the exceptions to the master’s report be and the same are hereby overruled; the master’s report is confirmed and it is further adjudged that the plaintiffs have a right to redeem and that they may redeem the real estate described in the plaintiffs’ bill upon the payment to the defendant of the sum of $2,458.44, being the amount found to be due to the defendant by the master, within sixty days from the entry of this decree and the further payment of interest on said amount from October 29, 1903, to the date of payment, at six per cent per annum; and upon the payment of such sum the defendant shall execute and deliver to the plaintiffs a deed, conveying to them all right, title and interest in said real estate which he acquired under and by virtue of the deed from James Pool, said deed being dated December 18, 1892, and being recorded in Essex South District Registry of Deeds, Book 1842,. Folio 589, free and clear from any and all incumbrances placed thereon by said Dick, whether by way of purchase money, mortgage or otherwise; and the defendant shall further execute and deliver to the plaintiffs an assignment of all right, title or interest that he may have in and to the said real estate under the two mortgages from Henry Moore to Philemon R. Russell, dated respectively October 10,1873, and November 1, 1873, and recorded in the Essex South District Registry of Deeds, on October 16, 1873, and November 6,1873, respectively.”</p>

<p>Bill in equity, filed July 3, 1902, to enforce the specific performance of a contract to convey to the plaintiff a certain parcel of land in Boxford.</p> <p>The bill alleged, that on April 10, 1897, the plaintiff leased from the defendant a certain parcel of land in Boxford, which was known as “ The Plain,” for the term of five years from the date of the lease, that the plaintiff occupied the premises during the term of the lease and performed all things which by the terms of the lease he was bound to perform, and before the expiration of the lease notified the defendant that he would purchase the land described in the lease in accordance with the privilege given to him therein, that the exact amount of land in the parcel was not known either to the plaintiff or the defendant, but before the expiration of the lease the plaintiff offered to the defendant the purchase price of the land at the rate of $50 per acre according to the best estimation of the quantity of land which he could make and further offered to make good to the defendant any deficiency in the purchase price at the rate aforesaid if upon a survey of the premises it appeared that he had not paid sufficient money, that the defendant refused to accept the tender and refused to convey the premises to the plaintiff or to give him a deed thereof, and that upon the expiration of the lease the defendant re-entered the premises and at the time of the filing of the bill still held possession of them, praying that the defendant might be ordered specifically to perform the agreement contained in the lease and that upon payment by the plaintiff to him of the amount due at the rate of 150 per acre the defendant might be ordered to execute and deliver to the plaintiff a good and sufficient deed of the premises.</p> <p>The defendant demurred to the bill. In the Superior Court Holmes, J. overruled the demurrer, and the defendant appealed.</p> <p>Thereupon the case proceeded to trial. It appeared, that the defendant leased to the plaintiff the real estate in Boxford on April 10, 1897, for the term of five years as alleged in the bill, and that in the lease was contained the following agreement: “ And I, the said Henry M. Killam, agree to sell all of said land except the following described parcels to the said Cole for the sum of fifty dollars per acre at any time prior to the expiration of this lease.”</p>

<p>Tort for personal injuries from being run down by a train of tbe defendant while crossing the tracks of the defendant’s railroad in that part of Haverhill formerly called Bradford. Writ dated March 4, 1902.</p> <p>In the Superior Court DeOourey, J., at the close of the plaintiff’s evidence, ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Way, Defect in highway.</p> <p>A circular hole in the surface of a sidewalk from two to two and five eighths inches in diameter caused by the absence of one of the glass disks of a Hyatt light set in the sidewalk can be found to be a defect in the highway. Whether a hole so small that it could endanger no travellers except those using crutches could be found to be a defect in a highway, qumre.</p>

<p>Boston Park Commissioners. Parks and Parkways. Automobile. Words, “ Drive.”</p> <p>Under St. 1893, c. 300, § 1, the Boston park commissioners lawfully could take as a parkway Commonwealth Avenue in that city, from Arlington Street, where it begins, to its intersection with Beacon Street, with the consent of the public authorities having control of that avenue and with the consent in writing of the owners of a majority of the frontage of the lots abutting thereon, to connect it with the public park or driveway under their control called the Back Bay Pens, although having no control over the Public Garden which abuts on Arlington Street.</p> <p>Under St. 1875, c. 185, § 3, and St. 1893, c. 300, § 3, the Boston park commissioners have power to make rules for the use and government of the parkways under their control, and a rule made by them that “ no person shall ride or drive in Commonwealth Avenue at a rate of speed exceeding eight miles an hour” is valid, being authorized by statute and reasonable.</p> <p>St. 1902, c. 315, § 1, regulating the speed of automobiles throughout the Commonwealth, repealed by St. 1903, e. 473, § 15, and superseded by § 8 of the same statute, did not abrogate any park regulations or deprive any park commissioners of powers conferred by previous statutes to regulate the speed of vehicles on parkways, referring only to public highways, streets and ways, and § 8 of the superseding statute referring only to public ways or private ways, excluding parkways.</p> <p>The provision of St. 1903, c. 473, § 14, that no special regulation as to the speed of automobiles “ shall be effective unless notice of the same is posted conspicuously at the points where any road affected thereby joins other roads,” applies only to regulations made by boards of aldermen of cities or the selectmen of towns, and has no application to rules made by park commissioners.</p> <p>One who is controlling the motive power of an automobile may be said to be driving it within the meaning of a rule, made by a board of park commissioners, that no person shall “ ride or drive " in a certain parkway at a rate of speed exceeding eight miles an hour.</p>

<p>Contract on a policy for $500 issued by the defendant upon the life of Mary Sawyer, the plaintiff’s intestate. Writ dated March 18, 1908.</p> <p>The case was submitted to a judge of the Superior Court upon an agreed statement of facts, the substance of which appears in the opinion. The judge found and ordered judgment for the defendant ; and the plaintiff appealed.</p>

<p>Tort by a workman against his employer, a contracting mason engaged in constructing a large chimney for the Somerville Electric Company at Somerville, for personal injuries from the falling of a staging as the plaintiff went upon it in carrying up a hod of bricks, with six counts, of which the sixth alleged that the injuries were caused by the negligence of a -person in the service of the defendant entrusted with and exercising superintendence. Writ dated December 27, 1900.</p> <p>'At the trial in the Superior Court before Holmes, J., the judge required the plaintiff to elect upon which count he would go to the jury, and the plaintiff elected the sixth count charging negligence of the defendants’ superintendent, whereupon the judge ordered a verdict for the defendant upon the first five counts. The judge refused to order a general verdict for the defendant, and submitted the case to the jury on the sixth count. The jury returned a verdict for the plaintiff in the sum of $3,700; and the defendants alleged exceptions.</p>

<p> Landlord and Tenant. Nuisance. Ice and Snow. </p> <p>The tenant of the ground floor and basement of a building under a lease by which he has covenanted to save the lessor harmless from any claim or damage arising from neglect in not removing snow and ice from the roof of the building and from the sidewalks bordering on the leased premises, the upper stories of the building being let to another tenant under a lease containing a similar covenant, has control of the sidewalks adjoining the building, and is liable to a person injured from falling on an accumulation of ice in front of the building caused by the discharge of water from a spout conducting the water from the roof of the building and that of another'building adjoining it.</p>

<p>Bill in equity, filed June 9, 1904, by a religious corporation having a church used as its place of worship at No. 9 in Baldwin Place in Boston, to restrain the defendants from erecting and using a stable at No. 49 on North Margin Street in that city for taking and keeping horses and carriages for hire or to let within two hundred feet of the church of the plaintiff without the plaintiff’s consent in writing as required by R. L. c. 102, § 70.</p> <p>In the Superior Court the case was heard by Hardy, J., who found the facts stated in the opinion of the court, and made a decree that the bill be dismissed with costs. The plaintiff appealed. At the request of the defendants a commissioner was appointed under Chancery Rule 35 to report the evidence to this court.</p>

<p>Negligence, Employer’s liability. Evidence, Circumstantial, Collateral issues: remoteness.</p> <p>In an action by a woman employed in a factory against her employer for having her hand caught and injured by a machine which she was operating starting of itself after she had stopped it, if it appears that the plaintiff had complained to the second hand in charge of the machines that the machine had stopped of itself and the man had replied that he would “ have it fixed,” and that the next morning the plaintiff complaining to the second hand that the machine was not running well, and asking him if he had fixed it, he replied “ Yes, I have fixed the machine; that machine is all right”; and that afterwards, having pushed back the lever and brought the machine to a full stop, the plaintiff put her hand into the machine to find out whether it was working properly, when the machine started up and caught and injured her hand, there is evidence to go to the jury upon the questions, whether the plaintiff was in the exercise of due care, whether the second hand in charge, who was a person entrusted with the duty of seeing that the machinery was in proper condition within the meaning of R. h. c. 106, § 71, cl. 1, was negligent in not repairing the machine at all or in repairing it improperly, and whether the machine was defective, the fact that the machine started of itself being evidence upon the last two questions.</p> <p>In an action of tort for personal injuries alleged to have been caused by the negligence of the defendant, if the plaintiff introduces evidence from which negligence of the defendant may be inferred he need not point out the particular act or omission which caused the accident.</p> <p>In an action by an employee in a factory against her employer for having her hand caught and injured by a machine which she was operating starting of itself after she had stopped it, it is within the discretion of the presiding judge, to exclude as too remote evidence offered by the plaintiff to show that about eleven weeks before the accident the person offered as a witness was working on the same machine when it started of itself after being stopped and that the attention of the superintendent was called to the matter and the machine was taken to pieces and an attempt made to repair it.</p>

<p>Negligence, Contributory, In driving.</p> <p>If one in driving approaches a double line of ear tracks, where he knows that ears frequently are passing in both directions, and holds up his horse to allow a car to pass, and if immediately afterwards he drives upon the tracks without looking to see whether a car is coming from the opposite direction which he could not see or hear while the first car was passing, and is struck by such a car, he is negligent as a matter of law.</p>

<p>Evidence, Presumptions and burden of proof. Municipal Corporations, Liability for accident on ferryboat operated by city. Carrier, Of passengers.</p> <p>In an action against a city for injuries caused by the plaintiff slipping on a lump of ice frozen up'on the deck of a ferryboat operated by the defendant, if it appears that the accident happened on the twenty-fifth of January and no evidence is introduced as to the actual temperature, it will be presumed to have been that of ordinary winter weather.</p> <p>In an action against a city, for injuries sustained while a passenger on one of a line of ferryboats operated by the defendant, caused in ordinary winter weather by the plaintiff slipping on a lump of ice about three inches long and an inch and a half wide, about as thick as a person’s finger and in the middle a little higher, frozen to the deck so solidly that it could not be picked off by hand, in which it is admitted for the purposes of the case that the liability of the defendant is that of a carrier of passengers, the plaintiff on showing these facts has made out a prima facie case entitling him to go to the jury.</p> <p>In an action against a city for injuries sustained while a passenger on one of a line of ferryboats operated by the defendant, in which it is admitted for the purposes of the case that the liability of the defendant is that of a carrier of passengers, it is no defence that the plaintiff and her mother, the only-witnesses, illiterate and ignorant women, do not know the name of the ferryboat on which the accident happened, and it is for the jury to say whether the inability of the witnesses to give the name of the boat proceeds from their ignorance or is evidence that the whole claim is a fraud.</p>

<p>Negligence, Contributory, In driving.</p> <p>For one driving in a covered wagon with projecting sides cutting off the view except in front, after proceeding by the side of a street car track for three quarters of a mile, to turn suddenly across the tracks without looking or listening and with nothing to give assurance that a car is not near, going so slowly that considerable time must be taken in crossing the tracks, is negligence as matter of law, and a person thus driving whose team is struck by an electric car coming from behind at an excessive rate of speed cannot recover from the railway company for the injuries incurred. Nor can his employer sitting by his side.</p>

<p> Landlord and Tenant. </p> <p>A landlord is not liable for an injury to a tenant from a fall caused by the giving way of a rotten railing of a piazza which the landlord has not agreed to repair and the tenant has not asked him to repair, although the landlord’s agent in charge of repairs has noticed the railing two weeks before the accident and has found it weak and shaky and after making certain repairs including a new board in the floor of the piazza has assured the tenant that everything is safe and sound, and that she need not fear to use the piazza; and the fact that the agent at the request of the tenant has made the other repairs is immaterial.</p>

<p>Tort, by a girl ten years of age, for injuries to two of her fingers on which a window of a car of the defendant fell as the train, in which the plaintiff was a passenger with her sister, started from a station in the city of Lawrence called North Lawrence on August 3, 1902. Writ in the Municipal Court of.the City of Boston dated August 5, 1902.</p> <p>On appeal to the Superior Court the case was tried before Schofield, J., who ordered a verdict for the defendant. The plaintiff alleged exceptions,.</p>

