Volume 189 — Massachusetts Reports

<p>Negligence, In maintaining electric wires. Street Railway. Evidence.</p> <p>In an action by the administrator of the estate of a lineman employed by an electric light company, against a street railway company, for negligently causing the death of the plaintiff’s intestate, it appeared that the intestate was killed by an electric current passing through his body while he was at work putting a cross arm upon a pole belonging to the electric light company, that the electricity had been shut off from the wires of that company at the place where he was working, that, as a car of the defendant approached, the trolley pole lifted the trolley wire very near the electric light wires, and one witness testified that “the trolley wire was shoved up against the electric light wires.” There was evidence tending to show that it was customary for street railway companies to maintain guard wires to prevent other wires above from coming in contact with the trolley wire and thus becoming charged, and that such guard wires were in general use at the time of the accident. Held, that there was evidence for the jury of negligence on the part of the defendant, and that it could be found that this negligence resulted in the death of the plaintiff’s intestate.</p> <p>In an action by the administrator of the estate of a lineman employed by an electric light company, against a street railway company, for negligently causing the death of the plaintiff’s intestate by allowing the wires of the electric light company at the point where the plaintiff was working to become charged with electricity by contact with the trolley wire of the defendant, it appeared, that the plaintiff’s intestate was not a regular lineman and had been employed in that capacity only a short time, that the company employing him had a rule that the lineman should treat every wire as a live wire, and provided rubber gloves for men to use in handling dangerous wires, that the intestate was at work without rubber gloves putting a cross arm on a pole belonging to the electric light company, and that the electricity had been shut off from the wires of that company, when he was killed by an electric current passing through his body, and that when he mounted the pole he had no reason to believe that any of the wires of the electric light company then were dangerous. There was nothing to show that the intestate’s attention was called to the position of the trolley wire beneath the wires of the electric light company or to the danger of the wires being brought in contact by the trolley pole of a cay passing below pushing the trolley wire upward. Held, that the question of the due care of the plaintiff’s intestate was for the jury.</p> <p>In an action by the administrator of the estate of a lineman employed by an electric light company, against a street railway company, for causing the death of the plaintiff’s intestate by its alleged negligence in failing to maintain guard wires above its trolley wire to prevent it from coming in contact with the wires of the electric light company, the plaintiff properly may introduce evidence that it is customary for street railway companies to maintain guard wires to prevent other wires above from coming in contact with the trolley wire and thus becoming charged, and that such guard wires were in general use at the time of the accident, and also may show that on an electric railway constructed in the usual manner a trolley wire would be lifted between three and four inches by the passage of a car along the track.</p>

<p>Way, Defect in highway.</p> <p>In an action against a city under R. L. c. 51, § 18, for personal injuries from an alleged defect in a highway, it appeared, that the plaintiff was injured by the caving in of a sidewalk over which he was passing, that for a year the plaintiff had known of a depression in the sidewalk at this place which gradually had been extending and deepening until it was about three feet square and at least three inches deep, that when it rained the depression was filled with water and that the water disappeared and sank in somewhere, that hundreds of people were going by there every day, that the plaintiff had been across the depression about fifteen or twenty times on the day of the accident and half a dozen times within five or ten minutes before it happened, that an examination after the accident showed that the water which from time to time had accumulated in the hollow had percolated under the surface, and that the foundation of the sidewalk probably was undermined. Held, that the question of the due care of the plaintiff and the inferences to be drawn from his knowledge and conduct were matters of fact for the jury, and that it also was a question of fact for the jury whether the defendant by using reasonable care could have discovered and guarded against the defect, and how far the superficial appearance of the sidewalk should have indicated to the authorities charged with its repair that it might give way by reason of an insufficient foundation, and called for a thorough investigation.</p>

<p> Pleading, Criminal. Homicide. Evidence. </p> <p>A general motion to quash an indictment containing three counts is to be denied if any one of the counts is good.</p> <p>An indictment for murder, the caption of which gives the name of the Commonwealth, county and court in which the indictment was presented, and the time of the sitting of the court, as required by K. L. c. 218, § 17, contains under the provisions of § 20 of the same chapter sufficient allegations of the time and place of the commission of the crime.</p> <p>An allegation in an indictment for murder, that the deceased after the alleged assault upon him by the defendant “ then and there instantly died,” is a sufficient allegation that the death occurred within a year and a day after the assault.</p> <p>The portion of R. L. c. 218, § 67, prescribing a form which may be used for an indictment for murder, taken in connection with § 39 of the same chapter giving the defendant a right to a bill of particulars, is not in contravention of art. 12 of the Declaration of Rights of the Constitution of the Commonwealth, requiring that the crime shall be “fully and plainly, substantially and formally, described” to the accused.</p> <p>In a criminal trial, evidence which is admissible on any ground to prove the crime charged will not be excluded because it tends to prove an intention to commit another crime.</p> <p>In a trial for murder, it appeared, that the person murdered went out fishing in a small boat, and that one or two days later after an unusually heavy storm his body was found on a beach with a fracture in the skull, and with a rope around the neck with a strap attached to it, that the defendant after inviting the deceased to go fishing with him, which the deceased declined to do, was observed in his own boat near the deceased the last time he was seen alive, and that the defendant was accustomed to carry in his boat a rope with a strap and a weight attached to it like the rope and strap mentioned, that the defendant vehemently desired to obtain control of a house near the beach kept by one H. and to sell liquor there, and believed that he could accomplish this if the deceased was out of the way. An exception was taken by the defendant to the admission of the testimony of a friend of the defendant, that the defendant said to him that he wanted him to come down to the beach and board a week with H. and said to him: “ You need money, so do I, and H. has from $1,600 to $2,000. And we will take him out in a boat fishing, and I will knock him on the head, tie a rope around his neck and a stone to the other end, and throw him overboard, and he will never come up, and I will be proprietor down there then, and you can come down and stay any time you like after that.” The defendant contended that the deceased came to his death by accident or suicide. Held, that the evidence was admitted rightly as tending to show that the defendant had formed a purpose to obtain control of the house kept by H. and at one time had planned to kill H. and use the money which he knew H. had as a help to establish himself in the place, that in pursuance of this purpose, finding the deceased in his way, he determined to get rid of him, and that the common plan and motive under which he was acting was an unintelligent consuming desire to fortify himself in his position as an occupant of the house, at whatever cost, even the killing of one or botli of these men, if need be. Held, also, that the testimony of H. that he had $1,600 and that the defendant knew it, was competent as tending with other facts to establish a probability of the existence of the purpose above described to strengthen the defendant’s position in the house, in the execution of which the use of the money after the death of H. might be helpful. Held, also, that upon the question whether the death was by murder or suicide, the previous declaration of the defendant, to his friend as above described, of an intention to commit a murder and conceal it at the same place and in the same manner adopted in dealing with the deceased, was competent evidence.</p> <p>In a trial for murder it is competent to show that on the day before the murder, when the defendant had it in contemplation, he tried by threats and suggestions of exposure to punishment to induce a woman who would be an important witness, if he committed the murder, to believe that it was for her interest to say nothing against him.</p>

Bill in equity, filed February 20, 1904, by the trustee in bankruptcy of J. Francis Brown, for an accounting, and to compel the defendant to pay to the plaintiff as such trustee whatever should be found to be the value of certain securities sold by the defendant, after deducting the amount due on a certain note for $15,000 given by Brown to the County Savings Bank and by that bank transferred to the defendant. The bill alleged: 1.

<p>Bill in equity, filed March 11,1903, by a former partner of the firm of McPeck and Company, stock and bond brokers in Boston, against Neal E. McPeck, the plaintiff’s former partner, and Hammond Braman, a new partner of McPeck, with other defendants, to compel the specific performance of an agreement under seal made by McPeck and Braman, alleged to be an agreement to assume and pay all debts and liabilities of the old firm, by discharging a judgment obtained against McPeck and the plaintiff, as partners of the firm of McPeck and Company, by one Mary Humphrey for $1,122.03 damages and $36.99 costs in an action brought by her on December 27, 1901, under St. 1890, c. 437, St. 1901, c. 459, (now R. L. c. 99, § 4,) to recover money alleged to have been paid as margins on wagering contracts, and against the trustees under the will of Grenville T. W. Braman, late of Cohasset, under R. L. c. 159, § 3, cl. 7, to reach and apply to the discharge of the above named judgment the equitable interests of the defendant Hammond Braman under the provisions of that will.</p> <p>The case was heard by Loring, J.</p> <p>The agreement sought to' be enforced was as follows:</p> <p>“ Know all men by these presents that we Neal E. McPeck and Hammond Braman, co-partners doing business under the firm name and style of McPeck & Company, stock and bond brokers at 60 State Street, Boston, Mass., for a valuable consideration, do hereby release, remise and forever discharge Harry O. Alexander of Boston from the payment of all debts, agreements and liabilities of every name, nature and description contracted by the firm of McPeck & Company, of which the said Alexander was a partner, previous to the date of these presents.</p> <p>“Witness our hands and seals, this fifth day of February, 1902.</p> <p>“ Neal E. McPeck [Seal]</p> <p>Hammond Braman.” [Seal]</p> <p>The material portions of the will of Grenville T. W. Braman are quoted in the opinion.</p> <p>The justice made the following memorandum of decision:</p> <p>“I find that before February 5, 1902, the plaintiff and the defendant McPeck had been partners, and that on that day that firm was dissolved and a new firm was created between McPeck and the defendant Braman. The new firm took over the assets of the old firm and its business, and at the same time the instrument a copy of which is annexed to the bill [Exhibit A, the agreement printed above] was executed and delivered to the plaintiff. I also find as a fact that the pendency of the action of Humphrey v. McPeck et al., was called to the attention of the defendant Braman when said Exhibit A was executed, and that in July, 1902, he was notified of the pendency of the action by the attorney who originally appeared for the defendants in that action and who did not withdraw his appearance until the following September.</p> <p>“ No evidence of collusion was introduced by the defendants, and the defence of res adjudieata was abandoned at the trial.</p> <p>“ I rule as matter of law that by Exhibit A the defendants McPeck and Braman agreed to assume and pay all debts, agreements, and liabilities of the old firm (see Dorsey v. Dashiell, 1 Md. 198, and Griffith v. Buck, 13 Md. 102,114) ; and I rule, in connection with the facts found by me, that the liability of the plaintiff in the action of Humphrey v. McPeck et al. was covered by said agreement. It is settled that a liability under St. 1890, c. 437, can be released. Wall v. Metropolitan Stock Fxehange, 168 Mass. 282. That, in my opinion, is decisive of the objection that it cannot be assumed.</p> <p>“ The plaintiff is entitled to a decree directing the defendants to pay the plaintiff the amount of the judgment in Humphrey v. McPeck et al., with interest from January 5,1903, together with the costs of this suit.</p> <p>“I find as a fact that the plaintiff Alexander has not paid said judgment, and rule that he can maintain this bill in equity without making such payment on the rule of Furnas v. Durgin, 119 Mass. 500.”</p> <p>The justice made a decree that the defendant Hammond Bra-man should pay to the plaintiff the amount of the judgment in the case of Humphrey v. McPeck et ah, with interest from January 1,1903, together with the costs of this suit. The defendant Hammond Braman appealed, and the justice reserved the case upon the appeal and the questions of law raised by the demurrers of the trustees under the will of Grenville T. W. Braman, such decree to be entered as justice and equity might require.</p> <p>The case was argued at the bar in December, 1904, before Knowlton, C. J., Morton, Lathrop, Barker, & Boring, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p> Bankruptcy. </p> <p>A vested remainder or a vested interest in a contingent remainder in a trust fund created by will, belonging to a bankrupt under a petition filed in 1878, passes immediately to his assignees in bankruptcy without notice from them to the trustee holding the fund, and therefore in such a case the fact, that the assignees for two years or more brought no suit either at law or in equity to establish their right to the interest of the bankrupt already vested in them, does not bar the claim of the assignees under U. S. Rev. Sts. § 5057, and where the assignees as soon as they learn of the existence of the fund, and of the fact that certain creditors of the bankrupt are seeking to reach and apply the interest of the bankrupt therein to the satisfaction of his debts to them, bring a bill in equity, in the nature of a hill quia timet, to compel the trustee to transfer the interest of the bankrupt to them and to enjoin the trustee from paying any part of the fund to the bankrupt or to persons claiming under him, there is no ground for contending that it was the intention of the assignees to abandon this property of the bankrupt.</p>

<p>Practice, Civil. Contract, Implied: common counts. Attorney at Law. Frauds, Statute of.</p> <p>In an action of contract where the plaintiff has introduced an auditor’s report including his own testimony and rested, and the defendant then has called the plaintiff for cross-examination and the plaintiff in rebuttal has read the testimony of the defendant before the auditor, a request of the defendant for a ruling that upon the facts and evidence stated by the auditor the plaintiff is not entitled to recover, should be refused, as it is immaterial whether the facts found by the auditor make out a case apart from the additional facts put in evidence.</p> <p>If an attorney at law has prepared papers for a client to use in the acquisition of a certain property, and his client informs him that he has sold the enterprise to another, and if at the request of the purchaser the attorney delivers the papers to him, the attorney, if he has not been paid for his work, has a right to assume, in the absence of information of any arrangement to the contrary, that he is to be paid for his services in preparing the papers by the purchaser of the enterprise who requests their delivery, and in an action against the purchaser can recover a reasonable compensation for such services. If in such action it appears that by an arrangement not known to the plaintiff the defendant in making the purchase was acting for the benefit of the plaintiff’s original client and that client was to furnish the papers to the defendant, this does not affect the plaintiff’s rights.</p> <p>The provision of R. L. c. 74, § 1, cl. 2, in regard to a special promise to answer for the debt of another, does not apply to a case where the promisor receives something for his own benefit from the promisee.</p>

<p>Petition, filed January 18, 1904, and amended April 20, 1904, under R. L. c. 197, § 1, to enforce a mechanic’s lien for labor performed and furnished in building a house of the respondent at Wellesley Hills.</p> <p>In the Superior Court the case was sent to an auditor who filed a report. At the trial of the case before Bell, J., without a jury, no evidence was offered in addition to the auditor’s report. The judge found the facts to be as found by the auditor, and on those facts found for the respondent. At the request of the parties he reported the case upon the auditor’s report and the pleadings for determination by this court. If as matter of law the petitioner was entitled to enforce a lien upon the premises, it was agreed that the amount for which such lien might be enforced was $3,438.67, with interest from January 18, 1904; if upon the facts found by the judge the petitioner was entitled to maintain a lien for that sum judgment was to be entered in his favor and an order of sale was to issue; if he was not so entitled, the petition was to be dismissed.</p>

<p>Sale. Fraud. Practice, Civil, Exceptions. Conversion. Damages.</p> <p>In this Commonwealth, a creditor of one who has sold goods for a valuable consideration can avoid the sale on the ground of fraud only by showing that the purchaser at the time he bought the goods had knowledge of the fraud.</p> <p>No exception lies to the refusal of a judge to make a ruling upon the uncontroverted facts in a case, if there are facts in dispute material to the issue.</p> <p>In an action for the alleged conversion of a stock in trade consisting of office furniture, the measure of damages is the fair market value of the goods at the time of the conversion, and this may be arrived at by taking the wholesale prices of the several articles constituting the stock.</p>

<p>Negligence, Employer’s liability. Street Railway.</p> <p>A street railway company is not liable either at common law or under the employers’ liability act to one of its employees who is injured while under the orders of a superintendent of his employer unloading coal from a car of a steam railroad company for use at a power house of his employer, owing to a defect in-the coal car which he is unloading, if it is not the custom of his employer to inspect the cars of the company transporting coal to it.</p> <p>It is not the duty of a street railway company toward its employees to inspect or repair the ears of a steam railroad company transporting coal to its power house, and it does not make such coal cars a part of its ways, works or machinery by unloading them upon an elevated structure built for the purpose in its coal shed and reached by an incline leading from a spur track of the railroad company.</p>

<p>Partition. Practice, Civil, Exceptions. Adverse Possession. Joint Tenants and Tenants in Common. Deed.</p> <p>Upon a petition for partition exceptions to a ruling of the presiding judge may be heard by this court although only an interlocutory judgment has been ordered in the court below.</p> <p>Where one enters land under a deed purporting to convey to him the whole title in fee, and holds it as his own in jgnoranee of the title of another person owning an undivided share in the land and being thus a tenant in common with him, the possession of him claiming the whole is exclusive, and is adverse to the interest of the tenant in common.</p> <p>Where one owning an undivided share in certain land sees the land in the exclusive possession of another person who changes a store upon the land into a dwelling house which he and his heirs occupy as a homestead for more than half a century, and where the owner of the undivided share during this period has not questioned the right of the possessor of the land to its exclusive occupation and has asserted no claim to the property in any way whatever, and there is no explanation of his silence, there is an actual disseisin of such tenant in common.</p> <p>A deed made before St. 1891, c. 354, by one disseised of the land which it purports to convey, and not delivered on the premises, is of no effect.</p>

<p> License. Stable. Board of Health. </p> <p>A license to erect and use a stable granted by the board of health of a city under St. 1895, c. 213, now R. L. c. 102, § 69, without limit of time, where there has been no violation of its terms is not revocable by that board.</p>

<p>Practice, Civil, Report, Death of judge, New trial.</p> <p>Under R. L. c. 173, § 105, the power of a judge of the Superior Court to report a ease for determination by this court is discretionary.</p> <p>Where a judge of the Superior Court who has heard a case without a jury, and has intended to report the case for determination by this court, dies before doing so, there is no statute under which another judge who has not heard the parties can report the case.</p> <p>Where a case has been heard fully and determined by a judge of the Superior Court, who dies before reporting the case for determination by this court as he intended to do, if no questions of law have been saved by exception, and the judge who heard the ease has done everything that is necessary to enable another judge to order judgment, there is no ground for granting a new trial or for refusing to enter judgment.</p>

<p>Unlawful Use of Great Seal of Commonwealth. Trademark. Constitutional Law. Contract, Validity. Practice, Criminal, Indictment, Sentence.</p> <p>No one can acquire as against the Commonwealth the right to use the arms or the great seal of the Commonwealth as a trademark.</p> <p>St. 1903, c. 195, prohibiting the use of the arms or the great seal of the Commonwealth for any advertising or commercial purpose is not unconstitutional as interfering with any rights of property.</p> <p>On the trial of an indictment under St. 1903, c. 195, for using the arms of the Commonwealth for an advertising and commercial purpose, the statute having provided that it should take effect one year after its passage, the defendant offered to prove that at the time of the passage of the act, and at the time it went into effect, he had on hand a large quantity of labels bearing the arms of the Commonwealth. The offer was refused. Held, that the offer did not go far enough and was refused properly, as there was no offer to show.that the labels on hand when the act took effect were not printed after its passage, or to show that labels on hand when the act was passed had not been disposed of when it took effect.</p> <p>When a valid statute is passed by the Legislature prohibiting something which was lawful before its passage, it is no defence to an indictment for a violation of the statute that the act of the defendant constituting the violation was done in the performance of a contract made before the passage of the statute.</p> <p>St. 1903, c. 195, prohibiting the use of the arms or the great seal of the Commonwealth for any advertising or commercial purpose, is not in conflict with the clause in the Constitution of the United States investing Congress with power to regulate commerce among the several States.</p> <p>When a statute clearly defines an offence, an indictment under it setting forth the offence substantially in the words of the statute is sufficient.</p> <p>St. 1903, c. 195, prohibiting the use of the arms or the great seal of the Commonwealth for any advertising or commercial purpose, makes the act prohibited a crime, although it provides no punishment for the offence, leaving sentence to be imposed in conformity to “ the common usage and practice in this Commonwealth ” under R. L. c. 220, § 4.</p>

