Volume 188 — Massachusetts Reports

<p> Tax. Corporation. </p> <p>St. 1903, c. 437, § 75, provides that every foreign corporation of certain classes shall pay an excise tax of one hundredth of one per cent on its authorized capital stock, “ but it may deduct from such tax the amount of taxes upon property paid by it to any city or town in the Commonwealth during the preceding year, and the amount of such excise tax shall not in any one year exceed the sum of two thousand dollars.” Held, that where one hundredth of one per cent exceeds $2,000 the amount of the local tax is to be deducted from the whole amount before it is reduced to $2,000.</p>

<p>Negligence, Contributory.</p> <p>A girl nine years of age, who on her way home from school while engaged in playing a game with other children runs across a street without looking to see whether any team is coming and is struck and run over by a team, cannot recover against the proprietor of the team for her injuries whether the driver is negligent or not, as she cannot be found to be in the exercise of such a degree of care as reasonably is to be expected from a child of her years.</p>

<p>Nuisance. Equity Jurisdiction, To enjoin nuisance.</p> <p>To determine whether a nuisance exists which will be enjoined in equity the effect of the things complained of upon persons of ordinary health and sensitiveness is to be considered rather than their effect upon those afflicted with disease or an abnormal condition of the nerves.</p> <p>Keeping a number of hens and two crowing cocks in hen houses and a hen yard maintained in a cleanly condition in the principal village of a country town near or adjoining the dwelling house of another can be found not to be a nuisance entitling the owner of the dwelling house to an injunction to restrain it.</p>

<p>Tort, under Pub. Sts. c. 112, § 212, for causing the death of .the plaintiff’s intestate run over by a car of the defendant on Centre Street in that part of Boston called Roxbury on November 14, 1900, through the alleged gross negligence and carelessness of the defendant’s servants. Writ dated February 28, 1901.</p> <p>At the trial in the Superior Court Maynard, J. ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p> Insurance, Fire. </p> <p>Under a policy of fire insurance in the Massachusetts standard form, one holding a chattel under a contract of conditional sale, by which the title is to pass when all instalments of the purchase money have been paid and in the meantime the purchaser is “ to be held liable for loss or damage by fire or otherwise,” if the chattel is destroyed by fire, may recover not only the amount of the instalments he has paid but also the amount of his liability in consequence of the destruction of tlie chattel by fire.</p>

<p>Common Victualler. License. Words, “Assume”, “Presume.”</p> <p>On the trial of a complaint under R. L. e. 102, § 1, for assuming to be a common victualler without being licensed, if it appears that the defendant caused a license to be procured in the name of another person and assuming to act under such license carried on a restaurant for his own profit and not as agent or servant of the licensee, he can be found to be guilty under the statute, although he honestly believed that he had a right to conduct the business in this way, an intention to violate the law not being necessary to the commission of the offence.</p>

<p>Appeal from a decree of the Probate Court for the county of Suffolk allowing the will of Uriel H. Crocker, late of Boston.</p> <p>The case at first came on to be heard before Lathrop, J., who ordered that the following issues should be tried by a jury:</p> <p>“ First. Was the instrument propounded for probate as the last will of Uriel H. Crocker, deceased, executed according to law?</p> <p>“ Second. Was the said Uriel H. Crocker of sound and disposing mind and memory at the time of .the execution of the said instrument ?</p> <p>“ Third. Was said alleged will procured to be made through the fraud or undue influence of Annie J. Crocker ? ”</p> <p>At a trial of these issues, the jury answered the first question in the affirmative, and disagreed upon the second and the third issues. Thereafter the same justice ordered that a second trial by jury should be had upon the second and third issues. At the second trial before Bráley, J. the jury returned a verdict answering the third issue in the affirmative. Thereafter a motion was made on behalf of Annie J. Crocker that the court set aside the verdict and order a new trial, or that the cause stand for further hearing and the will be approved and allowed by the court. This motion was denied by Bráley, J., who made a decree that the decree of the Probate Court allowing the will be reversed, that the will be disallowed, and that the case be remanded to the Probate Court for further proceedings. Annie J. Crocker appealed. She also made motions for the reporting of the evidence which were denied by the single justice as stated in the opinion of the court.</p>

<p>Contract by the administratrix of the estate of James Larkin, late of New Bedford, on a benefit certificate for $1,000 issued by the defendant on the life of Thomas J. Larkin, late of New York, son of the plaintiff’s intestate, alleged to have been payable'to the plaintiff’s intestate. Writ dated May 9, 1904.</p> <p>The Superior Court upon an agreed statément of facts gave judgment for the defendant; and the plaintiff appealed.</p>

<p> Bank. Trust. </p> <p>The fact that a trustee deposits a check payable to him as trustee in his personal account at a bank where he has no account as trustee gives the bank no reason to believe that the trustee is acting dishonestly, and if the trustee fails to account for the proceeds of the check the beneficiary has no remedy against the bank.</p>

<p>Contract, with a first and a second count on a contract in writing to employ the plaintiff as agent for five years, the first count alleging performance on the» part of the plaintiff and a refusal of the defendant to pay the plaintiff’s salary, and the second count alleging readiness and willingness and an offer to perform on the part of the plaintiff and prevention of performance by the defendant, with a third count on an account annexed for $4,440 alleged to be due as salary from March 1 to October 12, 1903, with interest from November 20 to the date of the writ amounting to $24.42, not referring to the contract in writing. Writ in the Supreme Judicial Court dated December 23, 1903.</p> <p>The contract -declared on in the first and second counts was as follows:</p> <p>“ Be it known, that -on the second day of March, 1903, the American Pneumatic Service Company, a corporation legally organized under the laws of the State of Delaware, for itself, its successors and assigns, party of the first part, and William R. Kerr of Chicago, Cook County, State of Illinois, party of the second part, enter into the following agreement:</p> <p>“ Article I. Said American Pneumatic Service Company agrees to employ said Kerr from the first day of March, 1908, for the term of five (5) years as its agent in attending to government and franchise matters, at a salary of seventy-two hundred dollars ($7,200) per year and reasonable travelling expenses when on business of the first party; but when the amount of contracts of the pneumatic tube service between the said American Pneumatic Service Company and its subsidiary companies and the United States Government shall equal the sum of two million dollars .($2,000,000) per year, then the said salary shall be increased to ten thousand dollars ($10,000) per year for the balance of said term of employment.</p> <p>“Article II. Said Kerr agrees to devote all his time and attention as agent of said company to the business of said company in the United States in relation to the carrying of mail by pneumatic tube service in which this company is or may be interested, either directly or through subsidiary companies, and act as directed by the board of directors or by the president*of the first party, within the scope of this employment.</p> <p>“ Article III. This contract may be' terminated by the party of the first part by a vote of its directors to that effect, upon thirty (30) days’ notice thereof in writing to the party of the second part, and thereupon the party of the second part shall be entitled to one year’s salary from the date of said notice.</p> <p>“In witness whereof the said American Pneumatic Service Company has caused its incorporate name to be signed hereto and its corporate seal to be affixed by Arthur S. Temple, its Treasurer, hereunto duly authorized, and the said William R. Kerr has hereunto set his hand and seal, both on the day and year first above written. American Pneumatic Service Company, Arthur S. Temple, Treasurer. William R. Kerr.”</p> <p>The defendant demurred to the declaration, alleging as causes of demurrer, first, that the contract, as set forth in the declaration and under which the claims as alleged in the several counts were based, was invalid in law, and, second, that in neither of the counts had the plaintiff set forth a legal cause of action.</p> <p>The case came on to be heard before Lathrop, J., who reserved it for determination by the full court upon the declaration and demurrer. If the demurrer was sustained judgment was to be entered for the defendant; otherwise, the defendant was to have leave to answer over.</p>

<p>Tort for personal injuries while the plaintiff was a passenger on a car of the defendant on February 7,1902, alleged to have been caused by the negligence of the conductor of the car and of other servants of the defendant. Writ dated April 1, 1902.</p> <p>At the trial in the Superior Court before Bishop, J. the jury returned a verdict for the defendant; and the plaintiff alleged exceptions in two bills as stated by the court.</p>

<p>Evidence, Declarations of deceased persons. Negligence, Contributory. Street Railway.</p> <p>A declaration of a deceased person may be admitted under R. L. c. 175, § 66, although made in assent to a leading question if the question called for a fact within the personal knowledge of the declarant.</p> <p>In an action by the widow of a motorman against the railway company by whom he was employed for his death alleged to have been caused by the starter of the defendant negligently giving him an order to proceed with his car on a single track without waiting for another car to pass him, in contravention of a general order, by reason of which he was killed by a collision, the starter denied that he gave any such order, and the conductor of the car of which the intestate was the motorman testified that as the car went upon the single track, proceeding toward a place called the Willows instead of stopping, he said to the deceased motorman “ Jim, did you have orders to go to the Willows 1 ” and that the deceased said “Yes” and nodded, and that after the collision when the conductor was in the ambulance with the deceased he said to him “ Jim, did you get orders to go to the Willows 1 ” and the deceased said “ Yes, I did.” The answers were objected to as not admissible under R. L. c. 175, § 66, because made in answer to leading questions and as merely embodying .the declarant’s inference as to what had been done or said by others. Held, that under the circumstances disclosed by the evidence the questions put by the conductor called for a fact within the personal knowledge of the deceased motorman and not for an inference to be made by him, and that the answers properly were admitted in evidence under the statute.</p> <p>In an action by the widow of a motorman killed by a collision against the railway company employing him for causing his death, it is a question of fact for the jury whether the plaintiff’s husband was in the exercise of due care in obeying the order of a starter of the defendant to proceed on a single track on which a car was to come in the opposite direction without waiting for the car to pass him on a double track before starting on the single one as a general order of the defendant required him to do,</p> <p>In two actions against a street railway company for the death of one motorman and injuries to another from a. collision of their two cars running in opposite directions on the same single track, it is a question of fact for the jury whether it was negligent for the husband of the plaintiff in the one case and the plaintiff in the other to run their respective cars at the rate of eight miles an hour in a thick fog upon a single track which was greasy because of dampness and fallen leaves.</p> <p>In an action by a motorman against the railway company employing him for injuries from a collision of his car with another car of the defendant coming from the opposite direction upon the same single track, if it appears that a general order of the defendant had been in force for four days requiring the cars coming from the opposite direction to wait upon a portion of the road having a double track until the plaintiff’s car should pass, and if it also appears that on three of the four days that the order had been in force it had been disobeyed by the persons in charge of the car coming from the opposite direction, it is a question of fact for the jury whether the plaintiff and the conductor of his car knew of sucli disobedience or reasonably supposed that in those instances special orders had been given for the car to proceed, and, even if they knew that the order had been disobeyed and had failed to report the disobedience, it still would be a question for the jury whether they were in the exercise of due care in proceeding under a general order requiring their car to make the trip it was making.</p>

<p>Petition, filed in the Superior Court for the county of Middle-sex on October 15,1900, under St. 1882, c. 154, § 5, for the assessment by a jury of damages for the taking of certain land of the petitioner on the Mystic River for a portion of a park. Dana B. Cutter, the lessee of the land at the time of the taking, was cited into the case by the petitioner Hellen.</p> <p>At the trial in the Superior Court Sherman, J. ordered a verdict for the petitioner Hellen in the sum of $1,159.25, $1,000 being the damage found by the jury and $159.25 the interest thereon. At the request of the petitioner Hellen and of the lessee Cutter, made a petitioner as above stated, the judge reported the case for determination by this court, such judgment to be entered as upon the facts the law might require. The facts are stated in the opinion.</p> <p>The case was submitted on briefs at the sitting of the court in May, 1904, and afterwards was submitted on briefs to all the justices.</p>

<p>Action, Survival. Conversion. Contract, Implied: common counts. Practice, Civil, Verdict. Evidence, Competency, Remoteness.</p> <p>A right of action for the conversion of personal property obtained by fraud and for money had and received for the portion of it turned into money survives to the administrator of the person defrauded.</p> <p>An action for money had and received will not lie for the conversion of a certificate of shares in a corporation which is not sold by the wrongdoer hut is surrendered by him to the corporation in exchange for a new certificate in his own name.</p> <p>Where in an action to recover property obtained by fraud there is a count for conversion and "one for money had and received and the jury return a general verdict for the plaintiff, if it has appeared that the property was converted by the defendant to his own use but was not turned into money the verdict cannot he sustained, as it may have been returned on the count for money had and received which will not lie for such a conversion.</p> <p>In an action for property alleged to have been obtained fraudulently by the defendant from the plaintiff’s intestate when mentally incapacitated by inducing the intestate to sign orders for money in savings banks and a transfer of shares of stock, if the defendant has testified to the signing of the orders and the transfer of the shares and has introduced the testimony of other witnesses as to the intention of the intestate to give the property to the defendant, the presiding judge in his discretion may allow the plaintiff to call witnesses to testify to declarations of the intestate, made four or five years before the signatures, that the intestate intended her property to go to the plaintiff, who was her husband, and to a similar declaration made a few months before her death, such declarations being competent to throw light upon the condition of the intestate’s mind at the time of signing the orders and transfer, and the limit of time being a matter which must be left largely to the discretion of the presiding judge.</p>

<p>Way, Defect in highway. Nuisance.</p> <p>Eor the purpose of establishing the liability of a city or town under the highway act a street remains open to travel until it has been closed by a vote of the proper authorities.</p> <p>In actions against a contractor and against a city for injuries caused by the plaintiff tripping over an iron water shut-off twelve inches high and three or four inches in diameter protruding above the portion of a street where a sidewalk is to be constructed, if it appears that the contractor was constructing a new street laid out over an existing highway, doing the work under a permit from the superintendent of streets, called a permit to close, this shows that the street technically was not closed to travel by a vote of the proper authorities, and it is a question for the jury whether the contractor and the city have used reasonable care and diligence to protect the travelling public. If they have not, the contractor is liable for having created a nuisance in a public way in legal contemplation open to travel, and the city is liable under the highway act.</p>

<p>Damages. West Boylston. Words, “Business”, “Established business.”</p> <p>The owner of a farm in West Boylston of about fifty acres, which has been the only means of livelihood for himself and his family, who for many years has carried on the business of farming by selling the surplus produce of his farm to persons in the village of Oakdale in the town of West Boylston, although he has had no regular route or customers and nothing in the nature of a good will, may be found by the commissioners appointed under St. 1895, c. 488, to have owned “an established business on land in the town of West Boylston” within the meaning of the provisions of § 14 of that statute.</p>

<p> Mandamus. Municipal Corporations. School and School Committee. </p> <p>A petition of six taxpayers and citizens of a city for a writ of mandamus is not the proper remedy to determine whether, as alleged in the petition, the duty of caring for tlie public sehoolhouses of the city belongs to the school committee and has been usurped by the mayor and city council, or whether it legally is vested in the last named public officers.</p>

<p> Landlord and Tenant. Covenant. </p> <p>A lease contained a covenant that “no act or thing shall be done upon the said premises, which may make void or voidable any insurance of the said premises or building against fire, or may render any increased or extra premium payable for any such insurance.” The lessee who was engaged in the varnish business put into the insured building large tanks for the storage of varnish. Later the insurance rate on the building was raised on account of the presence of the tanks of varnish, and the lessor having paid the extra premiums sued the lessee on the covenant. Held, that the plaintiff could recover the amount of the extra premiums thus paid by him, even if when he made the lease he had known the extent of the defendant’s business and his manner of conducting it elsewhere by storing varnish in large tanks, there being nothing to limit the application of the covenant to risks incurred by a change in the defendant’s manner of conducting his business. The plaintiff was not shown to have known these things.</p>

<p>Practice, Civil, Exceptions.</p> <p>An exception will not be sustained to an instruction which even if erroneous did the excepting party no harm.</p>

<p>Attachment. Mortgage, Of chattels. Trustee Process. Conversion.</p> <p>Statutory methods of attaching mortgaged personal property discussed by Loring, J.</p> <p>Mortgaged personal property in the hands of a bailee of the mortgagor cannot be attached by summoning the bailee by trustee process.</p> <p>Mortgaged personal property cannot be attached as if unincumbered and the mortgagee summoned to answer questions under R. L. c. 167, §.74, when the property is in the possession of the mortgagee.</p> <p>Where mortgaged personal property has been taken by the mortgagee for breach of condition and is in the hands of an auctioneer for foreclosure sale, a seizing of the property by an officer on an attempted attachment under R. L. c. 167, § 74, which is void because the property is not in the possession of the mortgagor, is a conversion.</p>

Tort for personal injuries incurred in the employ of the defendant as described in the opinion, with a first count at common law alleging defective machinery, a second count under the employers’ liability act alleging a defect in the ways, works or machinery of the defendant, and a third count under the same act alleging negligence of a superintendent. Writ dated February 2, 1901.

Two PETITIONS, filed January 3, 1902, by owners of land in that part of Boston called Brighton, for determination of damages for the taking by the city of Boston of an easement for sewerage purposes as described below. In the Superior Court the cases were tried before Bishop, J., who reported them for determination by this court on the terms named below.

<p> Constitutional Law. Automobile. Tax. </p> <p>St. 1903, e. 473, requiring the registration of automobiles, the payment of a registration fee of $2, and the marking of the registered number in Arabic numerals not less than four inches long, is constitutional.</p> <p>The §2 required by St. 1903, c. 473, to be paid for the registration of an automobile is a license fee and not a tax.</p>

<p>Practice, Civil, Service of writ. Writ, Service of. Error. Judgment, Vacation of.</p> <p>Under R. L. c. 167, § 34, the service of a writ at the last and usual place of abode of the defendant is not good in case the defendant is temporarily absent from the Commonwealth without the further notice required for absent defendants by R. L. c. 170.</p> <p>A writ of error lies to vacate a judgment rendered on default after insufficient service on the defendant.</p>

<p>Tax, Assessments for benefits. Sewer. Certiorari. Constitutional Law. Statute, Construction.</p> <p>If, when a town has adopted a system of sewerage under Pub. Sts. c. 50, § 7, providing for assessments for benefits under § 4 of that chapter, the assessments should be made by the selectmen instead of by the town itself, which here was not decided, this court will not grant a writ of certiorari to quash an assessment because made by the town, especially where the petition is filed more than nine years after the assessment was made.</p> <p>Pub. Sts. c. 50, § 7, (R. L. o. 49, § 5,) providing for sewer assessments and contemplating that they should be proportional, should be read as i£ it contained the words “ but in no case shall an assessment be made that exceeds the special benefit received by the estate assessed,” and so construed is constitutional.</p>

Tort, under R. L. c. 106, § 72, with a count at common law, for causing the conscious suffering and death of the plaintiff’s intestate by the spilling upon him of the contents of a ladle of molten iron upon the simultaneous breaking of two bolts holding a yoke supporting a crane to the end of which the ladle was attached. Writ dated January 13, 1903.