<p>Petition, filed February 16, 1904, under R. L. c. 182, § 11, by the owner of a lot of land numbered 8 on Aldington Street in Boston, to determine the validity, nature and extent of certain restrictions or stipulations appearing of record to have been imposed on the petitioner’s land by a deed from Oliver Brewster to John Foster dated March 11, 1863.</p>

<p>Partnership, Good will.</p> <p>On the dissolution of a partnership by the death of one of the partners the good will of the partnership business is a part of the assets of the partnership, and, in the absence of an agreement between the partners on the subject, the executor or administrator of a deceased partner has a right to have it sold in the liquidation of the assets of the partnership.</p> <p>In this Commonwealth, where a sale of partnership assets including the good will of the partnership has been forced upon a surviving partner by the administrator of a deceased partner, the surviving partner has the right to enter at once on a competing business and solicit'trade from customers of the firm.</p> <p>Where the survivor of two partners in the teaming business after the death of Ills partner carries on the business in his own name at the old stand with only slight changes in the personnel of his custbmers for nearly two years, and then sells the good will of his business witli a covenant to remain in the employ of the purchaser for six months and to do all in his power to hold the customers for the purchaser and with another covenant not to engage in the teaming business within the district covered by the old business for five years, he is under no obligation to account for the proceeds in even a nominal sum to the executor or administrator of his former partner, as the good will sold is his own and not that of the former partnership.</p>

<p>Insurance, Against liability. Equity Jurisdiction, To reach and apply equitable assets. Words, “Defend”, “Settle.”</p> <p>When a policy insuring against liability for bodily injuries caused by the negligence of the insured contains a provision, that no action shall lie for any loss under the policy unless brought by the insured “ to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment after trial of the issue,” payment of the judgment by the insured is a condition precedent to liability of the insurance company.</p> <p>In a policy insuring against liability for bodily injuries to employees caused by the negligence of the insured, a provision that on notice of an action against the insured on account of an accident covered by the policy “ the company will defend against such proceeding, in the name and on behalf of the assured,” the word “ defend” has its ordinary meaning and .does not import an agreement to defend successfully, and if in spite of the defence judgment is given against the insured, the question whether the insurance company is bound to pay the amount of the judgment depends on the terms of its agreement to indemnify the insured against loss.</p> <p>A provision in a poliey against liability for bodily injuries caused by the negligence of the insured, that the insured shall not “ settle any claim ” without the consent in writing of the insurance company, does not refer to the payment by the insured of a judgment against him which by the terms of the policy is made a condition precedent to liability of the insurance company.</p> <p>R. L. c. 159, § 3, cl. 7, giving a creditor the right to reach and apply to the pay- • ment of a debt equitable assets of his debtor deals with existing equitable riglit3 and does not authorize a court of equity to complete inchoate rights to create property which then would be subject to attachment by trustee process in an action at law.</p>

Bill in equity, filed February 25,1902, by tbe principal and sureties on a bond of indemnity given by tbe -first named plaintiff to tbe New York, New Haven, and Hartford Railroad Company, against that railroad company and the Union Casualty and Surety Company, to restrain the defendant railroad company from the further prosecution of an action against the plaintiffs on the bond of indemnity and also of an action of tort against the first named plaintiff, and to compel the…

<p> Partition. Judgment. Probate Court. Lis Pendens. </p> <p>Whether the provision of R. L. c. 184, § 4, that a petition for partition shall set forth the rights and titles “ of all persons interested who would be bound by the partition, stating whether they have an estate of inheritance, for life or for years, whether in possession, remainder or reversion, and whether vested or contingent,” requires a petitioner who owns one twelfth of the real estate which is the subject of the petition to set forth the interest of one who has obtained a decree for the specific performance of a contract ordering the owners of the other eleven twelfths of the property to convey their shares to him, so that notice of the petition shall be given to the holder of such decree, qucere.</p> <p>A decree of the Probate Court within its jurisdiction is good until set aside and cannot be attacked collaterally.</p> <p>Mere knowledge by a purchaser of land sold under a decree of partition in accordance with the provisions of R. L. c. 184, § 47, that a suit is pending in which the plaintiff has obtained a decree for the specific performance of a contract by the conveyance of the land to him by the owners in common other than the petitioner for partition, does not invalidate the partition sale so long as the decree of the Probate Court ordering it remains unrevoked, and if the holder of the decree in equity desires to set aside the sale on the ground that he had no notice of the partition proceedings, his remedy, if he has any, is to apply to the Probate Court for a revocation of the decree.</p>

<p> Carrier. Municipal Corporations. Boston. </p> <p>A city operating a ferryboat as a carrier of passengers and their property for hire can be found liable for injuries to a passenger and his horse and wagon caused by a large wagon with a heavy load drawn by two horses sliding backward into the plaintiff’s team down a drop one hundred and fifteen feet long leading up a steep incline to the wharf at the place of landing, if it appears, that there was a motor with a gearing in a large headhouse there which often was used to help heavy teams up the drop and was used after the accident to draw up the load which slid back, and if the superintendent of ferries testifies that it was the custom for deck hands to follow the teams and “chock” them, that is, to be ready to block them in case they should roll back or get stuck on the drop, and that blocks laid at the end of the boat were provided for that purpose, and if it also appears that the driver of the heavy team called out to one of the deck hands to “ block ” him as he started up the drop.</p> <p>A city operating a ferryboat as a carrier of passengers and their property for hire is liable for injuries to a passenger and his horse and wagon caused by the neglect of its agents or servants to make reasonable provision for the passage of teams from the ferryboat to the wharf at the place of landing, even if the negligence of a third person contributed to the injuries.</p> <p>Whether a passenger on a ferryboat is in the exercise of due care in starting with his horse and wagon up a steep drop leading to the landing place when a heavy team is two thirds or three quarters of the distance up the drop and more than fifty feet ahead of him, and he sees a deck hand standing there whose duty it is to “ block ” teams going up the drop and who has been asked by the driver of the heavy team ahead to “ block ” him and attempts to do so when it is too late, is a question of fact for the jury.</p>

<p>Judgmeni. Practice, Civil, Agreed statement of facts.</p> <p>A judgment for the plaintiff in an action against a city for an alleged defect in a highway has no force or effect against a person who originally was joined as a defendant in the action and against whom it afterwards was discontinued, and the city after having paid the judgment cannot make use of it to recover the amount paid from the person who originally was a joint defendant.</p> <p>Upon an agreed statement of facts in which no power to draw inferences is given the judgment must be for the defendant unless the facts stated show a liability to the plaintiff as matter of law.</p>

Indictment fob libel, found and returned on October 11, 1902. In the Superior Court the defendant was tried before Bond, J., and the jury returned a verdict of guilty. The subsequent proceedings are stated in the opinion.

<p> Tax. Constitutional Law. Boston. </p> <p>The Legislature may authorize the re-assessment of a betterment tax if the original assessment has failed because of informality or other defect.</p> <p>The assessment of betterments, if other necessary conditions exist', may he authorized by the Legislature as well after as before the expenditure is incurred.</p> <p>St. 1902, c. 527, authorizing assessments of betterments to be made within one year after the passage of the act for certain public improvements in Boston completed by that city within six years before the passage of the act,.is constitutional, and was enacted to enable the city to assess betterments in cases where on account of the uneonstitutionality of previous statutes or of illegality in the proceedings under them a valid assessment otherwise could not be madej therefore it includes authority to assess betterments for expenditures in the construction of Huntington Avenue which were illegal when incurred.</p> <p>St. 1902, c. 527, authorizing the re-assessment of betterments for certain improvements in Boston for which the previous assessments had been invalid by reason of uneonstitutionality of statutes or of illegality in incurring the expenditures for which the assessments were made, is not unconstitutional on account of its provision exempting from such assessment the estates of owners who voluntarily have paid former invalid assessments in full and cannot recover them hack, because under this statute only an amount not exceeding one half of the expenses incurred for the improvement can be assessed, and the Legislature is presumed to have assumed that all previous invalid assessments that had been paid in full without protest were greater than could be assessed under the present statute and therefore that the owners of other estates cannot suffer from their exemption.</p>

<p>jBankruptcy. Assignment, For benefit of creditors. Insolvency.</p> <p>Under the bankruptcy act of 1898 an assignment for the benefit of creditors good at common law cannot be set aside by a trustee in bankruptcy if made more than four months before the filing of the petition in bankruptcy.</p> <p>An assignment for the benefit of creditors good at common law is none the less valid in relation to the bankruptcy act of 1898 because no copy of it has been deposited with the clerk of the city or town in which the principal business of the debtor is carried on as required by R. L. c. 147, §§ 21,22, for the purposes of proceedings in insolvency, those provisions having no reference to the bankruptcy act or to the rights of creditors at common law and like other parts of our insolvency law being suspended so long as the bankruptcy act continues in force.</p>

<p> Devise and Legacy. Power. </p> <p>A testator left a fund in trust, to pay the income to a son during his life, “ and at his death the principal to distribute among those persons who would be legally entitled to receive the same were it given to him absolutely and he owing no debts.” The son died testate leaving a wife and adopted daughter, and by his will gave $100 to his adopted daughter and “ the balance ” of all his property both real and personal to his wife. Held, that no power of appointment in the son could be inferred from the above bequest in trust, that the son by his will did not undertake to dispose of the trust fund held under the will of his father which was not his property, and therefore that the will of the son must be disregarded in distributing the fund under the will of the father, the result being that one third- of it should be paid to the widow and two thirds to the adopted daughter.</p>

<p>Two petitions, filed October 10,1901, and July 19, 1901, to enforce mechanics’ liens on certain real estate on Magnolia Street in that part of Boston called Dorchester.</p> <p>In the Superior Court the cases were tried together before Sheldon, J. It appeared that in the latter part of February or the early part of March, 1903, the validity of the liens being in dispute and no hearings having been had on the petitions to establish them, the owners of the equity of redemption of the real estate in question executed and delivered to one William C. Brackett a quitclaim deed conveying the legal title of the property to Brackett. The title so was conveyed for the purpose of having Brackett give bonds dissolving the alleged liens. This purpose was not stated in the deed, but was explained orally to Brackett. Brackett was not pecuniarily responsible, and frequently was employed by different persons to take title to real estate in order to give mortgages thereon and sign mortgage notes. He paid nothing for the conveyance. He was paid by the persons from whom his grantors purchased the property $5 for signing each of the bonds. Otherwise, he had no interest in the property. Soon after taking title Brackett executed bonds as principal for the purpose of dissolving the liens, the bonds being filled out with a description of the property, his own name as principal obligor and the names of the obligees, but being left blank as to dates and the names of sureties. These instruments signed by Brackett were delivered by him to an agent employed by the persons from whom his grantors had purchased, to be used in discharging the liens.</p> <p>On May 29,1903, the bonds were filled out completely, one in favor of the petitioners Breed and Trask, and the other in favor of the petitioner Duquet, and were signed by two men, who represented themselves to be John F. Perry and Thomas F. Connor. Counsel for Breed and Trask and Duquet were notified that application would be made to Major Edward J. Jones, a master in chancery, to approve the sureties on the two bonds. Each of the counsel by writing on the back of the instruments waived notice of the time and place of hearing, each attended the hearing before the master in chancery, and each had an opportunity to see and examine the persons who were offered as sureties. The signing by the persons offered as sureties was done in the presence of the master in chancery, and he signed as witness to their signatures. The bonds were in the usual form, the one in the Breed case being for $2,000 and the one in the Duquet case being for $4,000. The persons presented as sureties were sworn and questioned by the master, who took down in writing what they testified to. The master made a brief record of the cases in his docket or record book. Nothing appeared to excite any suspicion that the persons offered as sureties were not the persons who they represented themselves to be, or that their conduct was in any way irregular, or that their statements were untrue. The master, after the examination and hearing, signed the blank on the back of each bond approving the sureties. On the same day the instruments were recorded in the registry of deeds of Suffolk County.</p> <p>'In July, 1903, one Mary A. Bolster foreclosed a mortgage upon the property by a sale under the power in the mortgage, and the title was taken by Wilbert S. Bartlett acting for the mortgagee. On July 29, 1903, Bartlett signed an agreement in writing to sell and convey the property to Samuel E. Blanchard, free from incumbrances, except mortgages amounting to $40,000, taxes for 1903 and a sewer assessment. On July 30, 1903, he executed and delivered to Blanchard a warranty deed of the property purporting to convey it free from incumbrances except as stated in the agreement. This deed was recorded the same day. Blanchard had the record title examined, and the judge found that he purchased for value in good faith, relying upon the record title. Blanchard took possession of the property on August 1,1903, and ever since has been in possession, collecting the rents.</p> <p>On May 26, 1904, verdicts were given for the petitioners, in the Breed case in the sum of $1,138.46, and in the Duquet case in the sum of $3,170. Thereafter the counsel for Breed and Duquet made an examination concerning the sureties on the bonds, and in June, 1904, became convinced that the persons who signed as sureties had committed perjury and forgery and were not the persons they had pretended to be. They informed Blanchard and Bolster of what they had learned and at once filed motions asking for an order of sale.</p> <p>This was the first information or notice which Blanchard had that anything was wrong about the giving of the bonds. On June 29, 1904, he filed by consent in each of the cases an intervening petition setting out his title as a bona fide purchaser for value, and praying to be admitted as a party respondent to defend the cases and to be heard in opposition to the motions asking for an order of sale.</p> <p>The judge found that the persons who signed the bonds as sureties forged the names of the persons they falsely impersonated and were guilty of perjury in their statements as to who they were and the property they owned. These persons since have disappeared. It did not appear who, if any one, other than the sureties was guilty of fraud or criminality in the matter.</p> <p>The petitioners contended that Brackett did not have a sufficient title to make him competent to give bonds to dissolve the liens, but the judge refused so to rule and ruled that Brackett upon the facts above found took the legal title to the property and was competent to give bonds to dissolve the liens.</p> <p>The respondents contended that inasmuch as the motions for an order of sale were made in proceedings at law, the petitioners could not go behind the recorded deeds and instruments, and also that the approval of the sureties upon the bonds by the proper magistrate after a hearing followed by the recording of the bonds in the registry of deeds operated to discharge'the liens, especially as against Blanchard, a bona fide purchaser, who took his deed relying upon the record title. The respondents contended that upon all the facts the petitioners were not entitled to an order of sale. The judge ruled that the signatures of the sureties upon the bonds being forgeries the instruments were null and void, and were entirely inoperative in spite of the action of the magistrate.</p> <p>It was agreed that each of the petitioners was entitled to an order of sale unless the bonds dissolved the liens. The judge ordered that in each case the lien be established for the amount found by the jury, and that an order of sale issue. At the request of the respondents, he reported the cases for determination by this court, it being stipulated that the orders should be affirmed if, upon the facts above set forth, the petitioners were found entitled to the orders of sale prayed for; otherwise, the orders were to be reversed, and the cases were to stand for such further action in the Superior Court as law and justice should require.</p>

