Volume 190 — Massachusetts Reports

Bill in equity, filed in the Probate Court for the county of Bristol on November 13, 1903, by the trustee under the will of George W. Safford, late of Easton, for instructions as to the distribution of a legacy of $500 under the second paragraph of that will, which is quoted in the opinion.

<p>Equity Pleading and. Practice. Trade Name. Equity Jurisdiction, To restrain wrongful use of trade name.</p> <p>In case of an appeal from a decree in equity made by a single justice of this court, if the justice, although not requested by the appellant under R. L. c. 159, § 23, to report the material facts found by him, acting in his discretion voluntarily files a “ memorandum of decision ” which is a report of his findings of fact, the memorandum becomes a part of the record as much as if it had been made as a report of findings in response to a request under the statute.</p> <p>A manufacturer of cigars who, not having a right to the word “ Keystone ” as a trademark, has established an extensive business in the New England States, where his cigars have become well and favorably known in the trade and to the public as “ Keystone cigars ” or “ Keystones,” can maintain a suit in equity to restrain the use of the word “Keystone ” by another cigar manufacturer in such a way as to injure the plaintiff by causing the public to believe that the cigars sold by the defendant are those manufactured by the plaintiff, although the word “Keystone ” before and at the time of its adoption by the plaintiff was used as ■a public brand or label in connection with the manufacture and sale of cigars, principally in the Middle and Western States ; and, if in such a case a decree has been made restraining the defendant from using the word “ Keystone ” in the New England States, and the defendant appeals from this decree, the plaintiff taking no appeal, it is not open to the defendant to contend that the decree is too narrow, and should have been made, if at all, without geographical limitation, and it is not necessary to decide whether an injunction without geographical limitation' might have been issued in favor of the plaintiff. Loring, Lathrop, & Hammond, JJ. concurring in the result reached, but further expressing the op'nion that, it not having been shown that the trade meaning of the word “Keystone” extended beyond New England, the injunction rightly was confined to that territory.</p> <p>A defendant in equity against whom a decree for an injunction has been made, on appealing from the decree, the plaintiff taking no appeal, will not be allowed to object to it on the ground that, if granted at all, it should have been broader in its scope.</p>

<p>Easement. Deed. Equitable Restrictions. Way. Covenant, Against incumbrances. Damages.</p> <p>The reservation in a deed of a right of way in the grantor over the land conveyed without the use of the word “heirs ” reserves only a right during the life of the grantor.</p> <p>In this Commonwealth a right of way cannot be excepted from the operation of a deed unless either the right of way or the way itself is in existence when the deed is made.</p> <p>A deed by the owner of two adjoining lots of land conveying one of them contained this provision: “ A passageway is to be kept open and for use in common between the two houses ten feet in width, five feet of said passageway to be furnished by said H. [the grantee] and five feet by me from land lying east of the land here conveyed.” There was no passageway there before the deed was made. Held, that this provision was not a reservation nor an exception, but was a contract imposing a right in perpetuity for the benefit of adjoining lands which could be enforced in equity against any one taking with notice of it, and so created an incumbrance on the granted land. Held, also, that the clause should not be construed to limit the use of the way to the existence of the two dwelling houses then on the two lots, or for use in connection with a dwelling house, but that the way provided for was intended to be for the benefit of the two lots of land, and would not be abandoned or lost, if the dwelling house on the lot retained by the grantor was removed and that lot was cut up into back yards for houses fronting on a parallel street, although those houses were on land to which the right to use the passageway did not attach because not owned by the grantor when he made the deed.</p> <p>A covenant against incumbrances in a deed, if an incumbrance exists, is broken as soon as made and the damages must be assessed as of the date of the deed.</p>

<p>Equity Jurisdiction, To recover property obtained by fraud. Bills and Notes. Guardian.</p> <p>If the owner of a mortgage and note long overdue, induced by fraudulent misrepresentations of an agent, assigns them to the agent who pledges them to a trust company to secure money borrowed by him personally, and the trust company' takes the assignment in good faith for value and without notice of any fraud or defect in title, the owner of the mortgage and note cannot maintain a suit in equity against the trust company to compel their reassignment.</p> <p>A guardian has authority to sell and transfer personal property of his ward without obtaining a license from the Probate Court under the provisions of R. L. c. 145, § 35. That statute merely enables a guardian to apply for a license for his own protection and that of his sureties if he chooses to do so.</p>

<p>Damages, In contract, remoteness. Carrier, Of passengers. Proximate Cause.</p> <p>If a passenger holds a ticket from a parlor car company entitling him to a drawing room in a certain car on a train leaving a certain city at 9.40 p. m. and due at his destination at 3.45 a. m. with the privilege of occupancy until 7 a. m., and there turns out to he no drawing room in the car designated, and if the car company offers him a drawing room equal to that called for by his ticket which will be ready for occupancy at 10 p. m. on a train leaving at 12.30 a. m. and arriving at 7.19 a. m., and the passenger refuses this offer, and also refuses the offer of a section in the car named by his ticket, and sits up all night in an ordinary passenger car on the same train, thereby aggravating a valvular disease of the heart from which he suffers, and in consequence is made ill and temporarily unable to work, he can recover from the car company only nominal damages, the direct and proximate cause of his illness being his refusal to accept the accommodations offered to him and not the car company’s breach of contract in failing to furnish him with a drawing room in the car named on his ticket.</p> <p>In an action to recover damages for the plaintiff’s illness and consequent loss of work alleged to have been caused by a breach of contract on the part of the defendant, the defendant can introduce evidence to show that the alleged consequences of the breach of contract by the defendant could have been avoided by the exercise of reasonable care and prudence on the part of the plaintiff.</p>

<p>Corporation, Foreign, statutory liability of officers and stockholders. Equity Pleading and Practice.</p> <p>Tile liability of the officers and stockholders of a foreign corporation having a usual place of business in this Commonwealth for the debts of such-corporation under R. L. c. 126, § 18, if they have participated in a conveyance to the corporation of property at an unfair valuation in payment for capital stock of the corporation, is not rendered less enforceable by the provision of § 19 of the same chapter excepting persons so liable from the operation of the fourth clause of R. L. c. 110, § 58, while making them subject to the rest of §§ 58-68 of that chapter, the fourth clause being excepted because it provides that in the case of domestic corporations, where property mentioned in the statement required by another section of that statute is not conveyed and taken at a fair valuation, only the officers signing the statement shall be liable, while c. 126, § 18, provides that in the case of foreign corporations all officers and stockholders participating in a conveyance to the corporation at an unfair valuation in payment for capital stock shall be liable.</p> <p>In a suit in equity to establish the individual liability of officers and stockholders' of a foreign corporation having a usual place of business in this Commonwealth under R. L. e. 126, § 18, for the debts of the corporation on the ground that they have participated in a conveyance to the corporation of property at an unfair valuation in payment for capital stock of the corporation, it is no defence that the defendants in signing a certificate of the valuation found to be unfair did so without any fraudulent intent and without actual knowledge that any statement contained in it was false, their liability under the statute depending not on fraudulently signing a certificate but on participating in a conveyance of property at an unfair valuation in payment for capital stock, and it being made the duty of such participants to know that the valuation is fair.</p> <p>In a suit in equity to establish the individual liability of officers and stockholders of a foreign corporation having a usual place of business in this Commonwealth under R. L. c. 126, § 18, if the bill states facts showing that the defendants participated in a conveyance to the corporation of property at an unfair valuation in payment for capital stock of the corporation, a further allegation that the defendants made a false and fraudulent certificate as to the valuation is immaterial and may be disregarded.</p>

<p> Guardian. Fraternal Beneficiary Corporation. Trust. </p> <p>A guardian cannot maintain an action to recover property belonging to hia ward. Such action must be brought in the name of the ward.</p> <p>One holding a certificate for $1,000 of life insurance in a fraternal beneficiary corporation, his wife who was named as beneficiary having died, wished to take out a new certificate for the benefit of his grandchildren, and told one F. that he desired him to receive the money and use it for their care and education as he did not wish it to be within the control of his son, their father. He took out such a certificate payable to F., who was not of a class entitled to be a beneficiary, “as guardian of my grandchildren H. and L.” On the death of the insured the $1,000 was paid by the company to F. who never had been appointed guardian of the grandchildren. He announced in a letter to the father of H. and L. that the money was in his possession, but refused to pay it over. Held, that the grandchildren, who were minors, could not maintain an action at law against F. for the money, because it was held by him in trust, and semble that an amendment into equity would not help them, there being no ground for a present termination of the trust.</p>

<p>Contract, Performance and breach, Implied: common counts.</p> <p>One cannot recover on a contract if he intentionally has failed to perform a part of it, although the part which he has failed to perform may not be of the essence of the contract.</p> <p>A person employed to carry on a farm in the absence of the owner, whose duty it has been to render true and accurate accounts of the expenses of the farm, can not recover against his employer for his services, if he intentionally has deceived his employer as to the expenses incurred in running the farm by holding back certain bills which ought to have appeared in his accounts, even if this breach of his duty has caused no loss to his employer.</p>

Tort, by a corporation organized under the laws of the State of New Jersey, maintaining a mill operated by steam at Fall River situated on a natural watercourse known as Cook Pond Outlet Stream, against a corporation organized under the laws of this Commonwealth, maintaining a mill and steam plant on the same stream adjoining and next above the land of the plaintiff, for the alleged wrongful diversion of large quantities of water from the stream and depriving the plaintiff…

Tort, for personal injuries alleged to have been caused by the negligence of the defendant in approaching and attempting to pass the plaintiff’s wagon with his automobile without giving any warning of his approach, on the afternoon of September 1, 1903, on a country road in the town of Westport. Writ dated November 4, 1903.

<p>Negligence, Employer’s liability.</p> <p>In an action by an operator of a carding machine against his employer for alleged negligence in maintaining the machine in a defective condition, whereby pellets of hard, lumpy cotton were formed and thrown against the door of a cylinder so as to open the door when it should have been kept closed, thus allowing the ' plaintiff’s hand to pass through it and be injured, if the defendant contends that by the operation of a principle of physics the pellets of cotton must have been thrown by centrifugal force downward, parallel to, past and not against the door, and the plaintiff introduces the evidence of experts who testify that in such a machine and under the circumstances shown the pellets would strike the door, and if also two witnesses testify that they have seen and heard pellets striking and opening the doors of such machines, the question of the defendant’s negligence is for the jury.</p>

<p>Corporation, Statutory liability of directors.</p> <p>In an action by a creditor of a corporation to enforce the statutory liability of the directors of the corporation under R. L. c. 110, § 58, cl. 1, by reason of their making a dividend which it was alleged rendered the corporation insolvent, it appeared that the stockholders voted to authorize the directors to sell all the property of the corporation for $70,000, and that the directors thereafter voted to sell all the property of the corporation including bills and accounts receivable, to a person who held all the capital stock, for $70,000, and to pay that sum when received to the stockholders, reserving however a sufficient amount of bills and accounts receivable to pay all its debts, and authorized the president to carry out the vote, that the debts of the corporation amounted to $12,000, that the bills receivable retained by the corporation were of the face value of only $3,500, and that the $70,000 paid by the purchaser was immediately repaid to him as the only stockholder. Held, that the distribution of the proceeds of the sale of all the property of the corporation was a dividend within the meaning of the statute, and that the evidence justified a finding that the action of the defendants in declaring the dividend rendered the corporation insolvent; also, that the directors could not avoid their liability by authorizing the president to carry out their vote.</p> <p>In an action by a creditor of a corporation to enforce the statutory liability of the directors of the corporation under R. L. c. 110, § 58, cl. 1, by reason of their making a dividend which it is alleged rendered the corporation insolvent, if it appears that the directors sold all the property of the corporation to a person who held all of its stock and paid the purchase money back to him as a dividend, the corporation retaining an amount of assets insufficient to pay its debts, evidence of a statement of the stockholder who purchased the corporate property, that he had in his hands sufficient property to pay all the indebtedness of the corporation including the debt to the plaintiff, even if it were not incompetent as hearsay, should be excluded as immaterial.</p>

<p>Bankruptcy. Evidence, Remoteness, Book entries.</p> <p>In a suit in equity by a trustee in bankruptcy against the wife of the bankrupt to set aside a conveyance made to her by the bankrupt more than two years and a half before the adjudication in bankruptcy, the plaintiff offered to show what the bankrupt’s financial condition was in the month of January of a certain year, for the purpose of showing what his intention was when he purchased the property and had it conveyed to his wife in the previous April, and also for the purpose of showing his financial condition at the time of the purchase, but he did not offer to show that the bankrupt’s liabilities in the January in question were incurred in the previous April. The judge excluded the evidence as too remote. Held, that the exclusion of the evidence was a proper exercise of judicial discretion.</p> <p>A ledger, incompetent because not a book of original entry, does not become competent because it has been mutilated by tearing out certain pages, especially where it is not shown that the original entries posted on those pages also have been mutilated, and where the fact of the mutilation is immaterial.</p>

<p> Fraternal Beneficiary Corporation. </p> <p>Where the certificate of a fraternal beneficiary corporation provides that “a change of beneficiary in any other manner than as directed by the constitution will not be legal or binding on the order,” and a provision of the constitution, printed on the certificate, requires for such a change a declaration in writing signed by the member, witnessed by two reputable witnesses and acknowledged before a justice of the peace, or one of certain other officers named, an attempt of a member to change the beneficiary named in his certificate by signing at a hospital during his last illness a declaration on the form approved by the order and acknowledging it before a justice of the peace, but with no other witness, is of no effect, and it is immaterial that the justice of the peace tried to procure the necessary witnesses but failed to do so.</p> <p>By the constitution of a fraternal beneficiary corporation a change of the beneficiary named in a certificate could be made only by a declaration in writing signed by the member, witnessed by two reputable witnesses and acknowledged before a justice of the peace, or one of certain other officers named. A member during his last illness signed such a declaration and acknowledged it before a notary public, but with no other witness. The declaration was forwarded to the subordinate lodge and was received by it a day or two before the death of the member. The constitution and laws of the order contained no provision authorizing a subordinate lodge or any of its officers to waive any requirement of the constitution and laws. The supreme board of directors knew nothing of the lack of witnesses to the declaration until after the death of the member. Held, that there was no evidence of a waiver of the requirement of two witnesses.</p>

<p> Husband and Wife. Surety. Equity Pleading and Practice. </p> <p>The administrator with the will annexed of the estate of a married woman may maintain a bill in equity against the executor under the will of her husband, to compel him to pay from the estate of the husband a note given by the husband and wife jointly for a debt of the husband and secured by a mortgage on real estate of the wife, so as to relieve the estate of the wife from liability.</p> <p>The administrator with the will annexed of the estate of a wife is a proper party to maintain a bill in equity against the legal representative of her husband, to compel the defendant to pay a note given by the husband and wife jointly for a debt of the husband and secured by a mortgage on real estate of the wife.</p>

<p>Sale, Rescission. Replevin, Of goods alleged to have been procured by false and fraudulent representations to a mercantile agency. Practice, Civil, Agreed statement of facts.</p> <p>In an action of replevin for goods sold by the plaintiff to the defendant on a credit-alleged to have been procured by false and fraudulent representations made by the defendant to a mercantile agency, it appeared that the defendant made a false statement of his condition to the agency, stating surplus assets of $4,900, which a year and a half later the agency at the request of the plaintiff sent to him with the following comment: “ Bigures cannot be fully corroborated and are generally believed liberal. Carries a small bank balance, asks no accommodation and is reported as meeting obligations promptly. An estimate of about $1,000 for net worth is called conservative.” It was agreed that “ the plaintiff’s credit man would, if competent, testify that he relied upon the statements in extending the credit asked for, but whether he did so rely or rely solely thereon is to be determined by the court from all the facts.” The judge to whom the case was submitted on an agreed statement of facts, with power to draw infer- ■ enees, found against the plaintiff. Held, that this finding could be justified either on the ground that the credit man did not rely on the statement, or that he had no right to rely upon it because made so long before the plaintiff sold the goods; and semble that the comment made by the agency was enough to put the plaintiff on his guard.</p>

<p>Insurance, Against leakage oí sprinkler. Contract, Construction.</p> <p>A manufacturer occupying the second floor only of a five story building equipped throughout with the Grinnell automatic sprinkling system sued on a policy insuring him “ against all direct loss or damage caused by water discharged, or that may leak from the automatic sprinkler system known as the Grinnell, now erected in or on that portion of the building occupied by the assured, described as follows: brick building situate in extreme rear of No. 2-20 Washington Street, Haverhill.” It appeared that the damage for which the plaintiff sought to recover was caused by water from a broken sprinkler on the fifth floor of the building, which was occupied by another manufacturer. Held, that the plaintiff could not recover, as the policy should be construed to insure only against damage from leakage of the sprinkler erected on the portion of the building occu- . pied by the plaintiff.</p>

<p> Negligence. Animal■ </p> <p>In an action by a teamster against a contractor employing him, for injuries from the kick of a horse alleged to be vicious, it appeared that the plaintiff was fifty-one years of age and had worked in stables from the age of eighteen or twenty years, that the horse which kicked him was one of a large number which the defendant brought at one time to his stable from Canada or the West, that the plaintiff was the only person who drove this horse from the time he arrived until the time of the accident, about two months later, and that during that time the plaintiff groomed, harnessed and unharnessed the horse, taking up his hind feet and cleaning them, and sometimes fed him, that he never saw the horse do anything that he would call vicious, and that he liked him and had told the defendant that he was a good, clever horse, that the only previous misbehavior on the part of the horse while in the possession of the defendant was that on the day of his arrival, when there was a crowd of spectators about him, he kicked a man, not a horseman, who went into his stall carrying a pail, that this incident was a matter of common knowledge about the stable, and that thereafter the horse never was known to kick anybody until the time of the accident. The plaintiff testified that he did not know of the previous kicking, but there was no evidence that the defendant believed or had reason to believe that the plaintiff was ignorant of what had happened. Held, that the failure of the defendant to tell the plaintiff of the previous kicking was not evidence of negligence on the part of the defendant.</p> <p>In an action by a teamster against a contractor employing him, for injuries from the kick of a horse, which the plaintiff drove, harnessed, groomed and sometimes fed during the two months that he had been in the defendant’s possession, there was evidence that, a short time before the accident, a veterinary surgeon was asked by the defendant “ if he knew any reason why the horse should be poor, and not take fat and look a little better,” and that, after looking him over, he inquired whether he was a nervous horse and was answered in the negative, after which lie said, “ I should call him a nervous, vicious horse.” He further gave liis opinion that the horse had no special ailment. Held, that there was nothing in this testimony having any tendency to show that the horse was likely to kick, or that it was the duty of the defendant to tell the plaintiff that the horse was dangerous.</p>

<p> Negligence. </p> <p>A girl six years and eight months of age living with her father and her grandmother can be allowed to leave the house and go upon a highway unattended without negligence being imputed as matter of law to her father or her grandmother if she is injured.</p> <p>A girl six years and eight months of age engaged in play upon a highway, although not a traveller entitled to recover under the highway act for an injury from a defect in the street, can maintain an action against a person by whose negligence she is injured while in the exercise of the degree of care reasonably to be expected from her.</p> <p>A girl six years and eight months of age sitting on the curbstone of a sidewalk, who, when told by an ice man carrying a piece of ice on his shoulder to get out of the way, gets up, moves out of the way, and sits down again farther along on the curbstone, if injured by the ice falling and striking her leg when the ice man stumbles, can be found to be in the exercise of the degree of care reasonably to be expected from her, and even in the exercise of the degree of care to be expected from a reasonably careful adult.</p> <p>If the employee of an ice company carries a one hundred pound piece of ice on his shoulder without tongs in a street where many children are near, and, slipping as he approaches the curbstone of a sidewalk, gives the cake of ice a twitch or jerk so that it falls and strikes the sidewalk bounding up and breaking the leg of a child who. in the exercise of due care has moved to make room for the ice man to pass, there is evidence of the employee’s negligence, and the ice company may he found to be liable for the injury to the child, as the resulting accident although unusual and peculiar is not so extraordinary that it might not reasonably have been foreseen and guarded against by those in charge of the ice company’s business.</p>

<p> Negligence. Railroad. </p> <p>In an action against a railroad company under R. L. c. Ill, § 267, for causing the death of the plaintiff’s intestate, not a passenger or in the employ of the defendant, by reason of its negligence or the gross negligence of its servants, it appeared that the plaintiff’s intestate while engaged with others in loading a heavy block of granite upon a freight car standing on a steep grade in a quarry was fatally injured by the starting of the car down the grade which caused the block to fall upon and crush him, that the starting of the car was due to a defective brake, that the grade on which the ear stood was not so steep but that a brake in proper condition could have controlled the ear, and that the ordinary course of business between the defendant and the quarry company was for the defendant to furnish cars at or near the place of loading on the quarry company’s tracks and take them away when loaded. Held, that there was evidence for the jury that the defendant was negligent in providing an unsafe car for the use of the plaintiff and his fellow workmen, and evidence that the accident was caused by the gross negligence of the defendant’s servants or agents in permitting the defective car to be used; also, that if there was negligence on the part of the workmen of the quarry company in failing to block the wheels of the defective car with pieces of wood, as an additional precaution, this did not relieve the defendant from liability.</p>

<p>Tout, for assault and battery. Writ dated October 6, 1902.</p> <p>The answer contained a general denial, and alleged self defence in that the defendant merely repelled an attack upon him by the plaintiff, using no more force than was necessary. At the trial in the Superior Court before Hardy, J. the evidence disclosed the facts stated in the opinion. The judge instructed the jury that the force used by the defendant was unjustifiable, and that the defendant was liable. During the trial the judge admitted, against the objection and exception of the defendant, the answer, which is stated in the opinion, of the physician who attended the plaintiff during the illness which followed his injuries. The jury returned a verdict for the plaintiff in the sum of $462.50 ; and the defendant alleged exceptions.</p>