<p>Four petitions, filed July 15,1908, by owners of real estate on Columbus Avenue in Boston, for a writ of certiorari addressed to the street commissioners of that city to quash their proceedings assessing betterments upon the respective estates of the petitioners for the. extension and widening of that avenue, as stated in the first paragraph of the opinion.</p> <p>The first three eases came on to be heard before Barker, J.. who at the request of the parties reserved them for determination by the full court on the petition, the return and further returns of the respondents and the following facts and stipulations: That on September 4,1895, the superintendent of streets first entered upon the location for the purpose of beginning the construction of sewers, and on Januai’y 7, 1896, entered on the part of the location nearest Northampton Street for the purpose of beginning the construction of the avenue. The fourth case came on to be heard before Lathrop, J., who reserved it for determination by the full court on the same terms as the other three cases.</p>

<p>Indictment, found and returned in the Superior Court for the county of Suffolk on February 11, 1905, under R. L. c. 209, §§ 1, 8, in two counts, the first for making and forging a certain check for $45, and the second for uttering the same check knowing it to be forged.</p> <p>At the trial in the Superior Court before DeQourcy, J., the judge, against the defendant’s objection, admitted certain testimony of the officer who arrested the defendant which is referred to in the opinion, and refused to rule that on all the evidence the defendant should be acquitted on both counts of the indictment. He ordered the jury to return a verdict of not guilty on the first count, and submitted the case to the jury on the second count. The jury returned a verdict of not guilty on the first count and guilty on the second count. The defendant alleged exceptions, raising the questions stated by the court.</p>

<p>Contract, Construction, Performance and breach, Waiver.</p> <p>In an action for the price of one thousand gross of ping pong balls shipped by the plaintiff to the defendant under an alleged contract for the sale and shipment of a much larger number of like ping pong balls, of which all the others had been delivered and paid for, it was held, that the correspondence described in the opinion warranted a finding by the judge who heard the case, without a jury, upon an agreed statement of facts with the power to draw inferences, either that the defendant, there being no dispute as to the price, absolutely had undertaken to receive and pay for nine hundred thousand balls not to be delivered before November 20 of the year when the contract was made, subject to an agreement on the part of the plaintiff to turn them out more quickly if it could do so, and that the defendant was bound to receive and pay for the thousand gross in controversy, or that, if there was an agreement on the part of the plaintiff that shipments should be made at the rate of two thousand gross per month and that they should be completed by October 20, those requirements were waived by the defendant.</p>

<p>Contract upon a contract in writing, described in the opinion, where the only material article, the fifth, is quoted. Writ in the Municipal Court of the City of Boston dated September 18, 1902.</p> <p>On appeal to the Superior Court the case was heard by Mason, C. J., without a jury, upon an auditor’s report and oral evidence. The judge refused to make certain rulings requested by the plaintiff and found and ruled as follows:</p> <p>“ The court finds that the architect and the defendant acted in good faith without fraud, in all that pertained to the presentation of the defendant’s claim,, auditing and certifying the same.</p> <p>“ That of the items allowed the defendant by the architect the following were not for expense incurred by the defendant for material and labor furnished for completing the contract: [four items] making in all $2,705.88.</p> <p>“ What the architect was authorized to audit, and upon which his certificate is conclusive upon the parties under Article 5, .is the expense incurred by the defendant for materials or labor in completing the contract, and any damage sustained by the defendant through the plaintiff’s default. The architect derived no authority from this article to audit or certify expense incurred for any other purpose. The provision does not oust the jurisdiction of the court to determine what expense incurred by the defendant was for the purpose named. As to all expense incurred for the purpose of completing the contract, the decision of the architect, acting in good faith, without fraud on his part or on the part of the defendant, and his certificate thereof are conclusive, and not subject to revision by the court.”</p> <p>The judge found for the defendant; and the plaintiff alleged exceptions.</p>

<p>Contract, against the surety on the recognizance of one Joseph Dews, a poor debtor. Writ dated March 15, 1900.</p> <p>In the Superior Court the case was tried before Mason, C. J., without a jury. The defence was that the execution on which Dews was arrested was void because served within twenty-four hours after entry of judgment in violation of Pub. Sts. c. 171, § 15, (R. L. c. 177, § 16.) ' It appeared that on August 20, 1896, the following agreement in writing was made between the plaintiff, by his attorney, and Dews: “ Commonwealth of Massachusetts. Suffolk, ss. Superior Court. Washington National Bank v. Joseph Dews. It is agreed in the above entitled cause that judgment may be entered for the plaintiff and execution issued forthwith for the amount of §4174.66 and costs. Charles H. Tyler, plaintiff’s attorney. Joseph Dews.”</p> <p>The plaintiff offered to prove the following facts: That Dews was a resident of Rhode Island and in the course of his business had occasion to come to Boston frequently, and so, to avoid arrest on mesne process at a more inconvenient time, he and his attorney in Rhode Island came to Boston on August 20, 1896, with the understanding with the plaintiff that Dews was to be arrested on execution to be issued on that day, that he was to make application to take the oath for the relief of poor debtors and was to enter into a recognizance with the defendant as surety, and that the above agreement for judgment, execution and arrest were made in carrying out this understanding. This offer of proof was made for the purposes: 1. To aid in construing the meaning of the word “ forthwith ” in the agreement for judgment entered into between the parties, and 2, to show a waiver by Dews of his rights under Pub. Sts. c. 171, § 15.</p> <p>The judge excluded this evidence and ruled that it was not admissible.</p> <p>The plaintiff requested the following rulings:</p> <p>1. That on the whole evidence the plaintiff is entitled to recover.</p> <p>2. That a defendant in an action can waive the benefit of the provisions contained in Pub. Sts. c. 171, § 15, and that Joseph Dews by his agreement that execution might issue forthwith did as a matter of law waive such provisions, and the execution issued on the same date pursuant to that waiver is a valid execution.</p> <p>8. That the execution against Joseph Dews issued on August 20, 1896, is a valid execution, the arrest thereon legal, and the recognizance valid and binding on the defendant.</p> <p>4. That the execution against Joseph Dews issued on August 20, 1896, was at the most only irregular and not void, and, an arrest thereon having been made, the defendant in this action cannot take advantage of such irregularity.</p> <p>5. That the pendency of the bankruptcy proceedings [against Dews] did not operate as a stay or continuance of the poor debtor proceedings, or in any manner affect the rights of this defendant.</p> <p>6. That the poor debtor proceedings were conducted in due form and according to law, and the condition of the recognizance was broken on May 31, 1899.</p> <p>The judge refused to give any of these rulings, and ruled: “ That upon the facts agreed, and those which are agreed if material, the action cannot be maintained.”</p> <p>The judge found for the defendant; and the plaintiff alleged exceptions.</p>

<p>Petition, filed May 7, 1897, under Pub. Sts. c. 191, § 1, to enforce a mechanic’s lien on certain real estate in Newton.</p> <p>In the Superior Court the case was tried before Mason, C. J. By the auditor’s report filed in the case it appeared that the petition was filed by James A. Rochford under an alleged oral agreement to erect a house on the land for the entire price of |3,500. This agreement was with his son Thomas J. Rochford, who at the time of the oral agreement was alleged to have been made did not have title to the land, but got a deed later from the owner, Winsor Gleason.</p> <p>A mortgage was given by Thomas J. Rochford to Winsor Gleason dated November 16, 1896, and was recorded the next day. A deed from Winsor Gleason to Thomas J. Rochford was executed and delivered on November 16, 1896. The auditor found that Winsor Gleason was the owner of the land, and that the delivery of the deed and that of the mortgage were simultaneous and part of the same transaction.</p> <p>Thomas J. Rochford, the respondent named in the petition as the owner, died April 18, 1902, and his brother John C. Rochford was appointed administrator of his estate and attended the hearings before the auditor, although it did not appear whether he had entered his appearance in the cases or formally had become a party.</p> <p>Martha M. Atkins, one of the respondents, claimed under a mortgage from Thomas J. Rochford to her dated February 10, 1897.</p> <p>Issues were framed for the jury, which with the answers of the jury to each were as follows:</p> <p>“ 1. Was the mortgage of Thomas J. Rochford to Martha M. Atkins, dated February 10, 1897, given in payment of, and in substitution for, the mortgage of said Rochford to Winsor Gleason, dated November 16, 1896 ? By direction of the court, the jury answer, No.</p> <p>“ 2. What was the date of the contract under which the petitioner claims ? The jury answer, November 9, 1896.</p> <p>“ 3. On what date was the mortgage of Thomas Rochford to Winsor Gleason first both actually existing and duly recorded? The jury answer, actually existing November 16,1896, recorded November 17,1896.</p> <p>“4. Was said mortgage to Winsor Gleason actually existing and duly recorded prior to the date of the contract under which the petitioner claims ? The jury answer, No.</p> <p>5. What amount, if anything, is due the petitioner for labor performed and materials furnished on the house on said premises under said contract? The jury answer, $917.46.</p> <p>“ 6. When did the petitioner perform or furnish labor last under his contract? The jury answer, April 17, 1897.</p> <p>“ 7. When did petitioner furnish and use material last under his contract? The jury answer, April 17, 1897.</p> <p>“ 8. Has the petitioner knowingly and wilfully claimed more than is due him? The jury answer, No.</p> <p>“ 9. Was the petitioner the real owner of the premises when he performed and furnished labor as he has alleged ? The jury answer, No.</p> <p>“ 10. Did the petitioner say or do anything to falsely or fraudulently induce the mortgagees mentioned in the first issue to take their mortgages, or to make payments thereunder, or any one claiming under said mortgages to do so ? The jury answer, No.”</p> <p>The judge, on consideration of the findings of the jury, the facts as reported by the auditor so far as applicable to the issues raised by the pleadings and not technically covered by the findings of the jury, and the record evidence of the conduct of the case, made a decree establishing the petitioner’s lien for the sum of $1,305.54. The judge made the following memorandum:</p> <p>“ The court rules that upon the findings of the jury the petitioner’s lien is not subject to the mortgage from Thomas J. Eochford to Winsor Gleason dated November 16, 1896. See Dixon v. Hyndman, 177 Mass. 506.”</p> <p>The respondents alleged exceptions.</p>

<p>Negligence, Employer’s liability, Proximate cause.</p> <p>If roofers using an extension ladder, supplied by their employer, which has a defective fastening at the junction of the two parts when extended, the two parts having become separated by reason of this defect, fasten them together in their own way with a rope found on the premises which is old and unfit for use, no superintendent being present at the time, and if another roofer who has not taken part in the fastening goes up this ladder and when called by a fellow workman to come down proceeds to do so and is thrown to the ground by the ladder giving way from the breaking of the unsound rope, the injured workman cannot recover from his employer for his injuries thus caused, the direct cause of the accident being not the original defect in the ladder but the negligence of his fellow workmen in failing to fasten the two parts of the ladder together securely by a sound rope.</p>

<p>Contract on an alleged oral contract of the defendant to pay a promissory note for $500 made by the defendant’s father to the plaintiff’s testator as stated in the opinion. Writ dated January 3, 1903.</p> <p>In the Superior Court the case was tried before Wait, J., who ordered a verdict for the defendant, and after verdict reported the case for determination by this court. If the ruling of the judge was correct judgment was to be entered on the verdict; otherwise, the verdict was to be set aside and the case was to stand for a new trial.</p>

<p>Contract upon a contract in writing for compensation for services as an architect. Writ in the Municipal Court of the City of Boston, dated December 8, 1902.</p> <p>On appeal to the Superior Court the case was tried before Wait, J. The agreement sued upon was as follows :</p> <p>“ This agreement, made this twelfth day of October, 1900, by and between Charles Bruen Perkins, of Boston, in the County of Suffolk, and Commonwealth of Massachusetts, party of the first part, and Charles Stedman Hanks, also of said Boston, party of the second part, Witnessetli: That, whereas, said party of the second part owes to said party of the first part the sum of one hundred and fifty (150) dollars for services rendered, and, Whereas, the said party of the second part is desirous of receiving further services from the said party of the first part, as architect,</p> <p>“ How, therefore, this agreement witnesseth said party of the second part agrees to pay said party of the first part the sum of one hundred and fifty (150) dollars, in cash, immediately upon the signing of this agreement, and to give to the said party of the first part a quit-claim deed of the equity in a certain parcel of land situated and described as follows: A certain piece or parcel of land situated in Stoneham, in the County of Middlesex, and bounded and described as follows, [description] which parcel of land is now subject to a mortgage of one hundred and fifty (150) dollars. And the said party of the first part hereby agrees to draw certain plans at the direction of the said party of the second part, for houses to be built upon other lands of said party of the second part.</p> <p>“ The number and size of said plans to be agreed upon mutually by said above named parties, the architect’s commission on which, at 5 per cent, is not to exceed the value of three hundred and fifty (350) dollars, and to be done as soon as they can be reasonably and properly finished, after directions received from said party of the second part.</p> <p>“ It is further mutually understood and agreed that the equity of said before described land is given as security for a further payment of two hundred and fifty (250) dollars, which sum shall, when paid, be considered to be full payment for said above last named plans. Said payment to be made at the expiration of two years from the date hereof, or any prior time, in cash, by said party of the second part to said party of the first part, who on payment of said sum of two hundred and fifty (250) dollars, shall convey, by similar deed as that received by him, the above described lot to said party of the second part, provided said party of the first part has not before that time sold the said equity to some third party at a price satisfactory to him, the party of the first part; which he is hereby authorized to do if he so elects, and which sale shall release said party of the second part from the payment of said two hundred and fifty (250) dollars, or any part thereof.</p> <p>“ It is further agreed that all betterments or other charges of every nature, except the annual taxes, assessed upon the land during the time that said party of the first part shall hold any title to the same, shall be paid in all cases by said party of the second part, whether assessed by the town of Stoneham, or by any private individual or individuals; except, also, interest on the mortgage aforesaid.</p> <p>“ In witness whereof, we, the above named parties, have interchangeably set our hands and seals the day and date first above written. Charles Bruen Perkins, Chas. Stedman Hanks.”</p> <p>The defendant requested five instructions, of which the judge gave the first and third, and refused to give the following, submitting the case to the jury:</p> <p>“2. That under the terms of this agreement the defendant was under no liability to pay the plaintiff any sum whatever, except the regular commission upon such plans, if any, as the plaintiff has made in accordance with the specific directions and conditions given and imposed by the defendant.”</p> <p>“ 4. That the plaintiff is not entitled to recover anything under the declaration in this case, unless plans were made by him in accordance with the specific directions and conditions of the defendant, and unless the commission on said plans at five per cent would amount to at least $250.</p> <p>“ 5. That upon the whole case the plaintiff cannot recover.”</p> <p>The jury, after consideration, made the following request for further instructions: “We are all agreed that the plaintiff did his part and should be paid. Does the contract bind in that case the defendant to pay $250 ? His plans at five per cent, as mentioned, would be over $350. At one and one half per cent, as mentioned, he only earned $225. Would ask for instructions on these points.”</p> <p>Thereupon the judge instructed the jury that if they found the contract had not been terminated, and that the plaintiff had done all the contract required, their verdict must be for $250, with interest, the commission for the particular plans drawn being immaterial under the terms of the contract.</p> <p>The jury returned a verdict for the plaintiff in the sum of $271.46; and the defendant alleged exceptions.</p>

<p>Negligence, On highway, Contributory.</p> <p>If a man who wants to pull down one leg of his trousers, and who has at least the whole of a highway including a sidewalk for foot passengers to choose from for performing that act, selects for the purpose the track of a street railway near a corner from which an electric car may emerge at any moment and strike him in eight seconds, and, if while stooping in such a place for the purpose named with his foot three inches over the rail he is struck by a car before he looks up, he cannot be found to be in the exercise of due care.</p>

<p>Two ACTIONS OE tort under Pub. Sts. c. 112, § 213, (R. L. c. Ill, § 268,) for injuries to the respective plaintiffs at a railroad crossing of the defendant alleged to have been caused by neglect of the defendant to give the signals required by law. Writs dated December 17, 1901.</p> <p>In the Superior Court the cases were tried together before Holmes, J., who refused to rule that the plaintiffs could not recover, and submitted the cases to the jury. The jury returned verdicts for- the plaintiffs, for James L. Kenny in the sum of $2,600, and for Annie Saunders in the sum of $1,300. The defendant alleged exceptions in each case.</p>

<p>Agency, Conflicting interests. Broker. Contract, Validity.</p> <p>The clerk of a person who has borrowed money from a bank, on collateral which the bank considers of insufficient value, properly can act as agent of the bank in procuring a person to purchase the loan from the bank, where each employer knows of his employment by the other, and a promise of the bank to pay the clerk a commission for performing this service is enforceable against it, the original borrower having no interest antagonistic to that of the bank in the transaction and the general employment of the clerk requiring the performance of separate and different duties from those which he performs as agent of the bank.</p>

<p>Negligence, On highway, Contributory. Way.</p> <p>A woman on a bicycle, who riding on the half of a city street which is open to travel while the other half is being excavated by a street railway company in laying a track, and seeing a furniture wagon with an overhanging load approaching attempts to pass between the wagon and the excavation and to avoid being struck by the load finds herself obliged to turn toward the excavation and falls into it, cannot be found to be in the exercise of due care so as to enable her to maintain an action against the city for injuries thus sustained, even if the absence of a barrier to guard the excavation constituted a defect in the highway.</p>

Contract by a savings bank against a surety and joint promisor upon a promissory note held by the plaintiff. Writ dated November 11, 1901. In the Superior Court the case was presented upon an agreed statement of facts. That court gave judgment for the plaintiff in the sum of $2,928.39 ; and the defendant appealed. The note sued upon was as follows: “$2500.00. Cambridge, Dec. 10, 1895.

Tort for injuries alleged to have been caused by the negligence of the defendant’s servants in running an electric car of the defendant against .a coal cart driven by the plaintiff on Oakland Street in that part of Boston called Dorchester on October 12, 1899. Writ dated November 22, 1899. At the trial in the Superior Court Pierce, J. at the close of the plaintiff’s evidence ordered a verdict for the defendant; and the plaintiff alleged exceptions.