<p>Contract, What constitutes. Agency.</p> <p>Where the terms of an oral contract are in dispute the question what contract the parties made is one of fact for the jury.</p> <p>In an action by a manufacturer of nerve beverage and ginger ale against a warehouse company, for a breach of contract in allowing the plaintiff’s goods stored in the defendant’s warehouse to be frozen, evidence, offered by the defendant, that an employee of the plaintiff from time to time inspected the goods and expressed approval of the place where they were stored, properly may he excluded, if it appears that the employee was the plaintiff’s bookkeeper who under the authority of the plaintiff’s manager had attended to transferring the goods from another warehouse to that of the defendant, this not being sufficient to show any authority on the part of the employee to change the contract between the plaintiff and the defendant or to waive it.</p>

<p>Divorce, Alimony. Jurisdiction. Constitutional Law.</p> <p>The jurisdiction of our courts to enforce the payment of alimony as such is derived from statutes which apply only to cases where the question of divorce or separation is heard in our own eourts.</p> <p>A decree of a sister State ordering future payments of alimony, which is subject to revision by the court which made it, is not such a final decree as is required by art. 4, § 1, of the Constitution of the United States to be given full faith and credit in every State.</p>

<p>Equity Jurisdiction, To enjoin enforcement of prior attachment.</p> <p>In a suit in equity, by the holders of an attachment on the goods of a certain corporation, to enjoin the holders of a prior attachment on the same goods from proceeding further with their action on the ground that their debt has been paid, the case was referred to a master who reported in favor of the plaintiffs. Exceptions of the defendants to the master’s report were overruled by the Superior Court, and the case was reported to this court for determination. The questions raised were whether the proceeds from the sale by the defendants of certain bales of goat skins and from the sale of certain glycerine should be credited to the corporation, and thus extinguish the debt of the corporation to the defendants. Held, that, on the facts found by the master, the defendants did in fact credit the proceeds from the sale of the goat skins to the corporation and could not contend that these proceeds ought not to be so credited, and that, as to the glycerine, the question was purely one of fact whether the defendants had obtained it under the corporation’s contract with a certain firm in France or whether they had obtained it under an independent contract of their own with that firm, and that there was evidence to sustain the finding of the master that the defendants obtained the glycerine under the contract with the corporation.</p>

<p>Seven actions op contract, each on a policy of marine insurance, by the owner of the steamship Shawmut for injuries to that vessel alleged to have been caused by coming into collision with the schooner Abraham Richardson in Vineyard Sound on April 1, 1900. Writs dated September 13,1900. The original plaintiff having died, the executors under his will were admitted to prosecute the actions.</p> <p>In the Superior Court the cases were submitted on an agreed statement of facts. That court in each of the actions ordered judgment pro forma for the defendant; and the plaintiff appealed. The agreed statement of facts contained the following:</p> <p>On April 1, 1900, at four o’clock in the morning, the steam-' ship Shawmut, seaworthy in every respect, left the port of Boston with a barge in tow on a voyage to Newport News.</p> <p>At about half-past eight on the same morning, the two-masted schooner Abraham Richardson, on a voyage from New York to Rockland, Maine, having on board a cargo of about two hundred and thirty tons of soft coal, and being seaworthy and in good condition, stood out from the harbor of Vineyard Haven. Shortly before nine o’clock of the same morning, when just outside of the harbor, the Abraham Richardson came into collision with the barge Alaska, then in tow of the tug Swatara. The Alaska struck the Abraham Richardson on her starboard side just aft of the fore rigging, and cut a hole in her half wa.y into the main hatch, sufficient to sink her immediately. She sank at once.</p> <p>The Abraham Richardson went down somewhat head first listed to starboard. Just after she sank the upper ends of both of her masts were out of water. At about two o’clock in the afternoon of that day, when the tide turned, she righted, and both topmasts, and about fifteen feet of her masts were out of water. The masts were about seventy-two and seventy-four feet high respectively. The depth where she sank was about fifty-four feet at low water. None of the sails were above water at any time after she sank. The peaks were dropped.</p> <p>At about nine o’clock on the evening of April 1, 1900, the Shawmut, while on her voyage to Newport News, struck some portion of the masts, spars, sails or rigging of the Abraham Richardson, whereby the Shawmut sustained the loss or damage for which these actions were brought.</p> <p>At the time of the striking the Shawmut was drawing thirteen and one half feet of water aft and nine and one half feet forward. The captain was in the pilot house with the window open and his head out. The lookout on the forecastle reported a buoy close to the bow. The captain saw something looming up by the forerigging on the port bow and stopped his ship at once. Next he heard quite a jar abaft the engine deck, which is amidships. As soon as the captain thought that the Shawmut was clear he rung to go ahead again; but, finding that he made no headway, he anchored. The next morning he discovered that the propeller was gone entirely from the stern and that the tail shaft was broken. At the time of striking, the Shawmut was going through ike water at about seven and one half miles an hour with the tide against her. The next morning the captain saw two masts sticking up. The mainmast had a topmast on it; the foremast was broken off some six or eight feet below the cross tree. The captain of the Shawmut was not able to see the hull of the Abraham Richardson at any time.</p> <p>The captain employed a diver to look for the propeller; the diver failed to find it, and the Shawmut was towed to Boston where she was repaired, being detained in and about such repairs for some days.</p> <p>The Abraham Richardson has never been raised. No attempt has been made to raise her. The only known effect on her of the striking by the Shawmut was to break off a part of her foremast. The condition of the Abraham Richardson just before being struck by the Shawmut was such that it would have been physically possible to raise and repair her, but only at a cost which would exceed her value when raised and repaired. Such condition was due to the collision with the Alaska and not to the striking by the Shawmut. The Abraham Richardson' was not insured. On April 10,1900, the United States government officials removed her spars and floating wreckage.</p> <p>The coal has never been raised; and could not be raised, except at a cost which would exceed the value of the coal when raised. Such condition was due to the collision with the Alaska and not to the striking by the Shawmut. The coal was- insured, and the owners of the coal recovered for its total loss from the insurer.</p>

<p>Tase, On collateral inheritances. Limitations, Statute of. Probate Court. Interest.</p> <p>A petition filed in the Prohate Court by the treasurer and receiver general of the Commonwealth under R. L. c. 15, §§ 17, 20, upon a certificate to him from the judge of that court that the final account of an executor or administrator has been filed and that the settlement of the estate has been delayed because of the non-payment of a collateral inheritance tax, praying the court to determine whether such a tax is payable and to fix its amount, is not barred either by the general or the special statute of limitations, although filed more than six years after the tax became payable.</p> <p>Under R. L. c. 15, § 17, the Probate Court having jurisdiction of the settlement of the estate of a decedent has jurisdiction upon a petition filed by the treasurer and receiver general of the Commonwealth to determine, subject to appeal, whether a collateral inheritance tax is payable on the estate and if payable the amount of such tax.</p> <p>Under R. L. c. 15, § 4, interest must be paid upon the amount due as a collateral inheritance tax from the expiration of two years after the date of giving bond by the executors, administrators or trustees by whom the tax is payable.</p>

<p>Trust, Termination.</p> <p>Where the only beneficiaries óf a trust created by will are the widow of a son of the testator, entitled to a third of the income during her life, and a 'charity, entitled to the other two thirds of the income during such life and then to the whole fund absolutely, upon the petition of the trustees of the fund by the agreement and at the request of these beneficiaries, this court will terminate the trust as to the two thirds of the fund of which the charity is entitled to the income, and continue it as to the other third during the life of the son’s widow.</p>

<p>Equitable Restrictions. Deed, Construction.</p> <p>An equitable restriction in a deed of a lot of land, that “no building shall be-erected upon the granted premises to cost less than $2,500, and but one building, one private stable excepted, shall be erected or placed thereon,” permits the erection on the lot of a private stable costing $2,500 without any house or other building.</p>

<p>Equity Jurisdiction, To reach and apply equitable assets.</p> <p>In a suit in equity, by the payee of a promissory note made by the defendant, to reach and apply in payment of the plaintiff’s claim the alleged interest of the defendant in a certain partnership, the decision of a single justice upon the questions of fact whether the alleged partnership exists and whether the defendant owes the plaintiff the amount of the note and interest thereon, will not be disturbed unless plainly erroneous or shown to have been arrived at by a misapplication of rules of law.</p>

<p>Practice, Civil, Exceptions. Husband and Wife. Agency.</p> <p>In an action of trespass, by one married woman against another, to determine the boundary line between adjoining lots of land belonging respectively to the plaintiff and the defendant, the exclusion of evidence offered by the defendant of a conversation between the husband of the plaintiff and the husband of the defendant, since deceased, in regard to the establishment of the line claimed by the defendant, on the ground that the presiding judge is not satisfied that the husband of the plaintiff had authority to act as her agent, is not a ground of exception unless it appears that the evidence did not warrant the finding as matter of law, as otherwise the finding of the presiding judge on this preliminary question is conclusive.</p> <p>In an action of trespass, by one married woman against another, to determine the boundary line between adjoining lots of land belonging respectively to the plaintiff and the defendant, if the plaintiff has testified that there was an arrangement for an exchange of lands to establish the line as the defendant and her husband wanted it, but that this arrangement never was carried out, a request by the defendant for an instruction, that the plaintiff is estopped to deny that the line claimed by the defendant is the division line, if, supposing or having reason to suppose that it had been established by agreement as the division line, she stood by without objection and saw the defendant and her husband make improvements on the land thus set off to the defendant, should be refused, because making no reference to the arrangement for an exchange of lands testified to by the plaintiff, and also because incorrect on other grounds.</p> <p>In an action of trespass, by one married woman against another, to determine the boundary line between adjoining lots of land belonging respectively to the plaintiff and the defendant, a request by the defendant for an instruction based upon the assumption that the plaintiff’s husband and the defendant’s husband had agreed upon the line claimed by the defendant as a division line, and had put down bound stones in accordance therewith, should be refused, if there is no evidence warranting an assumption that the plaintiff’s husband had any authority from her to agree upon such a line and to put down bound stones accordingly.</p>

<p>Contract for $613,968.93, with interest, alleged to be due under a contract in writing dated June 28, 1897, signed in behalf of the plaintiff by its president, and in behalf of the defendant by its street commissioners, and approved by the-mayor of the defendant. Writ dated October 2, 1903.</p> <p>In the Superior Court the case was referred to James D. Colt,. Esquire, as auditor. He found and reported that the defendant owed the plaintiff the sum of $613,968.93, with interest at four per cent computed to February 4, 1903, on which date the last payment was made by the railroad under decree of court, amounting to $46,672.81; and that to the above two sums interest should be added, computed on the principal sum of $613,968.93 at the rate of four per cent per annum since February 4, 1903. The method of computation is stated in the last paragraph of the opinion.</p> <p>The case came on to be heard before Sheldon, J. upon the pleadings and the auditor’s report, it being agreed that the statements of fact found in the auditor’s report were true. He ruled that the agreement made between the mayor and street commissioners and the railroad company, as set forth in the auditor’s report, bound the city, and excluded the evidence offered by the defendant and the plaintiff, as the same was excluded by the auditor.</p> <p>The parties made the same .requests for rulings by the judge as to the matter of interest that were made by them before the auditor, and he ruled with regard to interest as the auditor ruled.</p> <p>He found that the plaintiff was entitled to recover the sum of #703,226.96, being the amount found due by the auditor on the first day of January, 1904, and including interest to July 1, 1904, to which finding and ruling the defendant excepted, and the judge reported the case for determination by this court.</p> <p>St. 1897, c. 519, under which the contract sued upon was made, is as follows:</p> <p>“ Section 1. George W. Wiggin, Charles A. Allen and Frederick W. Gillett, the commissioners heretofore appointed by the Superior Court for the county of Suffolk upon the petition of the mayor and aldermen of the city of Boston to consider the abolition of the grade crossing of Dorchester Avenue and the railroad of the Old Colony Railroad Company, leased to the New York, New Haven and Hartford Railroad Company, or any other commissioners hereafter appointed on said petition, shall, after such hearing or hearings as they may deem necessary, prescribe the details for the abolition of said crossing by relocating the part of said railroad between a point northerly of Crescent Avenue station and a point southerly of the South Boston station of said railroad and making a connection between said railroad as relocated and the railroad of the New England Railroad Company, and carrying all existing streets which shall intersect said railroad relocated as aforesaid, over said railroad, so as to avoid all crossings at grade, all substantially as shown upon a plan marked ‘ Plan showing Line and Profile of Proposed Change of Location N. Y., N. H. & H. R. R., Old Colony System, March, 1897 \ filed in said court by the attorney for said city as a part of said petition.</p> <p>“ Section 2. The Old Colony Railroad Company shall construct the part of the railroad so relocated and the connection aforesaid as prescribed by said commissioners, and the city of Boston shall raise the grade of all existing streets which shall cross said railroad as relocated, and carry the same by bridges over the railroad so relocated, construct such streets and bridges and carry out all other details of the abolition of said grade crossing as prescribed by said commissioners, and the cost of the work done by said railroad and of the work done by said city, and of carrying out all other details aforesaid, except as hereinafter provided, shall be paid by the Old Colony Railroad Company, the Commonwealth, and the city of Boston, in the proportions and in the manner prescribed by the general laws for abolishing grade crossings of railroads and public ways: provided, however, that the proportion of said cost to be paid by the Commonwealth shall be twenty per cent, and the proportion to be paid by said city shall be fifteen per cent.</p> <p>“ Section 3. Said commissioners shall lay out a highway eighty feet in width from said Dorchester Avenue grade crossing to a point at or near the place where the new location of the railroad and the old location of the railroad meet, near the Crescent Avenue station, taking therefor lands included in said highway within said old location between said Dorchester Avenue crossing and the above-named point; and the board of street commissioners of said city, with the approval of the mayor, may agree with the directors of said Old Colony Railroad Company upon an amount to be paid by said city to said railroad companies for land taken from, and for damages sustained by, said railroad companies under this act, taking into consideration in determining the same the benefit to the public by the carrying out of the provisions of this act, and the amount so determined shall not be included in the cost aforesaid to be paid by said railroad company, state and city, but the treasurer of said city shall on the request of the mayor issue bonds to the amount so determined, one half of the amount thereof to be issued in the year eighteen hundred and ninety-eight and the remainder in the following year, all of said bonds to be within the debt limit of said city, to run for the term of thirty years, and to be issued subject to the provisions of sections five and six of chapter four hundred and eight of the acts of the year eighteen hundred and ninety-five, so far as applicable. No report of the doings of the commissioners appointed by said court as aforesaid shall be filed in court, or shall be made by them, until such agreement is made and delivered to them, and in such case the same shall be filed with and considered as a part of their report.</p> <p>“ Section 4. Sections- one to eight, inclusive, of chapter four hundred and twenty-eight of the acts of the year eighteen hundred and ninety, and all acts in amendment thereof or in addition thereto, shall, so far as they are applicable and not inconsistent with the provisions of this act, apply to the carrying out of the provisions of this act, the award of said commissioners, and the enforcement of said agreement; and all damages suffered by any persons in their property by reason of anything done under this act may be recovered in the manner provided in said chapter for the recovery of damages caused by the taking of land for the alteration of grade crossings, and that portion of said railroad in the city of Boston shall hereafter be operated only with such motive power and in such manner as is or may hereafter be authorized and required by the general laws of the Commonwealth.</p> <p>“ Section 5. This act shall take effect upon its passage.”</p> <p>The contract was as follows :</p> <p>“ Superior Court. Suffolk, ss.</p> <p>“ In the matter of the petition of the mayor and aldermen of the city of Boston to consider the abolition of the grade crossing of Dorchester Avenue and the railroad of the Old Colony Railroad Company, pursuant to the provisions of chap. 519 of the Acts of the Legislature of Massachusetts for the year 1897, entitled ‘ An Act to Provide for the Abolition- of the Grade Crossing of Dorchester Avenue and the Old Colony Railroad in the City of Boston.’</p> <p>“It is hereby agreed between the board of street commissioners of the city of' Boston, with the approval of the mayor of said city and the directors of the Old Colony Railroad Company, as follows:</p> <p>“ First. The amount to be paid by the city of Boston to the Old Colony Railroad Company and the New York, New Haven and Hartford Railroad Company, lessee thereof, under the provisions of chap. 519 of the Acts of the year 1897 for land to be taken from and for damages sustained by said railroad companies under said act, by the laying out of a highway eighty feet in width from the present Dorchester Avenue grade crossing to a point at or near the place where the new location of the railroad is fixed by said act as may be prescribed by the commissioners thereunder, and the old or present location of the railroad near the Crescent Avenue station, under the provisions of sect. 8 of said act, shall be a sum equal to the difference between three hundred and seventy-five thousand dollars and a sum which shall equal the entire amount that the Old Colony-Railroad Company may be required to pay as its sixty-five per cent of the cost of making the alterations and improvement which may be prescribed by the commissioners under the first and second sections of the act, with interest at four per cent upon the payments from time to time made by said railroad company as its sixty-five per cent, in excess of said sum of three hundred seventy-five thousand dollars, until the amount to be paid under this agreement is paid.</p> <p>“ Second. The amount to be paid under this agreement by the city of Boston to the railroad companies shall be due and payable whenever the president of the Old Colony Railroad Company shall notify the mayor of the city of Boston in writing that the land taken for the laying out of the new highway above specified is abandoned by the railroad companies, and that the city of Boston may enter thereon and take possession thereof: Provided however, that not exceeding one-half of said amount shall be payable in the year 1898, and that said city may make payments on account of such amount at any time.</p> <p>“ In witness whereof the Old Colony Railroad Company has hereto set its corporate name and seal by Charles F. Choate, its president, thereto duly authorized, and the city of Boston has hereto set its corporate name and seal by its street commissioners, as authorized by said act, and the mayor of Boston has hereto set his name in approval of this agreement, this 28th day of June, A. D. 1897.</p> <p>[Seal.] “ Old Colony Railroad Co.</p> <p>by Charles F. Choate, President.</p> <p>City of Boston</p> <p>by John P. Dore,</p> <p>John H. Duane,</p> <p>George H. Innis, its Street Commissioners.</p> <p>“ Approved:</p> <p>Josiah Quincy, Mayor.”</p>