<p>Equity Jurisdiction, To canee! boná void for fraud. Bond, To dissolve mechanic’s lien. Master in Chancery.</p> <p>This court has jurisdiction in equity" to order the cancellation of a bond, fraudulently given to dissolve a mechanic’s lien, the approval of which by a master in chancery under R. L. c. 197, § 28, has been procured by fraud and perjury.</p>

<p> Executor. Trust. Charity. Perpetuity. </p> <p>Where a will transfers the whole residue of the testator’s property to the executors charged with a trust in regard to the management and disposition of it the executors necessarily take as trustees although the word trustee ’’ is not used.</p> <p>A gift by will of a fund to trustees for the establishment of a hospital for sick persons in indigent circumstances, to be held and accumulated for twenty-five years before it is put to active use, is not invalid although the time for accumulation extends beyond the limit prescribed by the rule against perpetuities. In such a case a charity is created at once, the equitable estate in that part of the public which is to be benefited as well as the legal estate in the trustees vesting immediately when the will is proved.</p> <p>In a gift by will of a fund to trustees for the establishment of a hospital for sick persons in indigent circumstances, to be held and accumulated for twenty-five years and then to be transferred to a corporation to be formed for carrying out the purposes of the trust, the formation of the corporation and the transfer of the property to it are mere details of administration prescribed by the testator not affecting the general character of the charitable gift, and if for any reason the establishment of such a corporation is impossible tlie gift does not fail, but the court will devise some method of administering the charity cypres to accomplish substantially the same result.</p>

<p>Husband and Wife. Equity Jurisdiction, To reform instrument on account of mistake of fact. Laches. Frauds, Statute of. Trust, Resulting. Mortgage, Of real estate. Estoppel. Deed.</p> <p>A deed from a deputy sheriff to a wife made in pursuance of a sale on an execution against her husband is void.</p> <p>A mistake as to the ownership of land is a mistake of fact in regard to which equity will grant relief, although the mistake arose from an erroneous view of the legal effect of a deed.</p> <p>If the defence of the statute of frauds is not pleaded and is not relied upon at the trial it is waived.</p> <p>In a suit in equity to reform an instrument in writing which owing to a mistake of fact fails to express the alleged intention of the parties, the plaintiff is not chargeable with laches on account of a lapse of time after the execution of the instrument if he files his -bill within a reasonable time after becoming aware of the mistake.</p> <p>Where a husband and wife to secure their joint note agree to give a mortgage covering the entire interest of both of them in a certain lot of land, but by a mistake of fact the land is believed by all the parties to belong to the wife, whereas it belongs to the husband, and a mortgage accordingly is executed by the wife tl\e husband joining only to release his right of curtesy, the mortgage incorrectly describing the note as that of the wife alone, the mortgagee can maintain a bill in equity against the husband and wife to compel them to execute a new mortgage conveying the entire title of each of them, and such new mortgage will be good against all parties who took after the imperfect mortgage was given with notice of its infirmity. In such a case the record of the mortgage given by the wife with the release of curtesy by the husband gives no notice of the agreement of the husband which is an essential part of the equitable claim of the mortgagee.</p> <p>No notice is given of a resulting trust by a recital in a deed by a deputy sheriff to a wife in pursuance of a sale on an execution against her husband, that the consideration named in the deed was -paid by the wife, as such a deed passes no legal title to which the equitable right can attach.</p> <p>The exception from the covenants of a mortgage of a prior mortgage does not estop the mortgagee from contesting the validity of the prior mortgage as against the holder of it.</p> <p>Under E. L. c. 127, § 2, a quitclaim deed in the ordinary form to a purchaser for a valuable consideration without notice conveys a title free from equities, and the burden of proving notice is on one alleging it.</p>

<p>Haverhill, Police department. Statute, Repeal. Municipal Corporations. Civil Service Law.</p> <p>So much of the charter of Haverhill, St. 1869, c. 61, as related to the police force, particularly § 12 of that chapter amended by St. 1887, c. 357, was repealed by implication by St. 1894, e. 480, which covered the whole subject of the police department of that city.</p> <p>The provision of St. 1904, c. 314, § 1, that “ every person holding office or employment in the public service of the Commonwealth or in any county, city or town thereof, classified under the civil service rules of the Commonwealth, shall hold such office or employment and shall not be removed therefrom . . . except for just cause and for reasons specifically given in writing”, does not extend the term of employment of a police officer appointed by the mayor and aldermen of a city for a specified number of years fixed by the provisions of the city charter.</p>

Tort by a rubber boot maker for injuries while in the defendant’s employ from slipping and falling in á passageway of the defendant’s factory which it was alleged that the defendant negligently allowed to become slippery, with counts at common law and under the employers’ liability act. Writ dated November 21, 1902.

<p>Bill in equity, filed in the Superior Court on November 6, 1903, by the holder of a third mortgage upon four lots of land numbered 1686,1688, 1690 and 1692 on Washington Street in Boston, who had filed a petition against the Boston Elevated Railway Company under St. 1894, c. 548, § 8, for damage to his interest in the land from the construction and operation of the railway of that company, against the railway company, George F. Blake, Edward C. Turner and the Boston Five Cents Savings Bank, respective holders of first mortgages on different portions of the property, Alfred P. Green, the former holder of a second mortgage on all the property and the purchaser of the equity of redemption at a foreclosure sale under his mortgage, and Benjamin A. Ball alleged to be the real owner represented by Green, all of these mortgagees and owners having filed petitions against the railway company for damages under St. 1894, c. 548, § 8 ; praying that the liens of the several defendants other than the railway company should be marshalled and those defendants ordered to enforce them against the land before resorting to their claims for damages against the railway company; that the plaintiff should be subrogated to the rights of the defendants under their respective mortgages to the extent of the amount received by them from the railway company and the extent of the plaintiff’s claim; that the railway company should be enjoined from making settlements with the other defendants or paying them any damages until the plaintiff’s rights should be determined; and for further relief.</p> <p>In the Superior Court the case came on to be heard before Gaskill, J. upon the bill and the demurrers, pleas and answers of the several defendants and a general replication. At the request of the parties, the facts being admitted, the judge reported the case for determination by this court, such decree to be entered as law and equity might require.</p> <p>The following statement of the plaintiff’s contention was contained in the report :</p> <p>The plaintiff contended that as mortgagee he had been greatly damaged, in that the value of his security had been wiped out and that he had a claim against the defendant railway company for compensation because of the damage caused by the location, construction, maintenance and operation of the elevated road, and a lien on the amount recovered; that, as he had lost his lien on the premises by reason of the foreclosure, and as the first mortgagees retained. the security of their respective mortgages and also had a prior equity in the fund recovered from the railway company which they had enforced, he was entitled to be subrogated to the rights of these mortgagees under their respectives mortgages to the extent of his claim upon tendering to them the balances still unpaid upon their respective mortgages, which the plaintiff offered to do.</p> <p>St. 1894, c. 548, § 8, is as follows: “ The location, construction, maintenance or operation of said lines of railway in any public or private way shall be deemed an additional servitude and entitle lessees, mortgagees and other parties having an estate in such way or in premises which abut thereon, and who are damaged by reason of the location, construction, maintenance and operation of said lines of railway, to recover reasonable compensation in the manner herein provided. Any such person may at any time within three years after the construction of such railway upon or in front of his premises, file in the clerk’s office of the Superior Court for the county where his said premises lie, a petition setting forth his claim and the amount thereof against said corporation. He shall give to said corporation fourteen days’ notice of the filing of such petition, and answer thereto shall be filed by said corporation within thirty days after the return day of such notice.”</p>

<p>Attachment. Practice, Criminal, Exceptions. Evidence, Materiality. Assault and Battery. Witness, Cross-examination.</p> <p>Whether a deputy sheriff attached all the goods in a wholesale warehouse on a writ against the proprietor, after the proprietor had told him to go ahead and attach but that some of the goods were not his, or whether the attachment was only of a part of the goods, is a question of fact to be decided by a jury on consideration of what was said and done at the time as disclosed by the evidence.</p> <p>An exception by a defendant in a criminal case cannot be sustained to an instruction of the presiding judge, which properly interpreted is correct, on the ground that it might have been misunderstood by the jury, if the defendant did not call the judge’s attention to the matter at the trial and ask him to make the instruction more plain.</p> <p>A deputy sheriff attaching goods in a wholesale warehouse has a right to make a schedule of the goods before removing them, although after the goods attached are ascertained he cannot keep them on the premises.</p> <p>On the question of what is a reasonable time to be taken by a deputy sheriff and his assistants in removing goods attached in a wholesale warehouse, it is proper to refuse to allow the proprietor, an experienced shipper familiar with the premises, to testify in his own behalf how long it would take to remove them.</p> <p>The rights of the owner of goods attached as against the attaching officer and his assistants are in no way affected by the right of the officer to ask for instructions as to the property to be attached from the plaintiff on whose writ he is making the attachment.</p> <p>It is no defence to a complaint for assault and battery that the defendant was acting under the advice of counsel, which turned out not to be correct.</p> <p>It is within the discretion of the presiding judge at the trial of two defendants for assault and battery, one of whom has testified in his own behalf that he took no part in the assault, to allow the government to ask this defendant on cross-examination whether he did not approve of the assault, for the purpose of impeaching his credibility as a witness, although the silent approval of an assault and battery is no crime.</p>

<p>Municipal Corporations, Officers and agents, Liabilities, Powers.</p> <p>Semble, that it is not within the ordinary authority of the superintendent of streets of a town as a public officer to purchase real estate to be paid for by the town and used as a stone quarry or to take charge of such a quarry belonging to the town and carry on the business of quarrying and crushing stone there, even for use upon the public streets.</p> <p>Where a town owns and maintains a stone quarry, quarrying and crushing stone there for use upon its public streets and from time to time making sales of broken stone and turning the proceeds into the town treasury, the town is liable to a person injured by a piece of stone thrown from a blast in the quarry due to the negligence of the superintendent of streets in charge of the work.</p> <p>Where a town owns and maintains a stone quarry for the purpose of quarrying and crushing stone for use upon its public streets, incidental sales of broken stone for profit are not ultra vires but legitimate.</p> <p>Where a town owning and maintaining a stone quarry for the purpose of quarrying and crushing stone for use upon its public streets carries on for years in an open way the business of selling broken stone from the quarry, and this is annually referred to in the reports of the selectmen and the town treasurer made to the inhabitants at town meetings and presumably accepted, and the reports also are published and distributed among the inhabitants, this is sufficient evidence that the business of selling broken stone is conducted with the approval of the town and that the acts of its agents appearing in the reports have been ratified.</p>

<p> Tax. Street Railway. </p> <p>In computing the annual gross receipts for each mile of track of a street railway company for the purpose of determining the rate at which an excise tax should he assessed under R. L. c. 14, § 44, the assessors must include all tracks operated by the railway company on private lands outside the limits of any public highway as well as those on public ways.</p>