<p>Negligence, Employer’s liability.</p> <p>If a person in charge of a gang of men employed in raising trusses to support a bridge over a canal leading to the second story of a mill building, who also takes part in the work and runs the engine used in hoisting, after sending a workman upon a truss to clear it from the wall of a brick building against which it is jammed in being raised, negligently starts the engine before the truss is clear of the building, and a rope breaks causing the death of one of the workmen, his act in deciding to start the engine may be found to be an act of superintendence although he also does the manual work of setting it in motion.</p>

<p>Practice, Civil, Exceptions.</p> <p>Where by a bill of exceptions it appears that at the close of the plaintiff’s evidence the judge refused to rule that the plaintiff could not recover except for certain items admitted to be due, that thereupon the trial proceeded and the defendant put in his evidence, and that upon the whole evidence the judge found for the plaintiff for the entire sum claimed, an exception by the defendant to the judge’s ruling cannot be sustained, whether the ruling was correct or not, for the plaintiff’s case if originally insufficient may have been completed by the evidence put in by the defendant so as to justify the finding on all the evidence.</p>

<p>Attachment, Of mortgaged personal property. Officer. Conversion.</p> <p>If a mortgagee of personal property which has been attached on a writ against the mortgagor before default, in attempting to make a demand on the attaching officer under Pub. Sts. c. 161, § 75, in good faith demands an amount largely in excess of the amount due by inadvertently naming the amount of the mortgage note instead of the sum of money actually advanced upon it, and if the mortgagee does not show that the attaching creditor was not prejudiced by the overstating of the amount demanded, the demand is void and the attachment is good against the mortgage.</p> <p>Where a mortgagee of personal property which has been attached on a writ against the mortgagor, who subsequently becomes insolvent, has failed to take any steps toward foreclosing his mortgage for a breach of condition by the mortgagor in allowing the property to be attached, and has made no valid demand on the attaching officer for the payment of the debt secured by his mortgage, a delivery of the property by the attaching officer to the assignee in insolvency of the mortgagor does not constitute a conversion of the property or give the mortgagee any right of action against the officer.</p>

<p>Damages. Evidence, Opinion: expert. Witness.</p> <p>On a petition for damages from the taking of the petitioner’s land on a hank of a river by the metropolitan park commissioners under St. 1893, e. 407, and St. 1895, c. 450, if the instrument of taking expressly excepts all rights to take and use the waters of the river for mechanical or manufacturing purposes and rights of flowage, “as well as the right to keep up, maintain, reconstruct, alter and use any water mill, mill privilege, canal, flume, raceway, mill dam, or flash boards, now lawfully existing or used, together with the right to enter upon the reservation ” established by the taking, “ so far as necessary to the use and enjoyment of the rights herein excepted,” the petitioner is entitled to no damages for the loss of any right to use the land incident to the use of the waters, all such rights being included in the exception whether the structures necessary for such use existed at the time of the taking or not, the taking also excepting all existing structures even though they might not be necessary for the best use of the water in the way it was being used.</p> <p>On the issue of the value of land at Hyde Park on a bank of the Neponset River taken by the metropolitan park commissioners under St. 1893, c. 407, and St. 1895, c. 450, it is within the discretion of the presiding judge to refuse to allow a witness who never had lived in Hyde Park or bought or sold property there and was not shown to have special knowledge of values there, to testify as an expert as to the amount of the damage to the petitioner, although the witness was in the real estate business in Boston and had had experience as a civil engineer and as a builder and repairer of textile mills, and at one time had charge of a mill in New Hampshire and of another at Lawrence, was the owner of a manufacturing site in Everett, had built and sold a chemical factory at Newton Upper Ealls on the Charles River, and liad some knowledge as to the general value of manufacturing property. Especially is such discretionary exclusion justified where the witness’s testimony already given had shown that his opinion on the question of damages probably was affected by an erroneous view of the rights of the parties.</p>

<p> Negligence. Elevated Railway Company. </p> <p>It is not the duty of an elevated railway company operating trains through a subway to warn persons about to pass from one car to another at a station in the subway that there is danger of stepping into the opening between the cars.</p>

<p>Bill ik equity, begun by a writ dated August 30, 1898, to recover certain amounts of money, and also to reach and apply the trade name and good will of the defendant’s business to the satisfaction of the plaintiffs’ claims.</p> <p>On December 14, 1903, the Superior Court made a decree, dismissing the plaintiffs’ bill with costs to the defendant. From that decree the plaintiffs appealed. On June 27,1904, this court sent down the following rescript: “ Decree of March 8th, 1899, vacated; bill dismissed with costs to the defendant Griggs; exceptions overruled,” which was duly entered on the docket of the clerk of the Superior Court on June 27, 1904.</p> <p>On July 14, 1904, William A. Munroe, Esquire, entered his appearance for the defendant. After certain other proceedings, no further decree having been made, the plaintiffs on July 16, 1904, made a motion to amend from equity to law. On July 21, 1904, Lawton, J., before whom this motion to amend was heard, indorsed the following order on the motion: “ Norfolk, ss., Superior Court, Boston, July 21st, 1904. After hearing upon within motion, ordered that said motion be allowed upon the payment into court for the use of the defendant Griggs on or before August 3rd, 1904, the costs to date in accordance with the rescript taxed as in an action at law, and in addition thereto three term fees, otherwise motion is disallowed. By the Court sitting in Boston. Henry E. Bellew, Assistant Clerk.”</p> <p>Messrs. Brandéis, Dunbar and Nutter, counsel for the plaintiffs, and Mr. Munroe, counsel for the defendant, were unable to agree upon the amount of taxable costs. Thereupon Mr. Mun-roe notified Messrs. Brandéis, Dunbar 'and Nutter to appear in the equity motion session of the Superior Court for Suffolk County on August 3,1904, on the question of what costs were properly taxable under the order of Lawton, J. On August 3, 1904, George R. Nutter, Esquire, one of the counsel for the plaintiffs, and Albert H. Chamberlain, Esquire, then associated with Mr. Munroe, were present at the equity motion session of the Superior Court for Suffolk County, and Mr. Nutter at that time informed Mr. Chamberlain that he was prepared in behalf of the plaintiffs to pay the taxable costs in accordance with the order of the judge and was prepared to proceed with the hearing on the amount of the costs. Mr. Chamberlain stated that Mr. Munroe was ill, and requested that the payment be postponed and that the hearing on the question of the costs be continued to August 5, 1904. Thereupon on August 3, 1904, the following agreement in writing was entered into by Mr. Nutter in behalf of Brandéis, Dunbar and Nutter, counsel for the plaintiffs, by Mr. Chamberlain in behalf of Mr. Munroe, counsel for the defendant: “Commonwealth of Massachusetts. Norfolk, ss. Superior Court in Equity. Lemuel Crossman et al. vs. Chas. A. Griggs. In the above entitled cause it is agreed that the time for the plaintiffs to pay the costs as provided in the order allowing the plaintiffs to amend the bill into an action at law may be extended to and including Friday, August 5,1904. Brandéis, Dunbar and Nutter, Attys. for Plaintiffs, William A. Munroe, Atty. for Griggs.” The defendant had no knowledge of this extension of time and neither assented nor . dissented. On August 5, 1904, there was a hearing before Fessenden, J., in the equity motion session for Suffolk County on the amount of taxable costs, at which hearing Mr. Nutter appeared in behalf of the plaintiffs, and Mr. Munroe in behalf of the defendant, and the taxable costs then determined by the court were on that day, August 5, 1904, paid to the counsel for the defendant in behalf of the plaintiffs. ’This agreement was not presented to the court for allowance. It was filed with the clerk on August 5,1904, on which day the costs, amounting to $212.38, actually were paid as appears of record. The defendant still retains the costs so paid, and never has offered to return them or any part thereof to the plaintiffs.</p> <p>On August 20,1904, Mr. Munroe, having withdrawn his appearance for the defendant, and Vere Goldthwaite, Esquire, who had entered his appeai’ance for the defendant on August 19,1904, and who had been absent in California at the time of the proceedings to amend into law, having returned from California, entered a general appearance and an answer to the plaintiffs’ declaration in behalf of the defendant without actual knowledge of all of the terms of the order of the court dated July 21, 1904, allowing conditionally the amendment into law, although Mr. Goldthwaite knew that some order had been made allowing amendment into law. Later Mr. Goldthwaite, having learned of the terms of the order, on October 17, filed a motion to dismiss the action at law and a motion for a final decree.</p> <p>On November 4, 1904, the defendant’s motion to dismiss the action at law and to enter a final decree were argued together before Bell, J., and the defendant thereupon asked the judge to rule in substance as follows :</p> <p>“ First. That the entry on the docket of this court made by the clerk on the 27th day of June, 1904, to wit: the entry of ‘Decree of March 8th, 1899, vacated; bill dismissed with costs to the defendant Griggs; exceptions overruled,’was itself, under all the circumstances of this case, a final decree and a final adjudication of this cause.</p> <p>“Second. That, because the decree of this court made July 21,1904, was not, as appears by the record, complied with, this court now has no power to entertain any further proceedings with respect to said cause except a motion for a final decree in more extended form, which motion and decree in more extended form is before it for allowance.</p> <p>“ Third. That the order of this court dated July 21, 1904, as appears of record, to wit: ‘ Plff’s motion to amend from equity to law allowed upon payment into court for use of deft. Griggs on or before August 3rd, 1904, costs to date in accordance with rescript taxed as an action at law and in addition thereto three term fees, otherwise motion is disallowed,’ was an order upon an express condition, to wit: upon the condition of the payment into court for the use of the defendant Griggs on or before August 3rd, 1904, costs (as set forth in said order) that said costs were not paid into court on or before August 3rd, 1904, as appears of record, and that therefore the motion to amend was disallowed and the plaintiffs have no action at law now pending against the defendant before this court; or if they have, it be dismissed for the reasons above stated and the final decree allowed.</p> <p>“Fourth. That the record of this court cannot be changed by an agreement of the parties or their attorneys, as undertaken in this case, without an order of court.</p> <p>“ Fifth. That the general appearance, answer and other proceedings taken by the defendant in this case since August 3, 1904, do not have the effect to estop the defendant from any proceedings which might have been had by him in the premises after the entry of the rescript from the full court.</p> <p>“Sixth. That because the order of court referred to in the third request for rulings of the defendant was not complied with, the case now stands as if the plaintiffs’ motion to amend from equity to law had never been made.”</p> <p>The judge refused to make any of these rulings and the defendant excepted. The case then being before the judge upon its merits, the defendant offered no evidence to disprove the plaintiffs’ claims for the several amounts set out in the declaration, with the exception of the sum of $400 for use and occupation contained in the seventh clause thereof, which the plaintiffs waived, but the defendant asked the judge to rule:</p> <p>“ Seventh. That the various issues joined in this case have each and all been adjudicated, as appears of record in this court, and that there must be a judgment for the defendant.</p> <p>“ Eighth. That if there is an action of law now pending against the defendant in the premises, the cause thereof happened more than six years before the commencing of said action at law as appears of record in this court, and is therefore barred by the statute of limitations, and there must be judgment for the defendant.”</p> <p>The judge refused to rule as requested. He found for the plaintiffs, at first in the sum of $28,949.88 which he subsequently reduced to $24,516.26, the amount of the ad damnum of the writ being $25,000. See Crossman v. Griggs, post, 217. The defendant alleged exceptions.</p>

Tort by the driver of a furniture wagon against a street railway company for injuries caused by his team when loaded with furniture being run into by an electric car of the defendant on Elm Street at or near Cutter Square in Somerville after daylight on December 6, 1900. Writ dated March 26,1902.

<p>Two bills IK equity, filed respectively on November 20, 1903, and February 14, 1905, the first by Henry N. Sawyer against George M. Cook of Chicago and Mary A. Cook his wife, to remove a cloud from the plaintiff’s title to certain land on Pleasant Street and Hancock Street in that part of Boston called Dorchester, and the second by the defendants in the first case against the plaintiff in the first case to enforce an alleged trust in the same land, and for an accounting.</p> <p>The defendants in the first case demurred, and the defendant in the second case also demurred. In the Superior Court the cases came on to be heard together upon the bills and demurrers before Fessenden, J., who reserved them for determination by this court. In each case if the demurrer was sustained, without allowing amendment, the bill was to be dismissed; otherwise, such order was to be made as justice and equity might require.</p>

<p> Seaman. Ship. Negligence. </p> <p>In an action by a seaman against the master of a vessel on which he was employed, for alleged aggravation of an injury from having the fingers of his right hand frozen while pounding ice from the rigging, by the defendant’s failure to provide proper medical and surgical treatment and keeping him at work after his injury, it appeared, that the vessel was a three masted schooner carrying a cargo of coal from Baltimore to New Bedford in the month of February, and was short handed, having on board only the master, the mate, who liad been injured, four seamen and a steward, that she experienced very cold weather, a blizzard and heavy gales, and was in danger during the three days from the time of the plaintiff’s injury until the plaintiff turned into his bunk and ceased to work, that the plaintiff’s hand, as soon as lie returned to the deck after having it frozen, received the proper treatment by being immersed in ice or in cold water until warmth and feeling came back, and thereafter was treated by the application of grated potatoes as a poultice, which was shown to be an ordinary remedy. Held, that it was the duty of the defendant to decide what under the circumstances to do with and for the plaintiff in connection with all the duties resting upon him as master of the vessel, and that there was no evidence which would justify a finding that the defendant’s decisions as to what he should do in managing the vessel and in his treatment of the plaintiff were not reasonable and proper at the times and under the circumstances when they were made. Also, that it was not material that the defendant did not give the plaintiff oil for his hand when he asked for it, as it was shown that the defendant furnished the ordinary remedies.</p>

Petition, filed June 22, 1904, under R. L. c. 201, to recover §2,019.67, with interest from January 25,1898, and §2,550, with interest from August 23,1901, paid by the petitioner to the Commonwealth as assessments for the displacement of tide water by the filling of certain fiats in the Charles River. The respondent demurred. In the Superior Court Sheldon, J. sustained the demurrer and ordered judgment for the respondent. The petitioner appealed.

<p> Street Railway. Way. </p> <p>Under Pub. Sts. c. 113, § 7, the selectmen of a town in granting an original location to a street railway company could impose a more onerous duty as to repairs of the public ways than that imposed by the general laws.</p> <p>A condition imposed by the selectmen of a town in granting an original location to a street railway company under Pub. Sts. c. 113, § 7, that the company shall keep that portion of the streets and highways included between its tracks and for a distance of eighteen inches outside thereof at all times flush with the top of the track and shall keep the same in repair to the satisfaction of the selectmen, is valid.</p> <p>Under Pub. Sts. c. 113, § 7, as well as under St. 1898, c. 578, § 13, which expressly provides for imposing methods of construction, the selectmen of a town in granting an original location to a street railway company could impose a condition, that the railway company should reconstruct its track and roadbed with such different material as the board of selectmen might require.</p> <p>The last clause of § 13 of St. 1898, c. 578, in regard to the granting of locations to street railway companies, providing that “all locations heretofore granted or in use are hereby ratified and confirmed, as if accepted under the provisions of this section,” is in effect a declaration that the interpretation given in practice to Pub. Sts. c. 113, § 7, was correct.</p> <p>A condition contained in the original grant of location to a street railway company by the selectmen of a town was as follows: “ Said railway company shall reconstruct their track and roadbed by laying down such different material therefor as the board of selectmen after public hearing may judge that public safety ■ and convenience requires; but no radical change in material of said track or roadbed shall be made until after the road has been in operation one year, except to make necessary repairs.” Held, that under this condition the selectmen could make a valid order requiring the railway company to take up fifty pound T rails specified in the location and replace them by ninety pound girder rails.</p>

<p>Trust, Accounts of trustee. Probate Court, Effect of decree. Estoppel.</p> <p>If a trustee, holding property under a will for the benefit of a married woman during her Ufe and on her death for the benefit of her minor children, renders an account which is assented to by the beneficiary for life but is contested by the guardian ad litem of her minor children, and the Probate Court makes a decree disallowing in the account certain investments made in good faith by the trustee and ordering the trustee to restore to the trust from his own property the amount of the loss on the investments disallowed, although the beneficiary for life might have been found to have accepted the loss for herself by her assent to tbe account when presented, yet, after the decree disallowing the investments on the objection of tiie guardian ad litem, the account is no longer the one to which the beneficiary for life assented, and she is not estopped from claiming the full amount of interest as well as of principal to which she is entitled by the decree.</p>

<p>Trust, Attempted modification by agreement. Will. Compromise, Agreement of.</p> <p>More than a year after a will had been proved and allowed in this Commonwealth, a contest having arisen as to the validity of the residuary clause of the will leaving the remainder of the property of the testatrix to certain relatives, “ in trust to devote the income to such charities as they see fit until they can no longer attend to the same,” and then to “ devote the entire sum, principal and interest, to the same purpose,” the heirs at law and next of kin of the testatrix executed an agreement of compromise, confirmed by a decree in another jurisdiction assented to by them, by which it was stipulated that the residue should be paid to two of the trustees named in the will who should pay the net income to one of the next of kin named, quarter yearly, for and during her natural life, “ such payments to be deemed a compliance with said trust.” The beneficiary for life named in this agreement filed a petition, seeking to be paid the income of the trust fund from the death of the testatrix before the turning over of the fund to the trustees as well as afterwards, under the provisions of Pub. Sts. c. 136, § 24, (R. L. c. 141, § 24.) Held, that the compromise agreement in no way modified the will, and was not a will nor an instrument in the nature thereof within the meaning of the statute, so that the provisions of the statute could not apply, and that under the agreement itself the petitioner was entitled to no more, as it gave her only the income of the fund turned over to the trustee under the agreement.</p>

<p>Equity Jurisdiction, Contribution, Laches. Equity Pleading and Practice, Amendment, Costs. Contribution.</p> <p>The fact that a portion of a joint debt remains unpaid is no defence to a suit in equity by one of two joint debtors who has paid the principal portion of the debt against the other for contribution, where the collection of the portion of the debt unpaid is barred by the statute of limitations and the creditor has acquiesced in a practical ending of his claim.</p> <p>Under Chancery Rule 25 of the Supreme Judicial Court a fact occurring after the filing of a bill in equity which makes good the plaintiff’s right to relief may be set up by amendment.</p> <p>If property given by one of two joint debtors is accepted at a valuation as payment of the joint indebtedness that indebtedness is ended, and a bill in equity by the debtor who gave the property will lie against the other for contribution. Although a plaintiff after filing a bill in equity delays more than six years before filing an amendment which is necessary to complete his right to relief, and delays more than four years after a master’s report has been made in his favor before setting it down for confirmation, yet, if the defendant at any time could have brought the case to trial and has failed to do so, he cannot object on the ground of laches to a decree awarding costs to the plaintiff.</p> <p>The plaintiff in a suit in equity by one of two joint debtors against the other for contribution is none the less entitled to costs because he delayed the filing of his bill four years and eight months.</p>

<p>Executor, Qualifications of.</p> <p>It cannot be held as matter of law that a person not a lawyer is unfit to act as executor because before the death of the testator he gave him unsound advice in regard to the management and disposition of property which the testator held as trustee under a will or on account of the mere fact that for a long time he knowingly concealed the will of the wife of the testator and all knowledge of it.</p>

<p>Conversion. Sale, Conditional.</p> <p>If a mortgagor of a stock in trade includes in the description of the property in the mortgage certain chattels of which the title is in an unpaid vendor under a ‘ contract of conditional sale, and acting as agent of the mortgagee retains the key of the building containing the mortgaged property both before and after a foreclosure sale of the property, this is a conversion by the mortgagee of the chattels wrongfully included and retained by his agent, for which the unpaid vendor may maintain an action of tort against him without a previous demand.</p>