<p>Contract. Damages. Practice, Civil, New trial.</p> <p>It is no defence to an action for breach of a contract in writing, that the contract broken by the defendant expressly cancelled a previous contract between the same parties and incorporated modifications of certain covenants and agreements contained in the first contract and that the defendant was induced to enter into the first contract by fraud and misrepresentation of the plaintiff, if the two contracts except for the modifications of the covenants mentioned were independent and distinct and did not constitute one contract.</p> <p>In an action, by a corporation controlling a patented specialty called Magnolia metal, against its former selling agent for a certain territory, for breach of a contract in writing by which the defendant agreed to take one hundred and twenty tons of the metal at a price named, and to use his best endeavors to dispose of a certain amount of the metal then in his hands, the obligation to take and pay for the one hundred and twenty tons to begin when the metal then in the hands of the defendant should be sold or contracted to be sold by the defendant or the salesmen working in the territory covered by the contract, if it appears -that the defendant on a certain day broke the contract by notifying the plaintiff that he would no longer act under it, the plaintiff is entitled to recover the net profit which it would have made if the contract had been performed, but in arriving at this net profit it is necessary to take into account the expense to the plaintiff of completing the contract on its part, such as employing two salesmen in the territory covered by the contract, supplying the defendant with advertising matter, advertising the metal and using every effort to advance its sale, paying the defendant $25 a month for office rent, dividing the expense of a stenographer, and continuing a certain person in charge of the plaintiff’s interests in Boston so long as he was connected with the company and the contract remained in force, all of which things were required of the plaintiff by the terms of the contract.</p> <p>When, after a verdict for the plaintiff in an action of contract, exceptions of the defendant are sustained on a ground relating only to the question of damages, the new trial will be confined to the matter of damages only.</p>

<p> Equity Pleading and Practice. Equity Jurisdiction. </p> <p>On an appeal from a decree of the Superior Court dismissing a hill in equity, where all th^ evidence has been taken by a commissioner and is before the court and there are no rulings of the judge or special findings of fact, the decision will not be reversed unless there is no view of the evidence that properly could have been taken which would warrant the decree.</p> <p>A woman, who having confidence in a dishonest person, then of good reputation, entrusts him with an assignment of a mortgage and a mortgage of her homestead executed by her for transfer and delivery, cannot maintain a suit in equity against a person who in good faith purchases one of the mortgages and takes and lends money on the other, to compel him to reassign the one mortgage and release the plaintiff’s homestead from the other, on the ground that she has received no part of the consideration, especially if a part of the consideration has been received by her in the form of a check payable to the dishonest person, her authorized or apparently authorized agent to receive it.</p>

<p>Tax, Sale, redemption.</p> <p>One who, claiming to own a certain parcel of land, has been upon it, and has paid' a tax on the land assessed to the heirs of a former owner, can be found to be the owner of the land entitled to redeem it from a tax sale within the meaning of St. 1888, c. 890, § 57, now R. L. c. 13, § 58.</p> <p>In a suit in equity to redeem laud from a tax sale under St. 1888, c. 390, § 57, if it appears that one acting for the plaintiff, on the last day of the two years allowed for redemption, offered to pay the defendant whatever was due him and the defendant refused to accept the money, it can be found that this excused the plaintiff from making any actual tender.</p>

<p> Adoption. Devise and Legacy. </p> <p>One adopted as a daughter in 1891, cannot take as the “issue” or the “heir” of her father by adoption under a provision for such issue or heir in a will of the father of her father by adoption who died in 1867, especially where the words “ by right of representation ” are used.</p>

<p>Petition filed September 8, 1902, in the Court of Land Registration, now the Land Court, for the registration of the title to a parcel of land in Everett, including all the land which is shown upon the plan called “ Exhibit A,” printed on page 146, lying between the railroad, Second Street, Locust Street, the water and land marked as belonging to the New England Gas and Coke Company, except the parcel marked “Everett Distilling Company.”</p> <p>The respondent, owning the excepted parcel, answered claiming:</p> <p>(1) an easement in its favor over the strip of land shown as Front Street on Exhibit A throughout its entire length and over connecting ways shown on a plan by J. H. Shearer, dated March, 1850, and called “Exhibit C,” printed on page 147;</p> <p>(2) an easement in a strip twenty feet wide along the northerly side of the respondent’s premises;</p> <p>(3) a right to drain through a part of the petitioner’s land to Island End River.</p> <p>At the trial before Davis, J. the second and third claims were allowed. On the first claim, the judge found and ruled as matter of law that no right of way existed in favor of the respondent over Front Street, and at the request of the parties reported the case for determination by this court.</p> <p> </p> <p>The respondent at the argument waived any claim to an easement in Front Street west of the westerly line of its premises.</p> <p>The following statement of the facts necessary for a determination of the question at issue, as set forth in the report, is taken from the respondent’s brief, referred to in the second paragraph of the opinion as stating clearly the case of the respondent:</p> <p> </p> <p>In 1845 Nathaniel Sands acquired by deed from Dorcas Nichols a large tract of marsh land in Malden and Chelsea, apparently including all of the land on both sides of Front Street shown on the plan Exhibit C, except lots 95 and 98, which then belonged to John Rayner and others, and the land west of the factory lot, which was conveyed to Sands in 1846. Sands mortgaged back to Dorcas Nichols, and from time to time thereafter she executed partial releases. These releases included the factory lot, the boarding house lots, and a parcel immediately west of the boarding house lots with a frontage of one hundred feet on Front Street, the latter parcel comprising the greater part of the respondent’s present premises.</p> <p>As to the remaining property this mortgage was foreclosed by entry made on September 18, 1847, and the property was, as soon as the foreclosure was perfected, conveyed to the owners of the equity of redemption.</p> <p>Sands conveyed to the Boston and Chelsea Iron and Screw Company, hereinafter called the Screw Company, all the land abutting on Front Street east of the west line of the factory lot, except lots 95 and 93. The Screw Company mortgaged the land shown on Exhibit C as the- “ Boarding House Lots ” in two parcels; both mortgages were foreclosed by possession taken in 1847, and under the foreclosures the petitioner derived its title.</p> <p>The title of the Screw Company in all the land conveyed to it except the boarding house lots passed by mesne conveyances to Willard Sears. On January 1, 1850, title to the land on the south side of Front Street east of the wharf lot was in Willard Sears; title to the land on the north side between the factory lot and the boarding house lots stood in the name of one Fletcher, who reconveyed to Sears by deed dated March 19 and recorded March 21, 1850.</p> <p>By indenture dated January 1,1850, acknowledged March 26, 1850, and.recorded May 21, 1850, between Sears and the owners of lots 95 and 93, the latter conveyed to the former a parcel of land shown on Exhibit C, bounded by the “ Town and County Line,” a broken line a little north of Auburn Street, another broken line nearly at right angles, and the middle line of Front Street extended to its intersection with the extension of a line midway between Auburn Street and Second Street, and by the last named line and extension. This parcel was described as bounding on the middle line of Front Street. The petitioner derived title to lots 95 and 93 from the grantors of this parcel.</p> <p>By mesne conveyances the title to all the laud abutting on Front Street east of the factory lot, subsequently, in 1850, became vested in the Atlantic Wharf Company. The Atlantic Wharf Company, in 1857, conveyed lot 4, shown on Exhibit E, printed below, to Nathaniel G. Upham, describing the premises by reference to the plan as “ Lot 4 between Second and Front Streets and bounded on both of said streets.” The petitioner derived title to the land on the southerly side of Front Street under a subsequent conveyance from the Atlantic Wharf Company.</p> <p>Upham died seised of lot 4. By mesne conveyances the title to lot 4 passed to the Union Stone Company in 1872. That corporation, in 1885, conveyed the premises now owned by the respondent to Charles W. Howland, under whom the respondent derived title.</p> <p> </p> <p>When the Union Stone Company acquired title to lot 4 in 1872, a way existed west from Locust Street to and a little beyond the respondent’s present premises over the strip of land marked Front Street. After passing the respondent’s present premises the way was obstructed by buildings, apparently old. Upon acquiring title to lot 4 the Union Stone Company built a fence in the middle of Front Street as far east as the west line of the respondent’s present premises and thence running northerly, and a fence running southerly along the easterly line of the wharf lot, and. in the small piece of Front Street east of the factory lot thus enclosed placed a small building. Front Street east from this obstruction to Locust Street continued to be used to some extent by the Union Stone Company and its successor in title and by other abutting owners.</p> <p>In 1897 Joyce, Curran and Walsh, then the owners of- the respondent’s premises, extended one of their buildings nearly to the centre line of Front Street, apparently with the petitioner’s acquiescence.</p> <p>In 1899 the petitioner erected a substantial brick building across Front Street between the respondent’s premises and Locust Street, but the respondent’s land then was owned by a partnership of which the affairs were in confusion and the property in the hands of a receiver, and the erection was under such circumstances that the judge found that no estoppel resulted from failure to object. The respondent acquired title in August, 1901, and in January, 1902, made objection to the obstruction of Front Street.</p> <p>The judge found as matter of law and ruled that the respondent had no right of way over any part of Front Street, on the ground that the easement had been extinguished by the acts of the Union Stone Company and of Joyce, Curran and Walsh above set forth.</p> <p>The following abstract shows the essential facts as to the title of the property:</p> <p>The Atlantic Wharf Company, owning lots 3 and 4, conveyed lot 4 in 1857 to Nathaniel G. Upham, who died seised and intestate ; his heirs conveyed lot 4 in 1871 to William Munroe, who conveyed lot 4 in 1872 to the Union Stone Company, which, owning also the factory and wharf lots, conveyed the land now of the respondent in 1885 to Charles W. Howland, who conveyed in 1896 to John Joyce, Maurice J. Curran and John R. Walsh, partners, who with the receiver of the partnership conveyed in 1900 to one Murphy who conveyed in 1901 to the Everett Distilling Company, the respondent.</p> <p>Lot 3 passed from the Atlantic Wharf Company subsequently to the conveyance of lot 4, and by mesne conveyances the title to it vested in the petitioner. It never was owned by the Union Stone Company.</p> <p>Lots 95 and 98 and the boarding house lots never were owned by the Atlantic Wharf Company or by the Union Stone Company.</p>

<p>Negligence, Employer’s liability.</p> <p>If a Syrian boy nineteen years of age, speaking no English and never having worked on a machine, is set at work in a cotton mill, to put laps of cotton on at the feed end of a picker machine and after the cotton has passed through to take the laps off at the other end, there being no danger in this, and if he chooses to do more and attempts to dear the picker machine when it is clogged, and his hand and arm are cut by knives so that they have to be amputated, he-cannot recover from his employer for the injuries thus caused by his doing in excess of his instructions an act which was no part of his duty.</p>

<p>Negligence, Employer’s liability.</p> <p>An employee of a coal company, when ordered to go down into the hold of a barge to unload coal, has a right to assume that a vertical iron ladder leading to the hold, down which other workmen have preceded him, has been kept in proper condition by his employer, and if he begins to descend the ladder without looking to see whether anything is the matter with it and is thrown into the hold and injured owing to the giving way of a rung when his hand is upon it, he can be found to have been in the exercise of due care.</p> <p>In an action by an employee of a coal company, against his employer, for injuries from being thrown into the hold of a coal barge by the giving way of a rung of a vertical iron ladder leading to the hold, while his hand was upon it in descending the ladder when ordered to go into the hold to assist in unloading coal, if it appears that the ladder was under the exclusive control of the defendant, that the rungs of the ladder were fitted into holes in the uprights about three quarters of an inch deep but were not fastened in any other way, that a rung especially if it was a little short or bent might work sidewise so that it could be pulled out, that such a defect while not visible to the naked eye could easily have been detected by an examination but that the defendant caused no inspection of any kind to be made, and that the rung which gave way was handed after the accident to the defendant’s superintendent but that the defendant failed to produce it at the trial, the question whether the defect was of such a nature and had continued so long that the defendant was negligent in the discharge of its duty to the plaintiff is for the jury.</p>

<p> Power. Devise and Legacy. Perpetuities. </p> <p>Whether in this Commonwealth the rule that a general disposition of property by will is presumed to include the execution of a power of appointment does not apply to a special power as well as to a general power, and whether a special power cannot be executed by anticipation in the same way as a general power, quaere.</p> <p>If a will declares that the testator thereby disposes of all the property of every kind of which he may be at his death seised or possessed or over which he may then have any power of disposition whatsoever, and if at the time of making the will the testator was ignorant of the provisions of the will of his father, who dying later gives him by will the power of testamentary appointment over a certain fund among the father’s direct descendants, and if after the death of his father and knowing of the existence of the power the son makes a codicil to his will, confirming his will in all particulars except as modified by the codicil, and if his will, after certain bequests, gives the residue of his property to trustees to be divided into three parts, the income of one of which shall be paid to his widow as long as she lives, the principal to fall at her death into the other two thirds, and the other two thirds to be held in trust for the benefit of his children and the issue of any deceased child by representation, to be paid to them on arriving at a certain age, and if the testator has ample property to provide for his wife and children apart from that derived from his father’s estate, this is an execution by the son of the power of appointment under the will of his father, and the provision directing that one third of the income of the property put in trust shall be paid to the testator’s widow during her life, applies only to the testator’s own estate.</p> <p>A power given by will to the children of the testator, to dispose by will of their respective shares in a certain fund to and among the testator’s direct descendants, is not bad on the ground that an appointment could be made' under it which would be beyond the limits of the rule against perpetuities, because the power cannot he exercised at a time beyond the limits of the rule, and if an appointment under the power is within the rule it is valid.</p> <p>A will, held to be in execution of a power as well as disposing of the testator’s estate, left the residue of the testator’s property in trust and, after providing that one third of the property should be set apart to pay the income thereof to his widow during her life, the principal after her death to be disposed of with the remaining two thirds, provided as follows: "The remaining two thirds together with the one third above disposed of, after the death of my wife, shall be held by my trustees for the benefit in equal shares of such of my children as may be living at my death and the then living issue by representation of any child who may die before me and I direct my trustees subject to the provisions below made respecting the holding of real estate to pay over immediately upon my death or so soon thereafter as the property may come to their hands the share of any son who may have reached at my death the age of thirty years apd the share of any daughter who may then have reached the age of twenty five years and also the share of the issue by representation of any child who may have died before me leaving issue living at my death but the shares of my children who may not then have reached the age above prescribed shall be held and managed by my trustees and the income accruing thereon shall be paid over to them respectively at convenient times as it may accrue until they respectively reach the prescribed age the income of any daughter being paid to her upon her sole and separate receipt and upon my children severally reaching that age, namely thirty years, in the case of sons and twenty five years in the case of daughters, the principal of their shares shall be paid over to them respectively, free and discharged of any trust and if any child die after me and before reaching the prescribed age the principal of his or her share shall be paid over as he or she may by will appoint and in default of such appointment shall be disposed of and distributed as a part of his or her estate and the trustees shall pay it over to his or her representatives for that purpose.” Held, that the share of the issue of a child who died before the testator was payable to such issue only on arrival at the age prescribed for payment to the testator’s children.</p>

<p> Partnership. </p> <p>If land and the buildings thereon belong to two tenants in common, who are the only members of a firm and use the premises for carrying on the business of manufacturing soap and candles there under the firm name, and if the firm pays no rent as such but pays the taxes, insurance and repairs and the expense of small additions to the buildings, this does not show necessarily an intention on the part of the owners to treat the land and buildings apart from the trade fixtures as partnership property. Nor does the fact that the firm has paid the expense of making over certain buildings on the land into dwelling houses which are occupied principally by operatives of the firm, the firm receiving the rents, necessarily show that the dwelling houses are partnership property.</p>

<p> Devise and Legacy. Charity. Trust. </p> <p>A will contained the following residuary clause: “ I give and devise to my executors and the survivor of them, or whomsoever shall lawfully have the execution of this my will, all the residue and remainder of my property and estate, to be distributed by them to charitable or worthy objects, or such as I may designate during my lifetime, and particularly for the purpose of giving to any relative of mine, whom without apparent reason I may iiave overlooked, such sum as may seem to them or him under all the circumstances fitting, suitable and proper. But my said executors or executor shall have full discretion in the matter of the distribution of said residue, and shall not be under any legal accountability or subject to any trust, or be liable to any person or corporation by reason of any memorandum which I may leave.” Held,, that it was the intention of the testator to create a trust of some kind, and not to make an absolute gift to his executors; that the trust could not be sustained as a charitable trust because it included uses not charitable; and that it created no private trust because the description of the intended beneficiaries was too indefinite; therefore that a resulting trust arose in favor of the next of kin of the testator.</p>

<p>Landlord and Tenant. Contract, Implied: common counts.</p> <p>An owner of land let it with the provision that the lessee might use the land for the construction and use of a certain amusement enterprise, and might build any lawful, structures on the demised land, which should be personal property and remain the property of the lessee with the right of removal. Under this provision the lessee constructed certain buildings which were assessed at a valuation of $30,000. The lease, immediately after the description of the land and the reservation of rent, and before the provisions in regard to the use of the land, contained a covenant by which the lessor agreed to “save the lessee harmless from all taxes, assessments and betterments levied upon said premises until the termination of this lease.” The lessor was compelled to pay the whole amount of the tax levied on the land and buildings, and, the lessee refusing to contribute, the lessor brought an action of contract against the lessee for the portion of the tax which was paid by the lessor on the buildings belonging to the lessee. Held, that in view of the particular location of the covenant in the lease and of the other provisions of the lease, the words “ said premises ” in the covenant referred only to the land without the buildings to be erected upon it by the lessee, that the covenant confined the liability of the lessor to the portion of the'taxes which might be assessed upon the valuation of the land exclusive of the buildings, and that the lessor was not bound to pay any increase of taxes due to the valuation of the buildings. Held., also, that the lessor, having been compelled by law to pay the taxes, which were a charge on the buildings belonging to the lessee and which between them the lessee was bound to pay, could recover the amount from the lessee as money paid to his use.</p>

<p> Agency. Evidence. </p> <p>In an action of tort for alleged false and fraudulent representations of the defendant whereby the plaintiff was induced to make an exchange of real estate with the defendant, a letter written by the plaintiff’s broker in the transaction six weeks after the conclusion of his agency, containing a statement that at the time of the transaction he knew of certain facts which the plaintiff contends were fraudulently concealed from him by the defendant, is not admissible, although the writer at the date of the letter was employed by the plaintiff to take care of the property, this being a distinct and independent employment, giving him no authority to make declarations affecting the plaintiff in the previous transaction.</p>

<p>Executor and Administrator. Compromise. Words, “Shall be paid.”</p> <p>An administrator with the will annexed, holding the residue of an estate under an agreement of compromise confirmed by the court, providing that all the residue of the estate, both real and personal, after certain payments have been made, “ shall be paid ” to four persons named, one fourth to each, has no power to sell real estate for the purpose of making the final distribution, or to make partition of it, and must convey the real estate to the four persons named as tenants in common.</p>

<p>Equity Jurisdiction, To reach and apply equitable assets.</p> <p>If goods of a debtor are in a warehouse subject to the payment of United States custom duties and are represented by a warehouse receipt in the hands of a receiver appointed by the Superior Court in two suits in equity under B. L. c. 159, § 3, cl. 7, to reach and apply the debtor’s interest therein to the claims of the respective plaintiffs, another creditor may maintain a third suit under the same statute against the same defendant in the Superior Court, which already has custody of the defendant’s interest in the goods, to reach and apply that interest, subject to the claims in the other suits, in payment of the defendant’s debt to the plaintiff.</p>

Conteact on a promissory note dated Boston, Mass., April 10,1896, payable one month after date to the order of Stephen Jennings, for $6,200, with interest at the rate of one and one half per cent per month, payable monthly, signed by the defendant and indorsed by J. O. Moore. Writ dated April 17, 1902.