<p>Petition, filed August 8, 1902, by the owner of a building on the west side of Davol Street in the city of Fall River, standing on land held by the petitioner under “ an oral lease from year to year at an annual rental payable in monthly instalments,” for the assessment of damages under St. 1900, c. 472.</p> <p>In the Superior Court the case was tried before Harris, J., who ruled that the petitioner could not recover, and’ ordered a verdict for the respondent. At the request of the parties the judge reported the case for determination by this court. It was agreed that the damage to the petitioner for interference with access to her building was $25, and that “ if the petitioner could, in law, suffer any other damage, the amount of the damage was $409.” It also was agreed that a settlement had been made by the respondent with the owners of the real estate, but that in. that settlement nothing was paid for the injury to the petitioner’s property, and the damages to the petitioner’s property formed no part of the consideration of that settlement, and that if one person owned both the land and the buildings, the damages to both land and buildings would be $434 more than was paid to the owners of the land. The petitioner still occupied the premises under her oral lease. If the petitioner could recover both amounts judgment was to be entered for the petitioner for $434, if only one amount for that amount, with interest from January 1, 1902. If the petitioner could not recover, judgment was to be entered for the respondent.</p>

<p>Adverse Possession. Municipal Corporations. Evidence, Competency. Real Action. Pleading, Civil. Witness, Cross-examination. Practice, Civil, Exceptions.</p> <p>To prove title by limitation in a town to certain land on a beach, the town may put in evidence entries on the books of the town treasurer showing the receipt of rent for the land, leases of the land made by its selectmen, and votes of the town authorizing the making of such leases by the selectmen and asserting the town’s exclusive ownership of the land, tending, with the additional facts of occupation of the land by the lessees and payment of rent by them to the town, to show continuous and open possession of the land by the town through its lessees.</p> <p>To show possession of certain land on a beach by a town under a claim of right, and also to show the authority of the selectmen of the town to deal with the land, the town may put in evidence an indenture between the town and the owner of adjoining land, adjusting a boundary of the land in question, and containing a copy of a vote of the town referring the matter of the adjustment of the boundary to the selectmen with full power to act thereon.</p> <p>The plea of nul disseisin in a real action is an assertion of possession under title.</p> <p>On the issue of the title to certain land claimed by a town under adverse possession beyond the period of limitation, if the claimant against the town has testified that he went upon the land and told the lessee of the town that he owned it and then withdrew upon being told that he must settle the matter with the town, he cannot be asked in his own behalf what his intention was in going upon the land and informing the lessee that he owned it, as his undisclosed intention cannot affect the character of his act, or make it any the more an interruption of the peaceable possession of the town.</p> <p>On the issue of the title to certain land claimed by a town under adverse possession beyond the period of limitation, the town can show by cross-examination of the claimant against the town that the witness never paid any taxes on the land and that he knew of no one paying taxes upon it for him or for any of the heirs at law of the ancestor under whom he claimed, this tending to show by inference that no taxes had been assessed because the town claimed title.</p> <p>Por the purpose of acquiring title to land by limitation, acts of disseisin and of letting the land to a tenant done by- a town under a claim of right have the same effect as similar acts done by any other corporation or by an individual. In determining whether the possession of an actual occupant is the possession of the town all the acts of the town relating to the matter are to be considered.</p> <p>A town may let land for hotel purposes.</p> <p>The occupation of a tenant in possession of land under a lease in writing, for the purpose of establishing adverse possession under a claim of right by his landlord, extends, if not actively interfered with, to the whole premises described in the lease if the tenant has actual physical possession of any part.</p> <p>A city or town can acquire land for a purpose not public by adverse possession beyond the period of limitation.</p> <p>No exception lies to the refusal of a request for a ruling founded on the assumption of a fact in dispute.</p> <p>No exception lies to the refusal at the hearing of a motion for a- new trial to make a ruling of law upon a question raised at the trial.</p>

<p>Tort under St. 1898, c. 565, (R. L. c. 171, § 2,) for causing the death of the plaintiff’s intestate, a boy four years and eight months old, with a second count at common law for conscious suffering of the intestate, as stated in the first paragraph of the opinion. Writ dated June 12, 1901.</p> <p>In the Superior Court the case was tried before Sherman, J. The judge denied a motion of the defendant that the plaintiff should be required to elect upon which count he would rely. At the close of the evidence the defendant asked the judge to make the following rulings : 1. On all the evidence the plaintiff is not entitled to recover under the first count. 2. There is no evidence of gross negligence of any agent or servant of the corporation within the meaning of the statute on which the first count depends. 3. There is no evidence that the plaintiff’s intestate was in the exercise of due care. 4. There is no evidence of due care on the part of the parents of the plaintiff’s intestate. 5. The parents were negligent in permitting the child to be upon the street unattended at the time and under the circumstances shown by the evidence, or if not so negligent because of the child’s intelligence and experience the boy was himself negligent and failed to comply with the standard of boys of his age who are ordinarily careful and therefore the plaintiff cannot recover. 6. On all the evidence the plaintiff is not entitled to recover under the second count. 7. The plaintiff has shown no negligence on the part of the defendant or its agents and cannot, therefore, recover on the second count.</p> <p>The judge refused to make any of the rulings requested, and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $5,500, of which $5,000 was assessed under the first count and $500 under the second count. At the request of the defendant the judge reported the case for determination by this court. If the verdict could stand upon both counts, it was to stand. If it could stand only on one count, the plaintiff having signified his election to have it stand on the first, it was to stand on that count. If the verdict could not stand on either count, it was to be set aside, or such order was to be made as law and justice required.</p>

<p>Contract for a balance alleged to be due on purchases of wheat made by the plaintiffs on orders from the defendant on January 4 and January 7, 1884. Writ dated September 23, 1884.</p> <p>At the trial in the Superior Court in October, 1903, before Hitchcock, J., the jury returned a verdict for the plaintiffs in the sum of $456.99 with $522.93 of interest, making $979.92. The defendant alleged exceptions, raising the questions stated by the court.</p>

<p>Municipal Corporations. Way. Worcester. Contract, Performance and breach.</p> <p>Whether an appropriation made by a city for “ construction of streets ” includes payment for land acquired by right of eminent domain over which the streets are laid out, quosre.</p> <p>Under the provision of the revised charter of the city of Worcester, St. 1893, c. 444, § 29, that “No sum appropriated for a specific purpose shall be expended for any other purpose, and no expenditure shall be made and no liability incurred by or on behalf of the city until the city council has duly voted an appropriation _ sufficient to meet such expenditure or liability, together with all prior unpaid liabilities which are payable therefrom,” land damages awarded under a lay out of new streets for land of which possession has not been taken, although notice has been given of the time within which buildings must be removed, are not “unpaid liabilities” payable from the appropriation on hand which must be covered before new expenditures can be authorized.</p> <p>Under the revised charter of the city of Worcester, St. 1893, c. 444, § 40, the street commissioner has general authority in the management of his department to make contracts not to exceed a certain amount and above that amount can make such contracts when approved by the mayor. Therefore, after the passage of an order by the city council requiring the street commissioner under the direction of the mayor to construct a three arch masonry bridge at the causeway crossing Lake Quinsigamond, and after the- necessary appropriation has been made, the street commissioner in conjunction with the mayor has power to make a contract for the construction of the bridge.</p> <p>Where a vote of a city council ordering the construction of a certain bridge by the street commissioner under the direction of the mayor contains a statement of the estimated cost of the bridge, the amount named is to be treated as a mere expression of opinion and not as imposing a limit which cannot be exceeded in a contract for the construction of the bridge, and the street commissioner and the mayor using their discretionary power for the benefit of the city may accept a bid for the work somewhat in excess of the estimated cost.</p> <p>It is no defence to an action by a contractor against a city for refusing to proceed with the work contracted for, that the plaintiff did not complete the work within the time fixed by the contract, if the sole cause of the plaintiff’s delay was an injunction, served on both parties to the contract in a suit in equity brought by ten taxable inhabitants under Pub. Sts. c. 27, § 129, (R. L. c. 25, § 100,) to restrain the expenditure called for by the contract, and subsequently dissolved.</p>

<p>Tort for injury to tlie plaintiff’s team from being run into by a train of the defendant as described in the opinion. Writ dated January 15, 1904.</p> <p>At the trial in the Superior Court before White, J. the jury returned a verdict for the defendant; and the plaintiff alleged exceptions, raising the questions stated by the court.</p> <p>The case was argued at the bar in October, 1904, before Enowlton, C. J., Barker, Hammond, & Braley, JJ., and after-wards was submitted on briefs to all the justices.</p>

<p>Negligence, Employer’s liability. Practice, Civil, New trial, Verdict.</p> <p>If a workman in a factory is injured by a machine starting of itself after he has stopped it, through a defect which it was the duty of a foreman to remedy and of which the foreman had notice, and if the foreman on the day before the accident promised to repair the machine to prevent its starting in this way and assured the workman before he went to work on the day of the accident that the machine was all right, the workman has a right to rely on this assurance, and the employer is liable to the injured workman both at common law and under the employers’ liability act.</p> <p>In an action for personal injuries by a workman against his employer, with counts both under the employers’ liability act and at common law, if the plaintiff on the evidence is entitled to recover at common law as well as under the act, but the judge states that he shall submit the case to the jury only under the statute and in his charge does not specify how he leaves it to them and does not mention the limit of damages, under the practice which has grown up in this Commonwealth the defendant’s counsel has the right to assume that the case is going to the jury only on the counts under the statute, and if the jury find generally for the plaintiff in a sum in excess of $4,000, the plaintiff can be made to relinquish his damages in excess of that sum or be compelled to try his case again, although the defendant in excepting to the ruling of the judge that the plaintiff was entitled to go to the jury under the employers’ liability act did not ask the judge to order a verdict for the defendant on the common law counts, and although the plaintiff was entitled to go to the jury on all the counts and to recover at common Jaw as well as under the statute.</p>