<p>Way, Defect in highway. Practice, Civil, Service of notice in writing, Exceptions.</p> <p>If, in an action against a town for injuries alleged to have been caused by a defect in a highway, it appears that the notice in writing required by the statute of the time, place and cause of the injury was left by an agent of the plaintiff between eight and ten o’clock in the evening of the last day allowed for service at the house of one of the selectmen of the defendant occupied by him as his home and there delivered to a household servant at the door, and the defendant does not call the servant as a witness or show any reason for not calling her, this will justify a finding that the notice was delivered to the selectman on that evening.</p> <p>In proving the notice to a town under R. L. c. 51, §§ 20, 21, of the time, place and cause of an injury from a defect in a highway, if it is shown that on the evening of the last day allowed for service such a notice was delivered to a household servant of one of the selectmen at his dwelling, that it was placed somewhere in his personal presence under his control and that he knew it was there, it does not matter that he did not read it or even take it into his hands until three days later.</p> <p>In an action against a town for injuries alleged to have been caused by a defect in a highway, on an exception to a refusal of the judge to rule that there was no sufficient evidence to authorize a finding that a proper statutory notice was given to the town within the time required, the defendant cannot in argument before this court raise the point that the notice was ambiguous, if the record plainly shows that the ruling requested and refused was intended to mean, not that the notice was deficient in form, but that it was not given in time, and that the judge so interpreted the request.</p> <p>If, at the trial of an action against a town for injuries alleged to have been caused by a defect in a highway, the defendant did not contend that it was misled by the plaintiff’s notice of the time, place and cause of the injury or that the plaintiff had an intention to mislead, the defendant cannot raise that point in argument before this court on an exception to a refusal of the judge to rule generally that the plaintiff is not entitled to recover, especially where the evidence would warrant a conclusion that there was no intention to mislead and that the defendant was not misled.</p> <p>In an action against a town for injuries alleged to have been caused by a defect in a highway, if there is evidence that the plaintiff was driving under a railway bridge which crossed the highway, that one half of the road was obstructed by dirt and materials placed there in the construction of a sewer, and that the plaintiff’s team came in contact with a plank ten inches high, standing on edge and held in that position by dirt around it, projecting into the street so that teams going by would strike it, and if the plaintiff has testified that the road under the bridge was very dark, the questions whether the defect had existed so long that the town by the exercise of reasonable care and diligence might have had notice of it and was guilty of negligence in failing to remedy it, and whether the plaintiff was in the exercise of due care, are for the jury.</p>

<p>Tort for alleged slander in using certain German words set out in the plaintiff’s declaration signifying that* the plaintiff was a “dirty and homely looking whore.” Writ in the Municipal Court of the City of Boston dated July 23, 1902.</p> <p>On appeal to the Superior Court the case was tried before Schofield, J. Against the defendant’s objection the judge, upon the question of damages, admitted the testimony of the plaintiff’s mother, that after the alleged words had been spoken she had seen her daughter crying, that she “looked very bad” and did not sleep as well as before.</p> <p>The judge instructed the jury that in an action for slander the jury in assessing damages could consider injury to reputation and mental suffering. The judge further said: “ Now, in this case there was some evidence admitted in regard to the plaintiff not sleeping after these words were uttered. The only use that you can properly make of that evidence upon the question of damages is in connection with the injury to the feelings of the plaintiff. Were her feelings injured? If so, to what extent? And evidence of her conduct, or change, after that time is admitted and is competent only upon the question of the injury to her feelings, to enable the jury to say whether there was injury to her feelings, and to what extent they were injured.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $200; and the defendant alleged exceptions.</p>

<p>Tort, by tbe widow of Timothy O’Keeffe, also tbe administratrix of bis estate, for tbe death and conscious suffering of her husband and intestate alleged to have been caused by an accident sustained by him on September 25, 1901, while in the employ of the defendant. Writ dated January 7,1902.</p> <p>At the trial in the Superior Court Hitchcock, J. ordered a verdict for the defendant, ruling that the plaintiff was not entitled to recover, on the ground quoted in the first paragraph of the opinion. The plaintiff alleged exceptions.</p>

<p>Contract for $252 on a policy of life insurance issued by the defendant to tlie plaintiff’s intestate, and alleged to bave been revived after it had lapsed. Writ dated October 3, 1902.</p> <p>At the trial in the Superior Court before Wait, J. the plaintiff asked the judge to rule as follows: 1. The granting of the application for a revival of the policy restored the insured to all the rights he acquired upon the date the policy was issued, subject only to such conditions as may appear in the application and instrument reviving the policy. 2. The application for revival of the lapsed policy not having been attached to the policy is not admissible as evidence, and the jury must disregard it. 3. The revival of the policy is a revival ab initio of all the plaintiff’s rights.</p> <p>The judge refused to rule as requested, and ruled “ that the application for revival is not itself a policy of insurance, and the evidence, uncontradicted evidence, shows that prior to the application for revival the assured had been rejected for insurance in other life insurance companies. That the warranties contained in the revival were therefore violated, and the revival did not take effect.” He ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tort for alleged malicious prosecution in causing the arrest of the plaintiff for larceny after the issuing of a warrant to search the plaintiff’s premises. Writ dated May 17, 1900.</p> <p>At the trial in the Superior Court before Bell, J. the defendant asked for seven instructions to the jury, of which the judge gave the first, fifth and sixth, and refused to give the following:</p> <p>“ 2. There is no evidence that the defendant acted with malice and the plaintiff cannot recover.</p> <p>“3. There is no evidence that the defendant' acted without probable cause and the plaintiff cannot recover.</p> <p>“4. If the officer serving the search warrant found on the premises of the plaintiff any of the property of the defendant mentioned in the search warrant, it is presumptive evidence that the plaintiff had probable cause for making the complaint of larceny.”</p> <p>“7. On all the evidence the plaintiff cannot recover.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $827; and the defendant alleged exceptions, that to the refusal of the fourth ruling requested not being argued.</p>

<p>Contract for certain amounts of money. Writ dated August 20, 1898.</p> <p>On the date of the writ the plaintiffs attached real estate of the defendant and placed keepers in possession of personal property. The keepers remained in possession until August 30, 1898. The writ was-returned to the court on its return day, without service upon the defendant, but on the return day a declaration was filed and the case was entered. In December, 1903, no further proceedings having been had, an order was issued for further service upon the defendant, and service thereupon was made in accordance with the order.</p> <p>On August 30, 1898, the personal property attached by the plaintiffs under their writ in this action was again attached by a writ dated August 30,1898, having an ad damnum of $25,000, which last named writ was taken out in a suit in equity begun in the Superior Court for the County of Norfolk. See Crossman v. Griggs, ante, 156.</p> <p>The bill in equity was prosecuted through its various stages to consideration by this court, where it was ordered dismissed with costs to the defendant. After the rescript ordering that the bill be dismissed was entered in the Superior Court and before a decree in extended form was spread upon the records, the plaintiffs by leave of court amended the suit in equity into an action at law and filed a declaration in that case, including among other things the counts and claims involved in this action. That case, as amended into law, came up before Bell, J., sitting with a jury, but, as there was no dispute in regard to the facts, the jury were not impanelled and, after certain arguments on questions of law, the judge found for the plaintiffs in the sum of $28,949.88, on all the counts in their declaration. This finding being in excess of the ad damnwm of the writ in the suit in equity amended into law, the plaintiffs, before judgment, by leave of court voluntarily discontinued as to certain counts of their declaration, and the judge thereupon amended his findings by omitting therefrom the amounts claimed on the counts as to which the plaintiffs had discontinued. To this discontinuance and to the amendment of the finding of the judge the defendant made no objection by exception or appeal or otherwise.</p> <p>The plaintiffs thereupon discontinued in this action begun on August 20, 1898, as to certain items which were included in the amended finding of the judge in the suit in equity as amended into law. Thereafter in the declaration in this action there remained certain counts which originally had been included in the declaration, in the action amended from equity, but which because of the discontinuance in that action had not been included in the amended finding therein.</p> <p>Thereafter, the defendant having filed an answer, this action came on for trial before Bond, J. The plaintiffs offered evidence which tended to prove the facts necessary to establish the counts remaining in their declaration, and the defendant, not disputing these facts, offered in defence the proceedings in the equity suit which had been amended into law, and requested the following rulings:</p> <p>“ First. That the plaintiffs cannot maintain this action in this form at this time and in this manner, because there is an action already pending between the same parties for the same cause concerning the same subject matter in the same court as appears in case No. 590, Crossman et al. v. Griggs, on the record of this court.</p> <p>“ Second. That the plaintiffs cannot maintain this action because, having joined the counts relied on herein with other counts in an action brought in this court after the finding of this action and having obtained finding thereon and voluntarily-discontinuing as to the counts alleged on in this action, their proper remedy was to have moved for an increase of the ad damnum in case No. 690, as above referred to instead of discontinuing as was done, and because of the rule against the multiplicity of suits.</p> <p>“ Third. Because it appears that all the issues joined in this case have been adjudicated in case No. 590 on the record of the court above referred to.”</p> <p>The judge refused to rule as requested.- He found for the plaintiffs in the sum of $4,748.99; and the defendant alleged exceptions.</p>

<p>Negligence, Employer’s liability. Dynamite.</p>

<p>Tort by a passenger ou an elevated train of the defendant for injuries sustained while alighting at the defendant’s station at Dudley Street in Boston at half past sis o’clock in the evening of January 25,1902, from the plaintiff’s foot and leg going down between the car and the platform. Writ dated March 22, 1902.</p> <p>In the Superior Court Sherman, J. ordered a verdict for the defendant, and reported the case for determination by this- court. If the ruling was correct judgment was to be entered on the verdict. If it was erroneous, by agreement of counsel judgment was to be entered for the plaintiff in the sum of $500 and costs.</p>

Two actions op tort, one by a girl, about seventeen years of age when injured, a passenger on an elevated train of the defendant, for injuries sustained while alighting at the defendant’s subway station at Park Street in Boston on the morning of December 9, 1901, and the other by the father of the plaintiff in the first case for loss of her services and earnings, and for expenses incurred for nursing and medical attendance. Writs dated January 20, 1902.

<p>Contract, Validity. Municipal Corporations. Tax, Assessments for benefits. Certiorari.</p> <p>"Whether a statement contained in an invitation for proposals to construct a street for a city, that the proposal of a bidder who will pay the full trade union scale of wages may be accepted in preference to that of a bidder who will pay wages according to a lower scale, and a clause in a contract for such construction that the contractor shall pay the full trade union scale of wages to his employees, make such a contract invalid even if a statute purports to authorize it, is an open question in this Commonwealth.</p> <p>Under St. 1902, c. 527, which authorized the assessment within a year from the passage of that act of betterments for improvements completed by the city of Boston within six years from that date and was intended to authorize assessments for expenses wholly or in part illegal when incurred, an assessment, upon estates specially benefited to a greater amount than the assessment, is valid if it is less than one half of the amount legally expended for land damages, and in such a case it is immaterial whether a part of the additional expense for construction was incurred illegally or if so whether the acts illegal when performed were of a kind which the Legislature might have authorized.</p> <p>Citation of cases deciding that on a petition for a writ of certiorari the petitioner cannot rely on matter not disclosed by the record.</p>

<p>Two PETITIONS, filed October 7, 1902, for damages from the taking of land of the petitioners by the city of Newton under St. 1898, c. 68, for the improvement of Hammond Brook as stated in the opinion.</p> <p>In the Superior Court the eases were tried before Wait, J. The judge instructed the jury that in each case the defendant took not a mere easement but the fee in the petitioners’ land. The jury returned verdicts for both petitioners, in the first case in the sum of $886.82, and in the second case in the sum of $821.24, both sums including interest from the date of the taking. The respondent alleged exceptions.</p>

<p> Unfair Competition. Sale. </p> <p>R. L. c. 56, § 1, making it a criminal offence to impose a condition in the sale of goods “ that the purchaser shall not sell or deal in the goods ... of any other person”, does not prohibit a sale of goods by a manufacturer with an agreement to give a reasonable discount at the end of a certain period if during that period the purchaser has not dealt in goods of the same kind made by any other manufacturer. Whether, if the original price was made so high and the discount so large as virtually to require the buyer not to deal- in the goods of others, the sale would come within the terms of the statute was not considered, nor was the question of the constitutionality of the statute.</p>

<p>Contract on a bond to dissolve a mechanic’s lien. Writ in the Police Court of Chelsea dated July 15, 1903.</p> <p>On appeal to the Superior Court the case was heard by Aiken, J., without a jury. It appeared that, the plaintiff having filed a petition in the Police Court of Chelsea to enforce a mechanic’s lien, the defendant Rosa Bernstein, as principal, and the defendants Bessie Aronberg and Horatio F. Twombly, as sureties, on March 5, 1903, executed the bond to the plaintiff to dissolve the lien. Upon the original petition counsel appeared for the respondent Bernstein, who subsequently was defaulted, and on a hearing, on June 12, 1903, the lien was established in the sum of $450.50 damages, and $13.82 costs; at that hearing Bernstein was not present in person nor by counsel. Bernstein not having paid the plaintiff the amount named within thirty days after final judgment thereon, the plaintiff began the present action upon the bond in the police court, and on September 11, 1903, obtained judgment by default in the sum of $464.32 as damages and $16.32 costs, from which judgment the defendant Twombly appealed, bringing the case to the Superior Court. In that court the defendants were defaulted, and the judge after default assessed damages in the penal sum of the bond, $1,000, and heard the parties upon the question of the amount for which execution should be awarded.</p> <p>The defendant Twombly, under R. L. c. 177, § 10, offered evidence to prove that the original petition brought to enforce the mechanic’s lien could not be maintained by reason of the fact that the debt due the petitioner was a contract price under an entire contract, that the contract never had been performed by the petitioner, that no statement ever had been filed properly covering this debt, and that the statement filed was prematurely filed and was not in accordance with the statute, and also offered evidence to prove that, if the petitioner could establish a lien for any amount, the principal defendant, Bernstein, had made substantial payments to the plaintiff on account of the work performed under the contract before the statement was filed, for which no credit was given the principal defendant in the statement, and also offered evidence to prove that at the hearing in the police court, when the lien was established, the principal defendant was not personally present or represented by counsel.</p> <p>The judge excluded the evidence, and awarded execution to issue for the sum of $500.13. The defendant Twombly alleged exceptions.</p>

<p>Municipal Corporations. Contract, Validity. Railroad.</p> <p>A city may make a valid contract with a railroad company that in consideration of the railroad company withdrawing its opposition to the laying out of a highway at grade under Pub. Sts. c. 112, § 125, across the railroad of the company, the city will pay the expense of erecting gates and maintaining a gateman at the crossing, if the agreement is made in contemplation of the authorization by the county commissioners of the laying out of the highway across the railroad and such authorization subsequently is given by an order of the county commissioners adjudging that the public safety requires the erection of gates at this crossing and a person to open and close them, as the expense may be regarded as “ incident to constructing and maintaining the way at such crossing,” and thus an expense for which the city is liable under Pub. Sts. c. 112, § 128, until or unless it is otherwise determined by an award of a special commission.</p>

<p> Landlord and Tenant. Evidence. </p> <p>A girl living with her father and mother in a tenement on the third floor of a building, who is injured by a fall caused by the breaking of the railing of a platform of the tenement while she is taking in clothes from a line attached to the railing, is in no better position as regards the liability of the landlord than either of her parents would have been if injured in like manner.</p> <p>The principle, that in the absence of an agreement on the subject a landlord is under no obligation to his tenant to put the premises in better condition than they were at the time of the letting, applies to a defective railing of a platform attached to a tenement on the third floor of a building and used by the tenant for storing fuel, hanging out clothes and other purposes, although staircases to and from the platform are used generally by the tenants in the building in passing between their several tenements and the yard below.</p> <p>If a landlord on one occasion at the request of a tenant voluntarily undertakes with a hammer and nails furnished him by the tenant to repair the railing of a platform extending from the tenement, this is not an admission of liability on the part of the landlord in case the tenant or her daughter afterwards is injured from the railing giving way.</p>

<p>Constitutional Law. Corporation. Statute, Construction.</p> <p>St. 1903, c. 437, §§ 58, 66, 67, 75, imposing an excise tax on every foreign corporation organized for certain purposes “ which has a usual place of business in this Commonwealth,” although it does not apply to a corporation whose place of business is established and maintained solely for use in interstate commerce, applies to a corporation engaged in interstate commerce which at the same time has a place of business for other purposes, and so applied is constitutional.</p>

<p> Nuisance. Way. Gas Light Company. </p> <p>The provision of R. L. c. 51, § 20, requiring notice of the time, place and cause of an injury from a defect in a highway is applicable only to an action brought for a failure to perform a duty imposed by statute of keeping the way in repair, and has no application to an action at common law against a person digging a pit in a highway and leaving it insufficiently or improperly filled.</p> <p>The obligation of a gas light company under R. L. c. 110, § 76, to put streets which it has dug up “ into as good repair as they were in when opened ” does not oblige such a company to keep such highways in repair within the meaning of R. L. c. 51, § 20, and the requirement of that section as to notice of the time, place and cause of an injury from a defect in a highway does not apply to an action against a gas light company.</p>

<p>Witness, Impeachment of.</p> <p>In an action of tort against a railway company for personal injuries, a witness who had testified for the plaintiff was asked on cross-examination whether the signature to a paper, containing questions and answers relating to the accident and signed with his name and address, was his. He said that it was not and in answer to a further question testified that the answers to the questions on the paper were not in his handwriting. He then at the request of the defendant’s counsel wrote in open court his name and address in the words in which they appeared on the paper. The defendant then offered the paper in evidence for the purpose of allowing the jury to compare the handwriting on the paper with that of the witness done in their presence, in order that if they found that the signature and the answers to the questions were written by him they might consider the inconsistency of the answers with his testimony as bearing on his credibility. The judge refused to admit any-portion of the paper except the signature and address, and, upon the defendant refusing to separate the signature and address from the questions and answers, excluded the whole paper, and ruled that it could not he submitted to the jury for the purpose of impeaching the witness. Held, that the exclusion and the ruling were not sufficient ground for sustaining an exception.</p>

Bill in equity, filed April 27,1903, by the trustee in bankruptcy of the estate of William L. Hodges to set aside certain conveyances of real estate in Stoughton made by the bankrupt to his wife Lillie G. Hodges and by her to her sister Ella A. Simmonds, including conveyances of the homestead estate mentioned in the opinion, which was called in the bill the first parcel.