<p>Two bills IN' equity, the first filed November 26, 1904, in the Probate Court for the county of Middlesex, coming to the Supreme Judicial Court by appeal, and the second filed in the Supreme Judicial Court on December 15, 1904, the first by the executors under the will of Sarah R. Harlow, late of Everett, for instructions, and the second by the heirs at law of Abby R. Fletcher, late of Everett, to establish and quiet their title to certain land in Everett, and to remove any cloud therefrom caused by the second clause of the will of Sarah R. Harlow.</p> <p>The first case came on to be heard before Morton, J. No facts were in dispute, and it appeared that Abby R. Fletcher referred to in the will of Sarah R. Harlow was a single woman about seventy years of age at the time of the execution of the will, that she died one month after the decease of the testatrix, never having married, and that the testatrix left no real estate except that referred to in the second clause of the will.</p> <p>The justice reported the case for determination by the full court upon the following questions:</p> <p>1. Did the second clause of the will vest in Abby R. Fletcher an estate in fee in the real estate therein described, and if not, what is the nature and duration of the estate therein given to Abby R. Fletcher ?</p> <p>2. Does the second clause of the codicil refer to the $2,000, the income of which is given to Abby R. Fletcher in the second clause of the will, or to the $2,000 given to her absolutely in the second clause ?</p> <p>3. Is it the duty of your petitioners as executors to turn over the rest, residue and remainder of the estate of Sarah R. Harlow to themselves as trustees under the eleventh clause of the will, or is the eleventh clause now inoperative ?</p> <p>4. To what persons and in what proportions is the rest, residue and remainder of the estate of Sarah R. Harlow to be distributed in accordance with the terms of the thirteenth clause of the will as modified by the first and eleventh clauses of the codicil ?</p> <p>5. Is it necessary for Samuel A. Bacon and George H. Har.low to qualify as trustees under the second clause of the codicil?</p> <p>Such decree was to be entered, or other disposition was to be made of the case as to the full court should seem meet.</p> <p>The second case came on to be heard before Sammond, J., who reserved it for determination by the full court.</p> <p>The material portions of the will of Sarah R. Harlow were as follows:</p> <p>“ 2nd. I give and devise to my sister Abby R. Fletcher my real estate now occupied by me as my residence situated on Linden Street in said Everett, being lot numbered six (6) on a ■‘Plan of building lots in Everett belonging to Anthony Waterman, A. F. & N. N. Sargent, Surveyors April 25, 1871 ’ recorded at Middlesex South District Registry of Deeds Book of Plans No. 20, Plan 47, so long as she shall remain unmarried; and I hereby authorize my said sister to sell said real estate, either at public or private sale, and to make, execute* and deliver good and sufficient deeds to convey the same, the purchaser not to be answerable for the application of the purchase money, also to invest and reinvest safely the proceeds of such sale and to receive and appropriate to her own use the income of such investments so long as she shall remain unmarried. I also give and bequeath to my said sister my household furniture not herein otherwise specifically bequeathed, any and all provisions and wearing apparel remaining on my decease without appraisal, also the income of my other property and estate until 'my estate shall be settled, and after that shall be closed, I give and bequeath to her the income of two thousand dollars for and during the term of her natural life. I also give and bequeath to my said sister the sum of two thousand dollars ($2000) in addition to the income hereinbefore given, also the picture ‘ Good Morning ’ and the two small pictures hanging in my room, also all other personal property in my house not herein otherwise disposed of.”</p> <p>“ 11th. All the rest, residue and remainder of my estate,.real, personal and mixed of which I shall die seised and possessed or to which I shall be entitled at my decease, I give, devise and bequeath to Edward O. Harlow and George H. Harlow and their heirs and assigns forever, but in trust nevertheless to invest and reinvest any investable funds in any securities in which the Savings Banks of Massachusetts are by law authorized to invest or to deposit the same in any Massachusetts Savings Bank or Banks to collect the income of said property and after the payment' of taxes and other necessary charges to pay to said Abby R. Fletcher the income of the Two Thousand Dollars mentioned in the second clause of this will, during her life.”</p> <p>“ 13th. All the rest, residue and remainder of my estate, real, personal and mixed of which I shall die seised or possessed or to which I shall be entitled at my decease, I give,-devise and bequeath to John B. Harlow of Harvard in the County of Worcester and Commonwealth aforesaid and Anne E. Harlow and Adaline S. Harlow both of said Ayer in equal shares and their heirs and assigns forever.</p> <p>“14th. I hereby constitute and appoint Edward O. Harlow of said Ayer and George H. Harlow of Billerica in said County of Middlesex to be the executors of this my last will and testament and trustees under the same and request that they be exempt from furnishing surety or sureties on their official bond or bonds, either as executors or trustees and I hereby authorize them on the request of my sister Abby R. Fletcher to sell any portion or all of my real estate at public or private sale and to make, execute and deliver good and sufficient deeds to convey the same, the purchaser not to be answerable for the application of the purchase money.”</p> <p>The material provisions of the codicil were as follows:</p> <p>“ First: I hereby revoke the residuary clause of said will in favor of Anna E. Harlow and her sister Addie S. Harlow and instead thereof I give to said Anna E. Harlow and Addie S. Harlow the sum of Five Hundred Dollars to be equally divided between them.</p> <p>“ Second: The two thousand dollars given for the benefit of my sister Abby R. Fletcher, I give and bequeath to Samuel A. Bacon of Hartford in the State of Connecticut and George H. Harlow of Billerica in the Commonwealth of Massachusetts, in trust for said Abby R. Fletcher, the principal and income to be used if necessary to provide for her comfortable support and maintenance during her life.”</p> <p>“ Eleventh: All the rest, residue and remainder of my estate real, personal and mixed of which I shall die seised and possessed or to which I shall be entitled at my decease, I give, devise and bequeath to said Samuel A. Bacon and George H. Harlow and Edward O. Harlow and their heirs and assigns forever.”</p>

<p>Contract upon two instruments under seal, as follows:</p> <p>“ Exhibit A.</p> <p>“ Whereas Henry Bigelow Williams of Boston, in the Commonwealth of Massachusetts, is owing to Gideon Currier of said Boston, thirty-five hundred dollars ($3500).</p> <p>“ And whereas said Williams has this day caused Alden B. Buttrick of Lowell, in said Commonwealth, to assign and convey to said Currier a mortgage and the promissory note therein secured, given by George Boss to said Williams, dated July 28, 1876 and recorded with Suffolk Deeds, libro 1337, folio 198 and heretofore assigned by said Williams to said Buttrick;</p> <p>“ And whereas said Williams has this day caused said Buttrick to assign and convey to said Currier another mortgage and the promissory note therein secured, given by said Boss to said Williams, and acknowledged July 28, 1876 and recorded with Suffolk Deeds Libro 1837, folio 202 and heretofore assigned by said Williams to said Buttrick, both of said mortgages being sold absolutely by said Williams to said Currier in payment of said Williams’ aforesaid indebtedness to said Currier.</p> <p>“ Now therefore, it is mutually covenanted and agreed by and between said Currier and said Williams and their respective legal representatives and assigns, as follows: —</p> <p>“ First. That whenever said Currier shall sell or assign one or both of said mortgages (which he is at liberty to do at any time) upon consulting said Williams, he shall give to said Williams, credit for the net proceeds of such sale on his aforesaid indebtedness.</p> <p>“ Second. Said Williams agrees that he will pay to said Currier, any balance that may be due to said Currier on his aforesaid indebtedness, after crediting the net proceeds of said sales.</p> <p>“ Third. Said mortgages are sold absolutely by said Williams to said Currier, and the amount to be paid therefor by said Currier, shall be computed and ascertained as aforesaid.</p> <p>“ In Witness Whereof, said Gideon Currier and said Henry Bigelow Williams have hereunto set their hands and seals this eighth day of November A. D. 1876.</p> <p>“ Henry Bigelow Williams [seal]</p> <p>Gideon Currier [seal] ”</p> <p>“ Witness</p> <p>J. F. Ballistond to both.”</p> <p>“ Exhibit B.</p> <p>“ Whereas the within named George Boss has this day at the request of said Henry Bigelow Williams, given to said Currier a quitclaim deed of the premises described in the two within named mortgages and said Currier has at said Williams’ request, surrendered to said Boss, the two promissory notes secured by said mortgage.</p> <p>“Now Therefore, said Henry B. Williams in consideration thereof and of other sufficient consideration to him paid by said Currier, the receipt whereof is hereby acknowledged hereby covenants and agrees to and with said Currier and his heirs, legal representatives and assigns, that whenever said Currier shall sell said property, (which said Currier is at liberty to do at any time as aforesaid,) he will pay to said Currier, any balance that may remain due on his aforesaid indebtedness of 18500, after deducting all sums received by said Currier from the sale of said property.</p> <p>“ Said Williams further agrees that he will pay all taxes levied on said property, and will also pay to said Currier semiannually at the rate of 6 1-2 per cent, the interest on his sai'd indebtedness of $3500.</p> <p>“ This ageement is made for the purpose of providing for the payment of any balance due from said Williams to said Currier.</p> <p>“ To the faithful performance of the foregoing, said Williams binds himself and his heirs, legal representatives and assigns:</p> <p>“ Witness my hand and seal this seventeenth day of August A. D. 1877.</p> <p>“ August A. D. 1877 Henry Bigelow Williams [seal]</p> <p>“ Witness</p> <p>Josiab W. Hubbard.”</p> <p>The declaration alleged that a large balance was due to the plaintiff after the sale of all the land conveyed to him. Writ in the Supreme Judicial Court dated May 5, 1903.</p> <p>The answer was a general denial; a discharge in insolvency granted September 26, 1879, on a petition filed February 21, 1879; the six- year statute of limitations; the twenty year statute of limitations; that the plaintiff was required to sell the real estate mentioned in the contracts in a reasonable manner and within a reasonable time, which he had failed to do, but had continued to hold the major part of the real estate, as owner thereof, for a wholly unreasonable time, to wit, the space of more than twenty years; that the claim of the plaintiff had been fully paid, and that the plaintiff in selling the property was negligent of the rights and interest of the defendant, and was not in the exercise of good faith toward the defendant.</p> <p>The case was tried before Morton, J. It appeared that in November, 1876, the defendant owed the plaintiff $3,500, being the balance due upon a contract for mason work upon the Hotel Brunswick in Boston. It also appeared that before Exhibit A was executed, on November 8, 1876, “the defendant offered the lots of land referred to in the contract, in payment of the account due, which the plaintiff declined to accept.” Thereupon the defendant caused two mortgages, one on each lot, amounting together to the amount due, to be assigned to the plaintiff under the agreement stated in Exhibit A.</p> <p>Nine months later, on August 17, 1877, Williams caused the fee in the two lots subject to these two mortgages to be conveyed to the plaintiff, and Exhibit B was executed.</p> <p>Exhibits A and B were written on one double sheet of paper.</p> <p>It also appeared that on February 21,1879, the defendant filed a petition in insolvency, and that on September 26, 1879, a discharge was granted to him for all debts due on February 21, 1879.</p> <p>In 1890 the plaintiff sold one half of one of the lots and in 1891 the remaining half of it. In 1908 he sold the other lot, leaving as the plaintiff contended a balance still due to him.</p> <p>The plaintiff offered to show in rebuttal that the defendant wilfully and intentionally omitted the plaintiff’s name from his schedule of creditors in the insolvency proceedings and the address of the plaintiff, and placed in his schedule a fictitious debt to the plaintiff of $25.68, and that the plaintiff had no notice of the insolvency proceedings until more than two years after the defendant’s discharge and took no part therein. This offer was stated to be made “ not for the purpose of seeking to invalidate the fact or regularity of the defendant’s discharge, but only for the purpose of avoiding its effect as to the plaintiff in the action at bar. The court rejected this offer of proof, and the plaintiff excepted, but this exception was not included in the plaintiff’s bill of exceptions filed in this case, and it is included in this report against the objection of the defendant, and is only to be considered if the plaintiff is entitled to have his exception heard.”</p> <p>At the close of the evidence the defendant asked the justice to order a verdict for the defendant. This he refused to do, and submitted the case to the jury, with an agreement of the parties that if the jury found for the plaintiff the damages should be $825.27. A verdict was returned for the plaintiff in accordance with the agreement, and at the request of both of the parties the justice reported the case for determination by this court.</p> <p>The second and fourth paragraphs of the terms of the reservation, the others having become immaterial, were as follows :</p> <p>“Second. If there was no evidence for the jury, and the defendant’s request that a verdict be ordered for him should have been granted, judgment is to be entered for the defendant.”</p> <p>“ Fourth. If a verdict should have been ordered for the defendant solely on the ground of his having received a discharge in insolvency, and if the plaintiff’s offer of proof in rebuttal was competent and should have been admitted wholly or in'part, the plaintiff’s exception to its exclusion is to be sustained, and anew trial ordered, provided that said exception is still open to the plaintiff.”</p> <p>The case was argued at the bar in January, 1905, before Knowlton, C. J., Morton, Barker, Boring & Braley, JJ., and after-wards was submitted on briefs to all the justices. Mr. Justice Barker died before the decision of the case.</p>

<p>Contract, Construction. Equity Jurisdiction, Specific Performance. Equity Pleading and Practice, Appeal.</p> <p>An agreement in writing to sell certain described land and the building thereon, if the building extends beyond the land described, is not an agreement to sell the-building and the land under it.</p> <p>It is a defence to a suit for the specific performance of a contract to buy from the-plaintiff certain land and the building thereon, that the defendant through an honest mistake not attributable to his own negligence thought that he was buying a strip of land over which the building extended which was not included in the description in the contract, but the burden is on the defendant to make out this defence.</p> <p>In a suit for the specific performance of a contract to buy certain real estate from the plaintiff, it is not sufficient evidence of a good title in the plaintiff for him to-put in a deed purporting to be signed by the executor and trustee under the will of one who held the title to the real estate in question, on which is written an assent, release and quitclaim deed purporting to be signed by ten persons described as being all the heirs, devisees, legatees, next of kin, and persons interested in the estate of the testator, and to show that the plaintiff ever since has claimed under this deed, there being no proof that the will of the alleged testator was admitted to probate, or that any action- was taken under it to bar the-assets being taken for the debts of the testator, or that the ten persons signing the deed were in fact all the heirs, devisees, legatees, next of kin, and persons-interested in the estate.</p> <p>In a suit for the specific performance of a contract to buy certain real estate from the plaintiff, if the defendant has excepted to the finding of a master that the-plaintiff has shown a good title to the real estate to be conveyed by him, and the judge has overruled the exception, the defendant, although he has not appealed from this interlocutory order, under R. L. c. 159, § 26, may show on an appeal from a final decree for the plaintiff, that the exception to the finding should have been sustained, as the interlocutory order affects the final decree.</p>

<p>Equity Pleading and. Practice, Master’s report. Interest. Evidence, Admissions.</p> <p>Where a master’s report contains no report of the evidence, a finding of fact by the master must stand, unless upon the face of the report it is inconsistent with other findings and is plainly wrong.</p> <p>Where in a suit in equity the defence to a'claim upon an account is that it was settled long ago, if it appears that there was a settlement in which interest was not computed on either side, no claim for interest remains, as when the parties dealt with the principal debt any claim that might have been made for interest fell with the debt when it was satisfied.</p> <p>Where in a suit in equity the defence to a claim upon an account is that it was settled long ago, and the claim is founded on assignments from the administrators of the estates of the members of a family to whom the claim belonged at the time of the alleged settlement, it may be shown in defence that the inventories of the estates of the several intestates contained no reference to the existence of such an account although the administrators must have known of its previous existence, this being in the nature of an admission by the claimant’s alleged predecessors in title that such claim had ceased to exist as property.</p>

<p>Negligence, Employer’s liability.</p> <p>A girl between fifteen and sixteen years of age put at work upon a machine mangle which revolves very rapidly and is used for ironing towels and table linen, who has seen other persons remove pieces being ironed from the rollers when the machine was in operation, does not as matter of law assume the risk of her hand being drawn in between the roller and the cylinder when attempting to do the same thing, if the facts are such that she is justified in assuming that it is a part of her duty to remove pieces from the rollers.</p> <p>In an action against a laundry company by a girl between fifteen and sixteen years of age for injuries from having her hand drawn in between the roller and the cylinder of a machine mangle, used for ironing towels and table linen, while removing from the roller one of the pieces being ironed which had caught on it, it appeared, that the plaintiff had seen other girls remove pieces from the rollers when in motion, and that the head folder had done it in her presence, that the president of the company frequently had knocked pieces oil the rollers with his hand in the presence of the girls, and that the foreman had pointed to pieces caught on the mangle in such a way that the head folder thereupon had got up on the machine and had taken them off without stopping it. Held, that the jury might find, that, even if the girls working on the machine were not expected to remove pieces from the rollers when in motion, they were allowed to do so under such circumstances as imposed upon the defendant the duty of warning them of the danger, and that a finding was warranted that the plaintiff was justified in assuming that it was a part of her duty to remove pieces from the rollers.</p>