<p>Land Court. Practice, Civil, Appeal. Peed, Construction.</p> <p>A petition to the Land Court, for registration of title, by the owner of a portion of a dwelling house, divided vertically, against the owners of the remaining portion, alleged no boundary on the side next the respondents’ lot other than the land of the respondents. The petitioner appealed from the decree of the Land Court to the Superior Court on issues framed by the Land Court under R. L. c. 128, § 13, as amended by St. 1902, c. 458. The issues were framed as follows: “ 1. Have the respondents any right, title or interest in the real estate claimed by the petitioner 1 2. If the respondents have any right, title or interest in the real estate claimed by the petitioner, what is it 1 ” A judge of the Superior Court reported the case for determination by this court on matters of law. It appeared by the record that the parties made conflicting claims in the Land Court in regard to the ownership of a strip of land which depended on the location of the boundary line between their respective properties, and that the judge of the Land Court made findings on this subject. Held, that, although the issues might have been framed in better form to present the questions to be answered in the Superior Court, yet, read in connection with the findings of the judge of the Land Court, it appeared that the issues were intended to present to the Superior Court the question of the title to the strip of land in dispute.</p> <p>The owner of land on which stood a two story and a half wooden dwelling house conveyed “ The southerly half of my dwelling-house in G. as the same is divided by the partition from the northerly part of said dwelling-house, together with the southern half of the land adjoining thereto, reserving liberty of a free passage into and out of the cellar by and through the fore cellar doorway, together with all the privileges and appurtenances to the same half house and land any way belonging.” The partitions running through the house from east to west on the first and second floors were substantially although not exactly in the same vertical line and divided the house into nearly but not exactly equal parts. They also ran nearly but not exactly in a straight line through the house from front to rear. The partition in the attic was in a straight line dividing the house about equally but was not in a vertical line with the other partitions, being nearer the exact middle of the house. There was no cellar under the rear part of the house. There was a partition in the cellar but its line was very irregular. Held, that the deed passed the title to that part of the structure which was south of the line of the partition in each story, that the cellar on each side was appurtenant to the house above, and that the land adjoining the house was intended to be divided by the same general line that divided the house; that the partitions of the first and second stories, running east and west, if in the same vertical line and with the same termini at the front and the rear of the house, should determine the ownership of the adjoining land, or, if it should appear that there was a difference in the termini of the partitions of the first and second stories, the termini of the first story shouid fix the boundary line of the land. It was not disputed that there was an easement of a right of mutual support and shelter for the several portions of the house belonging to the respective owners.</p> <p>If one owning land with a dwelling house on it conveys about one half of the land and house, dividing the house vertically and making the boundary on each floor a partition nearly but not exactly in the centre of the house, the partitions on the different floors not being in the same vertical line, the grantee and the grantor each has an easement to maintain that part of the structure which belongs to him and extends over the land of the other.</p> <p>Where an appeal has been taken from a decree of the Land Court to the Superior Court on issues framed by the Land Court under R. L. c. 128, § 13, as amended by St. 1902, c. 458, and a judge of the Superior Court reports the case for determination by this court on matters of law, the case after decision by this court goes to the Superior Court, which must determine finally the matters involved in the appeal, and remand the case to the Land Court under § 14 of the same chapter.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action by a workman employed by a corporation, in the shipping of some old railroad iron, against his employer, for injuries from a fall caused by the slipping of a sleeper forming part of a temporary platform on which he was standing while pushing a rail into a car which he was assisting in loading, it appeared that the platform was made of four sleepers weighing about one hundred and eighty pounds each, the lower two laid at right angles with the track and the upper two laid parallel with the track and near it, and that the sleepers were not spiked together. It further appeared that the platform was constructed under the direction of one who could have been found to have been acting as the defendant’s superintendent, and the plaintiff testified that he had nothing to do with putting the sleepers in position and did not see the construction of the platform, heard no orders given about it, and did not know that the top sleepers were not spiked down, supposing until the time of the accident that they were secure. Held, that the jury were warranted in finding that the platform, although temporary in its nature, was an appliance provided by the defendant, through its superintendent, for the use of the men who were engaged in loading the cars, and that the questions whether the superintendent was negligent in not fastening the sleepers together, whether the plaintiS assumed the risk of the accident, and whether he was in the exercise of due care, were for the jury.</p>

<p>Damages. Grade Crossing Acts. Mortgage, Of real estate. Evidence.</p> <p>A mortgagee of land not in possession, who has no other title to the land, cannot recover damages for the taking of the land under St. 1900, c. 453, confirming a report of commissioners abolishing certain grade crossings in Boston, under ' a petition which alleges that he is the owner of the unincumbered fee and does not follow the requirements of R. L. c. Ill, §§ 112,113, in regard to petitions by mortgagors and mortgagees.</p> <p>A mortgagee of land not in possession, who has filed a petition for damages for the taking of the land in the abolition of a grade crossing, in which he has alleged that he is the owner of the unincumbered fee, cannot be allowed to show that he made an agreement partly .oral and partly by letter with the mortgagor for the purchase of the equity of redemption under which he made certain payments on account of the purchase price, and thus became entitled to damages as owner of the equity of redemption, if it appears that the agreement between the parties was executory and finally was reduced to writing and embodied in a bond for a deed of the land which was executed and delivered after the taking. A mortgagee of land not in possession under the mortgage, who has filed a petition for damages for the taking of the land in the abolition of a grade crossing, in which he has alleged that he is the owner of the unincumbered fee, cannot prove a possessory title sufficient to maintain the petition by showing that he went upon the land, placed a stone crusher on it, did some work there getting out stone, apparently under a license from the mortgagor, and had negotiations with the mortgagor about buying the property, which after the taking ripened into a bond for a deed of the land.</p>

<p>Practice, Civil, Exceptions. Rules of Court. Negligence. Can’ier, Of passengers. Street Railway.</p> <p>Under Rule 48 of the Superior Court a judge of that court may receive a request for an instruction after the closing arguments and allow an exception to his refusal of the request.</p> <p>If a person boards a street car, which has stopped to allow another person to alight, erroneously supposing that it is going to his destination, and, on the conductor calling out “ This car goes to the stables only,” tries to alight from the car and is injured by its suddenly starting, he cannot maintain an action for his injuries against the company operating the car if it has exercised ordinary care, because the company has not accepted him as a passenger at the time of the accident, and he himself has abandoned the intention of becoming a passenger on hearing the announcement made by the conductor.</p>

<p>Constitutional Law. Trading Stamps. Tax, Excise. Words, “ Commodities.”</p> <p>St. 1904, c. 403, attempting to impose an excise tax on the business of selling or giving trading stamps or similar devices in connection with the sale of articles, is unconstitutional and void, the right to transact business in this manner not being a commodity within the meaning of the word “ commodities ” in Const. Mass. c. 1, § 1, art. 4, and the restriction of such a lawful business not being a proper exercise of the police power.</p>

<p> Negligence. Street Railway. </p> <p>In actions against a street railway company respectively by the driver and the owner of a team, for personal injuries and injuries to the horses and wagon, it appeared that the wagon was a heavy two horse caravan fifteen or sixteen feet long and about seven feet wide, and was loaded with twelve piles from twenty-five to thirty feet long extending beyond the horses’ heads and about twelve feet from the ground at the forward end, that the plaintiff in the first case was driving this team along a level and straight road at about half past seven o’clock in the evening of a day in October, when it was run into from behind by an electric car of the defendant which had not rung a gong for several hundred feet, and which struck the left hind wheel of the wagon with such force as to bend the axle and drive the wheel up against the body of the wagon and shove the wagon along about twelve feet, making gouges in the road. Held, that there was evidence for the jury of due care on the part of the driver and of negligence on the part of the motorman.</p>

Contract for $1,000 for professional services. Writ dated March 21,1902. The answer contained a general denial, and also set up that at the time of the alleged performance of the services by the plaintiff the defendant was a minor and that the services were not necessaries. The case was tried in the Superior Court before Mason, C. J., without a jury. He refused to rule that the defendant was not liable to the plaintiff, and found for the plaintiff in the sum of $1,000.

<p>Bankruptcy. Practice, Civil, Verdict. Judgment. Words, “ Wilful and malicious.”</p> <p>Where a discharge in bankruptcy is set up as a bar to an execution, and it appears from the record that the judgment on which the execution issued was entered upon a general verdict on a declaration containing several counts, one of which stated a cause of action that would be released by a discharge in bankruptcy while the other counts did not, whether evidence might not be received of the proceedings at the trial to determine, if possible, on which count the verdict was rendered, qutsre.</p> <p>In the provisions of the bankruptcy act of 1898, § 17, cl. 2, excepting from release by a discharge in bankruptcy liabilities “for wilful and malicious injuries to the person or property of another ” the words “ wilful and malicious ” have their ordinary legal meaning describing an intentional disregard of duty.</p> <p>An execution issued on a judgment entered upon a general verdict, which found the defendant liable on a declaration containing a count for assault and battery, a count for false imprisonment and a count for malicious prosecution, is not barred by a discharge under the bankruptcy act of 1898, as all of these liabilities are excepted from the operation of a discharge in bankruptcy by § 17, cl. 2, of the act.</p>

<p>Tax, Excise. Union Freight Railroad Company. Street Railway.</p> <p>The provision in the charter of the Union Freight Railroad Company, St. 1872, c. 842, § 1, that that corporation, which since 1874 has used nothing but steam as its motive power, “ shall have all the powers and privileges and be subject to all the duties, restrictions and liabilities set forth in all general laws which now are or hereafter may be in force relating to street railway corporations, and to other railroad corporations, so far as the same may be applicable,” makes that corporation subject to the excise tax imposed on street railway companies by R. L. c. 14, §§ 44-46.</p>

<p> Negligence. </p> <p>In an action by a freight brakeman against a manufacturer of articles made from rattan for injuries from being crushed between a pile of rattan near a branch track in the defendant’s yard and a moving car on the side of which was, the plaintiff, it appeared that the yard continuously was in a much crowded condition and that it was a custom to pile rattan in the spaces between the buildings wherever a vacant space could be found, that the pile of rattan with which the plaintiff came in collision was beside a brick building which was just beyond it and nearer the track, that the plaintiff had been a freight brakeman for a year and a half and had switched cars in this yard almost daily for about six months before he was injured, that the car upon which he was. injured was of unusual width, that it frequently came in contact with buildings beside the track in the yard and when it tipped sometimes had touched the brick building mentioned above, that he knew all of these facts, as well as the fact that rattan sometimes was piled where he was injured, that when he was injured the ear was moving at the rate of about four miles an hour, that he either was ascending the ladder at the side of the car or had his foot in the stirrup, and was not facing or looking in the direction in which the car was going. Held, that there was no evidence that the plaintiff was in the exercise of due care.</p>

<p>Bills and Notes. Contract, Consideration. Husband and Wife.</p> <p>A note given in renewal of previous notes which were without consideration is without consideration.</p> <p>A note signed by a husband and wife given to a former creditor of the husband, whose claim has been barred by a discharge of the husband in insolvency, merely as an acknowledgment of or security for an unenforceable moral obligation of the husband, is without consideration as against the wife.</p> <p>The note of a wife given to a creditor of her husband as security for a pre-existing debt of the husband is not binding without a new consideration.</p>

<p> Negligence. Street Railway. </p> <p>Gross negligence of the servants of a corporation operating a railroad or a street railway, which under R. L. c. 111, § 267, makes the corporation liable for the death of a passenger caused by such negligence, is shown by proof of a reckless and wilful disregard of consequences in the conduct of such servants.</p> <p>In an action under R. L. c. 111, § 267, against a street railway company for causing the death of the plaintiff’s intestate, while a passenger on a car of the defendant, it appeared that the plaintiff, a man seventy-three years of age, was seated on the last seat of an open car and facing the rear of the car, that his legs were crossed below the knees and 1ns arms folded, that the conductor and the motorman in charge of the car had observed him in that position and had noticed that he seemed somewhat exhausted, that as the car was passing around a curve he was thrown out and received injuries from which he died, and there was evidence that this was due to the rapid swaying of the car. There was evidence warranting a finding that as the car approached the curve it was running to make up time and its velocity was greater than its customary speed of eighteen miles an hour, while a reduction of speed to five or six miles an hour was reasonably proper when entering upon and going around the curve. Held, that there was evidence warranting the jury in finding that gros3 negligence of the servants of the defendant caused the death of the plaintiff’s intestate.</p>

<p>Libel and Slander. Words, “Robbing the taxpayers.”</p> <p>A publication in a newspaper charging the chairman of the hoard of police of a city with being the head of the “ police rum combine,” with furthering by unfair means and perhaps by bribery and for improper purposes the election of a certain candidate for superintendent of streets described as corrupt and the advocate of “ all sorts of schemes to rob the taxpayers,” may be found to be libellous, and the fact that the publication related to the superintendent of streets as a candidate for public office is no defence to an action by the chairman of the board of police who was not such a candidate.</p> <p>A publication in a newspaper stating that the chairman of the board of police of a city is furthering the election of a certain candidate for superintendent of streets, that he “could not select in the entire city a person who is better adapted for the purpose.of robbing the taxpayers,” and that from the plaintiff’s “standpoint he will make an ideal superintendent of streets,” as set forth in the declaration in an action for libel brought by the chairman of the board of police, was held on demurrer to be libellous.</p>

<p>Tort for unlawfully flowing the land of the plaintiff in the manner stated in the opinion. Writ dated August 14, 1896.</p> <p>In the Superior Court the case was referred to George F. Tucker, Esquire, as auditor. Later the case was heard by White, J. upon the auditor’s report which was the only evidence presented. The material facts shown by the report are stated in the opinion. The defendants asked the judge to rule that on those facts the action could not be maintained. The judge refused to make this ruling, and found for the plaintiff, assessing damages in the sum of $944.06. The defendants alleged exceptions.</p> <p>The following is a copy of a plan annexed to the auditor’s report, which is referred to in the opinion:</p> <p> </p>

<p>Complaint, received and sworn to on March 7, 1904, under R. L. c. 66, § 2, for enticing and assisting one Peter Nicoll, alleged to have been a member of the crew of the schooner Addie M. Lawrence, to leave and desert that vessel before the expiration of his term of service.</p> <p>At the trial in the Superior Court before Harris, J. the defendants made a motion to quash and a motion to dismiss the complaint on the grounds, among others, that R. L. c. 66, § 2, is in violation of the Constitution of the United States which confers upon the courts of the United States admiralty and maritime jurisdiction and gives Congress the power to regulate commerce among the several States. U. S. Const, art. 3, § 2; art. 1, § 8. Both of the motions were denied.</p> <p>At the trial it appeared that on the evening of February 5, 1904, the Addie M. Lawrence, a six-masted schooner exceeding fifty tons burden, was lying in Boston Harbor, and was to sail on a voyage to Norfolk and Newport News, Virginia, that on that evening Peter Nicoll, named in the complaint as one of the crew of the vessel, was on board performing duties which he had agreed to perform, and that he had made an oral contract with the captain of that vessel to perform duty as a seaman. Evidence was introduced tending to show that he had signed the shipping articles before the acts complained of, and the question of whether he had done so was left to the jury under instructions, to which the defendants excepted. It appeared that the captain had not signed the shipping articles at the time of the acts complained of. There was evidence tending to show that a full complement of men had been hired, some of whom were not on board but were to arrive on board in time for the vessel to sail on the following Saturday, the vessel herself being ready for sea. It was conceded by the Commonwealth that the captain had not signed the articles, as he was waiting to sign once for all, when all were finally on board.</p> <p>The defendants contended, first, that Nicoll was not a member of the crew within the meaning of the statute, and, second, that the act was unconstitutional and conferred no jurisdiction on the court, and requested the judge to give, among other instructions, the following: •</p> <p>8. A person is not a “ member of the crew ” under this statute until the agreement of service is signed not only by himself, but by the captain of the vessel, as required by U. S. Rev. Sts. § 4520.</p> <p>14. “ Term of service ” as used in this statute means a specific period of service, not a service at will.</p> <p>15. If it appears that the agreement for service was not signed by the captain, and that the persons persuaded had entered on the duties of their employment, the service is merely at will, and the defendants must be acquitted.</p> <p>20. R. L. c. 66, § 2, has no application to vessels engaged in interstate or foreign commerce, and if it appears that the vessels in question were bound for ports in some other State or country the defendants must be acquitted.</p> <p>21. The case presented by the government is exclusively cognizable by the federal courts of admiralty and maritime jurisdiction, and this court has no jurisdiction thereof.</p> <p>The judge refused to give these instructions, and left the case to the jury, who returned a verdict of guilty. The judge imposed a sentence of imprisonment for one month in the house of correction and a fine of $100 on each defendant, and granted a stay of execution, to await the further order of the court. The defendants alleged exceptions.</p>

<p>Tort for an alleged failure to deliver three car loads of coal entrusted to the defendant as a common carrier for delivery to the plaintiff. Writ dated July 12, 1904.</p> <p>The answer contained a general denial and, by amendment, an allegation that the defendant had delivered to the plaintiff the coal referred to in the declaration. In the Superior Court the case was tried before Hardy, J., without a jury. He found for the defendant; and the plaintiff alleged exceptions to the exclusion of certain evidence which is described in the opinion.</p>

<p>Agency, Commission. Broker. Contract.</p> <p>The owner of a note and a mortgage of land securing it by offering to pay a broker, who has full knowledge of the character of the mortgage, a commission for selling the note and mortgage makes no implied agreement that if the broker will find a purchaser the mortgage will give the purchaser a perfect title to the land in case the note is not paid.</p> <p>A broker, who undertakes to find a purchaser for a note and mortgage made by a cemetery association, is not entitled to a commission for procuring a person who agrees to take the note and mortgage if the title created by the mortgage is satisfactory to his conveyancer and afterwards refuses to take them on such title not being satisfactory to his conveyancer because in the conveyancer’s opinion a perfect title cannot be acquired by foreclosure against a cemetery association, and it does not matter whether the conveyancer’s opinion is correct or not.</p>

<p>Tort for alleged false imprisonment and slander. Writ dated June 20, 1902.</p> <p>In the Superior Court the case was tried before White, J. upon the second count alleging false imprisonment and the fifth count alleging slander. It appeared that the plaintiff, a girl nineteen years of age, had been employed as bookkeeper and cashier in the picture store of the defendant on Washington Street in Boston for about two weeks; that at the close of business on Monday June 16, 1902, following her usual custom she took the day’s receipts, less a certain amount left for change in the cash drawer, put it in an envelope marking it “ Monday, $74.55,” procured from the defendant the key to the locked compartment of the safe, unlocked it, put the envelope in and locked it again, handing the key back to the defendant who was standing within a foot or two of her; that on Tuesday, it being the seventeenth of June, the store was closed,, and on Wednesday night she again made up her receipts, procured the bey from the defendant and unlocked the compartment for the purpose of putting in the envelope, the defendant standing the same distance from her as before, whereupon she noticed that Monday’s envelope was not in the drawer and called his attention to the fact, and after search for the missing envelope had been made, he began to get excited and aócused her of stealing the money, which she denied, and he thereupon sent for an officer, and in his presence according to the testimony of the plaintiff accused her of stealing the money and directed her arrest; that she was taken by the officer to the Lagrange Street station and locked in a cell, and later was taken in a wagon to the city prison where she was confined in a cell all night and in the morning was brought into the Municipal Court of the City of Boston and discharged. No warrant ever was issued for her arrest, the judge of the court declining to issue one.</p> <p>Among requests for other instructions, which were given in substance, the defendant asked the judge to instruct the jury: “ 2nd. That upon the pleadings and all the evidence the plaintiff is not entitled to recover upon the second count. 5th. That upon the pleadings and all the evidence the plaintiff is not entitled to recover upon the fifth count.”</p> <p>The judge refused to give either of these instructions.</p> <p>The ninth instruction requested was as follows: “ 9th. The offence of larceny of money in a building is a felony and a police officer may lawfully arrest, without warrant, any person whom he suspects of having committed such felony.”</p> <p>The portion of the charge to the jury relating to this subject was as follows:</p> <p>“Now personal property in a building for the most part is either in the custody of persons or in the custody of buildings. You may take any store upon Washington Street in which there is no watchman at night, somebody comes there in the morning, opens the store, during the day the clerks come there, some of the clerks or the proprietors, the servants or agents of the proprietors stay there during the day. If the business hour of that firm closes at seven o’clock then the key is turned in the door and property which has been in the custody of persons during the day, upon the turning of that lock becomes then in the custody of the building, and if the clerk who last left the store at night failed to lock the door and left it ajar, and somebody should come along there and go into that open door, which was open ever so slightly, and steal some of the personal property in there, that would be larceny in a building, because the property at the time was .in the custody of the building, and that would be a felony, that is punishable by imprisonment in our State prison; but if before the turning of that key, some time during the day while the property was in the custody of persons, that same party had gone in there and stolen the same personal property it would then, if under the value of $100, be simple larceny, and the difference in the degree of the crime is fixed because in one instance it was in the custody of persons who could actively protect their property and in the other instance it was not in the protection of any persons but was in the protection of a building, and the law says that that is the greater crime to go to a building where a man has left his property in supposed safety for the night, and a man getting in to a building that is partially open so that he does not have to break and enter it, because if he does have to break and enter it to get in that is still another offence, but it is a greater offence to steal under those circumstances than it is to steal in the daytime when the parties are around there to protect their property.</p> <p>“ So that in this case, you have heard the testimony in this case as bearing upon the question of whether there is any evidence here to support the contention that there was a larceny in the building, that is, larceny of property which at the time it was taken, if it was taken at all, was taken from the building while in the custody of the building and not of the person. And it was for that purpose that the officer who made the arrest was asked whether the same account that was given to him on that day was the same which was given here in court. And what was the evidence here in court, because he said that the testimony as he had heard it given here in court was the same that was given to him at that time as to the way the property was supposed to have been stolen from that safe.</p> <p>“ Now was the evidence which he heard and which he said was the same, that somebody in the employ of Yan Auken came there and opened the door and swept out and then the clerk and the workmen came and Mr. Van Auken came and last of all came the bookkeeper, the plaintiff in this case, and at night she was not left there, that she was the first to leave, reversing the order, that she was the last to come and the first to leave, and that the only opportunity that she had so far as disclosed by the statements which were then made to him or as far as disclosed by the evidence in this case, was that if she stole at all it was while the proprietor was within two or three feet of her, during the time that he passed the key to her and she unlocked and passed it back to him. Now if the only evidence in this case is of that kind, of a larceny, provided always that a larceny — and it is not necessary for you to pass on the question of whether a larceny was committed or not, but if a larceny was committed there at that time, it was then simple larceny, because the sum taken was less than §100, being §74.55, and if it was simple larceny upon this evidence then the arrest was not warranted either by the officer or by the direction of the defendant, because a private person, Yan Auken himself, provided he had gone to his store and found a man committing a felony there, he could have arrested for that felony himself, not being an officer, as the law says that he may do that and rest for his justification upon the conviction of the man. He has got to run that risk, but an officer under the circumstances of where a felony has been committed, either seeing it done or after it is done, may proceed upon a reasonable ground of suspicion, and where an officer has reasonable ground of suspicion that he has found the right person he may arrest and the law justifies him in the arrest, although as a matter of fact it turns out that he has not arrested the right person.</p> <p>“ Now it is for you to say in this case whether there is any evidence which will warrant you in believing that the officer there after this statement had been made to him, whether there is any evidence that would warrant you in believing or finding that he at the time honestly believed and had reasonable ground to believe, a reasonable suspicion, that a felony had been committed, because if upon this evidence he did not have a reasonable ground to believe that a felony had been committed or if there was not a reasonable suspicion directed to him by the information that he received, by such as he got from the defendant and from the plaintiff, if he did not believe that a felony had been committed, then he had no justification for the arrest. It was simple larceny. And so if you find that upon this evidence he at the time believed that only a taking of the money from the safe although the safe was in that building he would not be warranted in making the arrest because no felony had been committed, and if that arrest were followed without any justification under those circumstances and it was directed or commanded or controlled by the defendant himself, in directing the actions of the officer, why, then the defendant would be put in the position of being responsible for an arrest without any justification for the arrest, and you would assess as far as this case is concerned such damages as accrued to her by reason of such illegal arrest. If, on the other hand, you find that he honestly believed and had ground to believe that a felony had been committed and that although in the event that no such felony had been committed, but he had a reasonable suspicion that it had, then there would be a justification and so far as this count is concerned, you would find for the defendant.”</p> <p>See R. L. c. 208, §§ 20, 26.</p> <p>The jury returned a verdict for the plaintiff upon each of the counts on which the case was tried, assessing damages upon the second count, for false imprisonment, in the sum of $1,000, and on the fifth count, for slander, in the sum of $500. The defendant alleged exceptions.</p>