<p> Street Railway. </p> <p>Under R. L. c. 112, § 7, the board of aldermen of a city or the selectmen of a town in granting a location to a street railway company cannot impose a condition regulating fares. Following Keefe v. Lexington & Boston Street Railway, 185 Mass. 183.</p> <p>Under R. L. c. 112, § 7, the board of aldermen of a city or the selectmen of a town ' in granting a location to a street railway company lawfully may impose a condition that the company shall furnish a system of electric lighting from its own power station for the entire length of the location, giving light of a specified power.</p> <p>There is nothing in R. L. c. 121, §§ 24, 26, c. 122, § 1, or any other statute of the Commonwealth making it unlawful for a street railway company as an incident to its business to use electricity from its power station in lighting the streets through which its cars run.</p>

<p> Corporation. Contract. Damages. Judgment. </p> <p>Where a person is both president and manager of a corporation and receives a salary, in the absence of evidence as to the services for which the salary is paid it may be inferred that it is paid for his services as manager.</p> <p>Electing a person as an officer of a corporation under ordinary circumstances is not a contract with him for a stated time, and implies no agreement on the part of the corporation to carry on its business through a year.</p> <p>If a corporation in electing a person as its president and manager at a certain salary makes a contract with him to carry on its business through a year, and subsequently breaks this contract by a sale of all its property within the year, this does not give the officer a right of action against the corporation for his full salary after his services no longer are required, but only the right to recover the difference between the amount of the salary and what he could have earned in some other occupation, and in the absence of evidence such loss will not be inferred.</p> <p>If the purchaser of a business agrees to indemnify the vendor against all loss or damage upon any contracts relating to the business upon which the vendor is liable, a judgment obtained against the vendor, in an action brought by the manager of the business for salary for a period after the sale, is not binding on the purchaser if the vendor gave him no notice to come in to defend the action.</p>

<p>Insurance, Fire, Sworn statement of loss. Waiver. Agency. Evidence, Admissions and confessions.</p> <p>In an action on a policy of fire insurance in the Massachusetts standard form, where the defence was the failure of the plaintiff to furnish seasonably the sworn statement of loss required by the policy, the plaintiff to show a waiver of this condition put in evidence a letter mailed by her to the defendant containing the following statements: “ A man who said he represented your company and the fire marshal from Springfield, Mass., came here three days after the fire and saw my husband and myself, but did not look at the things we saved or go to the farm where the fire occurred. We have left the few things which we were able to save here at Mr. Smith Jones for your agent to view them, but they have not done so. I am here on expense and would like to move the goods away. Can I do so. Please let me know at once.” It appeared that the plaintiff received no answer from the defendant denying the authority of the man referred to in her letter as saying that he represented the defendant. Held, that the letter of the plaintiff contained no statement that the man referred to came as an adjuster of the loss and therefore the silence of the defendant was not an admission that he was such an adjuster.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action by a girl employed in a factory against her employer for personal injuries, evidence that the plaintiff was of less than average intelligence is immaterial upon the issue of the defendant’s negligence unless there also is evidence that the defendant through its agents knew or ought to have known that she was of less than average intelligence.</p> <p>If the proprietor of a factory posts notices in places where they can be read by the operatives warning them against wearing loose garments and flowing hair which may be caught in the machinery, he has performed his whole duty in this regard without calling the attention of the operatives to the notices or seeing that they read them thoroughly.</p> <p>It is not the duty of the proprietor of a factory to warn a girl fourteen years and five months of age against the danger of wearing her hair hanging in a braid down her back so that it may be caught and wound up on a roller, if the girl herself knows that the rollers wind up thread, and means not to get any part of herself, her dress, sleeves, hair or anything else wound up in the rollers.</p>

<p>Two ACTIONS OF CONTRACT by the same plaintiffs against different defendants, sufficiently described by the court. Writs dated April 10, 1908.</p> <p>In the Superior Court the cases were tried before Richardson, J., without a jury. In each case he found for the defendant: and the plaintiffs alleged exceptions.</p>

<p> Electric Light Companies. Wires. </p> <p>Pub. Sts. e. 109, § 17, permitting, after a required notice, the cutting of telegraph and telephone wires in order to move a building or for any necessary purpose, was extended by St. 1883, c. 221, so as to give the same rights in regard to electric light wires. See now R. L. c. 122, § 28.</p>

<p>Landlord and Tenant. Negligence, Contributory, In maintaining freight elevator. Elevator.</p> <p>The lessee of an entire building sublet to various tenants is under an obligation to a master teamster directing the unloading of a truck load of goods for delivery to one of the tenants to have the premises reasonably safe for such a lawful purpose.</p> <p>If a freight elevator at its opening on a street is protected by an automatic gate designed to bar the entrance when the elevator is not there, and a master teamster about to direct the unloading of a truck load of goods sees the gate of the elevator raised indicating that the elevator is in place and, relying on this as he slips in trying to move a box out of the way, steps back where he supposes the elevator to be, it being “somewhat dark in there,” and falls down the elevator well to the basement, he can be found to be in the exercise of due care.</p> <p>It is evidence of negligence on the part of the proprietor of a freight elevator toward a person lawfully on the premises, that originally the entrance to the elevator was closed by a sliding door and that this was removed and replaced by a second hand gate with an automatic arrangement for closing the gate when the elevator went up, which did not work well, sometimes coming down when the elevator went up, and sometimes not, that the platform adjoining the entrance to the elevator had a hole in it, and that repeated complaints had been made to the agent of the proprietor in charge of repairs in the building both of the hole in the platform and of the condition of the elevator gate..</p>

<p>Insurance, Life. Contract, Construction.</p> <p>A contract in writing between a life insurance company and one of its agents provided, that, if the agency continued for one year and was not terminated by the company for a violation of the agreement by the agent, the agent should be entitled to renewal commissions on policies effected by him which accrued after the termination of the agency provided the agent should “ not be engaged in the business of life insurance for any other company, in any capacity whatever, in the State of Massachusetts, during the maturity of said renewal commissions.” The agent after more than a year of service was discharged by the company without cause, and within a month thereafter entered the employ of another life insurance company having its office in Boston. In an action by the^agent on the contract for renewal commissions thereafter accruing on policies effected by him, it was held, that he could not recover, there being no agreement to pay him commissions on renewal premiums after he had entered the employ of a competitor.</p>

<p> Res Judicata. Equity Jurisdiction. </p> <p>A final decree dismissing a bill in equity, from which no appeal was taken, is a bar to another bill between the same parties for the same cause of action, and the plaintiff cannot avoid the defence of res judicata by seeking to maintain the suit on grounds different from those mentioned in the former bill.</p>

<p> Negligence. Electric Light Company. Wires. </p> <p>In an action against an electric light company for injuries from coming in contact with one of its wires charged with electricity, if it appears that the wire carried an alternating current of thirty-five hundred volts and that a current of one thousand volts is dangerous to life, that at the place of the accident the wire, though supported on poles, ran through branches of trees likely to come in contact with the wire and rub off the insulation, that the insulation consisted of a rubber cloth covering which it would not take long to rub off, and that there was a better method of insulation for wires going through trees, the question whether the defendant was negligent in not using the better method of insulation is for the jury.</p> <p>In an action against an electric light company for injuries from coming in contact with one of its wires charged with electricity, if there is evidence that a wire which might have caused the accident had broken three hundred and twenty-five feet from the place of the accident, and that the defendant’s superintendent had been notified by telephone of this break ten minutes before the accident and had promised to send a man to attend to it, and if there also is evidence that at the place of the accident a wire hung down over the gutter next to the sidewalk where the plaintiff was walking, in a loop within five or six feet of the ground, the question of the defendant’s negligence should be submitted to the jury.</p> <p>In an action against an electric light company for injuries from coming in contact with one of its wires charged with electricity, if it appears that the plaintiff at about half past nine o’clock in the evening, after boasting about his knowledge of electricity and poking a broken wire from the gutter to the sidewalk and back again with his umbrella, started to walk along the sidewalk, and that a loop of the same wire was hanging down between two poles about half way to the ground over the gutter adjoining the sidewalk, and if there is evidence that the wind at the time was blowing eleven miles an hour, and the plaintiff contends that the loop of wire was blown against him, while the defendant contends that the wind was not strong enough to blow the loop over the sidewalk and that the plaintiff meddled with the wire while it hung over the gutter, it is for the jury to decide on all the evidence in the case which theory is correct and whether the plaintiff was in the exercise of due care.</p>

<p> Landlord and Tenant. Covenant. </p> <p>A provision in a lease, that in case the lessor has entered for a breach of condition lie may let the premises to another at the risk of the lessee holding him responsible for the rent but crediting him with sums actually realized, has no application to the liability of the lessee for rent accruing before the entry, and it is no defence to an action for such back rent, that the lessor by making a new lease after entry for breach of condition has received more rent for the whole period of the first lease than he would have received had there been no breach of condition by the original lessee.</p> <p>In an action on a covenant in a lease to pay “ all taxes and assessments, to which the premises or any part thereof may become liable during said term,” if it appears that the defendant failed to pay taxes assessed on the premises for the term of the lease, whenever payable, and that the premises had been sold for non-payment of taxes for one of the years of the term, the plaintiff is entitled to recover without showing'that he has paid the taxes or that he has redeemed the property from the tax sale.</p>

<p> Burglarious Implements. Housebreaking. </p> <p>Two defendants indicted under R. L. c. 208, § 41, for having in their possession tools and implements designed for committing burglary with intent to use them for that purpose, properly may be found guilty if it appears that the implements described in the indictment were found in a bag, to which one of the defendants had a key, in a room hired by another person, that the defendants were in the house with that person on the day on which the bag was found and went out of the house with him and afterwards returned without him, asking for the bag, that they gave a false account of the whereabouts of the person who hired the room, and disclaimed all knowledge of the bag and its contents, that when asked what they used certain revolvers and fuses for they made no answer, and when asked what use they made of a certain rubber bag, afterwards shown to contain nitroglycerine, one of them jumped back in such a way as to indicate that he knew what was in it and made no answer.</p>

<p>Pledge, Redemption. Equity Jurisdiction, To redeem from pledge.</p> <p>A pledge of four successive mortgages upon the same land was made to secure the payment of a certain note, by an instrument in writing giving the pledgee the right to sell the collateral security and to foreclose the mortgages or any of them at public or private sale, the pledgee having the right to purchase at the sale. The note was not paid at maturity, and the pledgee assigned the note and the four mortgages to his agent or attorney, who by instruction of the pledgee proceeded to foreclose one of the mortgages under a power of sale contained in it. At the sale the pledgee bid in the property and had it conveyed to a person for his benefit. No money was paid by any one and no payment was indorsed on the note or credited to the pledgor. The pledgor then filed a bill to redeem. Held, that he was entitled to redeem the three unforeclosed mortgages and the proceeds of the mortgage that had been foreclosed; that the foreclosure sale was good and the pledgee had a right to purchase under it, but that the net proceeds of the sale were to be applied toward the payment of the note of the pledgor, and the pledgee was ordered on payment of the balance of the note to assign the other three mortgages to the pledgor.</p>

<p>Tort afc common law and under R. L. c. 106 by the administratrix of the estate of Lawrence Hyde, a longshoreman, being also his widow, against a stevedore employing him, for causing the death and conscious suffering of the plaintiff’s intestate, with three counts described in the opinion. Writ dated February 1, 1901.</p> <p>In the Superior Court Fox, J. ordered a verdict for the defendant ; and the plaintiff alleged exceptions.</p>

<p> Practice, Civil. Landlord and Tenant. </p> <p>Under R. L. e. 178, § 96, a plaintiff is not required to take an appeal within thirty days after the entry of an interlocutory judgment sustaining a demurrer to his declaration, but may wait until final judgment is ordered for the defendant before taking his appeal.</p> <p>A landlord owes no duty to his tenant or a member of the tenant’s household to make repairs unless he has agreed to do-so, and where he has made such an agreement he is not liable for a want of repair of which he has received no notice.</p>

<p>Contract on a promissory note for $3,486.39 dated July 31, 1903, and payable two months after date. Writ dated October 3,1903.</p> <p>The defences set up were want of consideration and misrepresentation as to the amount to be paid by the note as stated in the opinion. In the Superior Court the case was tried before Schofield, J. who refused to give the instructions requested by the defendants, and left the case to the jury in the manner stated in the opinion.</p> <p>The jury returned a verdict for the plaintiff in the sum of $3,626.55; and the defendants alleged exceptions.</p>

<p>Contract, Implied: common counts.</p> <p>In an action for $75 had and received to the plaintiff’s use, it appeared that the defendant agreed to pay that sum in settlement of an action and claim for rent by a third person against the plaintiff, whereupon the plaintiff gave the defendant $25 in cash and surrendered to him two receipts representing $50 which the plaintiff previously had paid to the defendant upon a mortgage debt, the defendant agreeing to pay the $50 previously received from the plaintiff in settlement of the action against the plaintiff instead of applying it in reduction of the mortgage debt, and that the defendant paid nothing in settlement of the action and claim against the plaintiff. Held, that the plaintiff could recover the sum of $75 in this action.</p>

<p> Interest. Practice, Civil. </p> <p>Where an amount of money recovered in an action at law was due before the writ was issued, the plaintiff is entitled to interest from the date of the writ unless something appears to take the case out of the general rule.</p> <p>Where, on a question in regard to the allowance of interest, it appears that the case was heard in the Superior Court upon an agreed statement of facts, with a stipulation that inferences might be drawn from certain testimony bearing upon an alleged agreement in regard to interest, and the Superior Court has given judgment for an amount which includes interest, it will be assumed that the finding upon the testimony as to the agreement was in favor of the plaintiff, and if there is evidence to warrant the finding it will not be disturbed.</p> <p>The facts, that after the bringing of an action at law to recover the amount due on a life insurance policy a suit in equity was begun in a court of the United States by other claimants of the insurance money in which the plaintiffs and the defendant were made parties, and the action at law was continued for a long time until the suit in equity was disposed of by a dismissal of the bill, afford no ground for refusing the plaintiff interest during the entire period from the date of his writ, if there was no injunction or order in the proceedings in the United States court to restrain the defendant from paying the debt according to its terms, and nothing to prevent the defendant from filing a petition of inter-pleader under St. 1886, c. 281, (R. L. c. 173, § 37,) admitting its liability, or from paying the money into court at any time it pleased.</p>

<p>Three actions OE TORT against the superintendent of streets of the town of Rowley for personal injuries received in the manner stated in the opinion. Writs dated January 8 and 9, 1902.</p> <p>In the Superior Court the cases were tried together before Mason, C, J., who ordered verdicts for the defendant. The plaintiffs alleged exceptions.</p>

<p> Municipal Corporations. Worcester. </p> <p>The city of Worcester is not liable for the negligence of its servants or agents in performing the public duties imposed on that city by St. 1886, c. 331, establishing a system of sewage disposal in the interest of the general public, looking particularly to the protection of the health of the people living near the Blackstone River. Following Harrington v. Worcester, 186 Mass. 594.</p>

Indictment, found and returned on September 12, 1903, in the Superior Court for the county of Suffolk, charging the defendant with stealing thirty-five barrels of flour at Boston on February 6, 1903, with subsequent specifications alleging that the defendant obtained the flour by false and fraudulent pretences for use in his bakery at Fall River.

<p>Tort, by a woman about fifty years of age, living on Ballard Street in Fall River, for injuries from falling into an unguarded trench in that highway, when returning to her house at about a quarter past eight o’clock on the evening of November 10,1902. Writ dated November 26, 1902.</p> <p>At the trial in the Superior Court Schofield, J. refused to order a verdict for the defendant or to make certain rulings requested by the defendant. He submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $1,200. The defendant alleged exceptions, raising the questions stated in the opinion.</p>

<p> Equity Pleading and Practice. Corporation. Equity Jurisdiction. </p> <p>An attempted demurrer to a part of a bill in equity may be treated as an assignment of a cause of demurrer to the whole bill.</p> <p>A promoter stands in a fiduciary relation to a corporation formed by his promotion, and if he buys property personally with a view to selling it to the corporation and sells it to the corporation at an advance he is bound to disclose all material facts relating to the property, or to see that the corporation has adequate independent advice.</p> <p>A corporation does not lose by acquiescence the right to avoid a purchase of property sold to it by its promoters in exchange for stock without a disclosure of material facts, if at the date of the directors’ meeting at which the purchase was made the authorized capital stock was one hundred and fifty thousand shares, of which only forty shares had been issued and these were owned by the promoters, if the directors present at the meeting were the two promoters, their attorney and an employee, if at this meeting it was voted to buy the property in question for thirty thousand shares, to buy other property for one hundred thousand shares and to issue to the public twenty thousand shares, and if of the one hundred thousand shares twenty thousand went to the promoters for promotion services and expenses and eighty thousand to the persons who furnished the promoters witii funds to buy the property sold by them to the corporation.</p> <p>A bill in equity may be maintained by a corporation against one of its two promoters to compel, after rescission by the corporation, the restitution of the consideration received for property sold to it by the promoters at a large profit without a disclosure of material facts, although the title to the property conveyed to the corporation stood in the name of the other promoter who had a half interest in the contract, such other promoter being dead and his executors being residents of another State and not made parties to the suit.</p> <p>In a suit in equity by a corporation against one of its two promoters to compel, after rescission by the corporation, the restitution of the consideration received for property sold to it by the promoters at a large profit without a disclosure of material facts, the plaintiff, if the property has remained unchanged, not only can offer to restore it and demand the return of the consideration, but also has the remedy of waiving its right to a return of the consideration and seeking damages for the equitable tort committed by the defendant while acting in a fiduciary relation, and on this ground semble, that either promoter is liable severally .as well as the two jointly.</p> <p>This court has jurisdiction in equity to compel the restitution of money taken in violation of a fiduciary duty.</p> <p>In a bill in equity against one acting in a fiduciary relation to the plaintiff there is no inconsistency in a prayer for the rescission of a contract and a prayer for damages.</p>

<p>Indictment, found and returned in the Superior Court for the county of Suffolk on December 10,1904, against John O’Neil, otherwise called George Seymour, and Thomas O’Donnell, for an attempt on November 18, 1904, to commit larceny from the person of one to the jurors unknown.</p> <p>In the Superior Court before Harris, J. the defendants pleaded guilty to the part of the indictment charging the offence named above, and the judge sentenced each of them to the house of correction for a term of two and one half years. The defendants excepted to the imposition of the sentences.</p>

<p>Bill in equity, filed May 9,1904, against Alonzo M. White, the maker, and Hannah C. Hand, an indorser before delivery, of a promissory note for $500 dated April 30,1903, and payable, before alteration, on April 30, 1904, to enforce the payment of the note by the defendant Hand and to set aside certain conveyances of real estate alleged to be fraudulent, there being also two other defendants.</p> <p>In the Superior Court the case was referred to a master, who found that the plaintiff was entitled to a decree against the defendant White for the amount of the note and interest, and ruled that the words written on the note by the payee after delivery, which are mentioned in the opinion, constituted a material alteration of the note which discharged the defendant Hand from liability. The plaintiff excepted to the ruling of the master, and the judge of the Superior Court overruled the exception and made a final decree ordering that the master’s report be confirmed. The plaintiff appealed.</p>