<p>Contract, Performance and breach. Damages.</p> <p>In a suit by a coal tar company against a gas company, to restrain the defendant from selling coal tar in violation of its contract with the plaintiff, and for damages, it appeared, that by the contract the plaintiff was to have one half of the defendant’s product of coal tar, to be delivered into tank cars belonging to and sent by the plaintiff, and that the plaintiff was to remove the tar at such times and in such quantities as would leave in the tanks of the defendant on the first day of each month not exceeding sixty days’ make, subject to the exception that the tar which the defendant was at liberty to sell to other parties was not to be included in such make, that the defendant broke the contract by selling all of its coal tar on hand to other parties, that during a period of nine months the plaintiff did not take away any tar or send or offer to send any cars to remove the tar, if any, to which it was entitled, but that several times during the period it inquired by telephone of the defendant’s office whether the defendant had tar and could load a tank car, and on each occasion the reply was made that the defendant had none and could not load a car, and that the treasurer was away and the persons there could not tell, that the tar which the defendant was at liberty to sell to other parties and that to which the plaintiff was entitled was mingled together in the defendant’s tanks, and that at the end of the period of nine months mentioned the plaintiff sent a tank car which was filled by the defendant and thereafter other cars were sent and were filled by the defendant without any objection. The judge found for the plaintiff and assessed damages, and the defendant appealed. Held, that the decision was right; that the condition of the tanks was within the exclusive knowledge and control of the defendant, and therefore that the plaintiff was not in default in failing to remove the tar or to send or offer to send cars for its removal in the absence of notice from the defendant that there was tar on hand for delivery; and, semble, that, even if the plaintiff had been required to send or offer to send cars, its inquiries and the replies to them might justify a finding that it had done all that was necessary, and that there was ground for contending that the defendant by afterwards delivering tar without objection had waived its right to object to any previous breach of the contract by the plaintiff.</p> <p>In assessing damages for a breach of contract in failing to deliver a certain product of the defendant in accordance with its terms, if the contract provides that the product shall be delivered at the defendant’s place of business, the plaintiff is entitled to the difference between the market value of the product at the plaintiff’s place of business and the cost of that product to the plaintiff under the contract, which must be arrived at by adding to the contract price delivered at the defendant’s place of business the cost of transportation to the plaintiff’s place of business.</p>

<p>Corporation, Reorganization. Trust. Agency.</p> <p>In a Buit in equity by the members of a committee representing bondholders of a corporation, who under authority of an agreement of the bondholders had foreclosed a mortgage, purchased the property at the foreclosure sale and conveyed it to a new corporation formed for the purpose, for an allowance of tlieir accounts for moneys paid, expenses incurred and services rendered, it was found by a master that the plaintiffs had acted in good faith and in the exercise of a sound discretion for the interest of the defendants, and that their efforts had been beneficial to the bondholders. A purchaser of one of the bonds after the foreclosure filed exceptions to the master’s report which were overruled by a justice of this court. The justice made a decree founded on the report, and the single bondholder appealed, the other bondholders being satisfied and a majority of them having asked that the decree be affirmed. It was held, that under the circumstances of the case all of the acts of the plaintiffs complained of by the appellant were authorized by the agreement of the bondholders, the material portions of which are quoted in the opinion.</p> <p>The circumstances may be such as to make proper the allowance of a payment by a committee of the bondholders of an insolvent corporation of a commission, for a sale of new bonds, to a firm one of the members of which is a member of the committee.</p>

<p>Landlord and Tenant. Contract, Implied: common counts.</p> <p>One who has continued his occupation of a house and land against the will of the owner and has refused to surrender possession of the premises is not liable to pay rent as a tenant at sufferance under R. L. c. 129, § 3.</p>

<p>Constitutional Law, Police power. Fish and Game Commissioners. Watercourse.</p> <p>A riparian owner cannot by maintaining a sawmill on the bank of a stream for thirty years acquire a prescriptive right against the Commonwealth to, discharge sawdust into the stream and thereby kill or injure fish therein, but holds his property subject to the right of the Legislature to prohibit or regulate the discharge of sawdust into the stream for the protection of edible fish.</p> <p>The Legislature lawfully may delegate to the board of fish and game commissioners the power to select the brooks and rivers in which the fish are of sufficient value to warrant the prohibition or regulation of the discharge of sawdust into the stream.</p> <p>The board of fish and game commissioners in exercising the power delegated to them by R. L. c. 91, § 8, of determining whether the fish o£ a brook or stream are of sufficient value to warrant the prohibition or regulation of the discharge of sawdust therein, and of prohibiting or regulating its discharge if so warranted, are acting in a legislative and not in a judicial capacity, and need not base their action on sworn evidence or give a hearing to a person requesting it, whose sawmill is injuriously affected by their action.</p>

<p> Street Railway. Way. </p> <p>The owner of land abutting on a street of a town cannot maintain an action against a street railway company for injuries to his land caused by a change in the grade of the portion of the street where the tracks of the railway company are laid made by the company in constructing its road under a location granted by the selectmen of the town, if the change of grade was made in accordance with the grant of location.</p> <p>If the grant of a location by the selectmen of a town to a street railway company contains no provision in regard to a change in the grade of the street in which the tracks are to be laid, the grant includes the right to make such changes in the grade of the street as are reasonably necessary for the construction of the railway.</p> <p>In an action by the owner of land abutting on a street of a town against a street railway company for injuries to tire plaintiff’s land from a change of grade in the street made by the defendant in the construction of its road under a grant of location from the selectmen of the town, if no grade was fixed in the location and no grade was defined by the selectmen in the order granting the location or subsequently, and, if the plaintiff concedes that the work of the defendant in changing the grade of the street and constructing its road was done properly as street railway construction, it must be taken that the change of grade was in accordance with the grant of location.</p>

<p> Homicide. </p> <p>In a trial for manslaughter, upon the issue whether .the defendant when he struck the deceased had reasonable cause to apprehend great bodily harm to himself, the defendant may show that the general character and habits of the deceased were those of a violent, passionate person, a quarrelsome, fighting man, and that this was known to the defendant.</p>

Bill in equity, filed April 11,1904, praying that the defendant be ordered to account to the plaintiff for the sum of $8,000, received from one O’Hearn by the defendant as trustee in bankruptcy of the estates of Herman O. Long and Frank A. Sanderson, who under the firm name of Long and Sanderson carried on a hotel at No. 24 on Avery Street in Boston, as the proceeds of an alleged sale by the defendant to O’Hearn of two liquor licenses held by Long and Sanderson from the…

Bill in equity, filed December 30, 1904, to restrain the defendant from taking or using any of the water furnished by the plaintiff for use in that part of the defendant’s territory lying in the town of Erving, praying also for damages for water unlawfully taken and used, and for further relief. The defendant demurred. The Superior Court sustained the demurrer, and ordered that the bill be dismissed, with costs to the defendant. The plaintiff appealed.

<p>Devise and Legacy, Construction.</p> <p>It is a settled rule of construction still in force in this Commonwealth that interests given by will to be enjoyed in the future are held to vest upon the death of the testator unless the testator by his words clearly has manifested an intention that they shall be contingent upon a future event.</p> <p>The fact, that by the provisions of a will the income of a fund is to accumulate before its distribution, does not show necessarily that the interests in the fund are to vest at the time of its distribution instead of at the death of the testator, but is at most only a circumstance to be considered with other circumstances in determining the testator’s intention.</p> <p>A testator by his will gave a certain fund as follows : “to my said executors in trust, that they pay the net income thereof to the three daughters of my deceased brother, C., in equal shares, and at the death of any one of them, that my said executors put the income of such one at interest until all of said daughters are dead, and then to divide the principal and the interest into six equal parts, and give one of said parts to my nephew, C., one to J., one to the childrenof R., one to A., one to the children of E., and one to the children of B., children and grandchildren of my brother, C., to have the same forever.” Held, that the interests of the described children and grandchildren of the testator’s brother, which were to be enjoyed after the death of the brother’s three daughters, vested upon the death of the testator.</p>

<p> Negligence. Street Railway. </p> <p>It is no evidence of negligence on the part of a street railway company, that it has. failed to adopt a rule requiring that, when one of its open cars is passing around a sharp curve, the conductor should push down the wooden bar on the outer side of the curve which is designed to prevent passengers from getting off on. the inner side of the car where there are double tracks.</p> <p>In an action against a street railway company under R. L. c. 111, § 267, for causing the death of a passenger by reason of the alleged gross negligence of the defendant’s servants, the judge should refuse a request of the plaintiff to instruct the jury that “ when the duty of exercising the highest degree of care is incumbent upon the defendant, any failure upon the part of its servants to exercise that degree of care is gross negligence,” such a failure being slight negligence.</p> <p>In an action against a street railway company under R. L. c. 111, § 267, for causing the death of a passenger, by reason of the alleged gross negligence of the defendant’s servants, the term “ gross negligence ” means, a gross failure to exercise the highest degree of care, and a request of the plaintiff to instruct the jury that in such a case where the highest degree of care is required the term “ gross ” is merely an expletive, should be refused.</p> <p>In an action against a street railway company under R. L. c. 111, § 267, for causing the death of a passenger by reason of the alleged gross negligence of the defendant’s servants, a request of the plaintiff to instruct the jury that there are no degrees of negligence. should be refused, as the statute creates such a distinction.</p>

<p> Metropolitan Water Supply Act. Damages. Practice, Civil. </p> <p>A petitioner under St. 1895, c. 488, § 14, as amended by St. 1901, c. 498, for damages for property taken by the metropolitan water board, who states in his petition a taking of and an injury to his real estate, if commissioners appointed by the court find against his claim, has a right, on appealing from their decision under § 15 of the first named statute, to a trial by jury, and the acceptance of the report of the commissioners by the court does not deprive the petitioner of his right to claim a trial by jury at the term in which the determination of the commissioners is filed in court or at any time before the expiration of the succeeding term.</p>

<p>Tort, against a street railway company, under R. L. c. 111, § 267, for running down and killing the plaintiff’s intestate on a road in Hopedale on the evening of July 15, 1904, by reason of the alleged negligence of the defendant in the operation of its road or the gross negligence of its servants and agents. Writ dated September 16, 1904.</p> <p>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>

<p>Negligence. Railroad. Carrier, Of passengers.</p> <p>In an action of tort at common law by a woman passenger against a steam railroad company for personal injuries incurred in alighting from a train of the defendant upon a station platform of the defendant, an instruction to the jury that “ if the defendant provides safe means of egress and a safe and' convenient place to alight, that fulfils the duty imposed by law ” is correct and raises no question as to the degree of care which the carrier owes to the passenger.</p> <p>In an action of tort at common law by a woman passenger against a steam railroad company for personal injuries incurred in alighting from a train of the defendant upon a station platform of the defendant, owing to the alleged negligence of the conductor of the train in taking hold of the plaintiff’s arm to assist her in alighting and then letting go of it at the wrong time, if it appears that the circumstances were such that the highest degree of care on the part of the defendant did not require the conductor to assist the plaintiff in alighting but that the conductor attempted to assist her because of a rule of the defendant, the defendant need show only reasonable care on the part of its conductor in doing something beyond its obligation as a carrier.</p>

<p> Marriage and Divorce. Judgment. Prolate Court. </p> <p>An order of the Probate Court on a petition of a wife for separate maintenance, declaring that the wife “ has been living apart from her husband for justifiable cause, but that said cause does not justify a permanent separation of the parties ”, while unrevoked, is a bar to a libel for divorce by the wife for the causes alleged in the petition for separate maintenance, the order being conclusive upon all matters shown to have been put in issue or necessarily to have been involved and actually tried and determined, but if the allegations in the petition for separate maintenance, and the specifications thereunder, charge lewd and lascivious conduct with a certain woman but do not charge adultery, the order thereon is not a bar to a libel for divorce for adultery with the same woman during the same period.</p>

<p>Landlord and Tenant, Whether relation exists. Frauds, Statute of.</p> <p>One who orally agrees to hire a tenement at a monthly rent for a period beginning at a future day, and, before that day, moves certain goods into the tenement with the consent of a tenant then in occupation of it, and, also before that day, moves his goods out and refuses to take the tenement, is not liable to the landlord for the rent of the tenement for the month following the day on which by the oral agreement his occupation was to begin.</p> <p>Under R. L. c. 74, § 1, el. 4, no action can be maintained on an oral agreement to hire a tenement.</p>

<p>Negligence. Practice, Civil, Exceptions. Master and Servant. Dynamite. Joint Tortfeasor.</p> <p>In an action under R. L. c. 171, § 2, for causing the death of the plaintiff’s intestate by the negligence of the defendant or by the gross negligence of the defendant’s agents or servants, if the declaration is defective for want of an allegation that the intestate left a widow, children or next of kin, but the defendant instead of taking this objection by demurrer or by a request for a ruling that proof of all the allegations set forth in the declaration does not entitle the plaintiff to recover, chooses to join issue and try the case on the pleadings as they stand, and this objection is not alluded to or called to the attention of the presiding judge, the defendant cannot raise the point upon the argument of an exception to a refusal of the presiding judge to give a general ruling at the end of the trial that upon all the evidence the action cannot be maintained.</p> <p>A driver in the general employ of a transportation company, which has a contract with the proprietor of a powder factory to transport the contents of a magazine to a place of storage while the powder factory is undergoing repairs and when the repairs are completed to move it back again, if sent in charge of a wagon upon this work, can be found to have remained the servant of liis general employer and not to have become the servant of the proprietor of the powder factory.</p> <p>The rule, that to recover for a personal injury under the highway act the alleged defect must have been the sole cause of the injury, does not apply to an action under R. L. c. 171, § 2, for causing the death of the plaintiff’s intestate by the negligence of the defendant or by the gross negligence of the defendant’s agents or servants.</p> <p>In an action against a powder mills corporation maintaining a magazine where gunpowder and dynamite were stored, under R. L. c. 171, § 2, for causing the death of the plaintiff’s intestate by its negligence or by the gross negligence of its agents or servants, there was evidence, that the defendant received notice from a cartridge company, storing powder and occupying the adjoining premises separated by a partition of open joists, that the floor on the defendant’s side of the partition was discolored, that the discoloration had spread through the partition, and that the stain was believed to be nitroglycerine, and requesting that the source of danger should be remedied at once, that only after an interval of twenty-two days, further correspondence and interviews with the defendant’s superintendent having intervened, were arrangements made by the defendant to remedy this dangerous condition by removing the discolored portion and putting in a new floor, that in the meantime the cartridge company had removed its powder which was temporarily in wagons standing at some distance from the defendant’s magazine, that the defendant continued to keep in its powder magazine a large quantity of explosives, and entrusted the repairs to an inexperienced servant acting without the personal supervision of the defendant’s superintendent, that this servant, without removing the large quantity of dynamite and gunpowder that still remained in the magazine, poured upon the discolored area a liquid that had been furnished to him with instructions not to use it until the entire contents of the magazine had been removed, that he had been told that if the dynamite and powder then in the magazine exploded it instantly would generate a heat sufficiently intense to explode all the powder in the wagons of the cartridge company and in another storehouse of the defendant, that after applying the liquid he began scrubbing the surface with a broom, whereupon smoke arose and a general explosion followed, the gunpowder in the wagons of the cartridge company exploding as well as the dynamite and powder in the defendant’s magazine, and the plaintiff’s intestate, who was in charge of one of the wagons of the cartridge company, was killed. Held, that on this’ evidence the jury were warranted in finding both negligence of the defendant and gross negligence of the defendant’s servant. Held, also, that, even if the cartridge company was negligent in not removing its wagons to a safe distance and so became a joint tortfeasor, this would be no defence for the defendant.</p>

<p>Trustee Process. Practice, Civil. Words, “May.”</p> <p>A claimant admitted under R. L. c. 189, § 32, to an action at law begun in a police court by trustee process, on appealing to the Superior Court from a judgment of the police court disallowing his claim, is entitled to a trial by jury if he claims it seasonably.</p>

<p>Insolvency. Evidence. Practice, Civil.</p> <p>In actions by an assignee in insolvency, under Pub. Sts. c. 157, § 96, (R. L. c. 163, § 110,) to recover property and money alleged to have been transferred to and received by the defendant as fraudulent preferences, evidence of the state of the money market at the time of the transactions, offered by the defendant upon the issue of insolvency, is irrelevant.</p> <p>In an action at law the findings of fact by a judge sitting without a jury cannot be revised if there was any evidence to sustain them.</p> <p>If the circumstances of a transfer of goods and book accounts by a person insolvent at the time are such that it is voidable as a fraudulent preference under Pub. Sts. c. 157, § 96, (R. L. c. 163, § 110,) so far as it was the intention of the parties to secure a pre-existing indebtedness, this makes the whole transaction voidable including a part of the transfer made to secure a present loan.</p>

<p>Fobty petitions against the town of Wellesley and the-county of Norfolk for the assessment of damages for takings-of land and changing of grade for the widening of Worcester-Street between its termini in the town of Wellesley.</p> <p>In the Superior Court the cases were heard by Aiken, C. J. solely to determine which of the respondents was liable for the damages resulting from the orders of the county commissioners in regard to Worcester Street and the acts done under those orders. The chief justice ruled that the town of Wellesley was-liable, and ordered that the petitions be dismissed as to the-county of Norfolk and that the cases stand for further proceedings against the town of Wellesley.</p> <p>At the request of all the parties, he reported the cases for determination by this court. If the ruling was correct, the cases were to be remanded to the Superior Court for further proceedings against the town of Wellesley. If the ruling was erroneous, such orders and decrees were to be entered as law and justice might require.</p> <p>The chief justice reported the foregoing ruling as an interlocutory finding or order within the meaning of R. L. c. 173, § 105, which in his opinion ought to be determined by this court before any further proceedings in the trial court.</p> <p>The case was argued at the bar in March, 1905, before Knowlton, C. J., Morton, Lathrop, Hammond, & Braley, JJ., and after-wards was submitted on briefs to all the justices except Sheldon, J., who had been appointed but had not taken his seat upon the bench.</p>

<p>Petition, filed February 15, 1904, by the town of Wellesley for a writ of certiorari to quash the proceedings of the county -commissioners of Norfolk County as to Worcester Street in the town of Wellesley under an order of the respondents dated June 3,1902, their proceedings in amending that order, their proceedings as to that street under an order dated October 20, 1903, an order of November 3, 1903, relating to the acceptance of Worcester Street as.constructed under the order of June 3, 1902, and other matters relating to the same orders.</p> <p>The case came on to be heard before Hammond, J., who, at the request of the parties, reserved it for determination by the full court upon the petition for a writ of certiorari with the amendment thereto and the answers of the respondents to the petition and the amendment thereto, reserving to the parties all questions as to the materiality and competency of facts alleged in the pleadings, such disposition to be made of the case as justice might require.</p> <p>Worcester Street was relocated and widened under the order of the respondents of June 3, 1902, “for the purpose of granting a location of the tracks of the Boston and Worcester Street Railway therein.”</p> <p>In the location granted to the Boston and Worcester Street Railway Company by the selectmen of the petitioner there was imposed, among other things, a condition that the street railway company should construct a part of the highway in accordance with certain stipulations therein set forth and to the satisfaction of the selectmen.</p> <p>The order of the respondents of November 3, 1903, was as follows: “ Ordered, that the construction of Worcester Street in the town of Wellesley to the extent provided for in and by the order of location granted by the selectmen of said Wellesley to the Boston and Worcester Street Railway Company, January 17, 1902, and the decree of the county commissioners made and entered J une 3, 1902, having been completed to the satisfaction of said commissioners, said Worcester Street to that extent is hereby accepted, it being expressly understood that said commissioners take no action whatever upon or with reference to the remaining portions of said Worcester Street and particularly the following portions thereof, the construction of which was not required by said decree or by said order of location but which have been constructed by said town of Wellesley and its selectmen entirely independent of said decree and said order and without the authority or sanction of said commissioners, to wit: ” Here followed an enumeration and descriptions of the portions of Worcester Street excepted from the order.</p>