<p>Contract for $1,525 of rent alleged to be due under an instrument in writing alleged to be a lease, with a second count for the same sum for use and occupation of the premises. Writ dated January 7,1903.</p> <p>There was an answer and a declaration in set-off. In the Superior Court the case was tried before Schofield, J., without a jury. He found for the defendant on the first count of the declaration, and on the second count found for the plaintiff in the sum of $632.34. Upon the declaration in set-off the judge found for the defendant in the sum of $21.51. Upon the whole case the judge found that the plaintiff was entitled to judgment in the sum of $610.83, and at the request of the plaintiff reported the case for determination by this court. If the finding was right upon the facts reported competent to be considered, judgment was to be entered for the plaintiff in the sum of $610.83, with interest from the date of the finding. If the finding was erroneous upon the facts reported competent to be considered, it was to be set aside, and such judgment was to be entered or such order was to be made as law and justice required.</p> <p>The instrument declared upon in the first count was as follows:</p> <p>“Memorandum of Agreement, made this twenty-ninth day of January, 1898, by and between B. F. Roberts, of Lynn, and the Lynn Ice Company, a corporation having its usual place of business in said Lynn.</p> <p>“ Witnesseth, That said Roberts has, and hereby does, let to said Ice Company his ice business and privileges in said Lynn, at Flax Pond, with the use and benefit of his ice houses together with the engines, chains, runs, the said engine, chains, and runs to be put in good order and delivered to said Company by said Roberts ; with the right to pass and repass, in the transaction of said ice business, over and upon a court or way owned by said Roberts, to said ice houses for the term ending December 15, 1898. The houses to be cleared of ice by the first day of October and left ready for repairs.</p> <p>“Said Lynn Ice Company agrees, in consideration of the aforesaid letting to them, to pay said Roberts the sum of fifteen hundred and twenty-five dollars ($1,525.00), which sum shall be paid to said Roberts as follows: Five hundred dollars ($500.00) on the fifteenth day of October next; five hundred dollars ($500.00) on the fifteenth day of November next; and five hundred and twenty-five dollars ($525.00) on the fifteenth day of December next, at the termination of this agreement. These payments to be conditioned upon the amount of ice which Z. J. Chase & Son, Coolidge and Livermore and J. L. Swan, or the Independent Ice Company shall be able to cut and house from said Flax Pond ; the proportion of said full sum to be paid by said Lynn Ice Company to be the proportionate amount of ice cut and housed by said firms.</p> <p>“ Witness our hands and seals the day and year first above written. The Lynn Ice Company [seal], by Albert H. Wyer, Treasurer. B. F. Roberts [seal].”</p> <p>The following extensions and agreements were indorsed on the instrument:</p> <p>“ Lynn, March 13-99. In consideration of one dollar to him paid the receipt of which is hereby acknowledged, I hereby agree to continue the within contract for the term ending December 15, 1899 as per the conditions contained therein. Witness our hands and seals the day and year first above written. The Lynn Ice Company [seal], by Albert H. Wyer, Treasurer.” [Signature of witness.]</p> <p>“ Lynn, January 3rd, 1900. Ill consideration of one dollar to me paid, the receipt of which is hereby acknowledged, I hereby agree to continue the within contract for the term ending December 15th, 1900 as per the conditions contained therein. Witness our hands and seals the day and year first above written. Cordelia G. Roberts [seal]. The Lynn Ice Company [seal], by Albert H. Wyer, Treasurer.” [Signature of witness.]..</p> <p>“ Lynn, Dec. 21, 1900. In consideration of one dollar to me paid, the receipt of which is hereby acknowledged, I hereby agree to continue the within contract for the term ending Dec. 15, 1901 as per conditions contained therein. The Lynn Ice Company [seal], by Albert H. Wyer, Treasurer. Cordelia G. Roberts, Executrix ” [seal]. [Signature of witness.] ■</p> <p>“ Lynn, Jan. 27, 1902. In consideration of one dollar to me paid, the receipt of which is hereby acknowledged, I hereby agree to continue the within contract for the term ending Dec. 15, 1902 as per conditions contained therein, subject to the following change: In case an artificial Ice Plant is established in Lynn, then the following agreement to take the place of the former, The Lynn Ice Co., to put up the Ice at their own expense and pay for the am’t. they are able to sell or use under the new conditions. The price to be at the rate of the old contract, and it is further agreed that all ice remaining in the Ice Houses after Dec. 15,1902 shall revert to Mrs. C. G. Roberts. The Lynn Ice Company [seal], by Albert H. Wyer, Treasurer. Cordelia G. Roberts,-Executrix [seal].</p> <p>“ Lynn, Dec. 21, 1900. In consideration of one dollar to me paid, the receipt for which is hereby acknowledged, I do grant the Lynn Ice Company permission to move old engine and replace it with one of their own, and it is hereby agreed that they shall remove it also at their pleasure the same to be without expense to my estate. Cordelia G. Roberts, Executrix.”</p> <p>Benjamin F. Roberts died on November 29, 1898, and the plaintiff was appointed executrix under his will. On the night of June 4, 1902, without fault on the part of either the plaintiff or the defendant, the ice houses, four in number, were destroyed completely by fire. They were not insured. After the fire the defendant made no use of the property described in the lease or contract, except to drive teams over the court adjoining the ice houses to a factory owned by the defendant, and this use of the court was not under the instrument sued upon.</p> <p>The case was argued at the bar in November, 1904, before Knowlton, C. J., Bathrop, Barker, Hammond, & Boring, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Contract, against Louis T. Block, Joseph E. Block, Samuel Block and Edward J. Mack, copartners doing business at Cincinnati in the State of Ohio under the firm name Elias Block and Sons, with five counts, the first for an alleged breach of contract more particularly stated in the fourth count substituted by amendment, the second for alleged services in collecting accounts for the defendants, the third and fifth on accounts annexed, and the fourth alleging a breach of a contract, by which the defendants, the owners and operators of a distillery in Kentucky, called the Darling Distillery, agreed that the plaintiff, who had been the eastern agent of the defendants, should continue in their employ and should assist the defendants in the organization of a corporation of which the plaintiff should sell the capital stock, receiving as compensation the sum of $50,000. Writ dated May 26, 1898.</p> <p>The answer contained a general denial and an allegation of payment, and set up the statute of frauds. At the trial in the Superior Court before Harris, J. the jury returned a verdict for the plaintiff on the fourth count, at first in the sum of $15,000, and afterwards, adding interest from the date of the writ by instruction of the judge, in the sum of $19,322.50. Upon the claim of the plaintiff for $2,000 for services in collecting accounts for the defendants, as alleged in the second count and in the first items of the third and fifth counts, the jury found for the defendants. The defendants alleged exceptions, raising the questions stated by the court.</p> <p>The tenth ruling requested by the defendants was as follows : “ That the letters introduced into this case do not constitute a contract in writing on which recovery can be had in this action.”</p> <p>The third ruling requested by the plaintiff was as follows: “ If the jury find that the contract of promotion alleged was not concluded at the interview in June, 1896, and if the plaintiff then requested the-defendants to enter into the following contract with him, that is, that if the plaintiff should remain in the defendants’ employ and endeavor to collect in their outstanding accounts the defendants would incorporate their distilleries, employ him to sell the stock in the corporations so to be formed and pay him therefor $25,000 in cash and $25,000 in said stock, and the defendants said they would consider the matter and let the plaintiff know later, then the letters of March 12, 1897, and March 19, 1897, would constitute a binding contract to that effect.”</p>

<p> Way. License. </p> <p>In tlie absence of evidence to the contrary the use of a private way by the public is presumed to be permissive.</p> <p>One who enters a private way for the purpose of passing through it to his place of business and is called by an abutter on the way into the abutter’s place of business and after remaining there a short time enters again upon the way for the purpose of proceeding to his own place of business is a mere licensee, and, if he falls into a hole in the way filled with hot water, he cannot hold the proprietors of the way liable for want of ordinary care.</p>

<p> Mechanic's Lien. </p> <p>If the sworn statement of a mechanic’s lien is filed under R. L. c. 197, § 6, within thirty days after the petitioner has ceased to labor, and if the last items of labor were performed in good faith under the petitioner’s contract, the lien is none the less valid because, before the work named in the last items was done, .no work had been done by the petitioner for about thirty-four days and before the last work was done the houses on which the lien is claimed appeared to he completed and were purchased by their present owner without knowledge of any lien. Whether there might be an interval of delay so great and unreasonable as to justify the court in holding as matter of law that the lien had been lost was not considered, as in this case the delay was not unreasonable.</p>

<p>Attachment. Officer. Practice, Civil, Costs. Words, ‘“Prevailing party.”</p> <p>In determining the validity of an attachment the return of the attaching officer must be taken as true. If not true, the remedy is by an action against the officer for a false return.</p> <p>If the return of an officer states that he attached certain goods specifically described and at the same time attached other goods which he only identifies as goods of the defendant in a designated building, and further states that thereafter he released from attachment the goods not specifically described, the return discloses a valid attachment.</p> <p>After an application by a plaintiff for a sale under B. L. c. 167, §§ 82-96, of goods which have been attached, if the attaching officer by direction of the plaintiff, instead of proceeding with the proposed sale, removes and stores the attached goods and continues to hold them, the attachment remains good, as the plaintiff has a right to withdraw his application for a sale.</p> <p>Where but one judgment is rendered in an action, the prevailing party entitled to costs under E. L. c. 203, § 1, is he for whom the judgment has been given, although in the course of the proceedings he has made certain claims on which he is not allowed to recover and as to which the other party has prevailed. This applies to the taxation of costs for the transmission of papers to this court under 11. L. c. 157, § 21. The words “ prevailing party ” in the last named section have the same meaning as in the statute first named, and do not mean the party in whose favor the questions before this court have been decided unless he also is the party in W'hose favor the judgment has been entered in the action.</p> <p>If while an appeal from a taxation of costs by the clerk is pending the attaching officer is allowed to amend his return, semble that it is proper for the court to send the case back to the clerk to give him an opportunity' to change his taxation on the record as amended, so that an appeal may bring the whole record before the court.</p>

<p>Fraud, As to creditors. Equity Jurisdiction, To reach and apply property fraudulent!}' conveyed. Landlord and Tenant. Equity Pleading and Practice, Bill, Variance, Master’s report. Words, “Debt.”</p> <p>A conveyance fraudulent under St. 13 Eliz. c. 5, may be avoided as well by subsequent as by existing creditors.</p> <p>A claim for loss of rent, .under a covenant in a lease that in case the léase is terminated by the lessor for breach of covenant the lessee shall be liable for all loss and damage of the lessor from the premises remaining unleased for the remainder of the term, is a debt within the meaning of R. L. c. 159, § 3, cl. 8, giving equity jurisdiction to reach and apply in payment of a debt property of the debtor fraudulently conveyed.</p> <p>In a bill in equity to reach and apply property, alleged to have been conveyed fraudulently by the defendant, in payment of a debt to the plaintiff for rent and for loss of rent under a covenant in a lease to pay for such loss if the premises remain unleased during the remainder of the term after the lessor has terminated the lease for breach of covenant, an averment that the defendant owes the plaintiff a sum named for accrued instalments of rent and loss of rent according to an account annexed, which contains a. charge of an item on the first day of each month with the words “ instalment due under lease ”, naming the amount of the monthly rent, is not bad for want of sufficient certainty in not naming the date of the termination of the lease and distinguishing the items for rent from those for loss of rent, if a master has found that the loss of rent from month to month was the same in amount as the rent itself before the termination of the lease, the date of the termination being a matter within the defendant’s knowledge.</p> <p>In a suit in equity founded on the covenants of a lease, there is no variance if a lease is admitted in evidence which corresponds with that alleged in the bill but in addition has written upon it a guaranty of payment of the rent signed by a third party and also an agreement signed by the plaintiff to put into the leased premises two skylights and a water closet and to supply water service from the city of Boston, if these have been found by a master to be additional instruments.</p> <p>Whether an exception to a master’s report because the master did not make certain rulings can be considered by this court if the master’s report does not show that any of the rulings were requested except so far as this can be inferred from the master’s statement that objections were filed on the ground that the rulings were not made, qumre.</p> <p>A suit in equity to reach and apply property, alleged to have been conveyed fraudulently by the defendant, in payment of a debt to the plaintiff for loss of rent, under a covenant in a lease to pay for such loss if the premises remain unleased during the remainder of the term after the lessor has terminated the lease for breach of covenant, or if the premises are let after such termination for a rent less than that reserved in the lease, is brought prematurely if the bill is filed while the premises continue to remain unleased and before the end of the term of the lease, as the amount of the loss cannot be determined at that time and therefore is not payable.</p>

<p>Negligence, Employer’s liability. Evidence, Competency.</p> <p>If, while plasterers are preparing to erect a temporary staging to use in their work, a superintendent interferes and orders them for the purpose of supporting the temporary staging at one end to use a certain ledger board, which obviously is defective and unfit, but which the superintendent fails to inspect or to have inspected, and if the plasterers obeying the superintendent use the ledger board, and later another plasterer who did not assist in erecting the staging is injured by its giving way on account of the breaking of the defective ledger board, there is evidence on which the employer may be found to be liable to the plasterer for the injury caused by the negligence of the superintendent, although the same ledger board has been used for two weeks previous to the accident to support a temporary staging for carpenters and lathers without breaking.</p> <p>Evidence naturally relevant, which is incompetent by reason of a rule of law, such as a witness’s opinion or his conclusion of fact, if it is admitted without objection becomes a part of the case and may be considered by the jury and by this court, and it does not matter that the trial judge has certified that if the evidence had been called to his attention he would have excluded it and that he did not consider it in making his ruling on the case.</p>

<p>Constitutional Law, Equal protection of the laws, Taking property without due process ' of law, Police power. School.</p> <p>R. L. c. 112, § 72, requiring street railway companies to carry pupils of the public schools to and from school at rates not exceeding half the regular fare charged for the transportation of other passengers between the same points, is constitutional, although by § 1 of the same chapter it does not apply to the Boston Elevated Railway Company, and although the privilege extends only to pupils of the public schools, this being a police regulation in the interest of education, and it being assumed that the Legislature was satisfied that no railway company would suffer loss from carrying school children at half the regular fare.</p>

<p> Boxing Match or Sparring Exhibition. Public Shows. </p> <p>Under R. L. e. 207, § 12, making it a criminal offence to engage in, give or promote a public boxing mateli or sparring exhibition, if it appears that the public are invited and admitted to such a match or exhibition as to other places of amusement on tickets entitling them to seats varying in location according to the price paid, the exhibition may be found to be public, although the building is leased to a club and each applicant for a ticket is required to sign a request to become a member of the club, it being a question for the jury whether the machinery of the club is a mere sham and fraudulent contrivance to evade the law.</p>

<p> Constitutional Law. Boston and Worcester Street Railway Company. Equity Jurisdiction. </p> <p>By St. 1903, c. 163, the Boston and Worcester Street Railway Company was authorized to construct and maintain a wooden trestle over and across the tracks of the Boston and Albany Railroad on Boylston Street in Newton, which should be discontinued and removed upon the completion of the work of the abolition of the grade crossing of the tracks of that railroad with Boylston Street. Section 3 is as follows: “ The construction, maintenance and use of the said trestle shall be deemed not to be an additional easement or servitude. If any person is legally damaged in his property by the construction, maintenance or use of the said trestle the damages may be assessed by a jury of the Superior Court upon proceedings conducted as provided with respect to the laying out of ways in the city of Newton.” Held, that the statute is constitutional, the section quoted declaring that the trestle does not interfere with rights of property if the Legislature can make such a declaration, or, if such a declaration cannot be made constitutionally, that any person whose property rights are interfered with shall have compensation. Held, also, that the statute is not unconstitutional by reason of failing to designate the person who is to pay the compensation found to be due, as the statute must be construed to provide that in case damages are suffered the compensation shall be paid by the railway company for whose benefit alone the permission to construct the trestle is granted, and that the remedy of the owner of property so damaged is exclusively under the statute and not by a bill in equity.</p>

<p> Bills and Notes. Pledge. </p> <p>If one, who has obtained by fraud a negotiable promissory note and as security for it a mortgage and mortgage note, sells and indorses the first named note before ‘ maturity and transfers it with its security to a bona fide purchaser for value, the purchaser takes a clear title to the note with its security which is good in equity as well as at law, and it does not matter whether the mortgage note held as security is negotiable.</p>