<p> Release. Wagering Contracts. </p> <p>An absolute and unequivocal release must be construed in accordance with its terms although these embrace matters not in the minds of the parties at the time of its execution.</p> <p>Releases under seal attached to certain contracts relating to the purchase of stocks on margins, signed by the purchaser under a fictitious name in which he had been carrying on the transactions, releasing a stock exchange corporation from all demands on the contracts to which the releases were attached and also from any claim or demand under R. L. c. 99, “ for any payment at any time heretofore made . . . either on within or any. other contract or transaction whatever,” are a bar to all claims of a similar character on accounts previously carried on by the signer under his own name although closed more than two years before, and it does not matter that when the releases were executed the officers of the corporation to whom they were made did not know that the person who executed them was the same person who carried on the former transactions, nor does it matter that at the time the releases were executed the person who signed them had brought an action under St. 1890, c. 437, to recover the margins paid on the former transactions and had obtained an auditor’s report in his favor.</p>

<p>Mandamus. Way, Construction of highways.</p> <p>A petition for a writ of mandamus is the proper remedy to compel a city to proceed with the construction of a street alleged to have been unreasonably delayed after having been begun, but the issuing of the writ is a matter of judicial discretion. It was assumed in this case, without deciding it, that a city also could be compelled by mandamus to discontinue a street, but here no such situation was disclosed as required the court to compel the city to proceed with the construction of the street in question or to discontinue it.</p>

<p>Negligence, On highway.</p> <p>If the driver of a tank wagon, drawn by three horses abreast and containing oil, places his team between the track of a street railway company and the sidewalk of a street in order to deliver oil to a varnish factory by a hose pipe across the sidewalk, and if he unfastens the outer trace of the horse nearest the track, and then temporarily leaves his horses and goes back about sixty feet to the office of the varnish factory, he can be found to be negligent and his employer to be liable to a passenger on the running board of an open electric car who is crushed between the car and the hind quarters of the horse as the car is passing the team in the direction in which the horses are facing.</p> <p>The right to place a team between the track of a street railway company and the curbstone of a street and to keep it there for a reasonable time for the purpose of unloading merchandise must be exercised with a due regard to the rights of others lawfully using the street.</p>

<p> Landlord and Tenant. License. </p> <p>If the proprietor of a tenement house, who owns an adjoining building with a flat roof a portion of which is fenced off and floored with wooden boards and is used by the tenants as a place for drying clothes and for children to play, temporarily removes a part of the fence for the purpose of repairing the roof outside of the enclosure, and if a child six years of age after playing with other children on the roof falls through a skylight beyond the enclosure, the proprietor is not liable for the injuries suffered by the child, who is a trespasser or at most a mere licensee, the proprietor owing him only the duty not to injure him wantonly or to. set a trap for him.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action by a girl employed in a bindery, against her employer, for having the fingers of her left hand cut off by the dull blade of a folding machine coming down upon them after she had stopped the machine and was straightening out a leaf of paper below the blade, it appeared, that the machine previously had been out of order and that the plaintiff had notified the superintendent, who had examined it and said that it was all right, that a few days before the accident the machine had started from a dead stop, and that the plaintiff had called the machinist’s attention to it and he had “fixed it.” On cross-examination the plaintiff testified that she could have straightened out the top leaf of paper without putting her hand under the blade. Held, that the evidence warranted the jury in finding that the machine was defective, that it had not been repaired properly and that the accident was caused by such want of proper repair. Held, also, that the jury could find that the plaintiff was in the exercise of due care in putting her hand under the blade to straighten out the leaf after she had stopped the machine, as after the machine had been repaired by the machinist she had no reason to apprehend that it would start of itself; also, that she did not assume the risk of the machine starting of itself.</p>

<p>Complaint, received and sworn to in the Police Court of Chelsea on August 10, 1904, against a corporation organized under the laws of this Commonwealth, for violation of a rule of the metropolitan park commission as stated in the opinion.</p> <p>The complaint having been entered in the Superior Court, the case came on to be heard before Sherman, J. upon, an agreed statement of facts. The defendant requested the following rulings : 1. The regulation of the metropolitan park commission, the violation of which is alleged in this complaint, is not authorized by the provisions of St. 1903, c. 158, and therefore is void. 2. The regulation of the metropolitan park commission, the violation of which is alleged in this complaint, is unreasonable and of no legal effect. 3. The rules and regulations of the metropolitan park commission, the violation of which is alleged in this complaint, and the statute purporting to authorize the same, are unconstitutional and void. 4. On the agreed facts, the sign in question cannot as a matter of law be said to be “ near to ” the parkway, within the meaning of St. 1903, c. 158. 5. On all the agreed facts the defendant is not guilty.</p> <p>The defendant’s counsel stated that if the judge declined to make the rulings requested, the defendant would consent to a verdict of “ guilty.” The judge refused all of the requests, and a verdict of “ guilty ” was taken with the consent of the counsel for the defendant, the defendant excepting to the refusal to rule as requested. At the request of the district attorney and of the counsel for the defendant, the judge reported the case for determination by this court. If the rulings were correct, the verdict was to stand; otherwise, a new trial was to be granted, and judgment was to be entered for the defendant, or such judgment was to be entered as law and justice might require.</p>

<p>Malicious Interference. Actionable Tort. Labor Union. Boycotting. '</p> <p>Inducing an employer to discharge a workman because he does not belong to a certain labor union is actionable in tort as an unjustifiable interference with a contract.</p> <p>If a manufacturer makes an agreement with a labor union that he will not retain any worker in his employ after receiving notice from the union that such worker is objectionable to the union for any cause, whatever rights this agreement may give the contracting parties in relation to each other, it does not justify an agent of the union in demanding and procuring the discharge of a workman by the manufacturer because the workman is not a member of the union, and if he does so he is liable to the workman in damages.</p> <p>It is no defence to an action of tort for maliciously causing the discharge of the plaintiff by his employer that the plaintiff’s employment was terminable at the will of his employer, that fact being material only upon the question of damages.</p>

<p>Practice, Civil, Costs. Constitutional Law. Words, “Reduce.”</p> <p>Under R. L. c. 203, § 9, which provides that when two or more cases are tried together the presiding judge may reduce the witness fees and other costs, but that “ not less than the ordinary witness fees and other costs recoverable in one of the cases which are so tried together shall be allowed,” the judge in his discretion may reduce the costs in such a way as to leave no costs in some of the cases, if he leaves the aggregate amount not less than the costs recoverable in any one of the cases.</p> <p>R. L. c. 203, § 9, which, when cases are tried together, gives the presiding judge power in his discretion to reduce the costs in such a way as to leave no costs in some of the cases, is not unconstitutional, as depriving a plaintiff thus losing his costs of the equal protection of the laws, or for any other reason.</p>

<p>Practice, Civil. Negligence, Employer’s liability.</p> <p>If in an action for personal injuries the presiding judge in his charge to the jury has made certain remarks not pertinent to the case, which if unrecalled might be prejudicial to the defendant, but afterwards in an emphatic way tells the jury to dismiss this part of the charge from their minds and to deal with the case as if the remarks had not been made, it is to be presumed that the jury obeyed the instructions of the judge, and it may be held that justice does not require that a verdict for the plaintiff should be set aside. The same principle may be applied to the admission of incompetent evidence which the jury is told to disregard.</p> <p>In an action by a boy, less than thirteen years of age when injured, against his employer for injuries from a complicated and dangerous machine, the evidence described in the opinion was held to be sufficient to submit to the jury under instructions which would authorize them to return a verdict for the plaintiff if they found that the defendant failed to give the plaintiff such instructions as were reasonably necessary to enable a boy of his age and intelligence to see and appreciate the nature of the machine and the danger attending his work upon it.</p>

<p>Negligence, Gross.</p> <p>To establish gross negligence on the part of a defendant, the plaintiff must show intentional conduct of the defendant having a tendency to injure others which is known or ought to be known to the defendant, accompanied by a wanton and reckless disregard of its probable harmful consequences.</p> <p>Where the liability of a defendant depends upon showing gross negligence it must be explained clearly to the jury that the negligence to be shown is different in kind not merely in degree from a lack of ordinary care.</p>

Two actions OE tort, the first by Margaret Smith, as the widow of George F. Smith, alleged to be for the benefit of herself and the next of kin of her husband, for his injury and death alleged to have been caused by the defective condition of a step of a car of the defendant on which the plaintiff’s husband was at work as switchman, and the second by the same Margaret Smith as administratrix of the estate of her husband, with two counts under the employers’ liability act and…

<p>Negligence, Employer’s liability.</p> <p>A lining maker in a shoe factory, who has been employed in the same room for several months in the previous year, assumes the risk of injuries from falling over the steel cover of a power shaft crossing the floor of a passageway connecting two alleys between the machines in the room, and there is no duty on the part of her employer to inform her of the obvious existence of the shaft.</p>

<p>CONTRACT, by the administrator of the estate of Mary Murley, late of Boston, for certain money and property alleged to have belonged to his intestate, including a claim for $500 for money lent on a note, with a count, added by amendment, on a promissory note for $500 alleged to have been given by the defendant to the intestate and to have been destroyed by the defendant after the death of the intestate. Writ dated June 18, 1900. Declaration amended January 8, 1904.</p> <p>At the trial in the Superior Court Pierce, J. made the rulings stated in the opinion. The jury returned a verdict for the plaintiff in the sum of $718.17; and the defendant alleged exceptions.</p>

<p>Indictment, found, and returned in the Superior Court for the County of Suffolk on February 6, 1904, for the murder of one Sarah A. Peters on January 5, 1904, by shooting her with a pistol.</p> <p>Before the trial the district attorney entered a nolle prosequi as'.to so much of the indictment as charged murder in the first degree, and the defendant was tried before Bond, J. for murder in the second degree. The jury returned a verdict of guilty; and the defendant alleged exceptions, raising the questions stated by the court.</p>

<p>Negligence, Employer’s liability. Railroad.</p> <p>A brakeman in a freight yard, injured at two o’clock in the morning by having his left arm caught between two cars when in the usual course of his employment attempting to uncouple one of the cars from the other, may be found not to have assumed the risk of such an injury, if there is evidence that the cars came together because one of them was defective, the bumper, draw bar and end sills being gone from it, and that the plaintiff did not know of the defective condition of the car, that when there were broken cars to be handled the conductor told the men, although he did not inform them particularly as to the nature of the damage, and that the conductor did not tell the brakeman that this car was damaged.</p> <p>R. L. c. Ill, § 203, forbidding a railroad corporation to haul a car not equipped with automatic couplers “in moving traffic” between points in this Commonwealth, and § 209 of the same chapter, providing that an employee of a railroad corporation injured by any car used contrary to this provision shall not be considered to have assumed the risk of such injury, although he continues in the employment of such corporation after the unlawful use of such car has been brought to his knowledge, do not apply to a car being moved to a repair shop to be repaired.</p>

<p>Bill in equity, filed January 17, 1903, by Margaret T. Callaban against the Mercantile Trust Company and James J. Logan, and Simon Bilosky and Lewis P. Kaufman, the two last named defendants being added by an amendment allowed by the court on May 26,1903, and a CROSS bill, filed March 20, 1903, by the defendant Logan against the plaintiff in the first bill.</p> <p>By the first bill the plaintiff sought to establish her title to a $5,000 mortgage upon land of the defendant Logan, the plaintiff in the cross bill, of which the Mercantile Trust Company, another defendant, held the record title by an assignment from Margaret T. Callahan, under which, as between the trust company and Kaufman and Bilosky, the other defendants, the mortgage was the property of those defendants, and was held by the company only as collateral security for a debt of $4,000 due to it from them.</p> <p>The case was sent to a master, who made a report stating the facts, and came on to be heard before Loring, J., who by agreement of counsel reserved the case for determination by the full court upon the pleadings and the report of the master, such decree to be filed as equity might require.</p> <p>From the report it appeared that in April, 1901, Logan, owning certain land upon which he was erecting a house, applied to Mrs. Callahan for a loan of $5,000 and that she agreed to make the loan to be secured by a mortgage upon the land. Being ignorant of such matters she employed one Michael J. Moore, an attorney at law, and relied upon him to attend to the business. As the building was in process of construction the agreement was made for a temporary mortgage, the money to be paid to Logan as the building progressed, and for a new mortgage for three or five years to be given by him to Mrs. Callahan to take the place of the temporary mortgage when the building should be finished. In accordance with this arrangement the temporary mortgage and note for $5,000, dated April 17,1901, were executed by Logan, and Mrs. Callahan turned over to Moore certain bank books by means of which Moore from time to time drew out and paid over to Logan the money as the building progressed. Moore delivered to Mrs. Callahan the mortgage note, but kept the mortgage, which she frequently asked him to deliver to her, he putting her off by various excuses.</p> <p>In January, 1902, Moore drew up the permanent mortgage dated January 9, 1902, and caused it to be executed and acknowledged by Logan. This was done without the knowledge of Mrs. Callahan, and the new mortgage and note were kept by Moore in his possession without recording the mortgage.</p> <p>In May, 1902, Moore, without the knowledge or consent of Mrs. Callahan, negotiated a sale of the new mortgage to the defendants Kaufman and Bilosky for the sum of $4,500. Thereupon he drew a discharge of the mortgage of April 17, 1901, and the assignment to the trust company, held by it when the bill was filed, and on May 7,1902, took the discharge and the assignment to Mrs. Callahan at her home and obtained her signature to them. He gave her no explanation of the contents and she was ignorant of the purport or purposes of the transaction. She also indorsed in blank the second mortgage note, and affixed her signature to an assignment dated May 7, 1902, of a fire insurance policy on the mortgaged house, but in ignorance of Moore’s purpose to sell the mortgage. As a justice of the peace Moore also took Mrs. Callahan’s acknowledgment of the discharge and of the assignment at her residence, but did not fill in the acknowledgment. Bilosky and Kaufman, who had agreed that they would buy the mortgage for $4,500, did not have that sum. They had applied to the defendant trust company for a loan and the company had agreed to lend them $4,000 upon their own note with the Logan mortgage of January 9, 1902, as collateral. One Perry as conveyancer for the trust company had examined the mortgaged property and the title. He raised a question as to the taking by Moore of Mrs. Callahan’s acknowledgments of the discharge and assignment. Thereupon in the afternoon of May 7,1902, with the knowledge of Perry, one Morris, an attorney, was sent by Moore to take the acknowledgments of Mrs. Callahan to the discharge and assignment at her residence. She then observed in the assignment the words “ Mercantile Trust Company ” and asked “ What have I to do with the Mercantile Trust Company ? ” Morris replied, “I don’t know a thing about it. I supposed you knew what they meant when you signed them.” She then replied that Mr. Moore was her lawyer, and he would not ask her to do anything wrong, and she thereupon acknowledged both the discharge and the assignment. The transaction was completed on or about May 7,1902, Moore delivering to the trust company the mortgage note of $5,000 dated January 9, 1902, and indorsed in blank by Mrs. Callahan, the mortgage of that date which was put upon record May 7, 1902, the discharge dated May 5,1902, of the mortgage of April 17,1901, the assignment dated May 5, 1902, of the mortgage of January 9,1902, and the fire insurance policy with the assignment thereon from Mrs. Callahan. At the same time Kaufman and Bilosky gave to the trust company their note for $4,000 and each of them paid to Moore $250 in money, and the trust company gave to Bilosky its check for $4,000 and he turned the check over to Moore, so that Moore received $4,500 for the mortgage and note of January 9, 1902. No inquiry was made by the trust company or its conveyancer or by Kaufman or Bilosky as to Mrs. Callahan’s knowledge of the transaction or as to Moore’s authority to sell the note and mortgage. About a month after this transaction Mrs. Callahan saw Moore and inquired of him what she had to do with the Mercantile Trust Company, and he replied that he had put the papers in there so that they would be handy to get at when Mrs. Haggerty came in to buy the house, he having previously talked with Mrs. Callahan about a Mrs. Haggerty purchasing the mortgaged estate.</p> <p>Moore appropriated to his own use the $4,500 and absconded in September, 1902. Until that time he was in good standing as an attorney.</p> <p>Until December, 1902, Mrs. Callahan was ignorant of the receipt of the $4,500 by Moore. She never received any part of the money, and did not know of the delivery of the papers to the trust company until December, 1902, and was not informed of the transaction before that time, except as appears in the facts already stated.</p> <p>Logan, the mortgagor, paid interest upon the mortgage note on July 9,1902, and on January 9,1903, to the trust company.</p> <p>The bill prayed that the trust company and Kaufman and Bilosky might be enjoined from transferring the note and mortgage of January 9, 1902, to any one other than Mrs. Callahan ; that Logan might be enjoined from paying any part of the interest or principal to any one other than her; that the trust company and Kaufman and Bilosky might be required to account for and to pay over to her any interest or principal paid to them by Logan, and that they might be ordered to execute the instruments and indorsements necessary to vest in her a clear title to the note and mortgage of January 9, 1902.</p> <p>The cross bill prayed that Mrs. Callahan might be enjoined from transferring the note of April 17, 1901, and be directed to deliver it up for cancellation.</p>

<p> Officer. Search Warrant. </p> <p>If a police officer, having a search warrant for intoxicating liquors in a certain house, goes there in the absence of the owner and takes away a safe, and if afterwards, on the refusal of the owner to open the safe, the officer causes it to be opened by an expert who breaks the lock, using no more force than is necessary, and if the officer finding in the safe none of the liquor described in the warrant returns it to the owner, the officer is liable to the owner in an action of tort for removing the safe and breaking it open without the owner’s consent.</p>

<p>Mechanic’s Lien. Contract, Implied: common counts.</p> <p>One who has furnished labor and materials for a building under an express contract with the owner, if he has failed to perform the contract substantially, cannot establish a lien under R. L. c. 197, for the value he has added to the real estate of the owner by the labor and materials he has furnished, as he could if he had performed the substance of the contract.</p>

<p>Petition, filed July 9, 1901, under St. 1894, c. 548, § 8, by the owners of land and the buildings thereon numbered from 2364 to 2372 inclusive on Washington Street in that part of Boston called Roxbury, for damages to that property from the location, construction, maintenance and operation of the respondent’s elevated railway.</p> <p>In the Superior Court the case was tried before Maynard, J. The jury returned a verdict for the petitioners, assessing damages in the sum of $6,938; and the respondent alleged exceptions, raising the questions stated by the court and others which are held to have been waived because not argued.</p>

<p>Contract by a corporation manufacturing automobiles against the lessee from it of an automobile delivery wagon, for injuries to the machine which was partially destroyed by fire while in the possession of the defendant. Writ dated October 5, 1903.</p> <p>At the trial in the Superior Court before Schofield, J. the jury found for the plaintiff in the sum of f>976.23; and the defendant, after a motion for a new trial which was denied by the judge, alleged exceptions, raising the questions stated by the court.</p>

<p> Tax. Charity. </p> <p>A corporation organized under Pub. Sts. c. 115, “ to provide a home for working girls at moderate cost,” having no capital stock, and none of the income or profits of its business being divided among its members, can be found to be a charitable institution within the meaning of R. L. c. 12, § 5, cl. 3, and its property therefore to be exempt from taxation under that clause.</p>

Tort for injuries from falling over one of the rails of a track of the defendant on Columbia Road opposite Wolcott Street in that part of Boston called Dorchester, after the plaintiff had alighted from a car of the defendant and was crossing the reserved space of grass in the centre of that road over which the tracks of the defendant are laid, the reserved space being under the care, control and management of the park department of the city of Boston.