<p>Petition, filed September 4, 1908, to enforce a mechanic’s lien.</p> <p>At the trial in the Superior Court before Eitchcock, J. there was evidence that the petitioner made an oral contract with the respondent, by the terms of which the petitioner was to move a bam a distance of one hundred feet more or less, and furnish the work, labor and materials necessary to remodel the barn, so that it might be used by the respondent as a dwelling house, for which the respondent was to pay the petitioner the sum of $200.</p> <p>The petitioner testified that he finished the work and furnished the materials required of him by the agreement between himself and the respondent. This was denied by the respondent and two other witnesses, a mason and a carpenter, who testified to work done by them on the building and its foundations after the time at which the petitioner testified that he had finished the work. It was also in evidence that the amount paid to the,, mason and the carpenter by the respondent for the work done by them on the building after it was left by the petitioner was $89.50.</p> <p>The petitioner, the respondent and two other witnesses testified as to what the work, labor and materials furnished were worth; and it was admitted that the petitioner had received $50 on account of work done and materials furnished.</p> <p>Four issues were framed and submitted to the jury, which with the answers thereto were as follows:</p> <p>“ 1. Did the petitioner perform the labor and furnish the materials called for by the oral agreement between the petitioner and the respondent ? The jury answer, no.</p> <p>“ 2. If the petitioner did not fully perform his contract what deduction should be made from the contract price by reason of such failure? The jury answer, $25.</p> <p>“ 3. What was the value of the labor rendered and furnished by the petitioner under this contract? The jury answer, $80.</p> <p>“ 4. What was the value of the materials furnished by the petitioner and actually used by him in the performance of the contract? The jury answer, $95.”</p> <p>After this verdict the petitioner moved for an order to establish the lien, and thereupon the respondent requested the judge to rule as follows :</p> <p>This being a petition to enforce a mechanic’s lien under an entire contract for an entire price, the jury having found that the petitioner did not perform the labor and furnish the materials called for by the oral contract between himself and the respondent, there being no evidence that the failure to perform the contract was due to mistake or misunderstanding or to anything else save the petitioner’s own fault, or that the contract lacked performance in unimportant details, the testimony of the petitioner being to the effect that he performed the labor and furnished the materials called for by the contract, and the testimony offered by the respondent, which was not controlled, and the answer of the jury to the second issue submitted to it showing that the contract lacked substantial performance by the petitioner this lien cannot be enforced and should be dissolved.</p> <p>The judge refused to rule as requested, and ordered that the lien be established for the sum of $125 with interest from the date of the petition, and that the interest of the respondent in the land described in the petition be sold, together with the building thereon, and the proceeds of the sale distributed in the manner provided by law. The respondent alleged exceptions.</p>

<p>Conte ACT by a member of a fraternal beneficiary association, incorporated under St. 1894, c. 867, upon his certificate of membership, to recover $2,500 as an indemnity for the loss of his left leg by an accident on August 24, 1904. Writ dated December 31, 1904.</p> <p>In the Superior Court the case was tried before JBe.ll, J. It appeared that the certificate sued upon was as follows:</p> <p>“No. 1008.</p> <p>“ Commercial Travellers’ Eastern Accident Association doth hereby certify that Person Noyes of Lowell, Mass., has this day been elected a member of said Association; and, in consideration of the receipt from said member of the entrance fee, the warranties and agreements in his application for membership contained, the payment by said member of all assessments levied by the Board of Directors, and the faithful compliance by said member with the By-Laws of said Association, doth hereby covenant and agree with the said member, his executors and administrators, as follows, that is to say: —</p> <p>“ 1st. That within ninety days from the receipt by the Board of Directors of the said Association of proof satisfactory to said Board of the death of the said member, and that his death has been caused wholly and entirely by external, violent, and accidental means, which (except only in case of accidental death by drowning) shall leave upon the body of said member an external and visible mark, the said Association, provided the death of the said member shall have occurred within ninety days from the happening of the said means of death, will pay to Adelaide A. Noyes (his wife) the amount realized from one Death Assessment of two dollars levied upon each surviving member of the said Association, not to exceed the sum of five thousand dollars ($5,000).</p> <p>“ 2nd. That if said member shall suffer disability caused by external, violent, and accidental means, which shall leave upon the body of said member an external and visible mark, the said Association, in accordance with the provisions of its By-Laws, within sixty days from the receipt by its Board of Directors of proof satisfactory to said Board of the particular disability suffered by said member, will from the amount realized from one Disability Assessment of two dollars levied upon each member of said Association, pay to said member, whose name is above written, indemnity as follows, that is to say: —</p> <p>“A. For the loss of both eyes or of the sight of both eyes, or for the loss of both legs, or of both arms, or of one arm and one leg, the total amount realized from said assessment, not to exceed the sum of five thousand dollars ($5,000).</p> <p>“_B. For the loss of one leg, or of one arm, or for an injury which alone, in the judgment of a competent surgeon, selected by the Board of Directors, has caused total disability, rendering said member unable to perform any duties or follow any occupation for a period of not less than two years, and who shall have been, by said Board, adjudged to be permanently totally disabled, one-half of the amount realized from said assessment, not to exceed the sum of twenty-five hundred dollars ($2,500).</p> <p>“ O. For the loss of one eye or the sight of one eye, one-fourth of the amount realized from said assessment, not to exceed the sum of twelve hundred and fifty dollars ($1,250).</p> <p>“Provided, that any loss above named shall have occurred within three calendar months after the accident which caused it; and provided further, that the word loss as applied to arm or leg is hereby construed and agreed to mean actual amputation ; and provided further, that any sums theretofore paid to said member suffering said permanent disability, as weekly indemnity under clause D of this section of this certificate, for the same disability, shall be deducted from said larger sum.</p> <p>“And upon payment to said member of either of the sums above named, the liability of the Association shall cease, and this certificate of membership shall thereafter be null and void.</p> <p>“D. For temporary total disability the sum of twenty-five dollars ($25) for each and every week during which said disability has existed, and thereafter a like sum of twenty-five dollars for each and every week that said member shall furnish to said Board of Directors satisfactory proof of the continuance of such total disability. But in no event shall the said member be paid the said sum of twenty-five dollars per week for a longer period than fifty-two weeks, or a sum greater in the aggregate than the total amount realized from the said assessment.</p> <p>“ The foregoing covenants and agreements are upon the following express conditions, that is to say : —</p> <p>“ (Extract from By-Laws. Art. VIII.) No indemnity shall be paid to any member for any disability or injury of which there shall be no external and visible mark on the body of the member, nor for any injury caused wholly or in part, directly or indirectly, by hernia, fits, vertigo, somnambulism, insanity, or disease in any form, or by gas, or poison in any form, contact with poisonous substances, surgical operations, medical treatment, duelling, fighting, boxing or wrestling, war, riot, lifting or overexertion, suicide, sunstroke, freezing, riding or driving in races, or voluntary exposure to unnecessary danger; nor for any injury or accident happening to a member while under the influence of intoxicating drinks, or of drugs, or of gas, or in consequence of having been under such influence, nor while or in consequence of violating the law; or while mining, blasting, or wrecking, or while employed in the manufacture, sale, or transportation of any explosive compound. Nor for any injury which the member, by the exercise of ordinary care,' prudence, and foresight, might have averted or prevented, or to which the member’s own negligence shall have contributed. Nor shall any indemnity be paid to the beneficiary of any member for the death of said member resulting from an injury caused wholly or in part, directly or indirectly, by either of the foregoing causes.</p> <p>“No indemnity for either death or disability shall be paid unless the person claiming such indemnity shall give immediate notice in writing to the Secretary and Treasurer, setting forth the name of the member, the number of his certificate, full particulars of the injury, the names and addresses of the attending physician and of all persons who saw the accident happen, or the injury inflicted, so far as the same can, by the exercise of due diligence and good-faith by the claimant, be obtained. Nor unless direct and affirmative proof of the death or disability shall be furnished the Association within six months from the happening of any accident causing such death or disability, upon forms established by the Board of Directors.</p> <p>“ No indemnity for death shall be paid unless the physician and surgeon appointed by the Board of Directors be permitted to examine the body of the member whose death is alleged to have been caused by accident, and for whose death indemnity is claimed, nor unless an autopsy is allowed upon said body if required. And no indemnity for disability shall be paid unless said physician and surgeon be allowed to examine the body of the member claiming such indemnity, when and as often as such physician and surgeon deems it necessary so to do in the interests of the Association.</p> <p>“ (Order of Board of Directors.) Ordered — That it shall be the duty of each member of the Association to give to the Secretary immediate notice of any change in the occupation, residence, or postoffice address of such member.</p> <p>“ In Witness Whereof, the said Commercial Travellers’ Eastern Accident Association, hath caused its corporate seal to be affixed hereto, and these presents to be signed by its President and Secretary and Treasurer, at Boston, in the Commonwealth of Massachusetts, this twenty-third day of March in the year one thousand eight hundred and ninety-five.</p> <p>“ Edwin A. Towne, President.</p> <p>“ Lauris J. Page, Secretary and Treasurer.”</p> <p>[Corporate Seal.]</p> <p>The plaintiff put in evidence a notice of injury on the form required by the defendant dated August 31, 1904, which had been delivered seasonably by him to the company.. It stated the time and place of the accident, and described its cause as follows: “Was knocked down by a moving train in the railway station at South Lawrence, Mass, falling under the cars in such a way that the wheel passed over my left foot, crushing it, so that amputation was necessary.” It gave the names of three physicians and surgeons attending the plaintiff, and gave the names and residences of one Riley and one Nugent as persons who saw the accident. The plaintiff also put in evidence his claim for indemnity dated October 20, 1904, made out upon the required form and seasonably delivered to the defendant. It contained’, among others, the following questions and answers:</p> <p>“ 5. Were the injuries received by you through external, violent and accidental means? Yes. 6. What was the nature of the accident causing the injuries? Railroad accident. 7. What was the cause of the accident which you have described in your answer to Question No. 9 and which resulted in your being injured? Bodily contact with a moving train. 8. What was the nature of the injury received? (Describe fully.) Left foot crushed necessitating amputation of the left leg below the knee. 9. What external and visible marks did the injury leave upon your body ? (Describe and give exact location of each.) A crushed leg skin and muscles torn.” “ 18. What were you doing at the time of the happening of the accident? Hurry forward for my train at South Lawrence (5.45 P. M.) for Lowell. I wanted to get into the forward car for my convenience the train had not come to a full stop at the time. 14. Could you, by the exercise of ordinary care, prudence and foresight, have averted or prevented the injuries ? or the accident causing the injuries? No.”</p> <p>The plaintiff’s claim for indemnity and the statements of the witnesses Nugent and Riley constituted the only, proof of the alleged accident and the consequent injury to the plaintiff which the plaintiff filed with or submitted to the defendant’s board of directors as a compliance with the requirements of the defendant’s by-laws, the rules and orders of the board of directors, and the contract between the plaintiff and the defendant. The defendant or its board of directors never asked the plaintiff for further or additional proof.</p> <p>The plaintiff then offered in evidence the plaintiff’s written deposition, taken on May 1, to which, at the time of its taking, the defendant had objected upon the ground that the evidence of the plaintiff was incompetent, irrelevant and immaterial. It was agreed that the deposition might be used as evidence in the same manner as if the plaintiff were present in court and testifying as to the facts deposed to, if his evidence was otherwise competent.</p> <p>The defendant objected to the introduction of the deposition and to the introduction by the plaintiff of any evidence other than the writings put in evidence, which included those above described, and requested the judge to rule as follows:</p> <p>“ The plaintiff is bound by the written proofs of injury filed by him with the defendant’s board of directors in compliance with the rules and orders of said board and the by-laws of the association and cannot at the trial introduce other or further evidence of his injury or of any accident causing such injury, such other or further evidence not having been theretofore submitted to the said board of directors in compliance with said by-laws and said rules and orders of said board.”</p> <p>The judge refused to make this ruling, and against the objection of the defendant admitted the deposition and the oral testimony of Nugent and Riley and of one Stevens.</p> <p>The deposition of the plaintiff tended to show that the plaintiff, a man seventy-eight years of age and weighing one hundred and eighty pounds, at about 5.45 P. M. on August 24,1904, fell under the cars of a moving train at the South Lawrence station and sustained thereby the loss of his left leg at a point eleven inches below the knee, by actual amputation under the following circumstances: The plaintiff came out of the waiting room intending to take the train for Lowell Junction, which then was moving into the station ; he walked toward the train and when within five or six feet of it stopped to ascertain, by glancing toward the rear of the train, its length and the probable stopping point of the forward passenger coach into which he intended to go for his own convenience as he wished to avoid walking and to save his strength; that while he was so standing the forward coach passed him; that he then turned to walk forward alongside the train to the forward coach and as he turned his right foot gave way; that he threw up his hands and tried to gain his equilibrium; that in trying to recover his balance he fell and his left leg went under the wheel of the moving train. The plaintiff deposed that he did not know what caused his foot to give way and that it never before had given way in a similar manner.</p> <p>On cross-examination the plaintiff deposed that his statements made in his claim for indemnity were true; that at the time of his injury he was bearing his weight on his right foot; that all of a sudden it went down; that he did not stub his toe ; that for some unknown cause his foot went out from under him; that he turned, and then came that motion to recover himself; that on April 22,1905, he suffered a stroke of paralysis.</p> <p>The testimony of the witnesses Riley, Nugent and Stevens tended to show that the plaintiff came out of the waiting room and walked toward the train which then was moving into the station; that the plaintiff stopped when within five or six feet of the moving train; that while he was so standing his right foot gave way; that he lost his balance and fell, and his left leg went under the wheels of the moving train; and that there was no obstruction on the platform to cause his fall.</p> <p>The defendant called the clerk of its board of directors who produced the records of the board showing that at a legal meeting of the board held on November 26, 1904, the following vote was adopted:</p> <p>“Voted: That the proof submitted on October 22, 1904, by Person Noyes, Certificate No. 1008, of his total disability caused by accident is not satisfactory to this board and that his claim for indemnity be disallowed.”</p> <p>The clerk of the board of directors testified that no proofs of the accident and the consequent injuries to the plaintiff had been filed with or submitted to said board other than the writings mentioned.</p> <p>It did not appear that any hearing before the board of directors was asked by the plaintiff or offered by the defendant.</p> <p>The defendant requested the judge to give various instructions, of which the judge gave two, which are printed at the bottom of the next page, and refused the others. Among those refused were the following:</p> <p>“1. On the evidence the plaintiff is not entitled to recover under the contract between the plaintiff and the defendant association.”</p> <p>“8. The plaintiff is bound by the written proof of injury filed by him with the defendant’s board of directors in compliance with the rules and orders of said board and the by-laws of the association and cannot at the trial introduce other or further evidence of his injury, such other or further evidence not having been theretofore submitted to the board of directors.</p> <p>“4. The written proof of injury filed by the plaintiff with the defendant’s board of directors does not set forth a legal claim against the defendant association under the terms of the contract.</p> <p>“ 5. The burden is on the plaintiff to prove that the written proof of the plaintiff’s injury filed by the plaintiff with the defendant’s board of directors, was proof satisfactory to said board of the plaintiff’s injury within the terms of the contract; the plaintiff has not sustained this burden of proof and cannot recover.”</p> <p>“ 13. If the plaintiff, a man of the age of seventy-six * years, was for his own convenience hurrying to get into the forward part of a train which was in motion and which the plaintiff knew was in motion and in such hurrying the plaintiff came into bodily contact with such moving train and was thereby injured, such injury was an injury which the plaintiff by the exercise of ordinary care, prudence and foresight might have averted or prevented and the plaintiff cannot recover.</p> <p>“ 14. If the plaintiff, a man of the age of seventy-six * years, was for his own convenience hurrying to get into the forward part of a train which was in motion and which the plaintiff knew was in motion and in such hurrying the plaintiff came into bodily contact with such moving train and was thereby injured, such injury was an injury to which the plaintiff’s own negligence contributed and the plaintiff cannot recover.”</p> <p>“18. The infirmity of the plaintiff resulting in the loss of control of the action of his legs is a form of disease within the meaning of the contract and the fall of the plaintiff being due to the loss of his control of the action of his legs resulting from his infirmity, the resulting injury was caused in part and indirectly by disease and the plaintiff cannot recover.”</p> <p>“ 21. The burden is upon the plaintiff under his declaration to show that the plaintiff was in the exercise of due care at the time he received his injury.</p> <p>“22. The defendant’s board of directors having decided that the proofs of injury submitted to said board by the plaintiff was not ‘proof satisfactory to said board’ of the plaintiff’s injury under the terms of the contract between the plaintiff and the defendant, the plaintiff cannot recover in this action.”</p> <p>The judge gave the following instructions requested by the defendant:</p> <p>“2. The burden is on the plaintiff to prove that his injury and the agency which produced it were caused solely by external, violent and accidental means.”</p> <p>“ 15. If the fall of the plaintiff, which resulted in his foot being crushed by a moving train, was due to a fit, vertigo, somhambulism or any form of disease, the injury to the plaintiff’s foot was caused in part and indirectly by such fit, vertigo, somnambulism or disease and the plaintiff cannot recover.”</p> <p>The judge further instructed the jury that it was the duty of the plaintiff to submit to the defendant’s board of directors only such proof of the accident and its consequent injury to the plaintiff as would be satisfactory to a reasonable person of such accident and injury, and that it was for the jury, and not for the defendant’s board of directors, to say whether or not such proof as the plaintiff had submitted to the board of directors should have been proof satisfactory to the board within the meaning of the by-laws and of the contract.</p> <p>The judge further instructed the jury that the burden was upon the defendant to prove that the accident and the consequent injury to the plaintiff came within the exceptions set forth in the certificate limiting the defendant’s liability, namely, that it was an accident or an injury to which the plaintiff’s own negligence contributed.</p> <p>The jury returned a verdict for the plaintiff in the sum of $2,500 with interest from the date of the writ; and the defendant alleged exceptions.</p>

<p>Witness, Examination. Discretion of Court. Boundary. Adverse Possession. Evidence, Declarations of deceased persons.</p> <p>A presiding judge may in his discretion allow leading questions to be put to a witness on his direct examination.</p> <p>It is a proper exercise of the discretion of a presiding judge to allow leading questions to be put on direct examination to a very aged witness whose recollection appears to have been exhausted by the general questions previously put to him.</p> <p>In an action or proceeding where a boundary line is in dispute, a party who contends that his land extends to a certain stone wall, including a long triangle or wedge of land adjoining the wall claimed by him to have been acquired by adverse possession, there being evidence that the line fixed by the deeds is on one side of the wall at one end and on the other side at the other end, may show by a witness, who was employed to build the wall forty years before the trial by the predecessor in title of the opposing party, that he was ordered by his employer to throw out the three cornered piece and have the wall run straight as the boundary line, and that while building the wall he saw the predecessor in title of the party calling him as a witness, who said he was glad the wall was going to be built straight, and later said to him while he was building the wall, “ Well, we will give and take. If there is any chance to give and take, we will give and take,” the evidence being competent both at common law to show a boundary line assented to by the adjoining proprietors, each giving and taking land, in connection with evidence of subsequent occupation for more than twenty years in accordance with the line thus adopted, and also as a declaration of a deceased person under R. L. c. 175, § 66, showing the assent of the declarant to what was being done.</p>