<p>Petition, filed October 7, 1902, for a writ of certiorari, addressed to the board of street commissioners of the city of Boston to quash their proceedings assessing betterments upon real estate of the petitioners and others under St. 1896, c. 516, § !4.</p> <p>The case was heard by Braley, J. upon the petition and the return of the respondents. The petitioners requested a ruling that the section above named under which the assessments were made was in violation of the fifth and fourteenth amendments of the Constitution of the United States, and that the order of the respondents and the assessments thereunder were illegal and void. The justice refused to rule as requested, and at the request of the petitioners reserved the case for determination by the full court.</p>

<p>Writ oe dower, dated March 15, 1902, brought by the demandant as the widow of Henry S. Shelton, deceased testate on January 18, 1888.</p> <p>In the Superior Court the case was tried before Bond, J. The jury made the special findings quoted in the fourth paragraph of the opinion, and returned a general verdict for the demandant. At the request of the tenants the judge reported the case for determination by this court.</p>

<p> Bond. Constable. </p> <p>An action can he brought on the official bond of a constable in the city of Boston in the name of the city treasurer to whom the bond has been given under R. L. c. 25, § 90, c. 26, §§ 2,14, without obtaining authority from any public officer.</p>

<p>Negligence, Contributory, On railroad. Pleading, Civil. Joint Tortfeasors.</p> <p>A passenger in a railroad train who, after the name of the station at which he is to alight has been called and while the train is moving slowly but has not stopped, leaves the car and stands upon the first of four steps leading from the side of the platform at the end of the car, and while there is thrown to the ground and injured, his fall being caused by the steps being bent under the platform of the car on coming in collision with a truck in charge of a servant of a newsdealer, is not in the exercise of due care and cannot recover either from the railroad company or the newsdealer, although one or both of them may have been negligent.</p> <p>Semble, that a passenger in a train approaching a station, who is injured by an accident caused by the train -coming in collision with a truck negligently left too near the track by the servant of a newsdealer, cannot sue the railroad company and the newsdealer as joint tortfeasors, even if both are negligent, their liability, if it exists, being several as differing in character.</p>

<p>Tort for injuries from being run into by the defendant’s borse and sleigh while crossing Sumner Street near the corner of Willis Street in that part of Boston called Dorchester. Writ dated February 18, 1901.</p> <p>At the trial in the Superior Court before Mason, C. J., the jury returned a verdict for the plaintiff in the sum of $5,000; and the defendant alleged exceptions, raising the questions stated by the court.</p>

<p>Practice, Civil, Petition to vacate judgment. Judgment.</p> <p>It is error to grant a petition to vacate a judgment under R. L. c. 193, § 15, when the petitioner has not given the bond required by § 17 of that chapter, unless the ease comes under the exception provided for by § 18.</p>

<p>Contract, Construction. Words, “Draw.”</p> <p>If a manufacturer of goods employs a travelling salesman for one year under an agreement by which the manufacturer agrees to pay the salesman at the end of the agreement a certain percentage on net sales of all goods and a certain other percentage on the net profits of the manufacturer’s business, and that in the meantime the salesman is to be allowed “ to draw for his maintenance and support during the term of this agreement, a sum equal to §100 per week ”, in addition to travelling expenses, which is to be deducted from the sum the salesman shall be found to be entitled to at the termination of the agreement, this does not guarantee to the salesman on final settlement the sum of §100 per week during the continuance of the agreement.</p>

<p>Tax, Sale, redemption. Equity Jurisdiction, Mistake.</p> <p>A bill in equity to redeem land from a tax sale within five years may be maintained under R. L. c. 13, § 75, if it appears that the plaintiff acted in the erroneous belief that the taxes on his property were being paid as they came due from the rent of a certain store and was ignorant of the advertisement of the property for sale and of the sale itself.</p>

<p>bill in equity, filed March 3, 1904, against Alfred M. Day, Laurin Greer, and John P. Manning, clerk of the Superior Court, Criminal, for the County of Suffolk, to enforce an assignment by the defendant Day to the plaintiff of the sum of $800 deposited with the defendant Manning under the provisions of R. L. c. 217, § 77..</p> <p>In the Superior Court Sheldon, J. made a report of the facts found by him, and made a decree dismissing the bill, with separate costs to the defendants Manning and Greer. The plaintiff appealed,</p>

<p>Bill in equity, filed November 25, 1901, and amended March 10, 1902, by the owner of a house and lot numbered 42 on Francis Street in Boston to restrain the owner of the adjacent lot, No. 40 Francis Street, from building a house on it with a wooden wall within three feet of the boundary line between the lots of the plaintiff and the defendant.</p> <p>The ordinance referred to is as follows, Revised Ordinances of Boston, c. 45, §34: “Every such wooden building hereafter erected or altered to be used as a dwelling house, shall not be more than forty-five feet in height above the highest street level of the principal front, nor shall any external wall thereof, unless made of brick at least twelve inches thick carried twelve inches above the roof and covered with metallic covering, or with the roof laid and embedded in mortar on such wall, be nearer than three feet to the line of any adjoining lot.”</p> <p>The defendant demurred to the bill as amended. In the Superior Court Bishop, J. made a decree sustaining the demurrer and dismissing the bill. The plaintiff appealed.</p>

<p>Bill IH EQUITY, filed March 1,1904, by the administrators de bonis non with the will annexed of the estate of Charles L. Tarbell, late of Lincoln, for instructions.</p> <p>The case came on to be heard before Morton, J., who reserved it upon the bill and answers, and a stipulation of the parties that all the allegations of fact in the bill and answers were admitted to be true, for determination by the full court, such disposition to be made thereof as to the court should seem meet.</p> <p>The will of Charles L. Tarbell, omitting the introductory and the attesting clauses and the signatures of the testator and the witnesses, was as follows :</p> <p>“Iprimis I give to my sons, George G. and Charles. F. Tarbell, the sum of five hundred dollars each, to be paid to them in one year after my decease.</p> <p>“ Item I give to my wife, Martha E. Tarbell, the Income or improvement of all the rest or residue of my estate, during her life, and in case the interest or income of said estate is not sufficient for her comfortable support and maintainance during her life, then she is to have so much as may be necessary for said support, out of the principal, that is, out of said residue or remainder;— and upon the decease of my wife, so much of said residue as may then remain is to be equally divided between my two sons. — and in case of either of my sons shall die, during the lifetime of their Mother, leaving no issue, then the whole of said residue or remainder is to go to the survivor of them, and in' case both of my sons shall die during the lifetime of their mother — then she is to dispose of said estate, as she shall think best. —</p> <p>“ Lastly — I hereby nominate and appoint my son, George G. Tarbell, sole Executor of this my last will and testament — and request that he may be exempted from giving any sureties or surety on his bond as Executor.”</p> <p>Charles L. Tarbell died on December 24, 1889, leaving a widow, Martha E. Tarbell, and two sons, George G. Tarbell and Charles F. Tarbell. Charles F. Tarbell died intestate, on October 31, 1891, leaving a widow, Ida A. Tarbell, and two children, Sarah A. Tarbell and George G. Tarbell. George G. Tarbell (senior) died, testate, on December 28, 1900, leaving no issue. Martha E. Tarbell, widow of Charles L. Tarbell, having outlived both of her sons, died on June 16, 1908, testate. She was survived by her grandchildren, Sarah A. Tarbell and George G. Tarbell, children of her son Charles F. Tarbell *s above stated.</p>

<p>Tort for injuries incurred on the night of January 13, 1903, from an alleged defect in a sidewalk of a public way leading from Washington Street to South Avenue in the town of Whitman and called Park Avenue. Writ dated March 3, 1903.</p> <p>At the trial in the Superior Court before Holmes, J. the jury returned a verdict for the plaintiff in the sum of f 100; and the defendant alleged exceptions to the refusal of the judge to make certain rulings requested by it. The first ruling requested by the defendant which is held by the court to have been given in substance was as follows: “ The plaintiff cannot recover unless the jury find that, independently of any ice or snow, the way was defective, and this defect was the cause of the injury to the plaintiff.”</p>

<p>Tort for the alleged conversion of a couch. Writ in the Municipal Court of the City of Boston dated November 7, 1908</p> <p>On appeal to the Superior Court the case was heard on an agreed statement of facts by Mason, C. J., without a jury. It appeared that on August 16, 1903, the plaintiff bought of the defendants the couch in question under a contract of conditional sale dated August 10, 1903, and agreed to pay for it the sum of $31.60; that on the delivery of the couch to the plaintiff he executed and delivered to the defendants the following agreement:</p> <p>“ Received • of Holmes, Luce & Co., a true copy of the above lease No. 73653, the conditions of said lease having been fully understood by me before signing, and the said Holmes, Luce & Co., not agreeing to accept the above lease No. 73653, and deliver the articles named therein, except upon the execution of the following agreement by me: Wherefore, in consideration of the delivery to me of the goods named in said lease, I do hereby for myself, my heirs and assigns, agree with the said Holmes, Luce & Co., that upon the breach by me of any of the conditions of said lease, to permit said Holmes, Luce & Cd., their agents or representatives, to take possession of the property mentioned in said lease, and without furnishing me with an itemized statement of the amount due upon said lease, and I agree to waive and do hereby, for myself, my heirs and my assigns, waive all rights of every kind which I, or they have or may have, to be given or to receive notice of any kind, or any itemized statement, particularly waiving all rights which .1, or they may have under section 18, chapter 198, of the Revised Laws of Massachusetts.</p> <p>“ Witness my hand and seal this tenth day of August, A. D., 1908. Howard L. Desseau.”</p> <p>It further appeared, that the plaintiff failed to make the payments required by the terms of the contract, and that the defendants took and carried away the couch without furnishing the plaintiff with an itemized statement of the amount due under the contract and without any notice to the plaintiff; and that $25 was a fair valuation of the couch at the time the defendants took possession of it.</p> <p>The plaintiff requested the judge to rule that upon the evidence the plaintiff was entitled to a finding and to judgment. The judge refused to rule as requested, and found for the defendants. The plaintiff alleged exceptions.</p>

<p>Evidence, Of value of real estate, remoteness. Damages. Interest.</p> <p>On the question of the depreciation of real estate owing to a change of grade, what evidence is admissible to show the market value of the property before and after the act affecting its value, depends largely on the circumstances of the particular case, and to a great extent must be left to the discretion of the presiding judge.</p> <p>In an action of tort for injury to the plaintiff’s real estate by a change of grade in the street on which it is situated made by a railroad company as an approach to a new station without authority, evidence of the price paid by the plaintiff for tlie property somewhat more than a year after the change was known to be contemplated and less than two years before the work was begun and of the price at which the plaintiff sold the property within three years after the work was completed, and also of the sum for which the property had been rented about thirteen months before the plaintiff bought it, were held not to be so remote in point of time that there was error as matter of law in their admission to show deterioration of the plaintiff’s property by reason of the acts of the defendant.</p> <p>In an action of tort for injury to the plaintiff’s real estate by a change of grade in the street on which it is situated made by a railroad company as an approach to a new station without authority, if the plaintiff, instead of bringing his action when the acts of the defendant causing the injury were completed, has by reason of a mistake of remedy delayed the bringing of the action for nearly three years, the jury in assessing the damages may add to the damages for the injury to the property at the time of the completion of the acts of the defendant an additional sum computed as interest at the legal or any reasonable rate as compensation for the delay to which the plaintiff has been subjected.</p>

<p>Tort, by an experienced driver forty years of age, for personal injuries from being run into by an electric car of the defendant while returning from Needham driving two horses in a heavy empty furniture wagon on Boylston Street in Brookline near the foot of Wright’s Hill between ten and eleven o’clock on the evening of July 3, 1901. Writ dated July 5,1901.</p> <p>At the trial in the Superior Court before Fox, J. the defendant at the close of the evidence requested the judge to order a verdict for the defendant on the ground that the plaintiff had not shown that at the time of the happening of the accident he was in the exercise of due care. The judge refused to make this ruling, and the jury returned a verdict for the plaintiff in the sum of $7,000. The judge reported the case for determination by this court, with a stipulation of the parties, that if the evidence did not show that the plaintiff was entitled to go to the jury judgment should be entered for the defendant, and that if the plaintiff could recover upon the evidence judgment should be entered for the plaintiff upon the verdict.</p>

<p>Tort for personal injuries incurred while alighting from a car of the defendant at its transfer station at Dorchester Avenue in Boston. Writ dated January 22, 1903.</p> <p>At the trial in the Superior Court before Bell, J., the jury returned a verdict for the plaintiff in the sum of $1,187. The defendant before judgment moved that the verdict be set aside on the grounds: 1. That it is against the evidence. 2. That it is against the weight of the evidence. 3. That the damages awarded are excessive. 4. For misconduct of one of the jurors. 5. A juror sitting on the above named case is not of good moral character. 6. That a juror sitting on the above named case was incompetent to sit, he having been convicted of a scandalous crime within the meaning of R. L. c. 176, § 8, and that such crime or reason for objection was unknown to the defendant or its attorney before the juror was called, sworn or served.</p> <p>The judge denied the motion on the first four grounds, and on the fifth and sixth grounds granted the motion, and set aside the verdict. The plaintiff alleged exceptions to the refusal of the judge to make certain rulings requested by her at the hearing of the defendant’s motion which are stated in the first paragraph of the opinion.</p>