<p>Contract, on an account annexed, for the price of intoxicating liquors alleged to have been sold to the defendant. Writ dated February 7,1903.</p> <p>At the trial in the Superior Court before Schofield, J. the judge refused to order a verdict for the defendant, and submitted the case to the jury. The jury returned a verdict for the plaintiffs in the sum of $230.90; and the judge reported the case for determination by this court. If upon all the evidence the case should have been submitted to the jury, and if the verdict could be sustained, judgment was to be entered for the plaintiffs for the amount of the verdict and interest from March 25, 1904; otherwise, the verdict was to be set aside, and final judgment was to be entered for the defendant.</p>

<p>Boston Elevated Raihoay Company. Damages. Evidence, Opinion: experts.</p> <p>A petitioner under St. 1894, c. 548, § 8, for damages from the location, construction, maintenance and operation of the elevated railway of the Boston Elevated Railway Company, is entitled to recover for injury to his property not only from noise caused directly by the operation of the elevated trains but also for injury from the increase of noise in the operation of the surface cars under the elevated structure caused by the existence of that structure.</p> <p>On the trial of a petition under St. 1894, c. 548, § 8, for damages from the location, construction, maintenance and operation of the elevated railway of the Boston Elevated Railway Company, an expert who has given his opinion in regard to the amount of damage to the petitioner’s property, may be permitted to testify that the building of the elevated railway had diminished the salability of property along the line, this being admitted as the statement of an effect which related to the petitioner’s estate as well as to others, in support of the witness’s previously expressed opinion on the subject of damages.</p>

<p> Negligence. Railroad. </p> <p>It is not the duty of a railroad company to construct and maintain its gates at an ordinary crossing on the main street of a town of sufficient strength to withstand a runaway horse dashing against or rearing over them.</p>

Tort, by tbe administratrix of the estate of Hugh R. Edgar, under R. L. c. 106, §§ 71, 72, for the conscious suffering and death of the plaintiff’s intestate, a brakeman on a freight train of the defendant, from a switching engine backing down with other cars upon the train on which the intestate was a brakeman while he in obedience to an order of the conductor in charge of the train was between two cars for the purpose of coupling the air hose. Writ dated January 16,1904.

<p>Negligence, Contributory, of one riding bicycle on highway.</p> <p>If one riding a bicycle on a highway, which on his left is occupied by the track of a street railway and on his right has been made temporarily unfit for bicycle travel by soft material recently put upon it, is proceeding with four other bicyclists riding in single file on a pathway less than two feet in width next to the nearer rail of the track, worn smooth by bicycles although not designed for their use, and if so proceeding he sees an open electric car approaching at a rate of speed of from ten to twenty miles an hour and failing to turn to the right in time one of the wheels of his bicycle is struck by the running board of the ear throwing him off, he cannot he found to be in the exercise of due care so as to be entitled to maintain an action against the street railway company for injuries thus caused.</p>

<p>Tort by a farmer, about sixty-five years of age, for injuries received on the night of November 3, 1902, while driving an ordinary express wagon loaded with boxes along Trapelo Road in Waltham going toward Woburn Street, from being thrown to the ground by having the hind wheels of his wagon struck by an electric car of the defendant. Writ dated December 16, 1902.</p> <p>In the Superior Court the case was tried before Mason, C. J., who refused to rule that the plaintiff was not in the exercise of due care and could not recover, and submitted the case to the jury. The jury returned a verdict for the plaintiff in the sum of f913.60; and the defendant alleged exceptions, which after the death of Mason, C. J. were allowed by Kiehardson, J.</p>

<p>Two actions OE TORT, the first by the owners of a horse and milk wagon for injury to that property from a collision with an electric car of the defendant on June 17, 1901, at the corner of Westville Street and Geneva Avenue in that part of Boston called Dorchester, and the second by the driver of the wagon, the servant of the plaintiffs in the first case, for personal injuries from the same collision. Writs in the Municipal Court of the City of Boston dated March 14,1902.</p> <p>On appeal to the Superior Court the cases were tried together before Harris, J., who ordered a verdict for the defendant in each case. The plaintiffs alleged exceptions.</p>

<p> Negligence. Proximate Cause. Actionable Tort. </p> <p>In an action for the destruction by fire of a temporary building and goods of the plaintiff therein through the alleged negligence of the defendant, it appeared that the defendant was a corporation engaged in the construction of a public work, and that the plaintiff had procured Italian laborers for the defendant’s service and had erected the temporary building on land of another person near the work, fitted it with bunks for the workmen to sleep in, and in a part of it kept goods which by an agent he sold to the workmen, that as winter came on the men required a stove and the defendant’s foreman, either with or without the knowledge and assent of the plaintiff, put in a stove in which the workmen built fires for themselves with fuel of the defendant, that about one hundred feet away from the temporary building was a storehouse of the defendant in which barrels of oil and gasoline were kept, used by the workmen for filling torches which they required for work in a tunnel, that the workmen helped themselves to the gasoline to use in kindling fires in the stove, and in so using it caused the fire which destroyed the plaintiff’s property. It further appeared that the defendant’s foreman had told the plaintiff’s agent that he must stop the kindling of fires with gasoline and directed the employee in charge of the gasoline to prevent the workmen from getting it to use in the stove. Held, that, assuming that the act of the defendant’s foreman in putting in the stove was not assented to by the plaintiff and might be treated as an nncondoned trespass, this was the remote and not the proximate canse of the destruction of the plaintiff’s property by fire, and that if the defendant was negligent in keeping the gasoline in barrels in a storehouse one hundred feet away and not under lock and key, this also was not the direct cause of the plaintiff’s loss, the wrongful act of the workmen in taking the gasoline and their subsequent negligence in its use having intervened.</p>

<p>Tort for personal injuries from being run into from behind by an electric car of the defendant as the plaintiff was riding a bicycle on Broadway near Lynde Street in Everett on the evening of October 19, 1901. Writ dated November 15, 1901.</p> <p>In the Superior Court Holmes, J. ordered a verdict for the defendant on the ground that there was not sufficient evidence of due care on the part of the plaintiff. The plaintiff alleged exceptions.</p>

<p> Negligence. Elevated Railway Company. Contract. </p> <p>In an action by a workman employed by a sub-contractor to rivet steel upon a certain portion of the elevated structure of the Boston Elevated Railway Company then in process of construction under St. 1894, c. 548, against that company, for injuries caused by being thrown from a temporary platform, by loose planks of the platform on which the plaintiff was standing being knocked off by the trolley pole of an electric surface car of the defendant flying up and striking them as the car was passing around a curve, there was evidence that the trolley wire sagged, but that in running slowly around the curve, as all the motormen were ordered to do and as all of them previously had done, the trolley pole would not become disengaged, and that the car which caused the accident was running contrary to orders at an unusual rate of speed. Held, that the questions of the due care of the plaintiff and the negligence of the defendant were for the jury, and that it also was a question for the jury whether the plaintiff, knowing that the cars slackened their speed in passing over the curve, voluntarily assumed the risk of an accident from their running faster.</p> <p>In an action against an elevated railway company by a workman employed by a sub-contractor in building a portion of the defendant's elevated structure in process of construction under a contract between a principal contractor and the defendant, for injuries alleged to have been caused by the negligence of the defendant, the rights of the plaintiff are not affected by the provisions of a contract between the principal contractor and the defendant in regard to accidents to workmen.</p>

<p>Contempt. Error, Writ of. Practice, Criminal, Contempt, Sentence. Words, “Criminal case.”</p> <p>A formal presentation to the court signed by a sworn prosecuting officer is a sufficient verification of facts constituting a constructive criminal contempt to justify judicial action.</p> <p>Under R. L. e. 193,' § 9, and R. L. c. 156, § 3, a writ of error from this court lies to reverse a judgment of the Superior Court punishing a criminal contempt of court consisting of an offer to influence and corrupt jurors sitting in the trial of a case.</p> <p>Under R. L. c. 166, § 13, providing that commitments for contempt of court may be made to any jail in the Commonwealth, a criminal contempt of court cannot be punished by imprisonment in the house of correction. R. L. c. 220, § 5, does not apply to a case of contempt.</p>

<p> Error, Writ of. Contempt. </p> <p>A writ of error from this court lies to reverse a judgment of the Superior Court ordering the proprietor of a newspaper to pay a fine for contempt of court in publishing after an indictment for murder and before the trial a statement and discussion of a portion of the government evidence supposed to have been prepared for the trial.</p> <p>It is not a ground for reversing a judgment of the Superior Court, ordering the proprietor of a newspaper to pay a fine for contempt of court in publishing a statement of a portion of the government evidence supposed to have been prepared for a murder trial with facsimiles of handwriting and signatures and a discussion of the opinions of experts, that at the time of the publication the trial was not in progress nor immediately to take place, if the indictment had been found several months before and a time had been appointed for the trial and afterwards the trial had been postponed and its date had not been fixed. Nor is it any ground for the reversal of such a judgment that the statements in the publication were true, or that the publisher did not intend to injure either of the parties to the case or to interfere with the administration of justice.</p>

Contract for a balance alleged to be due for services rendered by the plaintiff as an attorney at law and for disbursements in behalf of the defendant. Writ dated January 3,1902. In the Superior Court the case was tried before Lawton, J. At the close of the evidence the defendant requested the judge to rule: “ 1. An attorney cannot in the same action, act both for his client and himself, when their interests are in conflict. 2.

<p>Way, Highway. Hancock Avenue.</p> <p>The foot walk or passageway eight feet in width at the west of the State House grounds in Boston called Hancock Avenue is not a public street or a private way within the meaning of St. 1892, c. 419, § 25, as amended by St. 1894, c. 443, § 9, restricting the height of buildings in Boston.</p>

<p>Tort for personal injuries from being hit on the head and knocked to the ground by a gate .at a crossing of the defendant on Moody Street in Waltham while the plaintiff was approaching tlie crossing on a bicycle between six and seven o’clock on the evening of May 8, 1908. Writ dated November 6, 1903.</p> <p>In the Superior Court Sheldon, J. ordered a verdict for the defendant, and reported the case for determination by this court. If on the evidence the plaintiff was entitled to have his case submitted to the jury, a new trial was to be granted; otherwise, judgment was to be entered on the verdict.</p>

<p> A gency. Broker. </p> <p>In an action by a broker for a commission for procuring an exchange of real estate the plaintiff contended that the customer, alleged to have been procured by the plaintiff, told his broker that he was ready to make the exchange in question and that the broker told this to the plaintiff and the plaintiff told the defendant who refused to go on with the trade. Held, that it was not necessary to consider what the rights of the parties would have been if the customer after telling his broker that he would make the exchange repudiated the transaction, as the evidence would not warrant a finding that the customer told his broker that he would make the exchange.</p>

<p> Bills and Notes. </p> <p>A check indorsed in blank by the payee and delivered in exchange for the note of another person in pursuance of an arrangement for the accommodation of the drawer of the check, deposited by the person who receives it in a bank to his credit in the ordinary course of business and immediately drawn against by him, is a negotiable instrument and subject to the law relating to such instruments, and the bank taking the check in good faith and paying full value for it is not affected by equities between the drawer of the check and the person depositing it. In such a case a stranger to the original transaction taking up the check by paying its full amount to the bank after it has been dishonored is entitled to all the rights of the bank against the drawer.</p>

Tort for personal injuries from being struck by an electric car of tbe defendant while at work with others in patching the flooring of the Harvard Bridge between Cambridge and Boston. Writ dated November 9, 1901. In the Superior Court the case was tried before Sherman, J., who ordered a verdict for the defendant, and by agreement of the parties reported the case for determination by this court.

<p> Evidence. Witness. </p> <p>When a witness in an action of tort for personal injuries has been cross-examined at length in an attempt to show that the account of the accident given by him in his direct examination is a recent fabrication created under the influence of the attorney for the party calling him, that party may call as a witness a person employed to investigate the case when notice of the accident was received and show by him that the witness cross-examined had given the same account of the accident soon after it occurred.</p>

Replevin for twenty-one cases of wool tops. Writ dated January 8, 1901. The answer denied that the goods replevied were the property of the plaintiffs, and alleged that they were the property of the Globe Worsted Mills, of which corporation the defendants were the assignees under an assignment dated December 21, 1900. At the trial in the Superior Court before Stevens, J., without a jury, the auditor’s report was the only evidence introduced.

<p>Negligence, Employer’s liability.</p> <p>A lamp trimmer employed to clean electric lights who never has worked as a lineman and has had nothing to do with the erection or care of the poles does not assume the risk of an injury from the fall of a pole while he is on it caused by the pole being rotten below the surface of the ground.</p>

<p>Negligence, Employer’s liability, Contributory. Evidence. Witness.</p> <p>In an action under St. 1887, c. 270, § 2, by the widow of a brakeman against the railroad company employing him for negligently causing his death, it appeared, that as the train on which the deceased worked came into a station of the defendant a man in the uniform of an employee of the defendant was seen standing on the front platform of the forward car where the deceased usually stood, that after the train stopped the deceased was found lying on the ground between the forward car and the tender of the engine with his head crushed and that he died soon after without regaining consciousness, that the deceased was an experienced brakeman, that it was his duty to couple and uncouple the engine and cars, but that it also was a part of his duty to let the conductor or engineer know if he went between the cars. Eeld, that there was no evidence from which a jury fairly could infer the cause of the accident or on which they could find that the deceased was in the exercise of due care.</p> <p>The provision of R. L. e. 175, § 24, that a party may impeach his own witness by proof that he has at other times made statements inconsistent with his present testimony, does not make the inconsistent statements thus introduced evidence of the truth of the matter stated.</p>

<p>Certiorari. Tax, Assessments for benefits.</p> <p>The writ of certiorari is not one of right, and will not be issued to quash a sewer assessment made under a statute afterwards held to be unconstitutional, where the petition for the writ is filed nearly six years after the assessment and it seems probable that there was some special agreement between the city and the petitioner’s predecessor in title under which he was content with the assessment and did not wish to contest its validity, and where the petitioner himself has made without protest five of the ten payments into which the assessment has been apportioned and has made use of the sewer.</p>

Tort, under R. L. c. 106, § 71, cl. 2, by a journeyman carpenter against his employer, a contractor and builder, for personal injuries alleged to have been caused by the negligence of the defendant’s superintendent. Writ dated April 1,1902. In the Superior Court the case was tried before Gashill, J., who ruled that there was not sufficient evidence to warrant the submission of the case to the jury, and ordered a verdict for the defendant.

<p>Tort by the proprietor of an apothecary shop on East Merrimack Street in Lowell' against a corporation maintaining an electric light plant in Lowell and furnishing electricity for light, heat and power, for personal injuries from a shock of electricity received when taking hold of a portable cord to carry an electric lamp to a part of the cellar under the plaintiff’s shop. Writ dated December 7, 1903.</p> <p>At the trial in the Superior Court before Wait, J. it appeared that the portable cord was installed in the cellar in the manner described in the opinion. On October 12, 1903, the plaintiff went into his cellar, and took hold of the portable cord in order to carry the lamp to a distant part of the cellar, when he received a severe shock, was thrown to the ground, and became unconscious, in which condition he remained for some fifteen minutes. His right hand was badly burned. It was admitted that the wiring in the cellar was not established under a written permission of the inspector of wires as required by an ordinance of Lowell, which is referred to in the opinion.</p> <p>The contract mentioned in the opinion was as follows:</p> <p>“ The Lowell Electric Light Corporation.</p> <p>“ Application for Electric Service.</p> <p>“ Lowell, Mass., 190</p> <p>“ By P. H. Brunelle to the Lowell Electric Light Corporation (hereinafter called Electric Company) :</p> <p>“ Subject to the printed terms and conditions recited on the back of this application, you will please connect your Electric System to premises Ho. East Merrimack Street, and furnish Electric Current for the following: 8 16 c. p. Incandescent Lights which I agree to use during the term of one year beginning , and pay therefore on or before of each j j next succeeding that for which service is charged at the following rates: eleven (11) cents per Kilo Watt hour net, as may be shown by the statement of the meter. And if not paid on or before the 10th day of each month 10 per cent, additional charge to be made. ( Monday ) j the 10 th day S</p> <p>“ In case the meter reading shows a consumption amounting to less than twelve dollars per year, I further agree to pay the sum of twelve dollars per year net.</p> <p>“ I hereby authorize and allow the Electric Company to set up in convenient and suitable places on the above named premises, the necessary transformers, meters and appliances, and it is further agreed that no change or alteration shall be made in the number of horse power of the motors, the number or candle power of the lamps, or the wiring of the above named premises, without first obtaining the written consent of the Electric Company.</p> <p>“As a guarantee for the faithful performance of this contract hereby deposit $ , to be returned only after this contract has finally terminated and have fully complied with all of its terms.</p> <p>“It is mutually agreed that the terms and conditions printed hereon, in so far as they are not inconsistent herewith, are a part of this agreement.</p> <p>“ This application to become a contract binding upon the company when accepted in writing by the proper officer of the Electric Company, and no agreement or representation made by any representative of the company shall be binding upon the company unless incorporated in this application.</p> <p>“ P. N. Brunelle.</p> <p>“ Accepted this 15 day of May, 1903.</p> <p>“ The Lowell Electric Light Corporation,</p> <p>“ By N. T. Wilcox, Manager.</p> <p>“ Terms and Conditions.</p> <p>“All lamps, meters, wires, and other appliances furnished by the company shall remain the property of the company. It is agreed that all wires upon the premises of the customer to which the company’s service will be connected, shall be so installed that the company may carry out this contract, and shall be kept in proper condition by the customer: that the customer will give, or obtain all necessary permission, to enable the agents of the company to carry out this contract and to enter the premises at all reasonable times, so long as any of the company’s property remains therein, for the purpose of keeping in repair or removing its property or inspecting its own or the customer’s wires or apparatus, and the customer will not permit access for removal of property, to parties other than its employees or the authorized representatives of the company, or persons duly authorized by law.”</p> <p>The defendant asked for various rulings, which were refused by the judge.</p> <p>The fourteenth ruling requested, which was refused and which the court holds should have been given as an instruction to the jury, was as follows:</p> <p>“ There is nothing in the terms of the written contract between the plaintiff and the defendant in reference to lighting the store of the plaintiff which imposed upon the defendant any duty of inspection or examination of the wires, portable cord and appliances in the cellar of the plaintiff and belonging to the plaintiff, although they were attached to the wiring system of the same store belonging to the plaintiff at the time that said contract was made.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $4,995; and the defendant alleged exceptions.</p>