<p>Contract, with a count in tort, against a corporation, established under the laws of the State of New Hampshire and having a usual place of business in Boston, engaged in carrying on in that city and its vicinity the business of supplying messengers for hire, and alleged to be a common carrier of messages, packages, money and other things, alleging in the first count the loss of $58.33 received from the plaintiff by a messenger furnished by the defendant to whom the plaintiff entrusted a rent bill for collection, and alleging in the second count the loss of the same money through the negligence of the defendant in conducting its business. Writ dated October 24,1902.</p>

<p>Tobt, with a count in contract, for personal injuries sustained by the plaintiff while a passenger on a ferryboat owned and operated by the city of Boston, running between the mainland of that city and East Boston, the plaintiff having paid the regular fare of one cent. Writ dated March 18, 1908.</p> <p>At the trial in the Superior Court before Lawton, J. there was evidence which warranted the jury in finding that the plaintiff while in the exercise of due care was injured by reason of the negligence of one of the defendant’s employees in raising a gate to permit the passengers to go ashore. This gate was attached to and worked upon a post set upright in the deck near the end of the boat. When lowered it extended across the space traversed by passengers when going on board or going ashore. It was kept raised when they were boarding or leaving the boat, and kept lowered when the boat was making its trip. The accident occurred just after the boat had been made fast on the Boston side at what is known as the North Ferry, when the gate was being raised to permit the passengers to go ashore.</p> <p>At the close of the evidence the defendant asked the judge to rule as follows:</p> <p>1. Upon all the evidence a verdict should be directed for the defendant.</p> <p>2. The city of Boston is not liable to a passenger for injuries sustained by him on a ferryboat of the defendant city plying between the mainland of the city of Boston and the island of East Boston by reason of the negligence of its employees on the boat.</p> <p>The judge refused to rule as requested, and instructed the jury that the city of Boston was running a ferryboat and was liable as a common carrier of passengers, owing to the plaintiff the same duty it owed to all its passengers to exercise toward them the highest degree of care possible consistent with its undertaking.</p> <p>The jury returned a verdict for the plaintiff in the sum of $700 ; and the defendant alleged exceptions.</p>

<p>Practice, Civil. Agency. Damages. Waiver.</p> <p>Where in an action of contract the defendant does not demur to the declaration but proceeds in a hearing before an auditor until all the evidence has been put in before objecting that the declaration sets forth no cause of action, he has waived that objection, and, if facts have been proved sufficient to establish a cause of action, it is too late for him to ask for such a ruling at the trial.</p> <p>If one of the salesmen employed in a wholesale and retail store of a manufacturer makes retail sales to himself at a lower price than that authorized by his employer under the false pretence that the sales are made to a wholesale agent of bis employer, he is liable to his employer for the difference between the price received by the employer and the retail market value of the goods at the time of each sale.</p> <p>In an action by a manufacturer against one of its salesmen for wrongfully making sales to himself at a lower price than that authorized by the plaintiff under the false pretence that the sales were made to a wholesale agent of the plaintiff, it is no defence that the defendant made the sales outside his working hours.</p> <p>There can be no waiver without knowledge of the thing waived.</p>

<p>Tort for injuries from an assault and battery alleged to have been committed by a servant of the defendants, as described in the opinion. Writ in the Municipal Court of the City of Boston dated September 28, 1903.</p> <p>On appeal to the Superior Court the case was tried before Bell, J. The jury returned a verdict for the plaintiff in the sum of $200; and the defendants alleged exceptions.</p>

<p>Negligence, Invitation to enter premises.</p> <p>In an action by a teamster against the proprietor of a chair factory for injuries from falling through an open scuttle in a passageway on the second floor of the defendant’s factory, it appeared that the plaintiff’s employer had a contract to cart and deliver the defendant’s goods, that the plaintiff was accustomed to go to the defendant’s office on the ground floor of the factory and there inquire for the shipper, John, to find out whether there were any goods to be taken, that if the shipper was not there the foreman or the manager often would tell him that he would have to see John, and sometimes would say he was upstairs, whereupon the plaintiff would go upstairs to see the shipper unless he came down before the plaintiff went up, that on the day of the accident the plaintiff at such a suggestion of the manager went upstairs in search of John, fell through the open scuttle in the passageway, and was injured. The defendant contended that the plaintiff in going into the second story of the defendant’s building was a trespasser or a mere licensee, and so was not entitled to recover. Held, that whether there was an invitation to the plaintiff from the defendant’s manager to go to the second story and the plaintiff accordingly was justified in going there, was a question of fact for the jury.</p>

<p>Contract on two promissory notes made by John M. Varnum, the defendant, payable to the order of John H. Hurley, attorney, one for $250 dated October 10, 1898, payable twelve months after date, and the other for $200 dated April 10, 1899, and payable on May 1, 1899. Writ dated June 27,1904.</p> <p>The answer, among other defences, alleged payment. At the trial in the Superior Court before Hardy, J., without a jury, the following facts appeared:</p> <p>Both of the notes sued on were signed on the back in blank by Benjamin Varnum Howe after they had been signed by the defendant and then were delivered by the defendant to Hurley, the payee.</p> <p>At the maturity of each note Hurley notified Howe that the notes were not paid and that he should look to him for payment. Howe thereupon paid the amount due on the notes to Hurley, whereupon Hurley struck his own indorsement off the notes by drawing a line through his name, and handed the notes to Howe.</p> <p>Howe retained the notes in his possession until April or May, 1904, when he negotiated them to the plaintiff, to whom he owed money at that time. The notes were to be applied on Howe’s account with the plaintiff. No money ever was received on the notes by Howe from the defendant.</p> <p>The defendant requested the judge to rule that the plaintiff could not recover, because Howe having indorsed the notes before delivery was an original promisor and co-maker with the defendant and not an indorser, and that the plaintiff, having received the notes after maturity and after they had been paid by Howe, the co-maker, could not maintain an action thereon; that the co-maker Howe having paid the notes to Hurley the payee at their maturity, the notes became extinguished and would not support the present action based solely on the notes; that each note was a promise to pay John H. Hurley, attorney, and that neither of the notes offered in evidence bore the indorsement of John H. Hurley, attorney, and therefore the action on the notes could not be maintained; and that on all the evidence the plaintiff was not entitled to recover.</p> <p>The judge refused to rule as requested, but ruled that each note was a promise to pay to the order of John H. Hurley, attorney, and that neither of the notes offered in evidence bore the indorsement of John H. Hurley, attorney, and further ruled, at the request of the plaintiff, that Howe by placing his signature on the notes in suit in blank before delivery became secondarily liable to the payee, that payment of the notes sued on by the indoi’ser, Benjamin Varnum Howe, did not discharge or extinguish the notes, that upon paying the face of the notes to the payee, Howe was entitled to the possession of the notes and vested with the right to recover the amount from the maker, and that after paying the amount of the notes sued on and receiving possession of them he was entitled to negotiate them, that the plaintiff upon receiving the notes from Howe succeeded to all the rights against the maker which Howe had, that where an instrument is negotiated back to a prior party that party may reissue and further negotiate the same, and that the holder of a negotiable instrument may sue thereon in his own name.</p> <p>The judge found for the plaintiff in the sum of 1590.58; and the defendant alleged exceptions.</p>

Contract to recover compensation for extra work and materials furnished to the city of Boston in connection with work done under a contract in writing dated October 19, 1901, to build retaining walls on Carleton Street in Boston and complete them before July 1, 1902. Writ dated April 15, 1903. At the trial in the Superior Court before Bell, J. the material facts were admitted, and no evidence except the contract was introduced.

<p> Equity Pleading and Practice. Sale. Bankruptcy. </p> <p>Upon an appeal by a plaintiff from a decree in equity granting part of the relief prayed for but not the whole, the defendant if he has taken no appeal cannot raise the point that there is no jurisdiction in equity.</p> <p>If the lessor of machinery which is in the possession of the lessee gives a bill of sale of it, absolute on its face, under an oral agreement that it shall be held as security for certain notes, without recording it or giving notice to the lessee who has no knowledge of the transaction, this passes no title good against attaching creditors of the vendor, and if he is adjudicated a bankrupt his trustee in bankruptcy, who has had no previous knowledge of the bill of sale, can maintain a suit in equity to establish his title to the property subject to the lease and his right to the rent accruing after the adjudication in bankruptcy.</p>

Bill in equity, filed March 28, 1905, by the administrator with the will annexed of Michael J. Roach, late of Amesbury, for instructions as to the true interpretation of the twelfth clause of the will by which the defendants were made residuary legatees. The case came on to be heard before Morton, J., who with the consent of the parties reserved it upon the pleadings and an agreed statement of facts for determination by the full court.

<p> Municipal Corporations. Charity. Trust. </p> <p>A gift was made to a town of a building for a library and of a fund which was to accumulate for twenty years, with a provision that after that time the town by a vote of two thirds of its legal voters might act as they thought best for the good of the people of the town in regard to selling the library building and adding the proceeds to the capital of the fund and the erection of a new building. A board of trustees was provided for to whom the donor left “ the details of the management and regulation ” of the trust. After the expiration of the twenty years, the town, by a vote of two thirds of its legal voters, accepted the gift of a certain lot of land as a site for a new library building and voted that the trustees be instructed to erect a library building on the lot at a cost not to exceed $15,000. The trustees in good faith made a contract for the erection of a library building to cost less than $15,000 and later made a supplemental contract including extras, by which the whole cost of the building was to be $16,505. . The town at its next annual meeting by a two thirds vote accepted and approved the report of the trustees which stated these contracts and payments amounting to $10,000 on account of them. He Id, that the town by the terms of the gift had authority not only to select the site for the new building but also to fix the cost of it, and that although under the first vote of the town limiting the cost to $15,000 the second contract of the trustees to pay more than $15,000 for the building did not, when made, bind the town, yet the subsequent vote ratified this contract and made it as binding on tiie town as if originally authorized.</p> <p>A gift to a town for a library provided that the details of the management and regulation of the fund should be left to the trustees, and gave the town authority by a two thirds vote of its legal voters to select the site for the library building and to fix its cost. The trustees, having the fund in their hands, made a contract for the erection of a library building at a cost which was in excess of their original authority and reported this contract and certain payments on account of it to the town, which by a two thirds vote at an annual town meeting ratified their acts. Upon a bill by the trustees for instructions as to paying to the contractor the balance called for by the contract the court, in holding that the acts of the trustees had become binding on the town by ratification, also held that, although the details of management and regulation, except as to the site and cost of the library building, belonged to the trustees, yet the fund was the property of the town and should be in its custody, and directed the trustees to deliver it to the town treasurer or to such other officer as the town might ' direct; but, inasmuch as the trustees had made the contract in good faith, ordered that the fund when paid over should be charged with a trust in their favor to the extent necessary to indemnify them against any loss by reason of personal liability to the contractor.</p>

<p>Contract against the city of Lawrence. Writ dated January 27, 1905.</p> <p>The declaration alleged that the plaintiff was appointed and confirmed a police officer of the defendant in the year 1897, and that he performed the duties of a police officer until December 27, 1904; that on said date he was illegally and unjustifiably prevented and restrained from performing the duties of his office by the agents of the defendant city; that the compensation of a police officer as fixed by the defendant was at the time the plaintiff was so prevented from performing the duties of his office and up to and including the day of the bringing of his writ $2.75 a day; that the plaintiff never had been removed legally from his office and that he held himself in readiness to perform the duties of his office at all times between and including December 27,1904, and the date of his writ, but was prevented from so performing his duties by the agents of the defendant; that the plaintiff had demanded compensation from the defendant for the time that he was thus prevented from performing the duties of his office, but had been refused such compensation, amounting to the sum of $85.</p> <p>The defendant demurred to the declaration, assigning as cause of demurrer that the matters set out in the declaration were insufficient in law to enable the plaintiff to maintain his action. In the Superior Court the case was heard by Graskill, J., who sustained the demurrer, and gave judgment for the defendant. The plaintiff appealed.</p>

Contract upon a policy of fire insurance in the Massachusetts standard form issued by the defendant to the estate of Ellen S. Robinson, and afterwards assigned to the plaintiff, with the assent of the defendant, insuring the Pigeon Cove House at Roekport in the sum of $6,000 for the term of one year beginning August 29, 1902. Writ dated May 20,1903.

<p>Contract by the members of a firm of real estate brokers, to recover a commission of one per cent for effecting a sale of the Hotel Brunswick at the corner of Boylston and Clarendon Streets in Boston and of two buildings in the rear of the hotel on St. James Avenue and Clarendon Street. Writ in the Supreme Judicial Court dated December 30, 1903.</p> <p>The case was tried before Braley, J. The properties in question were owned by the defendant, and were transferred by him to Frederick Ayer in November, 1902, according to the terms of a letter or memorandum dated September 11, 1902, addressed to C. F. Ayer, Esquire, attorney for Frederick Ayer, and signed by Edward H. Eldredge and Company, a firm of real estate brokers doing business in Boston, the letter having been made in duplicate, one original being assented to by C. F. Ayer as attorney for Frederick Ayer, and the other by the defendant. This letter was put in evidence, and it appeared therefrom that the defendant was to sell the property, the papers to pass on or before November 1, subject to certain conditions, the price to be paid for the two estates to be $1,086,228.60. There was a first mortgage for $400,000 on the Hotel Brunswick property, maturing December 16, 1908, and as a part of the transaction there were put upon the property a second mortgage for $100,000, maturing on the same date, and a third mortgage for $80,000 to run for two years. On the houses in the rear there was a mortgage of $50,000, making a total mortgage indebtedness of $630,000, leaving $456,228.60 to be paid in securities, credits and cash as follows : $200,000 by transfer to the defendant of $200,000 par value of preferred stock of the Westminster Chambers trust, $225,000 by the transfer to the defendant of $225,000 first mortgage bonds of the Carleton Hotel trust, the balance to be paid in cash.</p> <p>The plaintiffs contended that, they having offered the properties to Frederick Ayer for $1,000,000 in cash in October, 1901, and in February, 1902, their efforts were the efficient and predominating cause of the trade which finally was closed by the defendant through the instrumentality and supervision of Edward H. Eldredge and- Company, whom the defendant called in without the plaintiffs’ knowledge or consent.</p> <p>The evidence was reported to this court in a record of thirty-eight printed pages.</p> <p>The defendant asked the justice to rule that upon all the evidence the plaintiff could not recover. The justice so ruled, and ordered the jury to render a verdict for the defendant. At the request of the plaintiffs, and by agreement of the parties, he reported the case for determination by the full court, with the reservation that if his ruling was wrong and there was any evidence to be submitted to the jury, judgment was to be entered for the plaintiffs in the sum of $10,862.28, with interest from the date of the writ; otherwise, judgment was to be entered on the verdict for the defendant.</p>

<p>Contkact for labor and materials performed and furnished in the construction of a building on land of the defendants in Marlborough. Writ dated December 7, 1899.</p> <p>The first count was on a contract in writing dated August 1, 1898, and the specifications incorporated therein, by which the plaintiffs agreed to construct a two story building on land of the defendants in Marlborough, Massachusetts, to be known as the Corey Building, according to certain plans and specifications, and to complete the building on certain dates, and by which the defendants agreed to pay the plaintiffs for the work the sum of $59,794 in certain instalments. The amount alleged in this count to be due the plaintiffs under the contract was $59,794.</p> <p>The second count was on the contract and alleged that in addition to the amount of $59,794 the defendants also owed the plaintiffs the sum of $8,539.63 on account of certain alterations made in the work under Article III. of the contract and certain additional work done in consequence of these alterations.</p> <p>The third count was on an account annexed, and alleged that the defendants owed the plaintiffs the sum of $74,561:25 and interest thereon from November 1, 1899, as stated therein.</p> <p>The fourth count was on the written contract and alleged that the defendants owed the plaintiffs the sum of $6,426 as damages for certain delays in the work caused by the failure of the defendants to provide certain labor and materials not included in the contract in such a manner as to delay the progress of the work.</p> <p>The fifth count was on an account annexed, and alleged that the defendants owed the plaintiffs the sum of $8,476.46, according to that account.</p> <p>The sixth count was on the written contract and on a further written agreement dated December 15, 1898, by which certain differences and disputes which had arisen between the parties were submitted to arbitration. This count alleged that the arbitration was had and an award thereunder made, that all matters submitted by the agreement of December 15, 1898, were finally determined,' and that the defendants owed the plaintiffs the sum of $59,794 under the written contract of August 1, 1898.</p> <p>The seventh count was based on the written contract of August 1, 1898, and on a further oral agreement, changing the written contract, by which the defendants promised to furnish for the use of the plaintiffs in their work under the contract a certain steam heating plant, and to place this plant in the building as soon as it was necessary for the plaintiffs to have it for the purposes of their woi’k. This count alleged that the defendants owed the plaintiffs by virtue of the contracts the sum of $59,794.</p> <p>The eighth count was based on the written agreement of August 1, 1898, and on the further written agreement of December 15, 1898, and on the further oral agreement to furnish a- heating plant, and alleged that the defendants owed the plaintiffs the sum of $59,794 by virtue of these contracts and agreements.</p> <p>The defendants, in their amended answer, admitted that they executed the contract dated August 1, 1898, but alleged that it was not completely executed by the parties until September 8, 1898; denied that they had broken the contract in any respect; pleaded certain payments amounting altogether to $40,700; denied that any further sums were due the plaintiffs under the contract or otherwise; alleged many breaches of, and failures to perform, the contract on the part of the plaintiffs ; admitted certain items of additional work, but alleged that they had paid the plaintiffs therefor; denied that they delayed the plaintiffs in their work; alleged that on account of the failure of the plaintiffs to perform their contract the defendants were obliged to terminate the employment of the plaintiffs and complete the work at their own expense, and set up various other defences based upon specific provisions of the contract.</p> <p>Article sixth of the contract of August 1, 1898, described in the opinion, was as follows:</p> <p>“ Art. VI. The contractor shall complete the several portions, and the whole of the work comprehended in this agreement by and at the time or times hereinafter stated, viz: — the stores and basements shall first be completed and delivered, ready for occupancy by tenants, not later than the first day of December, 1898, and the whole of the work fully completed not later than January first, 1899, and it is especially agreed and understood that in case of the failure of the contractor to deliver said stores and basements ready for said occupancy, or to complete the building as aforesaid, at the times above written, the contractor shall forfeit to said owner the sum of thirty (30) dollars per day for each and every day of delay in the delivery of said stores and basements, and ten (10) dollars per day for each and every day of delay in the completion of the remainder of the building, said forfeit or forfeits to be deducted from the contract price.</p> <p>“ The contractor shall be entitled to receive from the owner, thirty (30) dollars per day for each and every day that said stores and basements may be completed and ready for occupancy by tenants before said first day of December and ten (10) .dollars per day for each and every day that said building shall be completed as aforesaid before said first day of January next.” The agreement of December 15, 1898, was as follows :</p> <p>“ Whereas various differences and disputes have arisen between the owners and contractors named in a certain contract dated August 1, 1898, entered into by Adelard Phaneuf and Henry H. Hunt, parties of the first part, and Eliza J. Corey, Blanche E. Holyoke and Lizzie E. Crowell, parties of the second part, for the erection and completion of a building at Marlborough, Mass., known as the Corey Building, and</p> <p>“ Whereas the owner’s superintendent has certified that there is sufficient ground for terminating the employment of the contractors Phaneuf and Hunt, and the owners have notified said contractors that their employment is terminated, and</p> <p>“ Whereas the contractors are desirous of completing the work covered by said contract and in accordance with the terms thereof, and the owners are willing that they should do so, provided a satisfactory adjustment with proper allowances is now arrived at so as to remove the principal causes of dispute which have already arisen,</p> <p>“Now therefore the said owners and contractors enter into the following agreements and stipulations: —</p> <p>“ 1. They hereby ratify and confirm said contract of August 1, 1898, in all respects, except so far as the same is hereby expressly changed or modified.</p> <p>“ 2. The time for the completion of the stores and basements is hereby extended, subject to the same terms and conditions expressed in said original contract, to the first day of March, 1899, and the time for the completion of the whole building is hereby extended to the first day of April, 1899, and the contractors admit that those extensions are now necessary for the completion of the said stores and basements and of the whole building respectively.</p> <p>“ 3. They hereby agree to refer to William H. Sayward of the Master Builders’ Association the question of what, if any, amount under and by virtue of the terms of said contract should justly and fairly be deducted from the contract price by reason of the said delay, which it is now agreed and admitted is inevitable, and such amount shall be deducted from the next instalment hereafter paid under said contract. And the said Sayward shall consider whether the contractors have suffered because of any fault or delay on the part of the owners in furnishing plans, or in making payments, and if so, shall make proper allowances therefor. But such allowance made to the owners shall not include any such damages to the owners as are referred to in Art. VIII. of the original contract, for which the contractors shall continue to be liable.</p> <p>“ 4. The said Sayward shall also determine whether or not the rear and extension walls of said building have been built in accordance with the contract, plans and specifications, and if not, he shall determine whether the owners have a right to insist that the whole or any part of said walls shall be taken down and rebuilt as though the same was new work and according to the original contract, plans and specifications, or shall, if requested by the owners, assess the damages to the owners and building caused by such variations from the contract, plans and specifications, and the amount thereof shall be deducted from the first instalment which shall hereafter be paid under said contract.</p> <p>“ 5. The said Sayward may call for such evidence and witnesses as he may see fit, and the parties hereto agree to furnish the same, and said Sayward shall certify the result of his findings to each of the parties hereto and shall give one copy to the owners and another to the contractors, and all agree to be bound thereby and to accept the same as final.</p> <p>“ 6. The contractors agree that it shall be taken as admitted that they now have all drawings which are needed for the immediate prosecution of the work and will give reasonable notice in advance to the owners’ superintendent as to what drawings they shall hereafter require and as to the times when they should be furnished by the owners.</p> <p>“ 7. As to said rear wall, the liability of said contractors is to be determined by said Sayward, as hereinbefore provided, but nothing herein contained shall be taken to bind the owners to accept other parts of the work unless all the same are done and completed in accordance with the contract, plans and specifications, or to relieve the contractors from their duty to comply with said contract, plans and specifications, as hereby notified, in all respects.</p> <p>“ Executed in duplicate at Boston, Mass., this fifteenth day of December, 1898.</p> <p>“ All expenses of referring the matters to Sayward, as aforesaid, including the charges of said Sayward, shall be equally borne by both parties ; each side to pay its own counsel fees, the charges of any witnesses which it may produce, and the cost of any other evidence which it may offer.”</p> <p>Here followed the signatures and seals of the parties.</p> <p>The case was referred to an auditor who filed his report on December 81, 1908. At the trial in the Superior Court before Bishop, J. the plaintiffs put in evidence the auditor’s report and the various exhibits referred to therein which were treated as part of the report, but no further evidence material to the exceptions was introduced by either party.</p> <p>The auditor’s report concluded under the heading “ General Findings and Rulings,” as follows:</p> <p>“I have already found that in several important respects the work done by the plaintiffs under the contract of August 1, 1898, was not done in the manner required by said contract; that various items of work required by said contract were not furnished by the plaintiffs, and that the work was not completed at the times specified in said contract.</p> <p>“ I therefore rule that the plaintiffs are not entitled to recover under said contract or under those counts of their declaration (the first, second, fourth, sixth, seventh and eighth,) based thereon.</p> <p>“ I find that the failure of the plaintiffs to perform said .contract was not wilful or intentional on their part and that the work done by them has much benefited the defendants by much increasing the value of the defendants’ land on which it was done.</p> <p>“ I therefore rule that the plaintiffs are entitled to recover on the common counts (the third and fifth) of their declaration.</p> <p>“ I find that the value of that work done by the plaintiffs which was work required by the original contract, after deducting the several amounts by which, on account of deviations, omissions and delays, the work was less valuable than it would have been if the contract had been fully performed in all respects, was fully as much as, if not more than, the contract price, and that the value of the defendants’ land was increased on account of said work by the amount of said contract price.</p> <p>“ I rule that the plaintiffs are entitled to recover the value of this work, not exceeding the contract price, after deducting the amounts by which the work was less valuable than it would have been if it had been performed in the manner required by the contract.</p> <p>The contract price was $59,794.00</p> <p>It is agreed that the defendants have paid</p> <p>to the plaintiffs or their order, 40,700.00</p> <p>The balance due, if the contract had been fully performed,' would, therefore, have been, $19,094.00</p> <p>“ The amounts by which the work was less valuable than it would have been if the contract had been fully performed are as follows: —</p> <p>On account of defects in plastering, $700.00</p> <p>44 “ “ “ fireproofing, 800.00</p> <p>44 44 “ “ “ store entrance platforms, 150.00</p> <p>44 “ omitted lanterns, _ 250.00</p> <p>44 “ “ brick, 891.95</p> <p>44 “ “ piles, 100.80</p> <p>u “ omissions in offices 18 and 19, 30.00</p> <p>(4 “ insurance premiums, ' 245.00</p> <p>44 “ omitted painting, 383.18</p> <p>44 “ “ work on rear wall of second</p> <p>story, 173.88</p> <p>“ delay in work, 1,430.00</p> <p>$4,654.81</p> <p>“ I therefore deduct $4,654.81 from $19,094 and find that the plaintiffs are entitled to recover the balance, viz., $14,439.19 under the third count of their amended declaration.</p> <p>“ In addition to the work required by the contract the plaintiffs did certain other work not required by said contract. I find that the fair value of this work was, as heretofore stated, $3,928.39, and that the value of the building and of the defendants’ land on which it was erected was further increased by that amount by reason of said additional work.</p> <p>“ I therefore find that in addition to the amount recovered under the third count of their amended declaration the plaintiffs are entitled to recover the sum of $3,928.39 under the fifth count of said amended declaration.</p> <p>“ If it should be held that said additional work was really done under the article of the contract (Art. III.) providing that the value of alterations, as computed by the owners’ superintendent or by arbitration, should be added to the contract price, the plaintiffs could still recover the value of said additional work because the contract price would, by virtue of said article, be expanded by an amount representing the value of said additional work.</p> <p>“ I therefore find that the plaintiffs are entitled to recover under the said third and fifth counts the sum of eighteen thousand three hundred and sixty-seven and fifty-eight one-hundredths dollars ($18,367.58) with interest at the legal rate from the date of the writ.”</p> <p>At the close of the evidence it was agreed by counsel for both parties with the consent of the judge that the judge should make proforma rulings on all questions of law in accordance with the rulings of the auditor, either party to be at liberty to save questions of law by excepting to the rulings made or by requesting different rulings and excepting to the refusal of the same.</p> <p>The judge accordingly instructed the jury at the request of the defendants that the plaintiffs could not recover in any event more than the amount allowed by the auditor plus an additional amount of $160 for extra gas piping which the parties agreed should be allowed, and that the defendants were entitled as a matter of law to all deductions from the contract price made by the auditor.</p> <p>The defendants further requested the judge to instruct the jury as follows:</p> <p>2. Upon the facts as found by the auditor and the additional facts agreed to by the parties in regard to the delay in the completion of the building the defendants are entitled as a matter of law to have deducted from the contract price in addition to the deductions made by the auditor the sum of $30 per day for each day from December 1, 1898, to March 1, 1899, and the sum of $10 per day for each day from January 15, 1899, to April 1, 1899, and the total amount found to be due by the auditor should be reduced by the amount of this deduction.</p> <p>3. Upon the facts as found by the auditor and the additional facts agreed to by the parties in regard to the delay in the completion of the building the defendants are entitled as a matter of law to have deducted from the contract price in addition to the deductions and allowances made by the auditor the sum of $10 per day for each day from May 20, 1899, to October 6, 1899, and the total amount found to be due by the auditor should be reduced by the amount of this deduction.</p> <p>The judge refused both of these requests but instructed the jury at the request of the plaintiffs that the plaintiffs were entitled to recover the whole amount found due by the auditor plus the $160 above referred to with interest from the date of the writ, and a verdict was rendered accordingly. The defendants alleged exceptions.</p>