<p>Tortvfor the alleged conversion of certain rails, tracks, motors and motor equipments named in a schedule attached to the declaration. Writ dated June 16, 1902.</p> <p>In the Superior Court the case was heard by Pierce, J., without a jury, upon the pleadings and an auditor’s report. The plaintiff claimed title as assignee of the Johnson Company, a Massachusetts corporation, the unpaid vendor of the property named in the declaration under a contract of conditional sale to the Norfolk Southern Street Railway Company. The defendant claimed title through the purchaser of the property of the Norfolk Southern Street Railway Company at a foreclosure sale under a mortgage made by that company. The judge found the facts to be as found by the auditor, and upon those facts ruled pro forma, as matter of law, that the plaintiff was entitled to judgment in the sum of $20,000, and reported the case upon the pleadings and the facts as stated in the auditor’s report for determination by this court. If the ruling was correct, judgment was to be entered for the plaintiff for the sum of $20,000. If the ruling was not correct, such judgment was to be entered as in the opinion of the court law and justice might require.</p>

<p>Municipal Corporations. Cambridge. Tax, Assessments for benefits.</p> <p>tinder the charter of the city of Cambridge, St. 1891, c. 364, as amended by St. 1896, c. 173, an order of the city council if approved by the mayor takes effect from the date of his approval. Thus in case of an assessment for betterments from the widening of a street, which under Pub. Sts. c. 51, § 1, (R. L. e. 50, § 1,) must be made within two years from the passage of the original order, the period of two years is to be computed from the approval of- the order by the mayor.</p>

<p>Petition, filed May 9, and amended June 3, 1904, for a writ of mandamus addressed to the justices of the Superior Court, commanding them to proceed with the hearing of a suit in equity pending in that court brought by the petitioner against the Carpenter-Morton Company and others.</p> <p>The case came on to be heard before Barker, J. upon the amended petition and answer, and was reserved by him for determination by the full court, such decree to be entered as justice might require.</p> <p>By the petition and answer, it appeared, that the suit in equity brought by the petitioner was to restrain the defendants from using certain secret formulas, alleged to belong to the plaintiff, used in the manufacture and sale of varnish stains, and for an accounting; that the defendant Carpenter-Morton Company filed a cross bill on which it obtained a decree, declaring that Campbell had conveyed to the Carpenter-Morton Company the absolute right to manufacture, use and sell an article known as “ Campbell varnish stain ” and enjoining the petitioner from manufacturing or selling that article; that thereafter the petitioner continued to manufacture and sell the article and was adjudged to be in contempt of court, and that, after a finding that the petitioner was sane and morally responsible, a further decree was made adjudging the petitioner to be in contempt and ordering him to pay to the Carpenter-Morton Company the sum of $1,000 and costs within ten days; and that the petitioner failed to make the payment thus ordered.</p>

<p>Mechanic’s Lien. Practice, Civil, Parties.</p> <p>On a petition to enforce a mechanic’s lien, where the original respondent as the owner of the real estate has filed a bond with sureties to dissolve the lien, and later has died intestate, and, the time for presenting claims against his estate having passed, his administrator has filed a final account by which it has appeared that there were no assets and has died, the proceeding being in the nature of a proceeding in rem and the liability on the bond representing the res, if the petitioner cannot procure the appointment of an administrator de bonis non of the estate of the original respondent, the principal on the bond, he may proceed against the sureties alone, the administrator, although a proper party, not being a necessary party to the proceeding.</p>

<p> Quo Warranto. Practice, Civil. Lottery. Obligations redeemable in Numerical Order. Constitutional Lalo. Information. </p> <p>The answer of a corporation to an information by the attorney general in the nature of a quo warranto, requiring it to show by what authority it is conducting the business in which it is engaged, is not necessarily to be taken as true.</p> <p>Under R. L. c. 156, § 7, a single justice of this court can report to the full court the questions of law which arise upon the record before him without deciding the questions.</p> <p>The issuing by a corporation of obligations with an element of chance in their redemption, arising from uncertainty as to the number of persons holding similar obligations who will allow them to lapse and uncertainty as to the number of persons who will take new obligations and make payments thereon, is not punishable as a lottery under R. L. c. 214, § 7.</p> <p>Obligations issued by a corporation, on which payments of one dollar each are to be made every week under penalty of forfeiture upon default for five successive weeks, which are redeemable each week in the order of their issue whenever an amount of money sufficient for that purpose is on hand received from ten cents set aside from every dollar paid on new obligations issued, are redeemable “ in numerical order,” even though numbered differently, and in an “arbitrary order of precedence without reference to the amount previously paid thereon by the holder,” and their issuing is a violation of R. L. c. 73, §§ 7, 8.</p> <p>R. L. c. 73, §§ 7,8, imposing certain penalties for issuing obligations to be redeemed in numerical order or in any arbitrary order of precedence without reference to the amount previously paid thereon by the holder, is constitutional as a reasonable exercise of the police power.</p> <p>An information by the attorney general in the nature of a quo ivarranto is a proper proceeding to enforce the forfeiture of the charter of a domestic corporation under R. L. c. 73, § 8, by reason of its issuing obligations to be redeemed in numerical order or in any arbitrary order of precedence without reference to the amount previously paid thereon by the holder, in violation of § 7 of the same chapter.</p>

<p>Practice, Civil, Exceptions.</p> <p>Where no ruling has been asked for, and a finding has been made by a judge sitting without a jury, it is too late to except to the finding on the ground that it is not warranted by the evidence.</p> <p>If a finding by a single justice of this court sitting without a jury expressly includes a ruling of law, first made when the decision is filed some time after the end of the trial, R. L. c. 173, § 106 requires a party who desires a revision of the ruling to reduce his exception to writing and file it with the clerk within twenty days after notice of the decision has been received, unless further time is allowed by the court, but this does not give the excepting party twenty days within which to allege his exception. On the contrary he must allege it promptly within a reasonable time after receiving notice of the ruling, and not to allege it until filing his bill of exceptions twenty days after the decision is unreasonable and in such a case the exception must be disallowed by the single justice as alleged too late.</p>

<p>Petition, filed March 14, 1904, for the registration of the title to a tract of land on the corner of State Street and Broad Street in Boston.</p> <p>In the Land Court the case was heard by Davis, J., who found title in the petitioners proper for registration, but, before a decree in accordance with such finding could issue, one of the petitioners, Frederick W. G. May, died at Boston, testate, seised of an undivided one fifth interest in the real estate in question.</p> <p>Thereafter, the heirs at law of Frederick W. G. May, as petitioners for substitution, filed a suggestion of the death of Frederick W. G. May, together with a copy of his will and the probate proceedings thereon, and moved that they be substituted for him as parties in the petition to prosecute the same. On inspection of the probate records notice of the motion for substitution was ordered upon the trustee under the will and the administrators with the will annexed, who appeared and answered.</p>

<p>Petition for a final decree on a petition filed March 6, 1902, (incorrectly stated in 182 Mass. 534 to have been filed on November 3, 1902,) in the Probate Court for the county of Norfolk, by the administrator of the estate of Isabella S. Whicher for leave to sell real estate of the intestate under R. L. c. 146, § 1, in order to pay debts and charges of administration.</p> <p>The petition for leave to sell real estate was before the court at a previous stage as reported in 182 Mass. 534, and again before the court on a writ of entry brought by the administrator as reported in 186 Mass. 59.</p> <p>The present petition for a final decree came on to be heard before Hammond, J., who reserved the questions of law arising on the petition and answer and the facts as reported by him for determination by the full court.</p> <p>The prayer of the petition was that in accordance with the rescript a final decree might be made and entered affirming the decree of the Probate Court, and remanding the case to the Probate Court for further proceedings.</p>

<p>Trust, Powers of trustee. Bills and Notes. Pledge. Bank. Equity Jurisdiction.</p> <p>A trustee with power to invest the trust property “according to his best judgment and discretion” and to pay the income to beneficiaries, with “full power to change any investment at his discretion,” has no authority, unless it is expressly given by the terms of the trust, to pledge any part of the trust property to secure a promissory note signed by him as trustee, although the money lent upon the note goes into the trust fund and is expended for purposes for which the income of the trust lawfully could be expended.</p> <p>If a trustee signs a promissory note as trustee without authority to do so the note is binding upon him personally.</p> <p>A bank lending money on a note signed by a trustee as such and accepting as security a transfer of shares of stock belonging to the trust, if it has notice from the form of the stock certificate that the shares are held in trust, is put upon inquiry and takes the risk of the trustee having no authority to pledge the stock as collateral.</p> <p>A hank which has lent money on the note of a trustee secured by a pledge of trust property after having notice of the trust, if it turns out that the instrument of trust gives the trustee no power to pledge the trust property, not only has no legal title to the property against the beneficiaries of the trust or a new trustee, but has no remedy in equity against the principal or income of the trust estate.</p>

CONTRACT against the maker and indorsers of a promissory-note for 11,675, dated September 14, 1900, and payable one month after date. Writ dated October 30, 1900. The Superior Court gave judgment for the defendants on an agreed statement of facts ; and the plaintiff appealed.

<p>Contbact upon an order for the payment of money accepted by the defendant upon the condition stated in the opinion. Writ in the Supreme Judicial Court dated December 19,1902.</p> <p>The ease was tried before Morton, J., who directed the jury to return a verdict for the defendant on the ground that there was no evidence to show a performance of the condition of the acceptance of the order sued on, or of its waiver, sufficient to warrant the submission of the case to the jury. The plaintiff alleged exceptions.</p>

<p>Petition to prove exceptions, in an action of tort for personal injuries from being run down by the horse and wagon of the defendant while the plaintiff was crossing Washington Street in Boston after coming from Waltham Street, on August 6, 1901. Writ dated August 14, 1901.</p> <p>At the trial in the Superior Court before Hardy, J. the jury returned a verdict for the plaintiff in the sum of $800 on March 3, 1904. On April 21, 1904, the period for filing exceptions having been extended to include that date, the defendant filed a bill of exceptions. On October 28,1904, on application of the defendant the judge allowed him to amend his bill of exceptions by striking out the words “ plaintiff’s case ” and inserting the words “ all the evidence ” in the manner described in the opinion. Whereupon the plaintiff filed this petition to prove the exceptions as they stood before the amendment, alleging that the amended bill of exceptions was not reduced to writing and filed within the period of time allowed by law.</p>

<p>Petition, filed February 14,1901, under Pub. Sts. c. 52, § 15, for damages to a lot of land and buildings of the petitioner on Ocean Avenue in Revere from the raising of the grade of that avenue on or about August 1, 1900.</p> <p>At the trial in the Superior Court before Harris, J. the jury returned a verdict for the petitioner and assessed the damages in the sum of $775. The respondent alleged exceptions, raising the questions stated by the court.</p>

<p>Negligence, Employer’s liability.</p> <p>An appliance does not become a part of the ways, works or machinery of an employer within the meaning of the employers’ liability act until it becomes a part of the permanent structure or plant, and, if a workman is killed through the negligence of a fellow servant engaged in adjusting a new appliance to replace an old one which has been broken, his next of kin cannot recover from the employer for his death.</p>