<p>Way, Highway, alteration or relocation. Practice, Civil, Verdict.</p> <p>The decision of this case on a demurrer to the petition, which failed to show the details of the proceedings on which it was founded, as reported in 186 Mass. 133, . that the petition was for damages under R. L. c. 48, § 1, for the “ alteration ” of a highway and not under § 12 of the same chapter for the relocation of the highway, the nature of the proceedings now having been disclosed by a trial on the merits, is here reversed on the facts disclosed, it being held, that the petition was under § 12 and that the order of the county commissioners, that the expenses and land damages claimed should be paid by the town in which the highway was relocated, was valid. See Bennett v. Wellesley, ante, 308.</p> <p>When under R. L. c. 48, § 12, county commissioners have made an order that a town shall pay the expenses of the relocation of a highway, there is nothing in § 52 of the same chapter or elsewhere which requires that the county should in the first instance pay the expenses and then recover'them from the town.</p> <p>In the trial of a petition against a town and a county for damages which are to be paid either by the town or the county, if both respondents appear and take part in the trial, and later, upon a ruling of the presiding judge at the close of the petitioner’s evidence that the town is not liable, the town withdraws from the trial, and a verdict is returned against the county, and if an exception of the county to the judge’s ruling is sustained by this court and it is held that the town is liable and that the county is not, the verdict obtained against the county will not be allowed to stand against the town, which is entitled to be heard in a new trial before judgment is given against it.</p>

<p>Equity Jurisdiction, Laches.</p> <p>A bill in equity to set aside a conveyance of land for alleged fraud, filed more than twenty-eight years after the conveyance, more than ten years after the plaintiffs knew the facts relied on to show fraud, and after both of the parties to the conveyance have died, must fail by reason of laches, and it does not matter that the conveyance was made by an executrix who also was life tenant of the land, and that the hill was filed by the remaindermen within three years of her death, since her deed as executrix conveyed a title paramount not only to the life estate hut also to the estate in remainder.</p>

<p>Trust. Limitations, Statute of.</p> <p>A man who has acted as the financial agent and trusted adviser of an unmarried sister without experience in business, who has had possession of her personal securities, has collected her income and paid it out to her, and has made investments for her from time to time, having told her that he would take care of her property as he did of his own, may be found to have been a trustee for her, so that the statute of limitations is no defence to a suit in equity brought against him by the executors under the will of his sister for an accounting, and a bill alleging these facts sets out enough to show that the statute of limitations is not applicable.</p> <p>In the absence of evidence of a previous demand or of a repudiation of the trust the statute of limitations does not apply to a suit in equity for an accounting for funds held by a trustee.</p>

<p>Negligence, Employer’s liability. Evidence, Records, Competency. Practice, Civil, Exceptions.</p> <p>A temporary staging, provided for the use of steam fitters in the employ of a manufacturing company engaged in putting into a building the plant of an ice company whose superintendent has erected the staging upon notification from the manufacturing company to do so, is not a part of the “ways, works or machinery ” of the manufacturing company within the meaning of R. L. c. 106, ‘ § 71, cl. 1.</p> <p>If a workman is ordered by a superintendent of his employer to go upon a defective staging, of which the structural weakness readily can be discovered by even a superficial examination, and which the superintendent negligently has failed to inspect, the employer is liable for an injury to the workman caused by the falling of the staging, although it was built by another corporation and the employer and its superintendent had nothing to do with its construction.</p> <p>The daily record kept in a hospital of the medical treatment of its patients does not prove itself, and is not admissible in evidence without the testimony of the person who made the entry relied upon or that of some person properly charged with the custody of the records.</p> <p>When incompetent evidence has been admitted against the objection and exception of the opposing party, the party who introduced the evidence cannot except to a limitation of its effect in the charge of the presiding judge.</p>

<p>Agency. Milk. Evidence, Admissions, Burden of proof.</p> <p>In an action by a farmer against a milk dealer for the price of milk sold and delivered, it appeared that one M., who was paid by the defendant and not by the plaintiff, collected the milk in cans from the plaintiff and other farmers, and kept an account of the milk taken by him from each farmer in a book appropriately ruled to cover a month, and at the end of each month sent it to the defendant and received it back in a sealed envelope containing the defendant’s checks for the amount due to each farmer for the milk delivered. The judge ruled that M. was not an agent of the defendant whose entries would bind the defendant, but admitted in evidence the covers of the books and the pages in each which were headed by the plaintiff's name, to assist the jury in determining the amount of milk received by the defendant, instructing them that if the books came to the attention of the defendant it was a question for the jury whether or not the defendant acquiesced in the correctness of the entries. Held, that the judge well might have submitted to the jury the question whether M. was the agent of the defendant, and that the defendant was not aggrieved by the rulings, which were sufficiently favorable to him.</p> <p>In an action for the price of milk sold and delivered, where the burden is on the plaintiff to show that the milk furnished by him was of the quality required by R. L. c. 56, § 56, the plaintiff need not show that an analysis of the milk has been made, but may be found to have sustained the burden of proof if lie shows the nature of the herd of cattle owned by him, the manner in which they were fed, that no water or foreign substance was added to the milk, and that it was of good quality and not skimmed.</p>

<p>Sale, Warranty. Contract, Construction. Damages, Recoupment. Evidence, Burden of proof. Words, “Finish sound.”</p> <p>An express warranty, that certain hollow metallic cylinders called shells, sold to a manufacturer of bicycle pedals as a covering for the shafts of such pedals, shall “finish sound,” properly can be found by a judge, sitting without a jury, to mean that the shells when finished shall be free from cracks and air holes both obvious and hidden, and there is no implied warranty that the shells shall be suitable for the use intended, this being a subject on which the buyer in such a case knows much more than the seller.</p> <p>In an action for the price of certain goods manufactured to order, if the defendant’s answer contains a declaration in recoupment, in support of which the defendant relies on an express warranty by the plaintiff against certain defects, the burden is on the defendant to show that the failure of the goods to serve the purpose for which they were intended was attributable to the defects against which there was a warranty.</p>

<p>Contract for labor performed and materials furnished, with three counts, each for a separate and distinct cause of action, claiming respectively $62.35, $201.02, and $255.88, Rollin Bassett being summoned as trustee. Writ in the District Court of Franklin dated December 21, 1908.</p> <p>The alleged trustee filed an answer in which he alleged that, at the time of the service of the plaintiff’s writ upon him, he was owing the defendant nothing, that the defendant contracted to build a house for him, and that several payments had been made, but that by the terms of the contract nothing was due at the time of service or would be due until completion.</p> <p>The plaintiff propounded interrogatories to which answers were filed by the alleged trustee. The district court found for the plaintiff, assessed damages, and ordered that the trustee be discharged. The plaintiff appealed to the Superior Court.from the order discharging the trustee. The defendant did not appeal. It did not appear that a final judgment had been entered against the defendant.</p> <p>In the Superior Court the case came on to be heard before Fox, J. On the question of the discharge of the trustee the plaintiff made an offer of proof which the judge found to raise no material question not disclosed by the trustee’s answers, and upon those answers the judge ordered that the trustee be discharged. The plaintiff appealed from this order.</p>

<p>Negligence, Employer’s liability.</p> <p>The proprietor of an ice house is not liable to one of his workmen for an injury to his foot caused by its being struck by an ice pick negligently thrown over a partition of the ice house by a fellow workman without giving sufficient warning when ordered by the proprietor to throw it over.</p> <p>If the proprietor of an ice house orders one of his workmen to throw an ice pick over a partition of the ice house when other men are working on the other side of the partition, and if one of these men is injured by being struck by the pick which is thrown over by the fellow workman negligently without giving sufficient warning, this is not evidence of negligence on the part of the proprietor, as his order can be interpreted only as one to throw over the pick in a proper way and in a proper place.</p>

<p> Negligence. Street Railway. </p> <p>A person standing in the snow by the side of the track of a street railway for the purpose of taking a car, who signals to a car to stop and at the same time leans forward so that the car approaching rapidly lilts his head before stopping, is not in ihe exercise of due care.</p>

<p>Equity Pleading and Practice, Master’s report. Way. Equity Jurisdiction, Continuing trespass.</p> <p>Where the evidence is not reported a master’s findings of fact are conclusive.</p> <p>A deed of a lot of land with a dwelling house thereon granted the right of passage “ over a strip of land sufficiently wide for all purposes of travel with team or on foot, lying along the westerly side of the land above described, the same to be used in common with the grantor and those claiming under him, for the purpose of entering upon the rear part of the lot above described.” The land conveyed lay wholly to the east of the line named and the land on the westerly side belonged to the grantor. Held,, that the way granted was wholly over the land of the grantor, and that the boundaries of the way, left uncertain by the deed, were to be determined by considering the purpose for which it was granted and the manner in which it had been used.</p> <p>A suit in equity may be maintained to enjoin the continuance of repeated trespasses which interfere with the free use and enjoyment of real property of the plaintiff, even if a recovery at law of nominal damages would afford full compensation.</p>

<p>Tort, under Gen. Sts. of Conn. § 1094, and at common law, for causing the death, and conscious suffering, of the plaintiff’s intestate by the alleged negligence of the defendant in running him down while he was shovelling snow in a freight yard of the defendant in that part of New Haven, in the State of Connecticut, called Cedar Hill, without any warning of the approach of the train drawn by the engine that caused his death. Writ' dated April 29, 1904.</p> <p>In the Superior Court the case was tried before Maynard, J., who at the close of the plaintiff’s evidence ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p> Negligence. </p> <p>A person riding a bicycle on a street which has a double line of electric ear tracks is not in the exercise of due care, if, while his view of the farther track is obstructed by a car which has passed him on the nearer track, he attempts to cross the tracks and is struck by a car approaching on the farther track from the opposite direction. Due care requires him to wait until his view of the farther track is unobstructed.</p>

<p> Negligence. </p> <p>It is not evidence of due care on the part of a teamster struck and killed by a train while attempting to drive over a private railroad crossing, that just as he was turning to cross the track and was very near it, when the train which killed him must have been in full sight if he had looked in its direction, he was seen to make a pause of a few seconds.</p>

<p>Corporation. Words, “Dividend.”</p> <p>The capital stock of a corporation, organized under the laws of the State of Maine, consisted of a certain amount of seven per cent cumulative preferred stock and a certain amount of common stock. The by-laws provided that a certain amount of special preferred stock should “ be entitled to annual dividends in preference to the remaining preferred stock, for the period of three years from the original • issue thereof”; and that “the dividends on said remaining preferred stock shall accumulate during said three years to the extent that they are not paid.” No dividends of any kind were paid until long after the period of three years from the original issue of the stock had elapsed, and then a preferred dividend of seven per cent was declared on the special preferred stock only. Held, that under the true construction of the by-law the dividend was lawful, and that the holders of the special preferred stock were entitled under the by-law to three dividends of seven per cent each in preference to the remaining preferred stock.</p>

<p> Equity Jurisdiction. Tax. Subrogation. </p> <p>Equity will not restrain the collection of a tax.</p> <p>One who was the owner of an equity of redemption of certain real estate at the time of the assessment of a tax upon it, and who afterwards conveyed his interest to another subject to the tax, if sued for the tax by the collector of taxes, can maintain a suit in equity against the purchasers of the real estate at a foreclosure sale subject to the tax, for subrogation upon his payment of the tax to the rights of the collector of taxes against the real estate.</p>

<p>Devise and Legacy, Construction.</p> <p>A will in the handwriting of a testatrix contained the following provision: “ To my sister M., I give six hundred dollars for her use during her lifetime after which such part of it as may be left shall be equally divided between my niece A., my nephew R., and my nephew once removed C., the same to be held in trust by my niece T., and given to each of them when she shall think it wise and best so to do.” M., the sister of the testatrix, was living with her at the time of her death. Held, that the sister, M., took an absolute interest in the S600, and that the attempted gift over was void.</p>

<p>Devise and Legacy, Construction.</p> <p>A will, after directing the payment of the testator’s debts and funeral charges, contained this clause: “I give, devise and bequeath to my sons and daughters should they be alive at the time of my decease or any of them that may be alive as follows, [naming each of the testator’s twelve children of whom eleven were living at the time of his death] five dollars each.” The remainder of his estate he gave to his wife, so long as she should remain his widow, with the power to care for any minor children out of the property until they should reach their majority. He provided that in case his wife married, the property which she should have received at his death and should not previously have used should he divided among his surviving children, and that in case his wife should “remain unmarried until her death then that all of my property which she may possess shall be disposed of equally among all my surviving children.” The testator’s widow died without marrying again. Held, that the interests in the nature of remainders vested at the death of the testator in his children then living, and that the executors or administrators of children living at his death who died before the widow were entitled to share in the distribution.</p>

<p>Petition, filed October 13,1904, for a decree of nullity of marriage.</p> <p>In the Superior Court Lawton, J. ruled that on account of the provisions of R. L. c. 151, § 6, the petition could not be maintained. He ordered that the petition be dismissed, and reported the case for determination by this court. If the ruling was right, a decree was to be entered dismissing the petition; if the ruling was wrong, a decree of nullity was to be entered.</p>

<p> Explosives. Nuisance. Assignment. Release. Agency. </p> <p>R. L. c. 102, § 93, imposing a fine for keeping gunpowder without complying with certain requirements, gives no civil remedy for an injury from an explosion of gunpowder kept contrary to its provisions.</p> <p>R. L. c. 102, § 103, giving a civil remedy for injuries from explosions of explosives kept or transported contrary to the provisions of that chapter, gives no remedy for an injury from an explosion of gunpowder, which by § 105 of the same chapter is excepted from the substances covered by the word “ explosive ” or “ explosives.”</p> <p>In an action for an injury from an explosion of gunpowder caused by the blowing up of a magazine of the defendant alleged to have been a nuisance at common law, the plaintiff may introduce evidence to show the proximity of buildings and highways and the density of the population near the magazine.</p> <p>A magazine for the storage of gunpowder and dynamite in a populous neighborhood may be found to be a nuisance at common law, especially if a portion of its floor is saturated with nitroglycerine, and if a direct injury results to an individual from the nuisance he may maintain an action for damages, which may be followed in the discretion of the court by an abatement of the nuisance.</p> <p>It is no defence to an action against the proprietor of a magazine for the storage of gunpowder and dynamite, for injuries caused by an explosion of the magazine, that the defendant allowed the tenant of an adjoining compartment of the building to repair the magazine and for this purpose to remove its contents temporarily. Nor is it a defence that the simultaneous exploding of the magazine of another rendered the explosion more destructive.</p> <p>A claim for personal injuries is not assignable before judgment.</p> <p>A woman, having a claim for personal injuries from certain explosions and also a claim against the same persons for destruction of property by the same explosions, upon being paid for the property destroyed, executed and delivered to the attorney of the persons liable an assignment of all claims for destruction of property “ and also all other claims and demands ... by reason of damage of any name or nature arising out of said explosions,” and appointed the person to whom the instrument was delivered her attorney to collect, release, receipt for and settle all such claims and demands. Afterwards she brought an action for the personal injuries caused by the explosions, and the defendants set up this instrument as a release of liability. Held, that the instrument could not operate as an assignment of the claim for personal injuries, which was not assignable, nor as a release to the defendants who were not parties to it, especially as it purported to assign an existing cause of action and not to extinguish it, and that whatever authority to release the claim the instrument gave as a power of attorney was revoked by the bringing of the action.</p>

<p>Attachment. Execution. Equity Jurisdiction, To remove cloud upon title.</p> <p>The provision of R. L. c. 167, § 112, that an attachment of real or personal property shall be dissolved if the debtor dies before it is taken on execution, applies to an attachment of property fraudulently conveyed by the debtor as well as to an attachment of property standing in the debtor’s name.</p> <p>A levy of execution upon real estate of a deceased person under R. L. c. 178, § 53, in an action brought against such person before his death, in which the administrator of his estate has appeared and assumed the defence, is not rendered invalid by the dissolution of the original attachment of the real estate in the same action under R. L. c. 167, § 112, upon the death of the defendant before the execution was levied.</p> <p>A person having the record title to land upon which an execution has been levied by a creditor of the grantor, on the ground that the land was conveyed in fraud of creditors, if'under R. L. c. 178, § 31, the officer has suspended further service of the execution by reason of prior attachments, whereas those attachments at the time of the levy have been dissolved under R. L. c. 167, § 112, by the death of the debtor, so that the further service of the execution should have proceeded without unnecessary delay, if the delay is such as to defeat the levy, may maintain a suit in equity to have the cloud upon his title, consisting of the suspended levy appearing upon the record, removed, although the creditor afterwards can take out another execution and have it served promptly.</p>

<p>Agency, Commission on sale, Admissions by agent. Evidence, Extrinsic affecting writings, Admissions. Practice, Civil, Exceptions. Pleading, Civil, Variance. Contract, What constitutes.</p> <p>A contract with a manufacturer of automobiles by which a certain person is made exclusive agent of the manufacturer for a certain city and its vicinity and is to receive a certain commission on sales made within that territory, agreeing that if he receives inquiries from territory other than his own he shall refer them promptly to the manufacturer, gives the agent the right to sell to all residents of his territory exclusive of the manufacturer himself as well as of other agents.</p> <p>A contract in writing of a manufacturer of automobiles with a certain person, making him its exclusive agent for a certain territory, stipulated that a commission or discount of fifteen per cent from the list prices should be allowed to the agent upon all sales made to him. In an action by the agent against his principal for commissions on sales, the plaintiff was allowed to show a trade usage by which an exclusive agent had a commission on all sales in his territory by whomsoever made, and accordingly that the plaintiff was entitled to a commission upon sales made to residents of his territory by the defendant directly without the plaintiff’s aid. Held, that evidence of this usage did not contradict the contract, and was admitted properly to cover a contingency for which no provision was made in the contract.</p> <p>In an action by an agent of a manufacturer of automobiles against his principal for a commission on the sale of one of the defendant’s cars, if it appears that by a contract in writing the plaintiff was made the exclusive agent of the defendant within a certain territory, and agreed that he would refer promptly to the defendant all inquiries from territory other than his own, this does not prevent him from proving that he procured a sale outside of his contract on which the general agent of the defendant expressly agreed that the defendant should pay him a commission.</p> <p>A request by a defendant for a general ruling that the plaintiff cannot recover does not call the attention of the presiding judge to the fact that a variance between the pleadings and the evidence is relied on, and the question of variance is not open on an exception to the ruling.</p> <p>In an action by an agent of a manufacturer of automobiles against his principal for a commission on the sale of one of the defendant’s cars, if it appears that by a contract in writing the plaintiff was made the exclusive agent of the defendant for a certain city in this Commonwealth and its vicinity, and the plaintiff, seeking to recover a commission on a sale alleged to have been procured by him outside of this territory, proves that the defendant’s New England agent said to him, that any man that “ left his card ” or admitted that he “ had any connection ” with the plaintiff in regard to the car was the plaintiff’s customer, and that the plaintiff “ should get the commission,” this may be construed to have been a promise that if the plaintiff would introduce the defendant’s car to a man who afterwards bought one at a branch office outside the plaintiff’s territory and the customer admitted that the plaintiff had introduced the car to his attention the plaintiff should have a commission.</p> <p>The sales manager of a manufacturer of automobiles has authority to bind his employer by an admission as to its' liability to pay to one of its agents a commission on the sale of a car.</p>