<p> Negligence. Railroad. </p> <p>In an action by a woman against a railroad company for personal injuries incurred while a passenger on a train of the defendant, it appeared that, as the train was approaching a station at which the plaintiff was to alight to take a connecting train and before the brakeman had called the name of the station, the plaintiff started for the platform to be ready to alight, that the door of the car had been left open by a conductor or a brakeman, apparently for purposes of ventilation, that as the plaintiff stepped upon the threshold there was an unusual jolt of the car and to protect herself from falling she took hold of the jamb of the door, and as she stepped upon the platform the door swung to and caught her fingers, causing the injuries. Held, that, even if there was evidence that the plaintiff was in the exercise of due care, which was doubted, there was no evidence of negligence of the defendant.</p>

<p>Marriage and Divorce. Practice, Civil, Judgment or decree.</p> <p>The libellant in a suit for divorce at any time before the case is tried has the right to have his libel dismissed without a decision upon the merits, and if before trial he files a statement that if the case cannot be continued he “consents that his libel be dismissed, without prejudice, for want of prosecution,” the judge has no authority to order the libel dismissed without qualification.</p>

<p>Tort for personal injuries from being knocked off the running board of an open electric car of the defendant by a pole of the defendant near the track, as the car was passing around a curve on Washington Street in that part of Gloucester called Annisquam. Writ dated October 29,1903.</p> <p>At the trial in the Superior Court DeCourcy, J. refused to order a verdict for the defendant. The jury returned a verdict for the plaintiff in the sum of $2,000; and the defendant alleged exceptions.</p>

Contract, the first count on an assignment of wages or order for $116.67 made by the defendant, which is quoted in the opinion, alleging that the plaintiff presented the order to the city of Boston, to which it was addressed, that the city refused to pay it, and that this refusal was caused by the false, fraudulent and tortious acts of the defendant, with a second count for $116.67 for money had and received to the plaintiff’s use. Writ dated November 21, 1902.

Tort, with three counts. Writ dated June 26, 1902. The defendant in answer to the first count pleaded a general denial, demurring to the second and third counts on the grounds hereafter stated.

<p> Conversion. Trustee Process. Attachment. </p> <p>In an action against a common carrier for the alleged conversion of articles entrusted to him for transportation, it appeared that the plaintiff employed and paid the defendant to carry certain boxes, barrels, trunks and a sewing machine to the defendant’s office and there to keep them until ordered by the plaintiff to take them to a railroad station for shipment, that the boxes, barrels and trunks contained household goods, wearing apparel, a ten dollar bill and other articles, but that the defendant did not know what they contained, that a few days later the plaintiff made a general demand for the property and the defendant refused to let him have it, saying that the property had been attached and that he would let the law take its course. The defendant offered to show that he bad been summoned as trustee in an action in which the plaintiff under a somewhat different name was the defendant, and that he had appeared therein but had not yet been charged or discharged as trustee. The judge excluded the evidence, and ruled that the service of the trustee writ on the defendant and the pendency of the action in which it was served were not a defence to the action for the conversion. Held, that the ruling was wrong, it being the duty of the defendant, in spite of the plaintiff’s general demand, to keep the goods which had been attached in his hands so that if charged as trustee he could deliver them to the officer to be taken on execution. Semble, that, even under a general demand, the plaintiff might have a right to have the sewing machine delivered to him. See R. L. c. 177, § 34, cl. 12.</p>

<p>Bill ir equity, filed, as amended and substituted by consent and leave of court, on February 11,1905, by Robert Weitze of Cambridge and such other holders of voting trust certificates of the common stock of John P. Squire and Company, a corporation, as might become parties thereto, against Harry L. Bur-rage and Russell A. Ballou of Newton, Edwin C. Swift of Beverly, the City Trust Company, a corporation, and Edward K. Hall and James S. Murphy of Boston, Edward P. Shaw of Newburyport, John Gr. Massie of Providence in the State of Rhode Island, and James M. Steadman of Portland in the State of Maine, constituting the protective committee of the pool of John P. Squire and Company common stock under a declaration or agreement of trust dated February 5, 1903.</p> <p>The bill was brought to set aside a sale of voting trust certificates of the common stock of the John P. Squire and Company corporation made by the protective committee to the defendant Ballou by an agreement in writing dated October 30,1903. The averments of the bill are described in the opinion. The prayers of the bill were as follows:</p> <p>First. That the court should issue an injunction enjoining and restraining the defendant trust company from delivering the voting trust certificates to the protective committee, or to the defendant Ballou, or to their nominees until the further order of the court, and from paying over to the protective committee or to any person, until the further order of the court, the sum of $25,000 deposited with it under the agreement of sale, or any other sum of money which it had received on account of the pretended agreement of sale from the defendant Ballou or the defendant Swift or their attorney or agent.</p> <p>Second. That the individual defendants comprising the protective committee should be enjoined and restrained from carrying out or attempting to carry out the pretended agreement of sale with the defendant Ballou, or with his nominee, or any agent or attorney of Ballou.</p> <p>Third. That the pretended agreement of sale should be adjudged invalid and of no effect upon the rights of the plaintiff and other creditor stockholders, depositors under the protective committee agreement.</p> <p>Fourth. That the defendant Burrage should be decreed to pay the costs of the suit.</p> <p>Fifth. That such other and further relief might be granted to the plaintiff as justice and equity might require.</p> <p>The agreement, called the pooling agreement, which created the protective committee and defined their powers was dated February 5,1903. This agreement was signed by the members of the committee and by the owners of the voting trust certificates of the common stock of John P. Squire and Company. The fourth article of this agreement, which is referred to in the opinion, was as follows:</p> <p>“ é. The committee is authorized to negotiate in behalf of the owners for the sale of the pooled stock, and is further authorized to agree to sell not less than two thirds of the pooled stock at such price as may be approved in writing by owners representing two thirds of the pooled stock.</p> <p>“ Provided, however, the committee shall make no agreement to sell any part of the pooled stock which does not entitle all of the owners of the pooled stock to sell at the price authorized by the owners of two thirds of the stock as aforesaid.</p> <p>“ To such owners of pooled stock as do not in writing within ten days after notice from the committee signify their desire of selling their stock at the price authorized by the owners of two thirds of such stock as aforesaid, the committee shall send an order on the depositary, directing the return of such owner’s stock upon surrender of his voucher therefor. Failure by any owner to notify the committee within ten days of his desire to sell his stock at the price authorized by the owners of two thirds of the pooled stock as aforesaid, shall be considered as a waiver of all rights under the provisions of this agreement.”</p> <p>The agreement of sale which the bill sought to set aside was as follows:</p> <p>“ Memorandum of Agreement between Russell A. Ballou, his successors or assigns, party of the first part, and Edward K. Hall, James S. Murphy, John G. Massie, E. P. Shaw, and James M. Steadman, their successors or assigns, hereinafter called the Committee, parties of the second part, and the City Trust Company of Boston, its successors or assigns, hereinafter called the Trust Company, pai’ty of the third part.</p> <p>“ Whereas there is deposited in the City Trust Company under the terms of a so-called pooling agreement, dated February 5, 1903, between said committee and various common stockholders of John P. Squire & Company, approximately twenty-eight thousand shares of the common stock of John P. Squire & Company, or certificates entitling the holders thereto, hereinafter referred to as stock, and,</p> <p>“ Whereas the said Ballou is ready to purchase all of said pooled stock, or any part thereof, not less than fifteen thousand shares, and,</p> <p>“ Whereas said committee is ready to sell to said Ballou at said price such part of said pooled stock as they may be lawfully authorized to sell under the terms of said pooling agreement;</p> <p>“ Now therefore in consideration of the premises and in the further consideration of the mutual promises and agreements' hereinafter set forth, the parties hereto agree as follows:</p> <p>“ 1. The said Ballou agrees to purchase all of said stock which the said committee may he authorized to sell, and pay therefor the sum of fourteen dollars ($14.00) per share, provided, however, that the said Ballou will not accept or purchase an amount of less than fifteen thousand shares. This offer is to remain open for acceptance by the committee until 6 P. M. November 3, 1903. If on or before said time the committee by writing delivered to said Ballou at No. 35 Federal street, in said Boston, notifies the said Ballou that they will sell and deliver, under the terms hereof, shares of said stock exceeding fifteen thousand shares in amount, this contract and all the terms thereof shall become binding upon the parties hereto, and the said Ballou agrees to accept and pay for the number of shares named in said writing, under the terms hereof.</p> <p>“ Said Ballou further agrees to accept and pay for, under the terms hereof, within twelve (12) days from said date, any part or all of the balance of said pooled stock which the committee may agree to sell within said twelve (12) days.</p> <p>“ The payments for stock agreed to be sold under the terms hereof shall be made to the City Trust Company as follows: Within twenty-four (24) hours after the total amount of stock to be delivered by the committee under the terms hereof shall have been ascertained and communicated to said Ballou at said address, in writing, the said Ballou shall deposit with the City Trust Company an amount of cash equal to $3.50 per share for all stock agreed to be delivered; a second payment of an amount equal to $3.50 per share shall be deposited with the City Trust Company thirty (30) days thereafter; a similar amount sixty (60) days thereafter, and a similar amount, or the final payment, shall be deposited ninety (90) days thereafter. Interest at five per cent, from the date of the first payment shall be added to the respective amounts deposited on the second, third and fourth payments.</p> <p>“ The said Ballou agrees to deposit with the City Trust Company, upon the execution of this agreement, the sum of twenty-five thousand dollars ($25,000). This amount is to be forfeited to the committee for the benefit of their depositors if the said Ballou fails to make the first payment of $3.50 per share, as hereinabove provided; but if said payment is made in accordance with the terms hereof, said twenty-five thousand dollars ($25,000) shall be applied to and considered as a part of said payment. In case tbe committee fails to secure the necessary authority as aforesaid, to sell to the said Ballou under the terms hereof, any part of said pooled stock, then the trust company shall return said twenty-five thousand dollars ($25,000) to the said Ballou.</p> <p>“ In case there is a default of more than ten (10) days on the part of the said Ballou in making either the second, third or fourth payments, as hereinbefore set forth, the total amount of the first payment shall be forfeited to the committee for the benefit of their depositors, the balance of payments, if any, shall be returned to said Ballou, said Ballou shall forfeit all his right hereunder, and the trust company is authorized to pay over all moneys so forfeited to the committee.</p> <p>“ The said Ballou further agrees to pay to the committee on the date of the last payment, as hereinbefore set forth, a sum not to exceed thirteen hundred dollars ($1300), the expenses of the committee in connection with the said pool; the purpose of this clause being to provide for such stockholders as may sell their stock under the terms hereof, a price of fourteen dollars ($14.00) net, without any assessment for expenses. A pro rata deduction from said amount shall be made for all shares not sold under the terms hereof.</p> <p>“ 2. The committee agrees to sell and deliver to said Ballou, under the terms hereof, all shares of stock which they may be legally authorized to so sell and deliver under the terms of said pooling agreement.</p> <p>“ 3. The trust company agrees to accept all moneys deposited with it by the said Ballou, and to pay out the same as and when requested by the committee under the terms hereof.</p> <p>“ 4. Within a reasonable time after final payment is made to the trust company, the committee shall cause to be surrendered to the trust company the receipt vouchers issued by the trust company to the depositors of stock, and upon delivery of such vouchers to the trust company, the company shall deliver to Ballou or his order the respective stock released thereby, and pay to the depositors of such stock the purchase money therefor; provided that cash deposited for the purchase of stock, receipt . vouchers for which are not surrendered within ninety (90) days after the final payment, shall be returned to said Ballou.</p> <p>“Details of transfer of the stock are to be agreed upon by the parties hereto after the first payment is made to the trust company.</p> <p>“ 5. It is understood that in this agreement the committee are • acting not as principals but as agents representing owners of the pooled stock, and the committee assume no individual liability of any nature whatsoever by reason of the execution of this agreement.</p> <p>“ In Witness Whereof the parties hereto have hereunto set their signatures this thirtieth day of October, 1903.</p> <p>“ Executed in triplicate.”</p> <p>Here followed the signatures of Ballou, of the five members of the protective committee, and of the City Trust Company by its treasurer.</p> <p>Before the foregoing contract was executed the protective committee sent to the holders of the voting trust certificates the following communication:</p> <p>“ October 30, 1903.</p> <p>“ To the Depositors:</p> <p>“Your committee has to-day been offered fourteen dollars (#14) per share net for the pooled stock ; twenty-five thousand dollars cash to bind the bargain has been deposited with the City Trust Company. This offer must be accepted or rejected on or before November third.</p> <p>“ If you wish to have your stock sold at this figure, fill out the enclosed card and send it in by return mail.</p> <p>“Your committee unqualifiedly recommends the acceptance of the offer, and the majority of the depositors have already authorized your committee to accept the offer.</p> <p>[Signatures of the members of the protective committee.]</p> <p>“ In signing the enclosed card be careful to sign in the same name which appears on your certificate.”</p> <p>The card referred to was signed and returned by the plaintiff and the other certificate holders, and was as follows:</p> <p>“ Protective Committee.</p> <p>“ Pool of Common Stock of John P. Squire & Co. “James S. Murphy, John G. Massie, E. P. Shaw, James M.</p> <p>Steadman, E. K. Hall, Protective Committee,</p> <p>“ Room 714, 101 Milk Street, Boston.</p> <p>“Gentlemen': You are hereby authorized to sell the John P. Squire & Co. stock or certificates deposited in the pool of the Protective Committee at the City Trust Company, Boston, by the undersigned, at such price as may be agreed upon by your committee, and such price is hereby approved by the undersigned. Hot less than $14 net.</p> <p>“ This authority is given in pursuance of and subject to the provisions of the pooling agreement of February 5, 1903, between your committee and the undersigned and all other depositors.</p> <p>“ Oct. 1903.”</p> <p>All of the defendants demurred to the bill for want of equity, demurrers being filed respectively for the defendant Burrage, for the members of the protective committee, for the defendant Ballou, and for the defendant Swift.</p> <p>The case came on to be heard before Hammond, J. upon the amended bill of complaint, and the demurrers thereto. The justice sustained the demurrers and ordered that the bill be dismissed. At the request of the plaintiff, he reported the case for determination by the full court.</p>

<p> Covenant. Deed. </p> <p>In 1897 the defendant conveyed to the plaintiff certain land on or near Columbus Avenue in Boston by a quitclaim deed covenanting against all incumbrances made or suffered by the grantor. In 1895 the city of Boston under St. 1894, c. 416, by valid orders laid out an extension of Columbus Avenue, affecting the land in question. The work of construction under these orders, which began before the defendant gave the deed to the plaintiff and was completed in 1899, was done in violation of the statutes applying to it and no valid assessments for betterments could be made for it. St. 1902, c. 527, authorized the street commissioners to assess betterments for work completed within the six years next preceding the passage of the act, and under this statute the street commissioners imposed a valid assessment on the land for the work completed in 1899, which the plaintiff paid. Held, that the defendant was not liable for breach of covenant as at the time the deed was given there was no incumbrance.</p>