<p>Negligence, Employer’s liability. Elevator.</p> <p>In an action by a boy employed to operate a freight elevator, against his employer, for injuries from being thrown to the floor of the elevator by its giving a violent jerk, in consequence of which his foot slipped over the edge of the car and was caught, if there is evidence that the car ran irregularly because of the defective condition of the guides, and that if a proper investigation had been made the imperfection would have been discovered, it may be found that the defendant failed to provide suitable instrumentalities for the plaintiff’s employment or to keep them in reasonably safe repair.</p> <p>A boy fourteen years of age employed to operate a freight elevator assumes the risk of only obvious dangers, and if there is evidence that the guides of the elevator were defective but that the guides and the manner of their construction were not visible except on an inspection, that the boy had noticed that the elevator did not seem to be in good running order and had so reported to the superintendent, that there always seemed to be something the matter with the elevator, although the boy did not know the cause, and that once it had shaken when he was using it, it is a question of fact for the jury whether the boy assumed the risk of an accident caused by the elevator throwing him to its floor by a violent jerk, and also is a question of fact whether he was in the exercise of due care.</p>

<p>Bill in equity, filed as finally amended on January 10,1904, by the Bay State Gas Company of Delaware, a corporation organized under the laws of the State of Delaware, against Thomas W. Lawson of Boston and Camille Weidenfeld of the city and State of New York, lately copartners under the firm name of Lawson, Weidenfeld and Company, and Allen Arnold and Henry H. Arnold, both of Boston, the said Lawson and the two last named defendants doing business under the firm name of Lawson, Arnold and Company.</p> <p>The bill alleged that the defendants Lawson and Weidenfeld were continuously, from August 27, 1895, to July 1, 1900, co-partners, doing business as brokers, that during the period from August 27, 1895, to December 7, 1896, one Otis Kimball was associated in business with them as a copartner, but on the date last named retired from the firm under an arrangement between him and the defendants which provided for the assumption by the defendants Lawson and Weidenfeld of all the then existing partnership liabilities. The allegations and prayers of the bill are sufficiently described in the opinion. The defendant Lawson demurred to the bill as finally amended, and also moved to strike out certain portions of the bill.</p> <p>The case was heard by Braley, J., who made an order that the demurrer be overruled, and denied the motion. At the request of the defendant Lawson he reported the case for determination by the full court.</p>

<p>Tax, Arrest for non-payment. Officer. False Imprisonment.</p> <p>Eor the purpose of making an arrest under R. L. c. 13, § 26, for non-payment of a tax, the collector has made reasonable search for goods on which to levy when he has requested the delinquent to exhibit goods upon which the levy may he made and the delinquent has refused or neglected to exhibit them.</p> <p>In an action against a constable for alleged unlawful arrest under a tax warrant, if it does not appear that the defendant made a specific demand upon the plaintiff to exhibit goods upon which to levy before making the arrest, the return of the defendant upon the warrant that he made diligent search for and was unable to find goods of the plaintiff, although hot conclusive, is prima facie evidence in favor of the defendant.</p> <p>In an action against a constable for alleged unlawful arrest under a tax warrant, if there is evidence that the plaintiff was arrested for non-payment of a tax after the defendant had made reasonable search for goods on which to levy, the questions whether on the facts shown there was unnecessary or improper delay in proceeding to the jail with the plaintiff or whether the plaintiff was subjected to improper treatment are for the jury.</p>

Bill in equity, filed in the Superior Court on February 19, 1902, by Joseph'K. Hayes, Jr., one of three trustees under an indenture of trust between George S. Hall and the three trustees dated February 9,1900, against his co-trustees and the beneficiaries of the trust, praying that the accounts of the several trustees should be passed upon, and that the plaintiff should be allowed to resign, amended by leave of court on November 10, 1902, by withdrawing the plaintiff’s…

<p> Equity Jurisdiction. Corporation. Equity Pleading and Practice. Survival. </p> <p>In a suit in equity by a minority stockholder in a corporation to restrain the officers of the corporation who also are its directors and the holders of a majority of its stock from wrongfully taking the funds of the company, under the guise of commissions or participation in profits, largely in excess of the value of their services, it is not necessary to allege or prove that the plaintiff before filing his bill made an application to the wrongdoers for relief within the corporation.</p> <p>The right of a corporation to recover from one of its officers property of the corporation wrongfully converted by him, or its value, survives against his estate.</p> <p>Where the officers of a corporation wrongfully have converted property of the corporation to their own use, the death of one of them, which would work a severance of the joint liability at law, does not prevent the executor or administrator of the deceased officer being joined as a defendant in a suit in equity against the officers to compel restitution of the property to the corporation, since in equity appropriate separate decrees may be made.</p>

<p> Constitutional Law. Boston. Northern Avenue. </p> <p>St. 1903, c. 381, authorizing the laying out and construction of Northern Avenue in Boston is not unconstitutional as impairing the obligation of the contract in regard to building an extension of Eastern Avenue in Boston made under authority of St. 1868, c. 326.</p> <p>St. 1903, c. 381, authorizing the laying out and construction of Northern Avenue in Boston is not unconstitutional as imposing upon that city an expenditure of public money for a private use.</p> <p>In St. 1903, c. 381, authorizing the laying out and construction of Northern Avenue in Boston, although the provision at the end of § 2, that no compensation, with a certain exception, shall be paid for lands or flats of the Commonwealth or of the city of Boston or of the Boston Wharf Company or of certain railroads within Northern Avenue or Sleeper Street, is unconstitutional and void, it relates to a separate and independent subject and its unconstitutionality does not affect the validity of the rest of the statute.</p>

<p> Bond. Guardian. </p> <p>It is no ground for reversing on error a judgment for the plaintiff in an action on a guardian’s bond, brought in the name of a judge of probate, that at the time the judgment was entered the ward for whose benefit the action was brought was dead, and no executor or administrator of his estate has been appointed.</p>

<p>Trust, Resulting. Gift. Limitations, Statute of.</p> <p>If a man buys and pays for a parcel of real estate and has it conveyed to a woman who is living with him as his housekeeper and whom he has agreed to marry as soon as his wife shall obtain a divorce from him, there is no presumption of a gift, and a resulting trust is created in favor of him who pays the purchase money, especially if the circumstances show that he does not intend to make a gift of the real estate to the person in whose name the title is taken.</p> <p>In case of a resulting trust created by the payment of the purchase money for land the title of which is taken in the name of another person, the statute of limitations does not begin to run against the equitable owner until the holder of the title begins to hold adversely, and if nothing appears to the contrary the transaction itself implies a recognition of the rights of the equitable owner until repudiation.</p> <p>If a man buys and pays for a parcel of real estate and causes the title to be taken in the name of another person a resulting trust is none the less created because the object of the purchaser in having the title put in the name of the other person is to defeat any possible claim of his wife to alimony, especially where the purchaser is not insolvent and his wife is not in fact defrauded, as the enforcement of the trust in no way depends on the fraudulent purpose and does not require its proof.</p>

<p>Bill of interpleader, filed in the Supreme Judicial Court on November 5, 1893, by the surviving partner of the law firm of Blaney and Robinson, who acted as counsel for the plaintiff in the case of Wiley v. Bunker Hill National Bank, reported in 183 Mass. 495, to determine whether the money recovered in that action should be paid to the defendant Wiley, the plaintiff in that action, or to the defendants Bullard and Wild, assignees under a common law assignment for the benefit of creditors made by tbe defendant Wiley on February 21, 1898, the above named action having been begun on' February 25, 1898.</p> <p>The case came on to be heard before Bammond, J., who reserved it for determination by the full court.</p>

<p>Tort, by a police officer of the city of Boston, for personal injuries caused by stepping through a hole in the platform of a car of the defendant when called to arrest two supposed burglars. Writ dated August 3, 1901.</p> <p>In the Superior Court the case was tried before Mason, C. J., who at the close of the plaintiffs evidence ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Practice, Civil, Auditor’s report. Wagering Contracts. Witness, Refreshing recollection. Evidence, Competency.</p> <p>Unless the rule to an auditor provides that his findings on matters of fact are to be final, a motion to recommit an auditor’s report is addressed to the discretion of the presiding judge, and his ruling is not subject to exception.</p> <p>Under St. 1901, c. 459, there can be no recovery of money paid as margins where the person employed to buy or sell securities makes, in accordance with the terms of the contract or employment, actual purchases or sales of the securities.</p> <p>A witness may be permitted to refresh his recollection from books of original entry although the books themselves would not be admissible in evidence.</p> <p>In an action against the members of a firm of brokers, under St. 1890, c. 437, as amended by St. 1901, c. 459, for money alleged to have been paid on wagering contracts, the defendants may show the general nature of the business done by the firm, that orders always were executed by actual purchases or sales and that there never were any fictitious purchases or sales.</p>

<p> Insurance, Life. </p> <p>If a policy of life insurance provides that no obligation is assumed by the company unless at the date of the policy “ the insured is alive and in sound health,” the company is not liable if the insured dies from a mortal disease which he had at the date of the policy although he then appeared to be in sound health, and in an action on the policy an instruction that the plaintiff only need show that the insured at the date of the policy was in the same condition of health that he was in on the day that he made his application and was examined is erroneous. St. 1895, c. 271, now R. L. c. 118, § 21, relating to an “ oral or written misrepresentation or warranty made in the negotiation of a contract or policy of insurance ” has no application to a condition in the policy itself.</p>

<p>Way, Highway by prescription.</p> <p>If a private way laid out for the use of a farm and brick yard has been open to the public and has been used by the public to a certain extent, as shown by some cart ruts overgrown with grass leading to farm houses and by the fact that the public took advantage of the way being open to drive through it more or less, this is not enough, although covering a period of twenty years, to warrant a finding that the way has become a public highway by prescription.</p>

<p> Husband and Wife. Marriage and Divorce. Domicil. Name. </p> <p>A married woman, to establish a right to a separate domicil for the purpose of maintaining a suit for a divorce in this Commonwealth under the provisions of R. B. c. 152, § 5, must prove affirmatively that she separated from her husband for a justifiable cause, and if she fails to sustain the burden of proof her domicil is held to follow that of her husband.</p> <p>A decree of divorce obtained in another State is none the less valid here because in the libel and notice the libellee was called Bertha whereas her true name was Bethiah, if she was known by both names, and a finding that she was known by botli names is justified if it appears that she was addressed by her husband as Bertha and in the family at least was known by both names.</p>

<p>Municipal Corporations, By-laws and ordinances. Mandamus. Cambridge, Chief of police.</p> <p>A chief of police appointed under an ordinance of a city providing that the chief of police shall hold his office during the pleasure of the board of aldermen, if he is removed by the board of aldermen without a hearing, cannot maintain a petition for a writ of mandamus to compel his reinstatement on the ground that the provisions for removal in the ordinance under which he was appointed are contrary to the provisions of the charter of thé city, for if the ordinance is invalid his appointment was illegal.</p>

<p>Joint Tenants and Tenants in Common. Landlord and Tenant. Practice, Civil, Auditor’s report.</p> <p>The mere occupation by one of two tenants in common of the premises owned in common does not render him liable to his co-tenant in an action for use and occupation, but if there is an agreement to pay rent, although no amount is named, the tenant in possession may be held to account to his co-tenant for the reasonable rent of the property used and occupied by him.</p> <p>When in an action of contract the only evidence on a certain claim of the plaintiff is an auditor’s report finding generally for the plaintiff and the testimony of the defendant denying the agreement or understanding on which the claim is based, a judge sitting without a jury may sustain the plaintiff’s claim, as the finding of the auditor upon the general question of liability may furnish evidence of facts which are involved in or may be inferred from the general finding, and may cause the judge to disbelieve the testimony of the defendant.</p> <p>Although, in the absence of an agreement on the subject, one of two tenants in common cannot charge his co-tenant a commission on rents collected as compensation for care of the property, yet an agreement to pay such a commission or compensation will be enforced.</p>

<p>Insurance, Fire, Sworn statement of loss. Interest. Exceptions.</p> <p>In an action on a fire insurance policy, where the defence set up was the alleged failure of the plaintiff forthwith to render to the company a sworn statement of loss as required by the policy, it appeared, that the property insured consisted of household goods and furniture, that the fire occurred on November 26, that the company received notice of it within forty-eight hours and sent an adjuster with authority to adjust the loss, that the adjuster wrote to the plaintiff on December 7, asking for a written statement of loss, that between December 7 and December 19 an inquest was held by the fire marshal which was attended both by the plaintiff and the adjuster, that on December 19 the plaintiff signed and made oath to a written statement of loss in the form and with the particulars required by the policy, and delivered it to the defendant’s agent who had issued the policy to the plaintiff, and who had no authority to adjust losses but had authority to receive proofs of loss for the purpose of forwarding them to the defendant, that with the consent of this agent the written statement immediately thereafter was taken away by the plaintiff for the purpose of making a copy of it, that the plaintiff returned the statement to the agent on February 23, no request appearing to have been made for it in the meantime, and thereupon it was sent to the defendant, which received it on March 15 and retained it without objection, and that more than a month afterwards the receipt of the statement of loss was acknowledged by the adjuster without making any objection to it. The judge hearing the case without a jury found that the defendant had waived a strict compliance with the condition of the policy, and found for the plaintiff. Held, that, taking all the circumstances into account, the court could not say that tlie finding of the judge that the defendant liad waived a strict compliance with the condition was not warranted, and that what took place on December 19, when the plaintiff delivered the statement to the agent, could be found to have been a good delivery of the statement of loss to the defendant.</p> <p>Where the defendant in an action of contract has been summoned as trustee of the plaintiff in an action previously brought against the plaintiff and still pending, the plaintiff, if he prevails, is not entitled to interest from the date of his writ but only to the date of the service of the trustee process on the defendant.</p> <p>Where exceptions of the defendant in an action of contract, otherwise overruled, are sustained on the ground that interest has been allowed from the date of the writ when it should have been allowed only to a previous date when the defend, ant was summoned as trustee of the plaintiff in another action still pending, the court may make an order that the exceptions shall be overruled if the plaintiff remits the amount of excessive interest, or otherwise shall be sustained.</p>

Contract, by a corporation organized under the laws of tbe State of Maine, against the executors under the will of Frank Aldrich, late of Cambridge, for the amount of two calls made on the defendants after the death of their intestate, one on July 25, 1902, for $3,750, and the other on October 3,1902, for $2,500, as the last two instalments of stock of the plaintiff which had been subscribed for by the defendants’ testator at the formation of the plaintiff as a corporation…

<p>Witness, Cross-examination. Evidence, Declarations of deceased persons. Eoston. Municipal Corporations.</p> <p>In an action for personal injuries prosecuted after the death of the plaintiff by the administrator of her estate, to recover at common law for the suffering of the intestate from the time of the accident to the time of her death, where the defendant contends that the intestate during this period was suffering and finally died from pulmonary tuberculosis, it is within the discretion of the presiding judge to exclude on the cross-examination of the mother of the intestate, a witness for the plaintiff, questions put for the purpose of eliciting from her a statement that others of her children had died from pulmonary tuberculosis, especially where the substance of the evidence excluded afterwards is admitted in another form.</p> <p>In an action against a city, begun as an action for injuries from a defect in a highway, where the plaintiff has died, and the action is prosecuted by her administrator, the declarations of the intestate, narrating the circumstances under which the accident occurred, are none the less admissible under R. L. c. 175, § 66, because they were made after the notice required by R. L. c. 51, § 20, had been given to the city, if they were made before the date of the writ.</p> <p>On an exception to the admission by a presiding judge of the declarations of a deceased person under R. L. c. 175, § 66, if the bill of exceptions does not state that the judge failed to make inquiry to ascertain the good faith of the declarant before admitting the declarations, such judicial action and a preliminary finding of the good faith of the declarant will be inferred from the admission of the evidence.</p> <p>Under Prov. St. 1778-74, c. 12, confirmed by St. 1796, c. 69, when Boston was a town, and by St. 1825, c. 3, after it became a city, that city was authorized, but was not required, to maintain lamps to light its streets, and to enact proper ordinances providing for the punishment of persons breaking or damaging the lamp3.</p> <p>No general statutory duty is imposed on cities or towns in this Commonwealth to light their streets for any purpose, and if a city lights its streets as a matter of convenience and safety for those having occasion to use them at night, and by an ordinance directs its superintendent of lamps to keep and maintain all lamp posts in repair, the superintendent of lamps in the performance of this duty becomes the servant of the city for whose negligence in the maintenance of the posts it is responsible.</p>

<p>Tort, against a deputy sheriff, for the alleged conversion of a horse, harness and carriage. Writ in the First District Court of Eastern Middlesex dated March 18, 1904.</p> <p>On appeal to the Superior Court the case was tried before Wait, J. It appeared that on December 5,1903, the defendant, under a replevin writ dated November 18, 1903, and returnable on the first Monday in January, 1904, in which one Minnie L. Jones was the plaintiff and Harvey S. Parker, the present plaintiff, was the defendant, took from Parker the chattels in question and gave Parker an attested copy of the writ and bond; that the bond was dated and executed on November 18, 1903, and the sureties thereon were approved by a master in chancery on December 5,1903, before the service of the replevin writ and the taking of the chattels; that no notice of a time and place at which the sureties on the bond could be examined ever was given to Parker either by the master or the defendant, nor was such notice waived in writing; that the writ and bond were in the usual form, the latter being for $500 and containing a printed form for the return by the officer of any notice he had given; that, immediately after the taking, the value of the chattels was agreed to be $150 by the parties in the replevin suit, and the defendant delivered them to the plaintiff in replevin, and took a receipt therefor; that the writ and bond were duly returned to court by the officer, but the writ never was entered ; and that no demand was made on the defendant for the return of the chattels. To this extent the facts were undisputed.</p> <p>The plaintiff also introduced evidence, contradicted by evidence of the defendant, that the plaintiff when the chattels were taken had a valid lien thereon; that objection was made to the taking of the chattels, and that the officer was told that the sureties on the bond were known to the plaintiff to be worthless; that they were in fact worthless; that the officer was asked by the plaintiff when the chattels were taken whether the plaintiff was not entitled to have the sureties examined, and that the officer replied that he must take the chattels and the plaintiff could look to the bond.</p> <p>At the close of the evidence, requests for rulings were handed to the judge by both parties, and the plaintiff then asked to be allowed to amend his declaration for a conversion, by inserting a count in trespass or action on the case. This the judge refused, and the plaintiff excepted. The judge then, at the request of the defendant, ruled that the action could not be maintained, and directed the jury to return a verdict for the defendant. The plaintiff alleged exceptions.</p>