<p>Easement, Grant, Prescription. Deed, Construction. Equity Pleading and Practice, Decree.</p> <p>A grant by a landowner to a city of “the right to enter upon a strip of land fifteen feet wide ... for the purpose of laying one or more water pipes for conveying • water from ” a certain pond used as a water supply to the city reservoirs on a certain street, “and of examining, repairing and relaying the same whenever-necessary,” does not include the right of using the pipes to distribute water-to the consumers from a new city reservoir established elsewhere after the reservoirs named in the deed have been abolished.</p> <p>To establish a prescriptive right on the part of a city to use water pipes under • ground for a purpose not included in the grant from the owner of the land in which they were laid, the city must prove not only that its wrongful use of the - pipes for twenty years was continuous and adverse, but also that the owner of the land had knowledge of the use or had the means of knowledge of which he-ought to have availed himself.</p> <p>In a suit in equity by a landowner to enjoin an unlawful use by" a city of water - pipes running through 1ns land which are being used by the city without right as a part of the means of distributing water to the consumers, the interests of the • public, which would be affected by a peremptory shutting off of the water, are to be considered in framing a decree granting the plaintiff the relief prayed for.</p>

<p>Master and Servant. Negligence, Duty of warehouseman. Bailment.</p> <p>An employee of a storage warehouse company, sent with a customer to take him up in an elevator to the room where his goods are stored and unlock it, who, when called later by the customer to take him down in the elevator, on arriving at the landing steps from the elevator and assaults the customer without provocation, is not engaged in his master’s work or doing an act as a means or for the purpose of performing it.</p> <p>A storage warehouse corporation which agrees to store goods of a customer, to use due care in keeping them and to deliver them upon reasonable demand, and agrees that the customer may visit the room where his goods are stored during business hours in the presence of one of the company’s employees, is required to use only ordinary and reasonable care and diligence in the selection of the persons employed to accompany its customers when visiting the rooms where their goods are stored.</p>

<p>Equity Jurisdiction, To compel contribution. Corporation.</p> <p>A stockholder of a corporation organized under the laws of another State, who has been forced to pay a judgment against the corporation under a statute of the State in which the corporation was organized, can maintain a suit in equity against other stockholders similarly liable to compel contribution, and in such a suit it does not matter that the plaintiff after satisfying the judgment made no demand upon the corporation and took no action against it under a statute of the other State.</p>

<p>Fraud, As to creditors. Attachment. Trust. Execution.</p> <p>The fact, that a married woman conveyed real estate to another because she was going to get rid of her husband, does not justify a finding that she intended to defraud her creditors generally.</p> <p>A general attachment of all of a defendant’s real estate in a certain county under R. L. c. 178, § 1, covers real estate held for the defendant on a trust express or implied under which he is entitled to a present conveyance, and no special attachment is necessary such as our statutes require in case of real estate which has been conveyed to a third person in fraud of creditors.</p> <p>Evidence that a married woman conveyed real estate to another because she was going to get rid of her husband warrants a finding that the grantee holds the property on a trust whereby the grantor is entitled to a present conveyance within the meaning of R. L. c. 178, § 1, relating to real estate which may be taken on execution.</p> <p>A purchaser at an execution sale of land, standing in the name of one holding it on a trust for the judgment debtor who is entitled to a present conveyance, and attached and sold on execution under R. L. c. 178, § 1, gets the legal title to the land and not merely an equitable title.</p>

<p> Corporation. Bills and Notes. </p> <p>An accommodation indorsement of a note by a corporation is ultra vires and cannot be enforced by one who takes the note witli notice that the indorsement was without consideration.</p> <p>If a car manufacturer in payment for cars sold and delivered to a street railway contractor takes a note of the contractor indorsed by one of four railway corporations whose roads the contractor is constructing, in the absence of evidence to the contrary, the indorsement will be taken to be an accommodation indorsement and the manufacturer to be chargeable with knowledge of that fact, so that the manufacturer cannot hold the railway company liable as an indorser.</p>

<p> Damages. Grade Crossing A cts. </p> <p>Under St. 1890, c. 428, as amended by St. 1891, c. 123, now R. L. c. Ill, §§ 149-160, one whose land, none of it being taken, is injured in the abolition of a grade crossing by the construction of a street built upon an embankment supported by a retaining wall, rising from five and one half to fourteen and one half feet high in front of and forty feet away from his land on the opposite side of a street on which his land abuts, may be found to have suffered special and peculiar damage for which he is entitled to recover under the statute. Following Sheldon v. Boston Albany Railroad, 172 Mass. 180, which is held to have overruled Rand v. Boston, 164 Mass. 354. Lathkop, J., dissenting.</p>

<p> Trust. Capital and Income. </p> <p>A dividend declared by a national bunk, about to wind up its affairs and consolidate with two other banks by forming a new corporation, of §37.50 on each share of its capital stock of the par value of $100, as a step in liquidation for the purpose of enabling its stockholders to pay assessments on stock subscribed for by them in the new consolidated bank, is capital, and, if received by a trustee holding shares of the bank for the benefit of a beneficiary for life with a remainder to others, must be treated as part of the trust fund, and only the income from it can be paid to the beneficiary for life.</p>

<p>Negligence, Employer’s liability.</p> <p>If a dull and stupid boy a little over fourteen years of age, employed in a machine shop, is for the first time set at work upon a speed lathe, a complicated machine used for polishing conical metal caps while they are revolving one thousand times a minute, and the work of adjusting the various parts of the machine to each other preparatory to the act of polishing requires a considerable degree of care, strength and skill, and if, before the boy is set to work, a second hand spends about five minutes showing him how to operate the machine and polish the caps, and polishes a few caps for him, hut says nothing about the danger of a cap flying out of the lathe and hurting the boy if it does so, and if about twenty minutes later, after the hoy has polished seven or eight caps without accident and has been polishing another for about two minutes, the cap suddenly jumps out of the lathe and hits the hoy in one of his eyes, destroying its sight, it is a question of fact whether the employer has been negligent in performing its duty to instruct the boy.</p>

<p>Statute, Construction. Contract, Validity. Condition. Middlesex County, Building at Cambridge for registry of deeds and Probate Court.</p> <p>Under St. 1896, c. 500, providing for the construction by the county commissioners of Middlesex of a building at Cambridge for the registry of deeds and the Probate Court at a cost not exceeding §500,000, the provision of § 2, that no contracts shall be made for the construction of the building until detailed estimates of cost have been approved by the special board created by that section, applies to the claim of an architect, employed by the county commissioners to complete the erection of the building after the original contractor has failed, for compensation for his services as architect and for the sums paid by him for the services of an inspector employed by him in the completion of the building, and without such approval the architect cannot maintain an action against the county for his services and expenses.</p>

<p>Indictment charging Charles L. Tucker with the murder of Mabel Page at Weston on March 31, 1904.</p> <p>In the Superior Court the case was tried before Sherman and Sheldon, JJ. Before the jury were empanelled the counsel for the defendant read a special plea, a motion to quash, and a motion to withdraw the defendant’s plea of not guilty and to substitute therefor the special plea and motion to quash. These motions were denied by the judges.</p> <p>The jury returned a verdict of guilty of murder in the first degree; and the defendant alleged exceptions, raising the questions stated by the court.</p> <p>The fourth, fifteenth, sixteenth and seventeenth instructions requested by the defendant, mentioned in paragraph 15 of the opinion, related to the burden of proof and to the defence of an alibi.</p> <p>The following extracts from the charge to the jury, which was delivered by Sheldon, J., are held to have given in substance the instructions requested on these subjects, and are approved by the court:</p> <p>“You are not to convict upon suspicion, upon a bare probability or a mere weighing of probabilities, or even upon a mere preponderance of the evidence against him. 1'f the facts proved can be fairly reconciled with any reasonable theory of the prisoner’s innocence, he must be discharged.</p> <p>“ The proof of his guilt must be beyond a reasonable doubt, or he is entitled to a verdict of not guilty. It must be proved with this degree of certainty that the crime was committed, that the life of the deceased was unlawfully taken by this prisoner, or he must be acquitted. If this is so shown, still the burden remains upon the Commonwealth to prove that the crime committed was murder, or else he can be convicted only of manslaughter. And if it is shown that he committed the crime of murder, still the burden remains upon the Commonwealth to prove, beyond a reasonable doubt, that this was murder in the first degree, or else your verdict can be only guilty of murder in the second degree.”</p> <p>“ But, of course, where as here only circumstantial evidence is offered, it is necessary that each fact necessary to the conclusion sought to be established must be proven by competent evidence beyond a reasonable doubt, and all the facts necessary to such conclusion must be consistent with each other and with the main fact sought to be proved; and the circumstances taken together must be of a conclusive nature, leading on the whole to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and not some other person committed the offence charged. The mere union of a limited number of independent circumstances, each of an imperfect and inconclusive character, and all of them together weak and inconclusive, will not justify a conviction; though it must be remembered, gentlemen, that many independent circumstances gain additional force by their number, just as a cable is stronger than any of the strands of which it is made up taken separately. The circumstances must be such as to generate and to justify full belief according to the standard rule of certainty, that is, beyond a reasonable doubt. It is not sufficient that they coincide with and render probable the guilt of the prisoner. They must exclude every other reasonable hypothesis. No other conclusion than that of the guilt of the accused must fairly and reasonably grow out of the evidence. The facts must exclude innocence; must be incapable of explanation upon any other reasonable hypothesis than that of guilt.</p> <p>“In order to convict the defendant upon circumstantial evidence it is necessary not only that all the circumstances concur to show that he committed the crime charged, but that they are inconsistent with any other reasonable conclusion. I mean, of course, all the proved circumstances. It is not sufficient that the circumstances proven coincide with, account for, and render probable the hypothesis sought to be established by the prosecution, unless they also exclude to a moral certainty, that is, beyond a reasonable doubt, every other hypothesis than the single one of guilt. If this is not .so, the prisoner is entitled to a verdict of not guilty.”</p> <p>“Now, gentlemen, there are some of the circumstances in dispute here to which your attention ought to be called a little more in detail. The first and most important of these is whether or not the prisoner was in the Page house at the time of the commission of this murder. If he was not there, or if upon all the evidence you are left in reasonable doubt whether he was there, then of course he must be acquitted.”</p> <p>“ The claim of the Commonwealth is that he might well have been there, that it was amply possible for him to have been there, and that all the facts and circumstances show that it was his hand, with his knife, that dealt the fatal blows; that he carried from that house upon his knife and his clothing stains of the blood of his victim; that he stole money from her pocketbook, and a pin from her cushion ; that he left behind him, whether by accident or for the purpose of averting suspicion from himself, evidence of his guilty presence at the murder in the shape of an address written by himself; that he had upon his person both the sheath, which in little over an hour afterwards fell from his pocket by an accident, and the knife itself, which he denied having and sought to mutilate and to destroy as evidence against himself; that he attempted, when called upon for an explanation, to exculpate himself by false and lying stories.</p> <p>“ On the other hand, it is claimed by the prisoner that he was not on that day in the Page house at all, or nearer to it than Cutter’s Corner; and all the circumstances claimed to incriminate him which I have mentioned are denied, or claimed to have been fully accounted for by him. And he also denies that any of the circumstances which have been alleged against him, or all of them that have been proved, are sufficient to warrant the reasonable inference of his guilt.</p> <p>“The first question, then, to be considered is, Was he, could he have been, present at the time and place of this murder? . . . for just as if he was not present at.the time and place of the murder his innocence is demonstrated, [so, also, if it is shown with the requisite certainty by other convincing circumstances that he did commit this crime, then it necessarily follows that he must have been present when it was committed; and accordingly all the other circumstances which bear upon his guilt or innocence must be considered in this connection.] *</p> <p>“And so you will consider whether you ought to say that this murder may have been committed by some tramp, or by some one who had knowledge of thi3 household and of the presence or absence of its members at this time. But here, as in the case of every other essential fact, the burden is upon the Commonwealth to satisfy you beyond a reasonable doubt that this prisoner was present at the time and place of the homicide; and if the Commonwealth has not so proved this, if you are left in reasonable doubt upon it, you will go no further, but will return a verdict of not guilty.”</p> <p>The portion of the charge relating to the definition of “ deliberately premeditated malice aforethought” is quoted in the opinion.</p>

<p>Tort for the loss of a finger of the plaintiff’s left hand from its being caught in the gears of a spinning frame upon which the plaintiff was at work in the spinning room of one of the cotton mills of the defendant at Fall River. Writ dated October 6, 1902.</p> <p>At the trial in the Superior Court Harris, J. at the close of the evidence ruled that upon all the evidence the plaintiff could not recover, and ordered a verdict for the defendant, saying that he made the ruling on the ground that there seemed to him to be no sufficient evidence of negligence of the defendant. The plaintiff alleged exceptions.</p>

<p>Devise and Legacy, Construction. Words, “ Heirs at law.”</p> <p>A testator bequeathed a fund to trustees for the support of his daughter during her life, and provided that the fund in their hands at the time of his daughter’s death, if his daughter had made no will, should go “ to her heirs at law.” The daughter died intestate. Eeld, that the property went to the heirs at law of the daughter, who could be ascertained only at the time of her death, and not to those who would have been her heirs at law had she died when the testator did.</p>

<p>Way. Municipal Corporations. Statute, Construction.</p> <p>R. L. c. 48, § 104, providing that the owner of land abutting on a highway, street or town way may recover a penalty of $50 a month from the county, city or town, if permanent bounds are not erected at the termini and angles of all ways laid out by the county commissioners, mayor and aldermen, selectmen or road commissioners, does not apply to the relocation and widening of a way previously laid out.</p> <p>A penal statute is not to be extended by implication.</p>

<p> Poor Debtor. </p> <p>If the only charge filed by a judgment creditor against a judgment debtor whom he has caused to be arrested upon an execution is under the first clause of R. L. c. 108, § 17, that the debtor has property not exempt from being taken on execution which he does not intend to apply to the payment of the plaintiff’s claim, and if the debtor, having filed an application to the judge of a district court for leave to take the oath for the relief of poor debtors, commits a breach of his recognizance by failing to appear within an hour of the time to which his examination has been continued, and the judge enters a default, this exhausts the jurisdiction of the judge, and he lawfully cannot make an order refusing the debtor the oath for the relief of poor debtors. If he enters such an order it has no force and does not prevent the judge of another district court from administering the oath to the debtor on an application made within seven days from the hour of such attempted refusal, if the notice is given more than seven days after the service of the former notice.</p>

<p>Devise and Legacy, Construction. Evidence, Extrinsic affecting writings.</p> <p>When on the face of a will, taken in connection with all the surrounding facts, there is no ambiguity as to the subject matter of a bequest or the identity of the legatee, extrinsic evidence of the intention of the testator is not admissible to control or alter the legal intent of the testator as manifested by the will itself.</p> <p>A testatrix at the time of making her will had an older son by her first husband and two younger children by her second husband whom she survived. After a legacy of $200 to her older son site gave and bequeathed all the rest and residue of her estate to her two younger children, naming them, “ to be divided equally between them.” One of the younger children died before the testatrix. Held, that the half of the residue left to the deceased child was not disposed of by the will and went as intestate estate tó the heirs and next of kin of the testatrix consisting of the older son and the surviving younger child. Held, also, that a memorandum, in the handwriting of the testatrix found after her’ death with her will, was not admissible to show a declaration by the testatrix of an intention that her older son should have only the $200 bequeathed to him.</p>

<p>Way, Laying out of highway. Fall River. Deed, Construction.</p> <p>Whether under a provision of the charter of the city of Fall River formerly in force, St. 1885, c. 269, § 19, the laying out of a street by the mayor and aider-men acting together, afterwards concurred in by a vote of the common council, was not good without a subsequent approval by the mayor, qucere.</p> <p>A description of a boundary in a deed as running in a certain direction by a certain street for a certain distance includes the land to the middle of the street if owned by the grantor.</p> <p>Under R. L. e."48,'§§ 13, 27, 28, a petition for the assessment by a jury of damages for the taking of land for the laying out of a highway, if filed before an entry has been made upon the land for the purpose of constructing the way, must be dismissed as prematurely brought.</p>

<p>Equity Pleading and Practice, Amendment. Relation Bach. Survival of Suits. Equity Jurisdiction, To set aside deed obtained by fraud.</p> <p>It is within the discretion of the court to allow an amendment to a bill in equity to cancel a deed of land alleged to have been obtained by fraud, filed by the special administrator of the estate of a woman who died testate but whose will then had not been proved, substituting as plaintiff the sole devisee under the will to whom the testatrix expressly devised whatever rights she might have to recover the property obtained from her by fraud, the title of the devisee upon the allowance of the will relating back to the death of the testatrix. -</p> <p>The right to maintain a suit in equity to set aside a deed obtained by fraud is not lost by the death of the person defrauded and may pass by will to a devisee.</p> <p>A suit in equity may be maintained to cancel and set aside a deed of real estate conveyed to the defendant in fee subject to a life estate in the grantor,.if it appears that the defendant was the brother of the grantor visiting her from his home in a distant State, and obtained the deed from her by false and fraudulent representations to her that the instrument would not deprive her of the right to dispose of her property in any manner she might desire during her lifetime, and that she did not know it to be a deed transferring her property.</p> <p>Ealse and fraudulent representations as to the legal effect of a deed in leaving the grantor in control of the property conveyed, made in order to induce the grantor to sign the instrument, are statements of fact which may be made the ground of relief in equity.</p>