<p>Nuisance. Negligence. Evidence. Landlord and Tenant. Practice, Civil, Exceptions.</p> <p>One maintaining a nuisance by carrying on a business contrary to the provisions of a statute is liable to a person injured by the nuisance.</p> <p>In an action for injuries to greenhouses occupied by the plaintiff and to plants and flowers therein from an explosion on premises of the defendant, it appeared that the defendant maintained a building upon its land for the storage or keeping of gasoline and kerosene, two of the products of crude petroleum, in violation of the provisions of R. L. c. 102, §§ 113,114, that in the rear of the building were three large iron tanks used for keeping kerosene and gasoline, which were fitted with pipes running to the large filling room of the defendant’s building through which oil was drawn from the tanks, that a small room was partitioned off which was used for gluing barrels, that there was a boiler in the small room in which a fire was built when gluing was done, and that the two rooms were connected by a door which closed automatically, that this door was hung on trucks at the top, was not stable at the bottom and would swing out from the bottom, that the barrels were filled with gasoline through an automatic faucet which shut off with a spring, that it did not always close properly and then the gasoline would run over, that a lamp was used for heating glue and generally was kept lighted, that there was always a strong smell of gasoline and kerosene about the room and a good many feet from it, that on the morning of the explosion in which the plaintiff’s property was injured, a servant of the defendant was engaged in gluing barrels, that in the explosion the defendant’s servant was killed and near his body was found the body of a man not in the employ of the defendant. Held, that the jury were warranted in finding both that the defendant was maintaining a nuisance, and that it was conducting its business in a negligent manner.</p> <p>Judicial notice will be taken of the fact that kerosene is a product of crude petroleum.</p> <p>A lessee of greenhouses can recover for their injury from an explosion caused by the fault and negligence of another, although his lease contains a provision under which he is not hound to repair damage caused by fire or other unavoidable casualties.</p> <p>Where a party to an action asked for certain rulings which were refused properly by the judge because too broad, and excepted to the refusal, but did not except to any part of the judge’s charge, this court in dealing with the exceptions has no occasion to consider whether the rulings given were correct or not.</p>

<p>Equity Pleading and Practice, Master’s report. Equity Jurisdiction, To reach and apply equitable assets.</p> <p>. Exceptions to a master’s report relating only to matters of fact cannot be considered unless the evidence is reported.</p> <p>In a suit in equity under R. L. c. 159, § 3, cl. 7, to reach and apply equitable assets, if the alleged debtor in his answer sets up the defence that the other defendants have not in their hands any assets or securities in which the alleged debtor has an equitable interest that cannot be attached at law, and insists on this defence before a master, offering evidence to show that there is no such equitable interest to be reached, the exclusion of this evidence by the master is erroneous.</p> <p>In a suit in equity under R. L. c. 159, § 3, cl. 7, to reach and apply equitable assets, if the alleged debtor sets up in his answer that the other defendants have not in their hands assets in which he has an equitable interest and offers evidence to prove this averment which is excluded, and if the plaintiff introduces no evidence on the subject, the defendant is entitled to a decree.</p>

<p>Negligence, Liability to servant of independent contractor.</p> <p>R. L. c. 106, § 76, is intended to preserve but not to enlarge the common law liability of the owner of machinery to a servant of a contractor employed by the owner for an injury caused by a defect in the machinery due to the owner’s negligence or to that of some person entrusted by him with the duty of keeping it in proper condition.</p> <p>The owner of machinery, who employs a contractor to do certain work by means of the machinery, is not liable for an injury to an employee of the contractor caused by an obvious imperfection in the machinery if it is not out of repair.</p> <p>In an action by a coal shoveller for injuries from a lump of coal falling on him while employed by a stevedore in trimming coal in the hold of a barge at the defendant’s wharf where the coal from the barge was being unloaded by an automatic device which tipped over a tub at the end of the arm of a derrick and after emptying the coal swung the tub back right side up to the hold of the vessel for another load, it appeared that the plaintiff was hired by the stevedore on the day of the accident and that he was injured the first time that "the tub swung back after he went to work. There was evidence warranting a finding that the automatic apparatus was not balanced properly and for this reason the tub did not always come back latched and with its mouth up after discharging its load, and that this defect was the cause or a contributing cause of the falling of the lump of coal on the plaintiff, but there was no evidence that there was anything out of repair or that the apparatus was not in its usual condition. Held, that the plaintiff could not recover, the defendant having been under no duty to him to remove the obvious imperfections of the apparatus which it invited him to use.</p>

<p>Indictment, with thirty-eight counts, found and returned in the Superior Court for the county of Essex in May, 1904, charging the defendant, a clerk and servant of the Arlington Co-operative Association, with making false entries in violation of R. L. c. 208, § 58.</p> <p>At the trial in the Superior Court before Stevens, J. the defendant moved to quash the indictment “ because said indictment does not completely and fully, substantially and formally set forth any offence known to the law, in that in none of said counts is it alleged that the defendant was charged with any duty in reference to the books of the corporation named in said indictment, or had access or right of access to said books.” In several of the counts the indictment followed the language of the statute. The judge denied the motion, and the defendant excepted.</p> <p>It appeared that the Arlington Co-operative Association was a corporation organized under R. L. e. 110, § 7, and carried on a retail business in groceries, wood and coal, dry goods and boots and-shoes in Lawrence, having several branch stores situated in different parts of that city, that the business was a cash business, the profits of which were intended to be distributed to its shareholders in quarterly dividends, and that the defendant besides being the clerk of the corporation was also its general manager.</p> <p>Witnesses called by the Commonwealth testified without objection to certain statements made by the defendant at a meeting of the directors on October 26, which are referred to in the opinion, to the effect that the shortage which appeared in the cash was caused by paying dividends that had not been earned, and that the dividends had been declared to save the honor of the association. The witnesses then were asked as to statements made by the president of the corporation at that meeting in the presence of the defendant, to which the defendant made no reply, although previously he had taken part in the conversation. The counsel for the defendant stated that, while he would make no objection to any statements made by the defendant, he objected to evidence of statements made by the president or any third party to which the defendant made no reply. The judge admitted the statements made in the presence of the defendant which are quoted in the opinion, and the defendant excepted.</p> <p>The defendant asked the judge to rule:</p> <p>1. That entries made for the purpose of making a showing at the end of the quarter to induce the declaring of dividends would not be entries with intent to defraud within the meaning of the statute.</p> <p>2. That the check books issued by the New England Trust Company and the Merchants National Bank, on which were kept the memoranda of deposits and withdrawals from the banks, were not books of entry of the corporation within the meaning of the statute.</p> <p>The judge refused to make these rulings and the defendant excepted. One count was nol. grossed. The jury returned a verdict of not guilty on nine counts, and of guilty on all the remaining counts. The defendant alleged exceptions.</p>

<p>Tort by the owner of a public amusement enterprise, called the Galatea Exhibit, for alleged negligent delay in forwarding from Winchendon to Milford scenery and other theatrical property used by the plaintiff in his show business. Writ dated August 16, 1902.</p> <p>In the Superior Court the case was tried before FeCourcy, J. The character of the evidence as to notice to the defendant of the purpose for which the property was to be used is described in the opinion. It was agreed by the parties that the money expended by the plaintiff in looking up his property amounted to $4, and the judge ordered the jury to return a verdict for the plaintiff in that sum. He ruled that the plaintiff could recover no more ; and the plaintiff alleged exceptions.</p>

<p> Judgment. </p> <p>A judgment on the merits is a bar to an action between the same parties for the same cause of action not only on all the issues actually tried in the case but on all which might have been tried in it.</p> <p>A judgment for the defendant in an action brought by a girl less than four years of age against a street railway company for injuries from being struck by an electric car of the defendant through the negligence of its servants and agents, rendered on the ground that the plaintiff and her parents were not in the exercise of due care, is a bar to a subsequent action between the same parties for the same injuries, in which the declaration alleges wilful negligence on the part of the defendant and wanton and reckless conduct on the part of its servants and agents which would make the defendant liable although the negligence of the plaintiff and of her parents might have contributed to her injuries.</p>

<p> Negligence. Street Railway. </p> <p>A street railway company may be found to have been negligent in operating cars decorated in such a manner as to frighten horses, and to be liable for injuries thus caused.</p> <p>Whether a street railway company could be found to be liable for injuries to a horse who ran away when frightened by the noisy singing, shouting and horn blowing of a party of excursionists in one of its cars, whose disorderly conduct it made no effort to suppress, qucere.</p> <p>In an action against a street railway company for injuries to the plaintiff’s horse who ran away when frightened by electric cars of the defendant decorated with strips of white cotton cloth and bunting while carrying an excursion party, there was evidence, that the plaintiff’s horse was gentle and not afraid of electric cars, that he was harnessed to a delivery wagon and was standing in front of the plaintiff’s store secured by a rope to an ordinary twenty-eight pound weight, that the excursion cars followed a regular car at distances of from six hundred to a thousand feet apart, that the bunting with which the cars were decorated was flapping with the motion of the cars and was bulging in and out, that on the second excursion car one end of the bunting was loose and in motion, that the cars were running “pretty fast,” that there was a great amount of noise made by the passengers on one of the excursion cars in singing, shouting and blowing horns, that on the approach of the second excursion car the horse turned, ran down the street and was injured, that before and when the horse ran away the plaintiff and his clerk were engaged in putting up orders, that their attention was attracted to the noise upon the excursion car, but that neither of them left his place in the store to do anything with reference to the horse before he started to run. Held, that there was evidence for the jury of due care on the part of the plaintiff and of negligence on the part of the defendant. Whether the defendant would have been liable if it had been found that the injuries were caused by disorderly conduct of its passengers which it made no effort to suppress was not considered.</p>

<p>Information by the Attorney General, filed January 14, 1903, under R. L. c. 188, to recover Loon Island in Chebacco Pond in the town of Hamilton, alleged to have been unlawfully entered upon and held by the defendant.</p> <p>In the Superior Court the case was referred to Alden P. White, Esquire, as auditor. Later the case came on for trial before Lawton, J. No evidence except the auditor’s report was introduced. The judge found, that, if under the order of reference any finding of facts by him was necessary, the facts were as stated in the auditor’s report, and ruled pro forma that on these facts judgment should be entered for the defendant. At the request of the parties he reported the case for determination by this court. If his ruling was right, judgment was to be entered for the defendant; if not, judgment was to be entered for the plaintiff or such entry was to be made as the law might require.</p> <p>Upon the whole case the auditor found for the defendant, finding that the Commonwealth does not own Loon Island. His finding in regard to the size and character of the island is quoted in the opinion, where other material facts found by the auditor also are stated. It was found by him as an admitted fact that on or about February 20, 1901, the defendant entered upon Loon Island “ for the purpose of acquiring title thereto by adverse possession,” that he erected a cámp house thereon, and that he ever since has been in possession of the island under a claim of right, assuming to own and control it.</p>

<p> Railroad. Abandonment. </p> <p>If a railroad company acquires by a warranty deed the fee of land included in its location, begins work on the location and grades a part of the roadbed across the land, and afterwards abandons the location for railroad purposes and establishes another location elsewhere, this does not divest the railroad company of its title to the land.</p> <p>Whether the owner of the fee of land can lose his title by abandonment for any length of time short of the period of limitation, qumre.</p>

<p>Bill in equity, filed in the Probate Court for the county of Bristol on September 23,1904, by the trustees under the will of Sylvia Ann Howland, late of New Bedford, for instructions.</p> <p>The clause of the will to be interpreted is quoted in full in the first paragraph of the opinion.</p> <p>The Probate Court made a decree “ that the estate given by the sixth section of the will of Sylvia Ann Howland belongs only to those children of Keziah Price who were living at the decease of said Keziah Price, and Charles R. Price as executor of Abbie C. Bassett is not entitled to a share thereof.” Charles R. Price, executor, appealed.</p> <p>The case was heard by Barker, J., who ordered that the decree of the Probate Court be affirmed, and that the case be re.manded to the Probate Court for further proceedings. Charles R. Price, executor, appealed.</p>

<p> Landing Place. Limitations, Statute of. Nuisance. </p> <p>Under Rev. Sts. c. 24, § 61, Gen. Sts. c. 46, § 1, Pub. Sts. c. 54, § 1, R. L. c. 53, § 1, no right to maintain a private building on a public landing place the boundaries of which can be made certain can be acquired by a possession of less than forty years. Here in the case of a boat house it was held that the evidence justified a finding that for many years before the limit of time had run there had been a substantial abandonment of the use to which the building formerly had been put, and that there was nothing to prevent the removal of the boat house as a nuisance.</p>

<p> Sales of Merchandise in Bulk. Mortgage of Chattels. </p> <p>St. 1903, c. 415, in regard to sales of merchandise in bulk, has no application to a chattel mortgage of a stock in trade given in good faith for a valuable consideration and duly recorded.</p> <p>A chattel mortgage of a stock in trade, declared to apply to all future acquired stock which the mortgagor shall have in his business, given in good faith for a valuable consideration, operates as an executory agreement which subjects after acquired goods to the lien of the mortgage if the mortgagee takes possession of the goods before the rights of third persons intervene. The existence of the claim of a creditor without attachment or seizure on execution is not such an intervention.</p> <p>If by the terms of a chattel mortgage five days’ notice in writing of a foreclosure sale is required, and it appears that a notice either of four or five days was given, although the mortgagor may have had the right to set aside the sale for insufficient notice, yet if he has assented to the sale and treated the notice as good, the irregularity does not affect the title of a bona fide purchaser at the sale as against a creditor of the mortgagor.</p> <p>In the foreclosure of a chattel mortgage under a power of sale contained in the mortgage it is not necessary that a notice of the foreclosure and an affidavit of the service thereof should be recorded.</p>

<p> Negligence. Street Railway. </p> <p>In an action against a street railway company by a passenger injured in jumping from a car of the defendant standing on a turnout when it was about to be run into by another car of the defendant which had entered the turnout, it was admitted that the plaintiff was in the exercise of due care, and, on the issue of the negligence of the motorman of the moving car, it appeared that shortly before the accident the switch was set right and was changed by a mischievous boy, that the motormen had been warned by the superintendent of the defendant to have their cars under control when approaching a switch, and the motorman of the moving car testified that it was his practice “ when approaching the switch to slow down pretty well and steady his car; that on this occasion'lie did not notice that the switch was open until he was within twenty feet of it.” He admitted that the collision of the two cars took place eighty or ninety feet after he passed the switch, the motorman of the other car putting it at eighty or a hundred feet. The motorman of the waiting car saw the approaching car fifteen hundred feet away while the motorman of the moving car did not appear to have seen the car on the turnout until lie passed the switch. There was contradictory evidence on the question whether the rails on the turnout were slippery. Held, that there was evidence of negligence on the part of the motorman of the moving car to submit to the jury;</p>

<p>Contract for a balance of $300 alleged to be due the plaintiff for services as clerk of the board of police of the defendant during the year 1902. Writ dated July 23,1903.</p> <p>In the Superior Court the case was submitted to Stevens, J. upon an agreed statement of facts permitting the court to draw inferences of fact, as stated in the opinion. The judge found for the plaintiff, and assessed damages in the sum of $337.50, including interest from December 31, 1902. The defendant appealed.</p> <p>The case was submitted on briefs at the sitting of the court in November, 1905, and afterwards was submitted on briefs to all the justices.</p>

<p>Devise and Legacy, Construction. Judgment. Probate Court. Equity Jurisdiction, Bill for instructions. Trust. Executor and Administrator.</p> <p>A will contained the following provision: “I direct my said trustees to pay in like manner, one quarter part of the nett income of said residue and remainder to the children of my deceased son H. during their natural lives, to be paid to them severally, half yearly, or oftener if convenient to my trustees, on their personal receipts, or their guardians and in case any of said H.’s children decease without issue, the share of such deceased child to go to the survivors, and upon the decease of my said son H.’s children I direct that one quarter part of the residue and remainder of my estate be distributed among his grandchildren, such grandchildren representing their parents and receiving their shares as they respectively, attain the age of twenty one years and in the mean time to receive the income of their respective shares.” Held, that the interests of the grandchildren of H. vested on the death of the testator, subject to being lessened by the opening of the remainder to let in after born grandchildren, and that the interests thus vested in the grandchildren included their vested interests in the contingent remainders which would accrue to them on the death of any of H.’s children without issue.</p> <p>On a bill by a trustee under a will for instructions as to the distribution of a fund in his hands, it appeared that the fund accrued under a provision of the will upon the happening of a certain contingent event, and that many years before on the happening of a like contingent event a distribution under the same clause of the will had been made under a decree of the Probate Court, which omitted from the distribution certain persons entitled to share in it, that at the hearing of the former bill for instructions on which the decree was made the persons omitted from the distribution were living in a foreign country and had no knowledge of the proceedings, but that before the decree was made general notice was given by publication in accordance with law and the rules of the court, and also that the executor of the will under which the excluded persons claimed received notice of the petition and joined in a request that the distribution should be made as ordered by the decree. Held, that the former decree of the Probate Court was conclusive upon the parties in regard to the fund distributed under it, and that the payments made under it could not be interfered with, but that the decree had no effect upon the rights of the parties to funds accruing after it was made, and that subsequent payments, distributed erroneously through a misunderstanding by the parties of their rights, should be adjusted in making the present distribution, (all parties interested being before-the court, there being no laches, and all claims for income being waived,) by deducting the overpayments and giving the amount of them to the persons wrongly omitted.</p> <p>In the distribution of a fund held by a trustee under a will, if it appears that one of the persons whose estate is entitled to share in the distribution, who was the owner of a vested remainder and of a vested interest in contingent remainders, died, at the age of two years, more than forty-seven years before the distribution, leaving his father as his only heir at law and next of kin, and that an administrator of the estate of the infant then was appointed and since has died, it is not necessary that an administrator de bonis non of the infant’s estate should be appointed, and the payment of his share may be made directly to the administrator de bonis non with the will annexed of his father.</p>

<p> Gift. Trust. Savings Bank. </p> <p>If a woman who lias made deposits in a savings bank in her name as trustee for one of her sisters, the account having been begun by transferring to it the surplus of the depositor’s own account in the same bank over §1,000 when that was the largest amount allowed to a depositor, declares a few weeks before her death to the two daughters of the sister named as beneficiary that the money belongs to their mother, then deceased, and will go to them and that others of the next of kin of the declarant cannot touch it, this can be found to be an admission that the deposit belonged to the sister named as beneficiary, a perfected trust having been created in her favor by way of gift.</p>

<p>Practice, Civil, Exceptions.</p> <p>Under R. L. c. 173, § 106, as under previous statutes, a judge has no power to allow further time for filing exceptions on a motion made after the expiration of the twenty days prescribed for the filing.</p>

<p> Municipal Corporations. Tree Warden. Shade Trees. </p> <p>A town lawfully can expend money to reimburse a tree warden for money expended by him in defending unsuccessfully a suit brought against him by the town for removing guide boards from shade trees in the village square placed there by authority of the town, if in doing the acts complained of and in defending the suit the tree warden was acting in good faith in the performance of what he believed to be a public duty.</p>

<p> Marriage and Divorce. Husband and Wife. </p> <p>A wife legally cannot refuse to accompany her husband in a reasonable change of domicil.</p> <p>The wife of a skilful mechanic, both husband and wife being natives of England where they were married and where several children were born to them, who refuses to accompany her husband when he moves to America “ to better his condition in life,” and who on two occasions afterwards, when he has sent her money sufficient to bring her and the children then with her in a comfortable manner to America, again refuses to come, can be found to be guilty of utter desertion which will justify the granting of a divorce to her husband on this ground under E. L. e. 152, § 1.</p>

<p>Bill in equity, begun by ■writ dated August 10, 1904, alleging that the plaintiff was admitted as a member of an association founded by the plaintiff and the defendants called the Congregation of the Most Holy Lady of Mount Carmel, and that thereafter the defendants wrongfully expelled the plaintiff from that association, that the plaintiff was taken sick and rendered unable to work for a period of five weeks and that during his sickness the plaintiff expended large sums of money in employing a physician to attend him, and that under the constitution and by-laws of the association sick benefits were due to the plaintiff, praying, 1, for an order to the defendants directing that the plaintiff be reinstated as a member of the association, 2, that the defendants be ordered to pay the sick benefits to the plaintiff as provided by the constitution and by-laws, 3, that the defendants be ordered to pay the plaintiff what he has expended for medical attendance rendered necessary by the neglect or refusal of the association to provide medical attendance as provided by the constitution and by-laws, and, 4, for further relief.</p> <p>The defendants demurred to the bill, alleging seven causes of demurrer, of which the first three, being those considered by the court, were as follows: 1. The plaintiff has not stated such a case as entitles him to any relief in equity against these defendants or any of them. 2. The plaintiff has a plain, adequate and complete remedy at law. 3. The amended bill is multifarious, in that distinct matters and different causes of action are joined therein which cannot properly be tried together.</p> <p>The Superior Court sustained the demurrer and ordered that the bill be dismissed. The plaintiff appealed.</p>

<p>Complaint, received and sworn to in the Lynn Police Court on September 29, 1905, charging the defendant with going from place to place in Lynn, exposing for sale and selling goods, wares and merchandise, to wit, tea and coffee, which were of the growth or production of foreign countries, without a license, the same not being among the articles enumerated in R. L. c. 65, § 15, as those which may be exposed for sale and sold without a license.</p> <p>On appeal to the Superior Court the case was tried before GrasJcill, J. The following facts were agreed: On the date set out in the complaint the defendant went from place to place in Lynn exposing for sale and selling tea and coffee to householders for domestic use. The tea and coffee were of the growth or production of foreign countries. The defendant had no license from the secretary of the Commonwealth issued under R. L. c. 65, §§ 19-21. The acts of the defendant were not in violation of any ordinance or by-law of the city of Lynn. No testimony, other than the agreed facts, was introduced.</p> <p>The defendant asked the judge to rule as follows : 1. Upon the whole case no offence has been made out. 2. If any offence under the statute has been made out, the statute is in conflict with the Constitution of the United States. 3. If any offence under the statute has been made out, the statute is in conflict with the Constitution of Massachusetts.</p> <p>The judge refused to give any of the rulings requested, and instructed the jury that the evidence justified a verdict of guilty. The jury returned such a verdict; and the defendant alleged exceptions.</p>

<p>Elections. Voting Booth. Municipal Corporations. Boston. Way, Defect in highway.</p> <p>R. L. c. 11, § 186, does not confer on the aldermen of cities and the selectmen of towns, nor in Boston upon the board of election commissioners, the right to place a voting booth in the travelled part of a public street.</p> <p>A vote of the board of aldermen of the city of Boston granting permission to the board of election commissioners to place voting booths in the streets of that city does not confer the right to place a voting booth in the travelled part of a public street, the aldermen having no power to give such a right.</p> <p>A voting booth illegally in the travelled part of a public street may be found to constitute a defect in the highway.</p>