<p>Bill in equity, filed August 21, 1903, to enjoin the defendant from cutting off the supply of water from a summer cottage of the plaintiffs at Bass Rocks in Gloucester.</p> <p>At the hearing in the Superior Court before Sheldon, J., the plaintiffs introduced in evidence a “statement of agreed facts submitted as evidence.” No evidence was introduced by the defendant. It appeared that the defendant shut off the water from cottage B. mentioned in the opinion because the plaintiffs refused to pay the full water rates charged by the defendant on the ground that they were unreasonable and not uniform with the rates charged in other parts of the city. The plaintiffs had let cottage B. to one Mrs. Burke, of Omaha, Nebraska, for a term of two months beginning August 1, 1903, for the sum of $200 and the water rates, and the premises were occupied in accordance with that agreement. On or about August 15, 1903, the water commissioners caused notice to be given to Mrs. Burke that unless the bill sent to the plaintiffs on June 1, 1903, charging $25 for water for the cottage for the year or season ending June 1,1904, was paid immediately, the water would be shut off. Because of this notice, the plaintiffs on August 20, 1903, made a formal verbal application for a supply of water for cottage B. and tendered the defendant the sum' of $12.50, one half of the annual or season rate for the cottage, which the defendant refused to receive, and threatened to shut off the supply of water unless the full rate of $25 was paid. Whereupon the plaintiffs brought this suit in equity.</p> <p>St. 1895, c. 451, was accepted by the city of Gloucester in 1895, and in the same year the city acquired under the provisions of that chapter the property of the Gloucester Water Supply Company, and has since been supplying itself and its inhabitants with water, there being no other aqueduct water supply in the city.</p> <p>Cottage B. was situated at Bass Rocks. Before 1895 the plaintiffs became the owners of a large tract of seashore land in an outlying section of Gloucester at Bass Rocks, laid it out into building lots, constructed private ways through the tract and sold many lots, upon which houses for summer occupancy only were erected, and upon others of these lots the plaintiffs themselves erected summer houses, which they still own. At the time the defendant acquired the water works in 1895, a water main served a small portion at one corner of this tract and a very few summer houses thereon.</p> <p>Since the regulations and rates for water supplied by the defendant were established, the defendant, at the plaintiffs’ urgent request made with full knowledge of the regulations and rates and without expressing any objection to them, at great expense owing to the rocky nature of the soil further extended its water mains or pipes at Bass Rocks and laid them in and under the private ways by license in writing from the plaintiffs, so as to supply with water nearly all the summer houses at Bass Rocks, including cottage B., thereby greatly benefiting the plaintiffs and their unsold land. These summer houses at Bass Rocks so supT plied, ninety-two in all, were the only houses and consequently their owners or occupants were the only water takers there. But the laying of water pipes in some other sections of the city of Gloucester was also attended with great expense owing to the rocky nature of the soil.</p> <p>The whole number of water takers in Gloucester is approximately fifty-five hundred. Included in this number are five hundred summer houses, situated for the most part in outlying sections of the city, which the defendant supplies with water each year at the rates and according to the regulations above mentioned. A majority of these houses are not occupied earlier than June 1 nor later than October 1, and some are not occupied for more than two or three months. The owners and occupants of one third of these summer houses are permanent residents of Gloucester, and the remaining two thirds are non-residents, many residing except in the summer months in distant States. To enable the defendant to supply water to an increasing number of applicants between the years 1900 and 1903 principally for summer houses, it was found necessary by the commissioners to construct during the year 1902 an additional reservoir at an expense of about $250,000.</p> <p>The plaintiffs did not contend that the annual rates established by the commissioners for the use of water were unreasonable except as applied to summer houses and houses requiring a supply of water for a shorter term than one year, the income derived by the defendant from all water rates not being sufficient, within $35,000, to pay the current annual expenses of operating its water works and the interest on the water debt and the required annual payments on the principal of that debt.</p> <p>The judge reported the case for determination by this court, such decree to be entered as on the facts law and justice required. The report contained the following statement by the judge : “ So far only as it was a question of fact I found as an inference from said statement of facts that the wafer rates and regulations, which are a part of said statement, are uniform and reasonable except so far as they are shown as a matter of law to be either unreasonable or not uniform with reference to the - plaintiffs’ property by the circumstances set out in the statement of agreed facts.”</p>

<p>Mortgage, Of real estate, redemption. Equity Jurisdiction, To redeem from mortgage.</p> <p>The rule, that in equity a mortgagor of land cannot redeem by paying the original debt if by an oral agreement between the mortgagor and mortgagee the mortgage is to cover an additional advance of money made by the mortgagee, does not apply to a bill to redeem by an attaching creditor of the mortgagor who had no notice of the oral agreement.</p>

Contract by the proprietor of a hotel upon an account annexed with thirty items amounting in all to $210.50. Writ in the Municipal Court of the City of Boston dated August 13, 1903. On appeal to the Superior Court the case was tried before Aiken, J., without a jury.

<p> Devise and Legacy. Trust. </p> <p>The will of a married woman left all her property real and personal to her husband, “to have and to hold the same to him, his heirs, executors, administrators and assigns forever,” and added: “ It is my will, in consideration of the fact that I have heirs who are worthy, that my said husband shall leave by his will after my decease, should I decease before him, the property of whatever kind to my heirs.” Held., that the absolute devise of the real estate to the husband in fee was not affected by the subsequent clause attempting to reduce the fee to a life estate, and that no trust was created for the benefit of the heirs of the testatrix.</p>

<p>Way, Defect in highway.</p> <p>Under Pub. Sts. c. 52, § 18, (R. L. c. 51, § 18,) it is a question of faet for the jury whether a city had, or by the exercise of proper care and diligence might have had, .reasonable notice of a defect in a highway consisting of the depression of a sidewalk below the curbstone of nearly or quite two inches, if it appears that the street was a much travelled one and that the inner side of the curbstone above the depression was pretty nearly black, and stained, old looking and dirty.</p>

<p>Intoxicating Liquors. Words, “ At wholesale.”</p> <p>A. sale of a quart of native wine cannot be found to be a sale at wholesale within the meaning of R. L. c. 100, § 1, permitting the sale of wine at wholesale by the original maker thereof at the place of manufacture and not to be drunk on the premises.</p>

<p> Negligence. Elevated Railway. Ice and Snow. </p> <p>A person knocked down by the falling of a quantity of snow from above while he is walking under the elevated structure of a street railway company cannot hold the company liable for an injury thus caused if he cannot show where the snow came from and it is purely a matter of conjecture whether it came from th# elevated structure.</p>

<p>Equity Jurisdiction, To reach and apply equitable assets. Fraud, As against creditors.</p> <p>In a suit in equity to reach and apply to the payment of a debt property alleged to have been conveyed by the debtor to his sons in fraud of creditors, if it appears that the debt due to the plaintiff is a little over $6,000, that the property conveyed to the sons was worth $4,100, and that the debtor owed his sons $2,600, it may be found that there was no fraud in the transaction, a mere preference of particular creditors not being a fraud apart from statute.</p>

<p> Landlord and Tenant. </p> <p>Where a lease of real estate, under which the rent is payable on the first day of every mouth during the term, gives the lessee the right to purchase the property during the term, and the lessee exercises the option and tenders the purchase money on the twenty-ninth day of a month, and refuses to pay rent after the first day of the month in which he has made the tender, the lessor may recover the proportional part of the rent under R. L. c. 129, § 8, the contingency of purchase by the lessee under the provision of the lease which has terminated the estate of the lessor being such a contingency as is provided for by the statute.</p>

<p> Bankruptcy. Executor and Administrator. Bond. </p> <p>Where an administrator commits a breach of his bond and dies, and thereafter one of the sureties on his bond files a petition in bankruptcy and obtains a discharge, the discharge is a bar to an action against the bankrupt as surety on the bond, as the claim might have been proved in the bankruptcy proceedings. Whether the same rule applies in a case where the administrator has not died and there may be future breaches of his bond, quaere.</p>

<p>Indictment, found and returned in the county of Suffolk on December 12, 1903, alleging that the defendant on November 2, 1903, at Boston, “ money of the amount and of the value in all of seven hundred and seventy-seven dollars, a more particular description of which is to said jurors unknown, of the property, goods and chattels of one John Hamilton in his possession then and there being, did then and there feloniously steal, take and carry away.”</p> <p>At the trial in the Superior Court before Aihen, J., the defendant filed a motion to quash the indictment, and also a motion that the Commonwealth be required to furnish the defendant with a statement of particulars with reference to the force used in obtaining the property alleged to have been stolen, especially with reference to the exact person from whom the property was stolen and the exact time it was stolen. The motion to quash was denied by the judge, and the motion for a statement of particulars was not pressed by the defendant, an agreed statement of facts being substituted.</p> <p>It appeared from the evidence that the defendant was employed on the fishing schooner Monitor, sailing from Boston and Gloucester’, which brought a fare of fish to Boston on November 2,1903 ; that the defendant was the cook or steward of the vessel; that John Hamilton was the captain; that when the vessel arrived the fare of fish was sold to various dealers ; that it was the duty of the captain to collect the money due for the fish from the dealers and divide the proceeds, giving the owner one quarter and the crew three quarters after the expenses were deducted? Hamilton was to collect the money and account for it as above. The crew had the right to appoint a person to act as purser, whose duty it was to go with the, captain to see what amounts were paid to him, so that the crew could know what amount actually was received. The defendant was chosen as such purser. Hamilton, the captain, testified that he and the defendant went to twenty-five or thirty places in Boston and collected what was due either in cash or checks, that Hamilton gave the checks to the defendant to keep for him until the next morning when the defendant was to return the checks to him either in Boston or in Gloucester. The next morning the defendant cashed the checks and appropriated the proceeds to his own use. It was agreed that none of the money thus received by the defendant ever was returned to the captain or the owner of the vessel.</p> <p>The jury returned a verdict of guilty, and the defendant was sentenced to confinement in the house of correction for the term of one year. A motion to stay the execution of the sentence was denied, and the judge ordered that the property stolen by the defendant be restored to the owner. The defendant appealed from this order. Later he alleged exceptions which were allowed by the judge.</p>

<p>Tort under St. 1887, c. 270, § 1, cl. 1, 2, (R. L. c. 106, § 71, cl. 1, 2,) for injuries sustained on August 31, 1900, while in the employ of the defendant, the declaration being described in the second paragraph-of the opinion. Writ dated October 9, 1900.</p> <p>At the trial in the Superior Court before Fox, J. the jury returned a verdict for the plaintiff in the sum of $600; and the defendant alleged exceptions, raising the questions stated by the court.</p>

<p> Master and Servant. </p> <p>In an action against the members of a firm engaged in a general teaming business for injuries received from being struck by a team of the defendants when the driver was intoxicated and driving negligently, if it appears that when the plaintiff was struck the team was going toward the defendants’ stables at about eleven o’clock in the morning, that it was the practice of the defendants not to have their teams return to the stables in the middle of the day and to have the horses fed from pails at their stand, but that the driver of this team had done all the work assigned to him on that day, that an unusually heavy rain was falling, and that on a few occasions, in extreme weather the defendants’ teams had been sent to the stables, it can be found that the driver was acting within the scope of his employment at the time of the plaintiff’s injury.</p>

<p>Contract by the city of Lawrence against the town of Methuen for $1,200 paid for medical attendance, medicine and food and the board of a cook and nurse furnished for Frank H. Brown, afflicted with smallpox for twenty-four days in February, 1900, in the city of Lawrence and alleged to have a settlement in ■ Methuen. Writ dated January 20, 1902.</p> <p>In the Superior Court the case was tried before Holmes, J. George O. Marsh, called as an expert witness for the defendant, testified that for the past sixteen years he had been an overseer of the poor and a member of the board of health of the town of Methuen, which adjoins Lawrence, and that during most of that time he had had charge of the poor department, and had the cai’e of a number of smallpox patients, and that he had on several occasions employed several physicians in the treatment and care of smallpox patients; that he was familiar with the prices charged by such physicians, that he knew what had been paid in several cases for the board and nursing of such patients and for medicines for them, and that he was familiar with the charges for all such services. He was asked, “ What would you consider, from your experience with smallpox patients, would be a reasonable compensation for maintaining a patient afflicted with smallpox in the house of Dr. O’Connor for the space of twenty-four days in February, 1900?” The judge excluded the question on the ground that the witness was not qualified as an expert. The defendant excepted, and offered to show that the price of $10 a day .named by Dr. Magee, an expert who had testified for the plaintiff, was excessive, and that the ordinary compensation for the board and nursing, medicines and medical attendance and all expenses involved in the care of smallpox patients was much less than $40 a day.</p> <p>The case was argued at the bar in November, 1904, before Knowlton, C. J., Lathrop, Barker, Hammond, & Boring, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p> Trustee Process. Railroad. </p> <p>Statements made upon information and belief in the answer of one summoned as trustee by trustee process in the absence of anything in the record to control them must be taken as true.</p> <p>In an action against a railroad company another railroad company cannot be charged by trustee process for money credited to the defendant on account of the earnings of railroads beyond the defendant’s lines which the defendant would take only as the agent and trustee of the companies operating those railroads.</p> <p>In an action against a railroad company another railroad company can be charged by trustee process for money due to the defendant on account of the earnings of a railroad leased to the defendant by an instrument under which the defendant is to conduct the business of the leased road as a proprietor and not as a trustee, its possession and control being that of a lessee bound by the covenants of the instrument.</p> <p>In an action against a railroad company another railroad company cannot be charged by trustee process for cars in its possession mortgaged by their owner and lessor to which the defendant’s only title is that of a lessee for ninety nine years under an instrument containing among other covenants one to keep the cars in good condition and to replace them with other like property when worn, out, and a covenant giving the lessor the right at any time, after a short notice, to enter and take possession of the property and terminate the lease in case of a breach of covenant by the lessee.</p> <p>Sections 3300, 3353 and 3443 of R. L. of Vermont, 1880, give no right to attach by trustee process or otherwise rolling stock leased to a defendant railroad company but which it never has owned.</p> <p>R. L. c. 167, § 39, providing that railroad cars and engines in use and making regular passages on railroads shall not be attached upon mesne process within forty eight hours previous to their fixed time of departure unless the officer first demands other property upon which to make the attachment, applies to an attachment of cars and engines by trustee process.</p> <p>In an action against a railroad company another railroad company cannot be charged by trustee process for a freight car in its possession on a side track in another State.</p>