<p>Bill in equity, filed in April, 1902, by Frank E. Griffith of Chicopee against Thomas Kirley of South Hadley and Richard E. Griffith of Chicopee, for an accounting between the partners of the firm of Thomas Kirley and Company, consisting of the plaintiff and the defendants, who carried on in Chicopee the business of butchering, farming and the making of fertilizers. By amendment Martin L. Barnes, to whom Kirley conveyed the property of the firm as stated in the opinion, was made a defendant.</p> <p>In the Superior Court the case was referred to John W. Mason, Esquire, as special master.</p> <p>Later the case was heard by the court upon the master’s report, and a decree was made containing the following findings:</p> <p>“ This case came on to be heard upon the master’s report and upon hearing the arguments of counsel and full examination of the master’s report and considering the findings and evidence reported therein, it is found that the value of the real estate, tools, and machinery, not turned over to the receiver and retained by Kirley, together with the good will of the business, that is, the plant, etc., as a going concern, was $11,000 in lieu of $6,000 as found by the master. And that Kirley in the account between him and the Griffiths should be charged with that amount. "With the above modifications the rulings and findings of the master are adopted. It is found that there is a balance of $1,081.67 in the hands of the receiver to be distributed.</p> <p>“ It is found that at the time of the termination of the partnership, to wit, May 5, 1902, there was due from the partnership to Richard Griffith the sum of $1,591.61 and to Frank Griffith the sum of $1,777.44 and that there was due from said Kirley after all credits given him, the sum of $2,337.38, which together with the balance in the hands of the receiver aggregates the amount due the two Griffiths as their share of the partnership estate.”</p> <p>Here followed the orders of the decree.</p> <p>James E. Kirley and Charles N. Webster, administrators of the estate of Thomas Kirley, who on the suggestion of the death of that defendant had been admitted to defend the suit, appealed from the decree.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action by a weaver in a cotton mill against his employer, for an injury from being struck in the eye by a shuttle which flew upward between the hand rail and the shuttle guard of one of the looms he was operating, because the guard was bent or bellied out and thus failed to prevent the shuttle from flying out, it appeared, that the plaintiff operated eight looms in each of which the shuttle travelled across the loom one hundred and eighty or one hundred and ninety .times a minute, that a shuttle guard is a permanent part of a loom and it is not the duty of a weaver to put it on or to examine it in any way, that the shuttle guard formerly on this loom broke, and the plaintiff asked the loom fixer to replace the broken part, that the loom fixer put on a new guard, that while this was being done the plaintiff kept his other looms going, that about every three minutes a loom stops because the shuttle becomes empty of yarn and the weaver has to fill and replace the shuttle as soon as possible, and has to walk backward and forward from one loom to another, starting them up and keeping the shuttle filled and the looms running all the time, that the plaintiff did not examine the loom after the loom fixer had put on the new guard and knew nothing about its condition before the accident, that when a guard rail breaks it is the duty of a loom fixer to put on a new one, that if the new rail is longer than the old one and is screwed on at each end in the old holes it will spring in the centre, which the loom fixers call “bellying,” that a guard rail does not belly out unless it is too long, that it is the business of a loom fixer to know whether a guard is of the right length, and that after the accident the guard rail of the loom in question was found to be opened out and there was space enough for the shuttle to pass through. Held, that there was evidence of the defendant’s negligence and of the plaintiff’s due care, and that the plaintiff did not assume the risk of an accident from such a cause.</p> <p>A weaver in a cotton mill does not assume the risk of being hit in the eye by a shuttle which flies out of a loom on account of a defective guard rail.</p>

<p> Agency. </p> <p>One who has authority to sign his father’s name to a guaranty of payment for goods sold to a younger brother during that brother’s minority is a special agent, and, if he signs in his father’s name a general guaranty to a dealer of payment for goods sold to his younger brother without limit of time, this instrument does not bind the father as a guaranty of payment for goods sold to his younger son after he has come of age.</p> <p>One dealing with a special agent is bound to ascertain the extent of his authority.</p>

<p> Negligence. </p> <p>If a child three years of age, attempting to cross a street as an open electric car is approaching, darts behind a wagon standing by tire curb and strikes the running board of the car which is going at a moderate speed, there is nothing to show negligence in the operation of the ear, and the child if injured cannot maintain an action against the railway company.</p> <p>It is no evidence of negligence on the part of a street railway company that the gong was not sounded on a car at a place where it was not usual to sound it and where there was nothing in sight in the street for two hundred yards.</p>

<p> Insurance, Life. </p> <p>In an action on a life insurance policy payable to the insured if he lives for twenty years and if he dies within that time to his legal representatives, a statement in the application that the insured was at that time twenty-two years of age when in fact he was thirty years of age is not a misrepresentation which under R. L. c. 118, § 21, increased the risk of loss as matter of law, and the question whether the misrepresentation increased the risk of loss, as well as the question whether it was made with actual intent to deceive, is for the jury.</p>

<p> Damages. Superior Court. Jurisdiction. </p> <p>Under R. L. c. 47, § 9, one whose property has been taken for or injured by the construction or alteration of a road to be taken charge of by the highway commission as a State highway, if that commission has assessed no damages for his benefit, may apply directly to the Superior Court for an assessment of his damages without first applying to the highway commission for an assessment.</p>

<p> Practice, Civil. Bank. Contract. Bills and Notes. </p> <p>Generally the submission of a case upon agreed facts waives all questions of pleading, but this is not so where the facts are agreed to be used in the trial “ so far as they are material and competent under the pleadings.”</p> <p>Where a banking corporation has taken over the property and assets and assumed the liabilities of another bank and stamps on the deposit book of a depositor in the other bank a statement that it holds the balance standing to his credit on this account upon the same terms that it was held by the other bank, if later the banking corporation pays and charges to the depositor a note of the-depositor made payable at the other bank and which the depositor had given notice to the other bank not to pay, it is liable to the depositor for the amount of the unauthorized payment.</p> <p>When a bank opens an account with a depositor the implied authority of the bank to pay the depositor’s checks drawn on the account and notes made by him payable at its banking rooms does not include an authority to pay a note made by the depositor long before opening the account and payable at another bank whose liabilities the bank opening the account has assumed.</p> <p>In an action by a depositor in á bank against the bank for the amount of a note of the plaintiff alleged to have been paid by the defendant without authority, where tlie answer is a general denial and a plea of payment, and the defendant lias filed no claim in set-off, if it appears that the note was presented by its holder for payment at maturity and that the defendant assumed to pay it as the plaintiff’s agent, and received it as a paid note for delivery to the plaintiff, the defendant cannot contend that it has the rights of a bona fide purchaser for value before maturity and that it is a holder in due course within the meaning of R. L. c. 73, § 69, the rights of the defendant under its plea of payment depending upon the question whether it had authority from the plaintiff to make the payment.</p> <p>A depositor in a bank may maintain an action against the bank for paying without authority a note made by him and charging the amount to his account, without first returning the note, which the bank after paying it sent to him with his cancelled checks, especially if before the conclusion of the trial he voluntarily offers to return the note and the defendant does not appear to have been injured by his failure to return it before bringing the action.</p>

<p>Tort by a knife cutter, employed in the defendant’s cutlery factory at Southbridge, for the loss of an eye alleged to have been caused, in the first count, by the negligence of the defendant’s superintendent in furnishing the plaintiff with steel of an inferior quality and unsuitable for the use to which it was put; in the second count, by a defect in the ways, works or machinery of the defendant consisting of an improper press and improper steel; in the third count, by the defendant’s furnishing the plaintiff with defective, improper and inferior steel; and, in the fourth count, by the defendant’s failure to furnish the plaintiff with safe and suitable tools and appliances for his work. Writ dated May 21, 1904.</p> <p>At the trial in the Superior Court Q-ashill, J. ruled that the . plaintiff could not recover on his first and second counts, and refused to order a verdict for the defendant or to rule that the plaintiff could not recover on his third and fourth counts.</p> <p>The jury returned a verdict for the plaintiff in the sum of $2,500; and the defendant alleged exceptions.</p>

<p> Negligence. Carrier. Street Railway. </p> <p>In an action against a street railway company for personal injuries, it appeared that the plaintiff while a passenger in a car of the defendant was injured by the glass of a window of the car broken by the body of a dead hen which the conductor of another car waiting at a turnout, while standing on the ground near his car, threw in sport at the motorman of the car in which the plaintiff was being carried. Held, that although the conductor who threw the hen was not acting within the scope of his employment and was not employed upon the car in which the plaintiff was being carried, the defendant as a common carrier of passengers was liable to the plaintiff for his in j uries.</p>

<p>Insurance, Life. Contract, Validity.</p> <p>A provision in a policy of life insurance, that it shall be incontestable from the.date of its issue “ for any cause except non-payment of premiums,” if it means that the company cannot set up fraud as a defence to an action on the policy, is void as against public policy, although a provision that a policy shall be incontestable for fraud after the expiration of a specified time, not unreasonably short, would be valid. If the clause is construed as excepting fraud by implication, the defence that the policy was obtained by material false and fraudulent representations equally is open.</p>

<p>Equity Jurisdiction, To redeem from mortgage, Laches. Mortgage, Of real estate.</p> <p>If in the notice of a foreclosure sale under a mortgage of real estate and in the sale itself the description included certain land not covered by the mortgage, but all the land covered by the mortgage was included and the terms of the power of sale were complied with, this may make the sale voidable by the mortgagor in case the irregularity affected the sale injuriously and the mortgagor proceeds with reasonable promptness before new equities have been acquired, but it does not make the sale absolutely void, and the mortgagor cannot maintain a bill to redeem the land from the mortgage after failing to assert his claim for more than eight years during which other persons have purchased portions of the land.</p>

<p>Contract by the surviving payee of a note made to the plaintiff and her husband Edward J. Boland and secured by a mortgage of real estate, to recover an instalment of interest due on the note. Writ dated March 15, 1905.</p> <p>The defendants admitted liability and paid the money into court,,and Edward J. Boland, Jr., executor under the will of the plaintiff’s late husband, intervened as a claimant.</p> <p>In the Superior Court the case was heard on an agreed statement of facts. The petition of the claimant was dismissed, and judgment was ordered for the plaintiff. The claimant appealed.</p>

<p>Corporation, Liability of directors. Co-operative Companies.</p> <p>Under R. L. c. 110, § 58, cl. 1, the directors of a corporation are not made liable for its debts and contracts by the declaration and payment of dividends when the corporation is not in fact insolvent and is not thereby rendered insolvent, although the payment of the dividends is one of the causes which ultimately result in the insolvency of the corporation.</p> <p>If the directors of a co-operative trading corporation have acted in good faith and have been free from intentional fraud, the violation by them of the provision of R. L. c. 110, § 69, that no distribution shall be made by such a corporation unless at least ten per cent of the net profits have been appropriated for a contingent or sinking fund, until an amount has accumulated equal to thirty per cent of its capital stock, does not make the directors liable to creditors of the corporation for its debts and contracts.</p>

<p> Landlord and Tenant. Theatre. </p> <p>The lessor of real estate, used by the lessee as a theatre, who has not covenanted to make repairs, does not commit any breach of the covenant of quiet enjoyment by failing to furnish additional means of egress ordered by the inspector of public buildings under R. L. c. 104, §§ 36, 55, for want of which the lessee’s license to carry on theatrical performances is suspended.</p> <p>If a lessor of real estate, used by the lessee as a theatre, agrees to provide additional means of exit if required by the public authorities, a failure to do this,, followed by a suspension of the lessee’s license to carry on theatrical performances, is no defence to an action for the rent of the premises which the lessee has continued to occupy.</p> <p>Whether the incorporation of the provisions of St. 1894, c. 382, relating to buildings thereafter to be erected and designed to be used in whole or in part as a theatre, in R. L. c. 104, § 36, without any express limitation as to the time of erection of the buildings, indicates an intention to put all buildings designed for such use, whenever erected, on the same footing in regard to requirements as to exits,. qutzre.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action by a workman against his employer for injuries received while coiling wire into a spring upon a lathe machine in the defendant’s spring factory, there was evidence, that before coiling the wire the machine has to be set, in doing which a rod or bar of iron ten feet in length, called an arbor, has to be placed in the lathe, and that before it is placed in position an instrument called a guide is adjusted, the object of which is to hold the wire firmly in place while it is being coiled, that it is the duty of the person setting the machine to select and change the guide each time that the arbor is changed, and that for this purpose “ guides were kept all over the place,” that all these guides were old and worn and that at the time the plaintiff was injured there was no guide there which could have been used which was not old and worn, that the plaintiff never before had set a machine or had been instructed in the process and that the setting of the machine always had been done for him, that a certain man looked after the work and gave orders and had charge of the men like a foreman, inspected the work and looked after the workmen to see whether they did the work right or not, that this foreman occasionally set some of the machines and did “a little of everything,” that on the day of the accident the plaintiff went to this man and said “ I want somebody to set my machine ” to which the foreman replied “ Haven’t you been here long enough to set it? You ought to be able to set your own machine,” whereupon the plaintiff without further conversation returned to the lathe and attempted to set it, which took him a long time owing to his inexperience, that he selected a guide which appeared to be less worn than any of the others, placed it upon the arbor in the usual way, and began to wind a spring, that if the arbor hole in the guide is too large the arbor will shake or vibrate, and this motion being communicated to the wire will cause it to bend and slip from the set screw that holds it at the other end, that the plaintiff did not know this, and, finding that the arbor was shaking somewhat violently, tried to stop this motion by placing his right hand on top of the guide and his left hand at the outer end over the wire, that while he was in this position the wire by reason of the vibration slipped off the set screw, caught his arm and pulled it around the arbor, causing the injuries alleged. Held, that whether the plaintiff should have appreciated the danger and might have avoided it by due care on his part was a question of fact for the jury, that there was evidence that the defendant negligently failed to furnish suitable appliances for the plaintiff’s work, and also evidence that the foreman in charge was a person whose principal duty was that of superintendence within the meaning of R. L. c. 106, § 71, cl. 2, and that the plaintiff had a right to assume from the reply of the foreman to him that there was nothing more to be said and that the foreman directly ordered him to set the machine himself.</p>

Tort, by a workman in a skate factory against his employer, for personal injuries, in having his heel torn off by the floor at the edge of a freight elevator well, when the plaintiff in the course of his employment was on the elevator and was crowded off against the floor, while the elevator was rising, by empty boxes jolting and hitting him, owing to the elevator jumping and jolting, with a first and second count under the employers’ liability act and a third count at…

Tort for personal injuries alleged to have been caused by the negligence of the defendant in running down the plaintiff with his automobile while she was crossing South Main Street in Fall River at half past four o’clock on the afternoon of October. 19, 1908, for the purpose of taking an electric car. Writ dated November 30,1903.

<p>Petition, filed September 80 and amended December 14, 1904, for the partition of seven lots of land in Fall River.</p> <p>In the Superior Court the case was heard by Lawton, J., without a jury. The petitioner and the respondents acquired title under the will and codicil of Jerome B. Westgate, late of Fall River. The petitioner was the widow of Jerome B. Westgate, having been his second wife. The respondents were two children of the testator by his first wife and the son of one of them, a grandchild of the testator. The executor and trustee under the will of Jerome B. Westgate also was made a respondent. The only question raised by the parties was whether the provision for the petitioner in clause three of the codicil was in addition to, or in substitution for, the provision made for her in clause nine of the will. The two clauses are described in the first paragraph of the opinion. They were respectively as follows :</p> <p>“IX. I give, devise and bequeath to my son, Clarence West-gate, the house and lot 463 Pine Street, in said Fall River, according to plat filed with this document, my widow Caroline E. Westgate to have the use, for life, of the upper tenement, Clarence to make repairs,and pay taxes and insurance.”</p> <p>“III. I give, devise and bequeath to my wife, Caroline E. Westgate, whatever share of my estate she would be entitled to by law if I left no will.”</p> <p>The judge made an interlocutory finding as follows:</p> <p>“ The respondents ask me to construe clause III. of the codicil as though it contained an express revocation of clause IX. of the will, but I am unable to do so.</p> <p>“I have therefore made an interlocutory finding and order that the petitioner is entitled to the use of the upper tenement in the house number 463 Pine Street, in Fall River, for her life, as devised in the will, and that she is seised of such an undivided portion of the remaining real estate as will make her total share one third of all the real estate described in the petition; have ordered that partition be made, and appointed .commissioners to make such partition.”</p> <p>Being of opinion that this interlocutory finding and order ought to be determined by this court before any further proceedings in the Superior Court, the judge reported the case for such determination. If the interlocutory finding and order were right, they were to stand as made. If the contention of the respondents was right, an interlocutory finding and order were to be made that the petitioner was not entitled to the use of the upper tenement in the house, number 463 Pine Street, in Fall River, and that she was seised of an undivided third part of the premises described in the petition; if the contention of the petitioner was right, an interlocutory finding and order were to be made that the petitioner was entitled to the use of the upper tenement in the house, number 463 Pine Street in Fkll River, for her life, as devised in the will, and in addition thereto was seised of an undivided third part of the premises described in the petition ; and in either case an order was to be entered that partition was to be made and the same persons appointed as commissioners to make such partition as were named in the order made by the Superior Court.</p>

<p>Tort, by an apprentice employed in a machine shop of the defendant to assist the machinist in repairing machinery, for the loss of an eye, from one of the teeth or needles attached to the bars of a machine which he was assisting to repair flying ■off and striking the plaintiff in the eye, while under the direction of the machinist he was trying to separate two of the bars of the machine with a crowbar furnished by the defendant for the purpose, in order to release a part of a broken endless chain which had become snarled, so that it could be reconnected. Writ dated September 22, 1902.</p> <p>In the Superior Court Holmes, J. at the close of the plaintiff’s evidence ordered a verdict for the defendant; and the plaintiff alleged exceptions, raising the questions stated in the opinion.</p>

<p>Evidence, Admissions. Witness, Cross-examination.</p> <p>In an action against a street railway company for personal injuries, the motorman in charge of the car when the accident happened, called as a witness by the . defendant, cannot be asked by the plaintiff on cross-examination whether he did not say after the accident that it was his fault, the motorman not being the agent of the defendant to make such an admission of liability.</p> <p>In an action against a street railway company for personal injuries, the motorman in charge of the car when the accident happened, called as a witness by the defendant, testified on cross-examination that, although he had been stung on the hand, yet' at the time of the accident he had one hand on the controller and the other on the brake, and denied that he said that he had been stung on the hand, or that at the time of the accident he was rubbing his hand, and that he did not recollect having made any statement as to how it happened. He then was asked “ Do you deny that you said you were rubbing your hand 1 ” and “ Did you say that something had stung you ? ” “ Do you deny saying anything at all at this scene of the collision after you came back from your car ? ” “ Did you make any statement when you came back to this scene of the collision in regard to what you were doing as you approached Wilbur Street that was inconsistent or different from what you stated here to-day that you were doing ? ” The plaintiff’s counsel stated that the purpose of the examination was to impeach the testimony of the motorman and discredit him as a witness by showing that he had made previous conflicting statements. On objection by the defendant the judge excluded the questions. The judge also excluded the following questions asked by the plaintiff of another witness : “ Did you hear the motorman say immediately after the accident what he was doing at the time the accident happened 1 ” and “ What did he say he was doing 1 ” Held, that the exclusion was erroneous, and entitled the plaintiff to a new trial; that what the plaintiff expected to prove by the answers to the questions was sufficiently clear, and that the questions were material, relating to the main issue being tried.</p> <p>The rule that the cross-examination of a witness on collateral issues to test his credibility is largely within the discretion of the presiding judge has no application to a cross-examination to show previous inconsistent statements of a witness in regard to the main issue being tried.</p>

Tort, against a deputy sheriff, for the alleged conversion of certain biscuits and crackers in cases and barrels attached by the defendant on September 14 and 18, 1908, in the possession of the plaintiff as the property of the Favorite Biscuit Company and alleged by the plaintiff to have been purchased by him from that company. Writ dated October 17, 1903.