<p>Insurance, Eire. Evidence, Extrinsic affecting writings. Practice, Civil.</p> <p>A building in process of construction is not an “unoccupied building” within the meaning of that term included in a list of prohibited risks furnished by a fire insurance company to its agents.</p> <p>A provision in a policy of fire insurance, that the policy shall be void if the insured premises become vacant by the removal of the owner or occupant and so remain vacant for more than thirty days without the assent in writing or in print of the company issuing the policy, cannot be waived by an oral agreement of an agent of the company.</p> <p>In an action on a policy of fire insurance on a dwelling house, which is not described either as occupied or unoccupied, the plaintiff may show by oral evidence that the insured building was a dwelling house in process of construction which could not be inhabited until completion.</p> <p>A policy of fire insurance in the Massachusetts standard form contained the usual provision that it should be void if the premises thereby insured should become vacant by the removal of the owner or occupant, and should so remain vacant for more than thirty days without the assent in writing or in print of the company. The policy was issued to the owner of a house in process of construction described as a “frame dwelling house” and contained permission “for mechanics to work in and about said premises for thirty days from date,” which subsequently was extended for a further period, at the end of which the contractor turned over the house to the owner completed with the exception of water connections for which it was necessary to wait until water pipes were extended in the street on which the house stood. While the owner was waiting for an appropriation to be made by the town for this purpose the house remained empty for more than thirty days, but the owner lived in another house on the same tract of land about one thousand feet from the insured building which was in sight of himself and his family and which he passed daily in going to and from his work. Before the date of the town meeting at which the appropriation for the extension of the water pipes was expected the house was destroyed by fire. In an action on the policy the defences were set up of a forfeiture of the policy by the premises becoming vacant or by an increase of risk. Held, that the house had not become vacant by the removal of the owner or occupier within the meaning of the policy, and that the question whether allowing the house to remain vacant after the mechanics left while the plaintiff was exercising the supervision shown by the evidence .increased the risk of fire was an issue of fact which properly should be submitted to the jury, if the defendant wished to go to the jury on this branch of the defence.</p> <p>In an action on a policy of fire insurance where the defendant’s answer contains a general denial and allegations of two specific defences of forfeiture under the terms of the policy, and where neither in its pleadings nor during the trial has the defendant set up the defence that the action cannot be maintained because the plaintiff has not performed the condition precedent of submitting the amount of his loss to arbitration, the defendant at the argument before this court of its exception to a refusal of the judge to rule that upon all the evidence the action cannot be maintained, cannot raise the question of this new defence which if relied upon might have been raised by demurrer or answer and which has not been disclosed during the trial.</p>

<p> Partnership. Witness. Agency. Practice, Civil. </p> <p>In an action against the members of an alleged partnership of three persons for the price of lumber used in building an open air theatre, where the first defendant was defaulted and the case was defended by the second and third defendants on the ground that they were not partners of the first defendant, it appeared that the first defendant in the presence of the second defendant had ordered from the plaintiff lumber which had been paid for, that later the first and second defendants ordered more lumber which the plaintiff refused to sell on credit, a balance being due him on a previous order, that the first defendant then said that the next day he would have some one down to pay for the lumber and the balance of the old account, that the next day the second and third defendants came to the plaintiff’s office and the second defendant introduced the third defendant “as the moneyed man of the concern,” that the second defendant at the request of the third defendant then stepped out, and thereupon the third defendant asked the plaintiff how much the bill was and paid it, and on the plaintiff saying that he did not feel like sending any more lumber “ down there ” the third defendant told him that he was a man of means and that “ he was in the concern,” and “ as to sending goods down there everything would be all right and the bills would be paid,” and that he wanted the bills made out to the first defendant. The action was for the price of lumber supplied on the faith of this statement, the bill having been made out to the first defendant. No objection was made at the trial in behalf of the second defendant to the evidence of what wa3 said after he stepped out of the office. The judge refused to rule that there was no evidence of partnership. He instructed the jury that the second defendant was not bound by the conversation unless they should find that he went there and introduced the third defendant as the financial man of the concern, and that this was done -for the purpose of getting credit, and if the jury so should find, they then might take into consideration the other evidence with that of the introduction in determining whether the second defendant was a partner to the scheme, and, if he was, might find against him and all the defendants. Held, that the rulings were correct. Held, also, that the fact that the bill was made out to the first defendant did not prevent recovery against the other defendants, if the bill was made out in this way at the request of the third defendant and he was acting for the second defendant as well as for himself in making the request.</p> <p>A plaintiff, testifying as to the amount of an order for materials furnished by him to the defendant, may be allowed to refresh his recollection from entries made in an account book by his bookkeeper.</p> <p>One who sells goods or materials acting as the agent for another, and sends the bill on paper with a heading giving the name of his principal and his own name as agent, cannot maintain an action for the price of the goods or materials in his own name. The action must be brought in the name of the disclosed principal.</p> <p>Where in an action for goods sold and delivered or materials furnished, brought by an agent who acted in the transaction for a disclosed principal, the presiding judge in the Superior Court refuses to order a verdict for the defendant, without the defendant calling his attention to the fact that the action ought to have been brought in the name of the principal, and the plaintiff obtains a verdict, on exceptions to this ruling alleged by the defendant this court may order that the exceptions be sustained unless the plaintiff is allowed by the Superior Court, after hearing the defendant, to amend his writ and declaration by substituting the principal as plaintiff and the plaintiff does so amend, and may order that if such an amendment is allowed and made the exceptions shall be overruled.</p>

<p>Practice, Civil. Bills and Notes. Contract, Consideration. .</p> <p>If a party who has taken many exceptions at a trial submits his case to this court on a brief those exceptions not argued in his brief will be treated as waived, although he states in his brief that he relies on all the objections set forth in his exceptions.</p> <p>A defendant sued on a promissory note cannot show, in the absence of fraud, that he did not know the contents of the note when he signed it and thought that another person was the payee.</p> <p>The holder of a promissory note can maintain an action on it without showing any beneficial interest.</p> <p>A promise to end proceedings, in which a defendant has been arrested on an execution under R. L. c. 168, § 1, cl. 3, on the ground that he is an attorney at law and that the debt was for money collected by him for the plaintiff which he unreasonably neglected to pay to the plaintiff, is a good consideration for a promissory note signed by the defendant as maker and by another as surety, and the consideration is good against the surety as well as against.the maker. ■</p> <p>Under E. L. e. 173, § 48, the refusal of a presiding judge to allow a defendant to amend his answer is a matter of discretion, and, if the judge thinks that the purpose of an amendment is vexation and delay and not to enable the defendant to make a legal defence, it is proper for him to deny the motion to amend.</p>

<p> Negligence. Street Railway. </p> <p>A motorman running a special electric car in the early morning before daylight along a track where no regular cars run at that hour, the electric headlight according to his own testimony throwing a pencil of light for about a thousand feet about eight feet wide which shut out from his view objects outside of its ray, going at a high rate of speed without sounding his gong at cross streets at a time when persons ordinarily using such streets would not expect a car to be on the track, can be found to be negligent, and the railway company employing him can be found to be liable to a milkman whose wagon after coming from a cross street is struck from behind with great violence by' the special car.</p> <p>In an action by a milkman against a street railway company for injuries to the plaintiff and his horse and wagon from being run into from behind by a car of the defendant, it appeared that the plaintiff was driving in his milk wagon in the early morning before daylight along his regular route and came from a cross street into a street on which were tracks of the defendant, that his wagon was struck from behind with great violence by a special car of the defendant running at a high rate of speed, that the plaintiff had driven over the milk route for ten years and during that time never had seen a car on the tracks at that place at the hour that the accident occurred, that the time for the first regular car was forty minutes after the hour of the accident, and that before his wagon was struck by the car he did not hear the sound of a gong or any notice or warning from the men in control of the car. Held, that the plaintiff could be found to have been in the exercise of due care.</p> <p>There is no absolute rule of law that a person to exercise due care must look and listen before crossing the track of an electric street Tailway.</p>

Tort for personal injuries alleged to have been sustained ■while the plaintiff was a passenger on a car of the defendant. Writ dated September 16, 1902. At the trial in the Superior Court before Hardy, J. the jury-returned a verdict for the defendant, and the plaintiff alleged exceptions, raising the single question contained in the following statement taken from the opinion of the court: The only question presented by this case is one of evidence.

<p>Way, Defect in highway. Negligence.</p> <p>In an action for injuries from an alleged defect in a highway, if it appears that the plaintiff was injured in crossing a portion of a street undergoing repairs, and there is evidence on which it could be found that there were no barriers at the place where the plaintiff was injured, the defendant has no right to have an instruction given that the defendant is not liable to a person crossing at a place without a barrier if the jury find that the street was properly protected by barriers at the two ends of the part under repair and at the cross streets, as the question whether such barriers if they existed were sufficient is one of fact for the jury.</p> <p>A woman who on her way home from church on a Sunday morning attempts to cross a street which she knows has been closed and undergoing repairs, but before doing so looks to see whether the repairs are completed at that place and thinks that they are, can be found to be in the exercise of reasonable care in attempting to cross without ascertaining that the crossing is safe.</p>

<p> Negligence. Elevator. </p> <p>The proprietor of a freight elevator which passes between a sub-basement and the sidewalk of a street through an elevator well with a stone coping at the top and its sides below the coping covered with plaster which is scratched and banged in the operation of the elevator is not negligent toward his employees who make use of the elevator in failing to repair a hole in the plaster just below the coping five or six inches wide, two and a half inches high and from an inch to an inch and a half deep, in which the toes of an employee are caught under the coping as the elevator is ascending.</p> <p>An employee making use in the course of his employment of a freight elevator maintained by his employer assumes the risk of an injury occasioned by the walls of the elevator well being covered with plaster instead of a harder material.</p>

<p> Libel. </p> <p>In an action for libel, proof that a complaint was entered against the plaintiff charging him with larceny of less than §100 from a certain town, and that a warrant was issued on that complaint, does not prove the truth in substance of a statement published in the defendant’s newspaper that the plaintiff liad been arrested, that he was accused of taking town money for work he did not do, and that he was placed in custody on a certain evening and soon bailed, that according to the allegations of the complaint the plaintiff received pay for work he did not perform and charged the town and was paid for the use of a team on a certain day when the team was not used by the town, that it is understood that the amount involved is less than $100, and that whether any attempt to name any other date will be made on the part of the government is not stated.</p>

<p>Contract for $7,000. Writ dated September 15, 1902.</p> <p>The defendant filed an answer containing a general denial, and the following declaration in set-off:</p> <p>“ The defendant says that he is a manufacturer of paper and the firm of Horace Dutton and Company, hereinafter mentioned, doing business in Boston and in England, were previous to January 1, 1898, and up to the date of the writ dealers in paper stock.</p> <p>“ That previous to the year 1898, the defendant entered into a contract with Horace Dutton and Company, by which Horace Dutton and Company agreed to sell to him paper stock of various kinds used in the business of the defendant, at a price to be determined by adding to the actual price paid by Horace Dutton and Company in the foreign market for such stock, the amount of their office expenses incurred in making such purchases for the defendant, the actual freight, if any, paid by them on merchandise sold to the defendant, and the wharfage, insurance, and banker’s commission on such goods, and a sum of one dollar per ton of 2240 pounds. That said merchandise was purchased by Horace Dutton and Company in the foreign market, with the proceeds of drafts drawn under a letter of credit issued by the plaintiffs and that the merchandise so purchased was held by the plaintiffs, either as collateral or as their own property, to secure them for payments made by them in taking up such drafts.</p> <p>“ That such merchandise was delivered by the plaintiffs to Horace Dutton and Company under trust receipts, with authority to sell the same to the defendant for account of the plaintiffs; that the merchandise delivered to Horace Dutton and Company-under such trust receipts was immediately delivered by them to the defendant, with instructions to pay for the same to the plaintiffs, and accompanied by a bill for the same from the plaintiffs. That the defendant paid for a large amount of merchandise in this manner. That about August, 1900, the defendant discovered that Horace Dutton and Company and the plaintiffs had charged the defendant for such merchandise paid for by him more than was actually due for the same, and that he had therefore paid more than was actually due for the same, believing that the bills were correct, by the sum of $7,000.</p> <p>“ Wherefore, he prays that such overcharge may be set off against the claim of the plaintiffs, if any.”</p> <p>In -the Superior Court the case was submitted upon an agreed statement of facts, and that court ordered judgment pro forma for the defendant. The plaintiffs appealed.</p> <p>The agreed facts were as follows:</p> <p>The plaintiffs, J. B. Moors and Company, are bankers doing business in the city of Boston. The defendant, doing business as F. W. Bird and Son, is a paper manufacturer in Walpole, Massachusetts. The firm of Dutton and Company, at the time of the transactions hereafter described, were importers of paper stock, doing business in Boston. Since about 1888 Dutton and Company have been carrying on business with Bird and Son, selling to the latter paper stock, bought in Europe and imported into this country.</p> <p>At some time before November 1,1897, it was agreed between Bird and Son and Dutton and Company that the price to be paid by Bird and Son for all imported merchandise sold to them by Dutton and Company should be the sum of the actual cost of the merchandise to Dutton and Company, the cost of cables and office expenses, agreed to be four per cent of purchase, the bankers’ commission, agreed to be one and one quarter per cent, insurance and wharfage, and the sum of one dollar per ton of two thousand pounds.</p> <p>Dutton and Company had a house in London and a house in Boston. Purchases of merchandise were made by the London house in France, terms, delivered in Boston, freight prepaid; and such merchandise, when delivered to Bird and Son, was invoiced to them at a price determined by adding the expenses and other items above set forth to the amount at which the merchandise was invoiced to Dutton and Company by the seller in France. Bird and Son made all payments for such invoices in ignorance of the facts set forth in the next paragraph.</p> <p>Without the knowledge of Bird and Son or Moors and Company, Dutton and Company made an arrangement with the seller of such merchandise in France, whereby the latter secretly allowed Dutton and Company, for the freight to Boston, the sum of sixteen shillings per ton, to be deducted from the purchase price as shown by the invoice. Dutton and Company then arranged with the carriers for a rate which varied from ten to thirteen shillings per ton. It is agreed, for the purposes of this case, that the difference between sixteen shillings per ton, allowed by the seller in France for freight as aforesaid, and the amount actually paid for freight, amounted, from November 1, 1897, to August 1, 1900, to the sum of $7,000. The amount of this difference on the bills remaining unpaid on August 1,1900, is hereafter stated.</p> <p>To enable them to carry on the business of importing paper stock and selling it to Bird and Son and their other customers, Dutton and Company requested and obtained from time to time the issue to them by Moors and Company, of mercantile or commercial letters, all in a similar form hereafter printed. Under these letters of credit drafts were drawn by Dutton and Company upon the London correspondent bankers of Moors and Company^ and accepted by the correspondent bankers. These drafts were discounted by Dutton and Company and the proceeds used to pay for the merchandise, and the drafts were paid by the correspondent bankers out of funds provided for that purpose by Moors and Company. Accompanying the drafts were invoices made by the seller in France and sworn to before the United States consul, and bills of lading made out to the order of Moors and Company, covering the merchandise purchased, and such invoices and bills of lading were forwarded by mail to Moors and Company and held by them until the arrival of the merchandise in Boston. After such arrival Moors and Company indorsed the bills of lading and delivered them and the consular invoices to Dutton and Company, and at the same time took in exchange therefor trust receipts, all in a similar form hereafter printed. Dutton and Company then shipped the merchandise to Bird and Son and, in accordance with the terms of the trust receipts, handed to Moors and Company invoices to Bird and Son of the merchandise so shipped, and Moors and Company sent these invoices to Bird and Son, enclosed in letters. The price named in the invoices was a price fixed by Dutton and Company, believed by Bird and Son to have been fixed in the manner agreed between them.</p> <p>In pursuance of the foregoing method, payments for the merchandise imported by Dutton and Company and sold to Bird and Son were, in all cases, made directly to Moors and Company.</p> <p>On or about August 1, 1900, Bird and Son discovered that Dutton and Company were making a profit on the freight charges, in the manner explained above, and immediately notified Dutton and Company and Moors and Company that they should decline to pay for merchandise delivered any more than the amount contracted to be paid by them, and that they should reserve from the amount then due for merchandise already delivered a sufficient sum to cover the overcharges on invoices paid and unpaid.</p> <p>' At this time there were outstanding and unpaid the bills for paper stock sold by Dutton and Company, or Moors and Company, if they are to be regarded as sellers, to Bird and Son under the method of doing business above described, amounting to $19,846.98.</p> <p>The amount of the difference between sixteen shillings per ton and the amount of freight actually paid by Horace Dutton and Company on the above bills was $264.07.</p> <p>All bills for merchandise before those outstanding had been paid in full by Bird and Son to Moors and Company, and had been credited to Dutton and Company on their account with Moors and Company. .</p> <p>On August 20, 1900, Bird and Son paid, on account of the bills mentioned above, $5,000, and on September 14, 1900, the further sum of $7,846.98, retaining, and stating that they would retain, the sum of $7,000, which they claimed by reason of the facts above set forth, and which they have retained.</p> <p>Until the notice given by Bird and Son in August, 1900, Moors and Company had no knowledge of the agreement between Bird and Son and Dutton and Company, as to the price to be paid by the former for imported merchandise sold by the latter. The allowance of sixteen shillings per ton above mentioned for freight, and the deduction thereof from the invoice price to Dutton and Company, did not appear in any of the papers, accounts or dealings of which Moors and Company or Bird and Son had knowledge.</p> <p>Dutton and Company imported, under letters of credit issued by Moors and Company, merchandise other than that sold to Bird and Son, and the latter was but a small portion of the entire amount so imported.</p> <p>The business between Bird and Son and Dutton and Company was entirely carried on through Moors and Company as bankers, and Bird and Son were entirely familiar with the nature of Moors and Company’s relation to such business and with the course of dealings between Moors and Company and Dutton and Company.</p> <p>Before 1894 Dutton and Company had become indebted to Bird and Son. On December 29,1899, at the request of Dutton and Company and of Bird and Son, the plaintiffs, Moors and Company, examined the condition of their entire account with Dutton and Company, and found that the unpaid invoices payable to them from Bird and Son, and from the other customers of Dutton and Company, together with certain merchandise on hand, amounted to more than enough, when collected, by the sum of $4,080.81, to provide funds to meet all the drafts accepted by their correspondents in London under outstanding letters of credit, issued to Dutton and Company. Of the invoices then payable to Moors and Company, on the account of Dutton and Company, there were $38,414.93 due from Bird and Son, which Moors and Company considered and assumed to be good, without deduction. Relying upon this showing of the account, Moors and Company on the following day, at the request of Dutton and Company and of Bird and Son, paid over to the latter the sum of $3,858.27, in liquidation of an indebtedness of Dutton and Company to Bird and Son, incurred before 1894.</p> <p>For the purposes of this case, it is agreed that on December 29, 1899, the amount of the difference in freight charges between sixteen shillings per ton and the amount actually paid by Dutton and Company, in the manner aforesaid, was in excess of $4,080.81; also that taking the amount shown on Moors and Company’s account with Dutton and Company, as due from Bird and Son to be good for its face, Dutton and Company, on August 1, 1900, owed Moors and Company $324,52, and on September 15, 1902, the date of the writ, $4,075.94.</p> <p>Between November 1,1897, and August 1, 1900, Moors and Company, relying upon the state of the account with Dutton and Company, as shown on Moors and Company’s books, made payments of cash to Dutton and Company from time to time on general account exceeding in the aggregate the sum of $7,000;' and after August 1, 1900, and before the date of the writ, made payments to Dutton and Company on general account at various times aggregating the sum of $4,149.26. After August 1, 1900, and before the date of the writ, Dutton and Company closed their Boston office and ceased to do business.</p> <p>The following is one of the letters of credit:</p> <p>“ J. B. Moors & Co.</p> <p>“ Letter of Credit.</p> <p>“No. 1423k.</p> <p>“ Boston, Nov. 29th, 1897.</p> <p>“Messrs. Horace Dutton & Co., Boston, Mass., & London, Eng.'</p> <p>“Dear Sirs: — We hereby authorize you or such Parties as you may direct to value on Messrs. Kleinwort, Sons & Co. of London, at four months’ date for any sum or sums not exceeding in all three thousand pounds sterling, say, ¿63,000 sterling, for account of yourselves.</p> <p>“Drafts, with advice thereof to Messrs. Kleinwort, Sons & Co. to be drawn in Europe, and negotiated prior to May 1st, 1898, for the invoice cost of merchandise to be shipped to the Port of Boston, New York, or Philadelphia, in the United States, or Montreal, Canada, and to be accompanied by Consular Invoice and Bills of Lading to our order, one copy to be sent us direct by vessel or mail.</p> <p>“Proper insurance to be effected in Boston, by yourselves.</p> <p>“We hereby agree with the drawers, indorsers and bona fide holders of Bills drawn under and in compliance with the terms of this credit that the same shall be duly honored upon presentation at the office of Messrs. Kleinwort, Sons & Co. in London.</p> <p>“ Please sign Bills as drawn under Credit No. 1428k, dated Boston, Nov. 29th, 1897.</p> <p>“ Yours very respectfully,</p> <p>“ J. B. Moors & Co.”</p> <p>The following is one of the trust receipts:</p> <p>“ 82</p> <p>20-9-24-03</p> <p>Amount No. of Credit Due in London Due in Boston ¿£59 9/3 2681k April 9,1901 Mar. 25,1901</p> <p>“ Boston, Dec. 18, 1900.</p> <p>“ Received from J. Moors & Co., Boston, acting on behalf of Kleinwort, Sons & Co., London, and themselves, the following-described Merchandise belonging to them, specified in Bill of Lading, per S. S. Michigan, dated Liverpool, Dec. 5, 1900, viz: —</p> <p>1/152 One hundred fifty-two Bales Waste Paper, which we</p> <p>hereby agree to hold in trust or on storage as their property with proper insurance which shall be paid to them in case of loss, but with liberty to sell and deliver said Merchandise to F. W. Bird & Son, for account of said J. B. Moors & Co., and we further hereby agree to deliver to the said J. B. Moors & Co., or Kleinwort, Sons & Co., the proceeds of any sale of said Merchandise, (whether in notes or cash, or other Merchandise,) the same to be applied by them, in the first place toward the payment of any drafts or acceptances under Letter of Credit No. 2681k issued by them for our account, and secondly to the payment of any other indebtedness from us to the said J. B. Moors & Co., with the further understanding that neither the said J. B. Moors & Co., nor said Kleinwort, Sons & Co., are to be chargeable with any expense incurred on said Merchandise: — the intention of this ageeement being to protect and preserve unimpaired the title and ownership of said J. B. Moors & Co., or said Kleinwort, Sons & Co., in said Merchandise and the proceeds thereof.</p> <p>“ With the understanding that the merchandise is to he billed by us, but bill made payable to J. B. Moors & Co., we further hereby agreeing to forthwith hand J. B. Moors & Co. said bill.</p> <p>“ Horace Dutton & Co.”</p> <p>The following, taken from the plaintiffs’ brief, is the contention of the plaintiffs referred to in the last paragraph of the opinion:</p> <p>“If the defendant is entitled to reimburse himself for the payments which he contends that he made under a mistake of fact, the plaintiffs must, on similar reasoning, be entitled to recover the sum of $8858.27, with interest, as claimed in the second count of their declaration. This sum was paid by the plaintiffs to the defendant, at the request of the defendant and of Dutton and Company under a mistake of fact similar to the mistake under which the defendant contends that his payments to the plaintiffs were made. When they made the payment of $3858.27, the plaintiffs believed that the amounts theretofore paid to them by the defendant were correct, and they relied upon the state of the account, as determined by these payments, when they made the payment of $3858.27.” See page 405,</p>

<p>Tort against the. defendants hereafter named. Writ dated September 21,1901.</p> <p>The declaration as amended was as follows :</p> <p>“ And the plaintiff says that on or about the twelfth day of December last, he was proprietor of a barber shop at 151 Chelsea Street in that part of Boston known as East Boston, in which he conducted the business of a barber; and that, on or about 7.80 o’clock in the afternoon of said day, the defendants gathered in front of said shop and demanded him to close said shop and discontinue and stop doing any business; that he refused to comply with their demands, and that, thereupon, the defendants called upon a large number of people who were standing in the street outside of and in front of said shop, directing them to close said shop by force, if necessary; that the defendants and the people in the street, standing in front of said shop, prevented customers from entering said shop for the purpose of availing themselves of the services of the plaintiff and his employees ; and, that the defendants, or those standing outside of said shop, instigated by said defendants, did prevent customers from entering said shop to avail themselves of the services of the plaintiff and his employees; and that the defendants in other ways incited those standing outside of said shop to lawless acts, and drove from said shop those customers who had already entered it for the purpose of availing themselves of the services of the plaintiff and his employees, and by reason of the aforesaid acts of said defendants the business of the plaintiff was damaged and greatly injured which damage and injury has continued until this day and said business has thereby been destroyed.”</p> <p>In the Superior Court the case was tried before Fox, J.</p>

<p>Insurance, Accident. Fraternal Beneficiary Corporation. Practice, Civil, Agreed statement of facts.</p> <p>A provision in an accident insurance certificate issued by a fraternal beneficiary association, “'that if the insured is injured while engaged temporarily or otherwise in any occupation or exposure classed by this association as more hazardous than that here given, his insurance and weekly indemnity shall only be so much as the premium paid by him will purchase at the rate fixed for such increased hazard,” refers only to the classification of risks in force at the time the certificate was issued, and gives the association no right by a new classification of occupations to change the amount of insurance to which a member is entitled.</p> <p>In an action on a certificate issued to the plaintiff’s intestate by a fraternal beneficiary association insuring against accident, it appeared that the certificate contained a provision, “that if the insured is injured while engaged temporarily or otherwise in any occupation or exposure classed by this association as more hazardous than that here given, his insurance and weekly indemnity shall only be so much as the premium paid by him will purchase at the rate fixed for such increased hazard,” that the plaintiff’s intestate when the certificate was issued to him was a stage driver, an occupation which belonged to a class of risks entitling the plaintiff to recover $1,250 on the certificate, that later the plaintiff’s intestate ceased to be a stage driver and became a passenger brakeman on a railroad, that he notified the defendant’s secretary of the change, and received a letter from the defendant’s secretary and treasurer informing him that as a passenger brakeman he was entitled to the same amount of insurance as before, that several years later the defendant adopted a new classification “ of occupations and exposures, to be used as the manual or classifications of occupations and exposures of this association for all members now insured or to be hereafter insured in this association,” that by the new classification a passenger brakeman was put in a class of greater risk and, if the provision applied to the certificate of the plaintiff’s intestate, the amount which the plaintiff could recover was reduced to $250, that the defendant’s secretary and treasurer had written and mailed a letter addressed to the intestate notifying him of the change and requesting that his certificate be returned to the defendant for rewriting so that it might conform to the new classification. It did not appear that this letter ever was received by the intestate, who did not return his certificate and continued to pay the same assessments and dues as before. The certificate contained a provision under which the defendant could cancel it at any time on making certain payments to the holder. Held, that the provision of the certificate above quoted must be construed as referring to the classification in force at the time the certificate was issued, and gave the defendant no right by a subsequent change of classification to reduce the amount of insurance of the plaintiff’s intestate; that, even if it had appeared that the defendant’s letter of notification of the change of classification had been received by the plaintiff’s intestate, it could be found in spite of his failure to answer the letter that he did not assent to the change; and that the plaintiff was entitled to recover the full amount of the insurance.</p> <p>On an agreed statement of facts without the power to draw inferences the court cannot infer from the stated fact that a letter was written and mailed that it was received by the person to whom it was addressed.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action against a railroad company by a workman employed in its freight house for personal injuries, it appeared that it was a part of the plaintiff’s duty to open cars for unloading and to place a skid as a bridge between the car to be unloaded and the freight house, that in seeking a skid for this purpose he went into the freight house and took one that was leaning against a row of cotton bales, and as he took it away the bales fell over on him, causing the injuries. It was contended by the plaintiff that the defendant’s foreman was negligent in allowing the bales to be placed on end leaning against each other without a bulkhead of horizontal bales to support them, but there was nothing to show who directed that the bales should be placed where they were or how long they had been in the position in which they were when they fell. Held, that the plaintiff, in taking the skid away without looking to see how it stood against the bales and what effect its removal would have, was not in the exercise of due care, and further, that, assuming that for the foreman knowingly to have left the bales in such a position that the removal of the skid might cause them to fall would have been evidence of negligence, there was no evidence that the foreman knew of the position of the bales, so that a verdict for the defendant was ordered properly.</p>

<p>Petition, filed December 28,1898, to establish a mechanic’s lien for labor and materials furnished by the petitioners as plumbers upon certain buildings of the respondent Wildes, who was adjudicated a bankrupt in October, 1898, the respondent Jacobs being the owner of the real estate on which the lien was claimed, it having been conveyed to him by Wildes, and the respondent Sprague being the trustee in bankruptcy of Wildes.</p> <p>In the Superior Court the respondents at first were defaulted. Later the default was removed in accordance with an agreement of the parties by which it was agreed that the petitioners furnished the materials and performed the labor set forth in their petition and at the prices charged, and that the case should be sent to an auditor to determine what credits, if any, should be allowed against the amount claimed by the petitioners, “ the investigation to be confined to the questions of payments or credits.” After the filing of the auditor’s report the case was tried before Hardy, J., who found for the petitioners in the sum of $868.75. The respondents alleged exceptions which were sustained by this court in a decision reported in 182 Mass. 482, referred to in the present opinion.</p> <p>The case again was heard in the Superior Court by Richardson, J. on all questions except the issues previously submitted to the jury. The auditor’s report was put in evidence, and Charles Moore, one of the petitioners, testified as a witness.</p> <p>The respondents asked the judge to rule as follows:</p> <p>“ 1. If the petitioners received from the respondent Wildes the notes A and B on account of the demand set forth in the petition, though not in payment or part payment, and if the petitioners indorsed said notes for value to one Basley and said Basley became the owner, and holder of said notes, and if from time to time payments were made on account of said notes to said Basley, and finally said notes were combined in one renewal note, given to said Basley, upon which renewal note payments were made and other renewals of the balance given to said Basley, and at the time these proceedings were begun, and at the time Wildes went into bankruptcy said Basley was the owner and holder of the last renewal note, and said Basley had proved said note as his claim against the estate of said Wildes in bankruptcy, then the amount of said notes A and B should be credited on the demand set forth in the petition.</p> <p>“ 2. If the respondent Wildes gave the petitioners the note C on account of the demand set forth in the petition, though not in payment or part payment thereof, and if said Wildes paid said note before these proceedings were begun, then the demand set forth in the petition should be credited with the amount of said note C.</p> <p>“ 3. If the respondent Wildes gave to the petitioners on account of the demand set forth in this petition, the notes designated D and E, and if the petitioners indorsed said notes D and E for value to one Chipman, and said Chipman became the owner and holder of said notes, and while such owner and holder, said notes were combined in one renewal note, of which renewal note the said Chipman was the owner and holder, and if said renewal note was afterwards split into two notes, and said Chip-man was the owner and holder of said two notes at the time these proceedings were begun, and at the time Wildes went into bankruptcy, then the amount of said notes D and E, being the amount of the last renewal note, should be credited upon the demand set forth in this petition.</p> <p>“ 4. If the respondent Wildes gave to the petitioners the note F on account of the demand set forth in the petition, and if said note F was indorsed by the petitioners to said Chipman for value, and at the time these proceedings were begun, and at the time said Wildes went into bankruptcy, the said Chipman was the owner and holder thereof or of the renewal thereof, then the amount of said note should be credited on the demand set forth in the petition.</p> <p>“ 5. On all the evidence the respondents are entitled to have credit for the amount of the notes A, B, C, D, E and F, or the renewals thereof.</p> <p>“ 6. On all the evidence and agreed facts the respondents are entitled to have credit for the amount paid on the notes A, B, C, D, E and F, and the renewals thereof, and for the amount of the notes L, M, N and F prime, less such discount and interest as petitioners may be entitled to.”</p> <p>The judge refused to rule as requested, and made the following rulings and findings:</p> <p>“ 1. I find that the amount for which (without credits) the land stated in the petition is subjected to lien for labor and materials set forth in the petition, amounts to $764.75 (without interest) on account and in part payment of which I find the petitioners have received $120, being made up of note C, referred to in the auditor’s report, which was paid by the maker, Wildes, to the petitioners, and also $20 in money, leaving a balance of $644.75, which with interest thereon to the present date, amounts to $860.50.</p> <p>“ 2. I rule as requested by the respondents in the second of their requests for rulings, but decline to rule as requested in the other five requests, excepting as to note C in the fifth and sixth requests, as to which note I gave the fifth and sixth requests.”</p> <p>The judge found for the petitioners, and ordered that a decree be entered establishing the lien for $860.50. The respondents alleged exceptions.</p>

<p> Sale. </p> <p>If a piano dealer sells a new piano to a woman and agrees to take in exchange her old piano which has been injured in an elevator while being moved by an expressman and to look to the expressman for the difference in value, he cannot recover this difference from her if the expressman refuses to pay it.</p>

<p>Practice, Civil, Exceptions. Mill Act. Water Rights.</p> <p>Upon a bill of exceptions to the findings and rulings of a judge sitting without a jury, which does not contain all the evidence and omits among other things an auditor’s report, and where the judge has taken a view the result of which does not appear except as disclosed by his findings, the findings of the judge upon a question of fact will not be disturbed, especially where there is evidence reported in the bill of exceptions which warrants them.</p> <p>A complaint under the mill act, Pub. Sts. c. 190, for damages from the alleged wrongful flowing of the complainant’s land by a dam maintained by the respondent, was heard, except as to damages, by a judge, sitting without a jury, who found that the respondent within the three years next preceding the complaint had maintained its dam at a greater height than it had a right to do without making compensation. On exceptions by the respondent to the refusal of the judge to make certain findings and rulings and to the findings and rulings made by him, all the evidence was not reported and an auditor’s report considered by the judge was not before this court. It appeared that the judge took a view of the dam and that the apron was removed from it and some excavations made in order that he might see whether the capsill put in at a certain time rested upon the original stone work or otherwise. What was disclosed by the view did not appear except as it might be inferred from the findings. There was nothing in the deeds put in evidence or in any writing between the parties and their privies fixing the height at which the respondent and its predecessors had the right to maintain the dam, and the right of the respondent depended upon a question of fact to he determined upon the evidence relating to the height at which the respondent had maintained its dam and exercised the privilege of flowing. Held, that the findings of the judge were warranted by the evidence reported in the bill of exceptions which the court did not find it necessary to review in the opinion.</p>

<p> Devise and Legacy. Perpetuities. </p> <p>A will contained the following provision : “ And as to the other fourth part of the residue and remainder of my estate, I direct my said trustees to hold the same (after my said daughter S.’s decease) during the lives of her children, and to pay the net interest and income thereof to her children half yearly or oftener, if convenient to said trustees, and at the decease of said S.’s children the said fourth part of the capital of said residue and remainder of my estate shall be paid to her grandchildren, as they respectively attain the age of twenty-one years, such grandchildren taking by right of representation, and while said grandchildren are minors, after the decease of their parents they shall respectively receive the net income of the capital to which they will severally be entitled to at their majority.” At the time of the death of the testator S. had one child, a son. Afterwards she had a daughter who died before her without issue. Upon the death of the son of S., who survived his mother and left children, the trustee under the will of'the testator brought a bill for instructions as to the distribution of the fund dealt with by the paragraph above quoted, asking whether the remainders to the grandchildren of S. were void under the rule against perpetuities. Held, that the bequest to the children of S. was of shares to be disposed of separately and that the limitation over of each share was to be considered by itself, that on the death of the testator the son of S. had a vested remainder in a life interest in the fund which on the birth of the daughter of S. was diminished by opening to give such daughter a vested remainder in a life interest in one half of the fund, that the remainder of one half of the fund to the children of the son of S. was valid because the son was born before the death of the testator, and that the half of the fund in which the daughter of S. had a vested interest, upon her death before her mother without issue, was undisposed of by the will and should be distributed among the next of kin of the testator. Semble, that if the daughter of S. had left children the same result would have been reached, as the remainder to her children was void under the rule against perpetuities.</p>

<p>Bill in equity, filed in the Superior Court on July 5, 1904, against John F. Kelly, a deputy sheriff, and John Holmes, John McHugh and John J. Walsh, respectively claiming mechanics’ liens on a parcel of land owned by the plaintiff on Abbott Street in that part of Boston called Dorchester, the plaintiff’s title having been derived by mesne conveyances from the foreclosure of a second mortgage given by Moses T. Hughes to William A.. Porter, dated September 25, 1903, and foreclosed on March 30, 1904, to enjoin the defendants from enforcing the liens so claimed bv them.</p> <p>In the Superior Court the case was heard by Sheldon, J. It appeared that the defendants McHugh and Walsh perfected their respective liens and took out an order of sale dated May 20,1904, and that the liens antedated and had priority over the mortgage through which the plaintiff claimed unless they had been dissolved; and that one Clarence E. Hill, to whom Porter had assigned the mortgage gave bonds under R. L. c. 197, § 28, to dissolve the liens. The judge ruled that the bonds did not dissolve the liens, and made a final decree dismissing the bill without costs. The plaintiff appealed.</p>

<p> Nuisance. Board of Health. </p> <p>Under R. L. e. 75, §§ 65, 67, an order from the board of health of a city or town to the owner or occupier of private premises to remove a source of filth or cause of sickness cannot direct that the nuisance shall be abated in a specific way, and the owner may abate the nuisance in any proper manner.</p> <p>Under R. L. e. 75, §§ 91-98, if a trade or employment is designated by a general order of the board of health of a city or town as offensive, before such an order can be enforced it must be served upon the occupant or person having charge of the premises where such trade or employment is exercised, and a notice by publication in a newspaper which also is sent by mail to the persons against whom the proceedings are taken is insufficient.</p> <p>. An order of the board of health of a town prohibiting the exercise of the trade or employment of excavating clay for the purpose of manufacturing bricks within the limits of the town, except upon the premises “ now owned and operated ” by a certain brick company, without a written permit from the board of health, not to be granted unless the applicant shall furnish a bond with good and sufficient sureties conditioned upon the observance of the terms of the permit and upon the filling within a reasonable time to be fixed by the. board with materials and in a manner satisfactory to the board of any excavations made by the obligor, is unreasonable and void, and cannot be enforced against the brick company the continued operation of whose business on its pld premises is excepted.</p>

<p>Deed. Guardian. Equity Juris diet ion, Ladies, 1'or an accountmg.</p> <p>A deed of real estate from a mother to a son, one of her three children, recited that it was given in consideration of one dollar and other good and valuable considerations, and contained a clause declaring the conveyancé to be upon the condition, that the grantee and his heirs and assigns and all future owners of the estate should support the grantor for and during the term of her natural life. It was found that the conveyance was made by the mother to her son out of gratitude for his kindness to and care of her in the past and his promise to care for her in the future, and that the son, although willing to do so, did not in fact Bupport his mother at any time from the giving of the deed until her death. Held, that the deed was a voluntary conveyance and that the son had no better title than his mother.</p> <p>If a guardian, who has obtained a license from the Probate Court to sell real estate of his infant ward for the maintenance of the ward, conveys the real estate through a third person to himself for his own benefit, the ward on coming of age may avoid the conveyance.</p> <p>There can be no laches where a plaintiff exercising reasonable diligence has remained for many years in ignorance of the facts which give him a right to relief in equity and on learning the facts files his bill.</p> <p>In 1887 a widow, who had been appointed the guardian of her three minor children, conveyed to herself through a third person certain land belonging to her wards without paying anything for their benefit. She then built a house on the land which she used for her own benefit. The three children came of age respectively in 1889, 1893 and 1896. In December, 1903, she made a voluntary conveyance of the real estate to one of the three children, having given him possession of the property in November of the previous year, and in February, 1904, died. Two months after her death her other two children-brought a suit in equity to set aside the conveyance of their mother indirectly to herself in 1887, and for an accounting. It appeared that the plaintiffs knew nothing of what their mother had done in regard to the real estate until after her death. Held, that there was no laches on the part of the plaintiffs.</p> <p>Since the enactment of St. 1807, c. 75, now embodied in R. L. c. 179, § 17, one who individually or by those under whom he claims has actually held and possessed land for six years before the date of a writ of entry on which a judgment for the land has been obtained against him is entitled to compensation for the value of any buildings or improvements made or erected on the land by him or by any person under whom he claims, and the statute gives him the same right where a title is established against him in a suit in equity instead of by a writ of entry.</p> <p>In a suit in equity to set aside a conveyance of real estate made by the mother of the plaintiffs as the guardian of the plaintiffs and their brother, the defendant, through a third person to herself for her own benefit, and for an accounting by the defendant to whom the mother made a voluntary conveyance of the real estate two months before her death, having given him possession of the property a year earlier, it appeared that the conveyance, which was voidable by the plaintiffs, was made in 1887, by the mother of the parties, who treated the property as if it was her own, that the property then was unimproved land said to be worth $2,000, and that the mother, having acquired the legal title, built a house upon it at a cost of $3,885, and that she and afterwards the defendant paid the taxes on the property and for repairs and insurance. Held, that, on the defendant conveying to each of the plaintiffs one undivided third part of the property, and on an accounting by the defendant for the rents and profits of the plaintiffs’ shares of the property after the defendant obtained possession, the plaintiffs must contribute their proportionate part of the enhanced value of the common property due to the improvements made upon it by their mother, setting off against this their shares in the rents and profits during their mother’s occupation after deducting the sums expended by her for taxes, repairs and insurance, but being allowed nothing in excess of the sum charged to them for improvements.</p>

<p>Probate Court. Practice, Civil. Guardian. Insane Person. Dower. Homestead Rights. Words, “Person aggrieved.”</p> <p>The heirs presumptive of one who is non compos mentis have a right to appeal from a decree of the Probate Court affecting the rights of property of the person non compos, being persons aggrieved within the meaning of R. L. c. 162, § 9.</p> <p>On appeals from decrees made by a single justice affirming the action of the Probate Court, granting to the guardian of an insane widow a license to sell her right of dower and homestead at private sale to one who is a part owner of the fee of the land in question and authorizing the guardian to invest the entire property of the insane person in a mortgage given by the purchaser of the right of dower and homestead to secure the comfortable support and maintenance of the insane person during her life, if the appeals come before this court without findings of fact or a report of the evidence, the only questions open are as to the power of the Probate-Court to make the decrees upon any evidence that might have been adduced under the petitions.</p> <p>The Probate Court may authorize the guardian of an insane widow to sell for her maintenance and support her dower and homestead rights in real estate to the owner of the fee although such rights have not been set off to her.</p> <p>The Probate Court may authorize the guardian of an insane person who is a widow to sell her dower and homestead rights in real estate for her maintenance and support without first having her interest in her husband’s estate ascertained, paid over and used for her maintenance, if her husband’s estate is so small that the personal property may not be worth the necessary accounting. The Probate Court may authorize the guardian of an insane woman, whose property is not more than enough to secure her a comfortable support during her life, to invest the entire property in a mortgage of real estate given by one of her sons conditioned to secure her comfortable support and maintenance during her life.</p>

<p>Bill in equity, inserted in a writ in the Superior Court dated October 18,1904, to redeem certain real estate from an equitable mortgage. The case is stated in the opinion.</p>

<p>Bill in equity, filed in the Superior Court on February ll, 1905, by a dentist having rooms on the second floor of No. 493 on Washington Street in Boston, to enjoin the defendant from interfering with the plaintiff’s placing a rectangular show case, -with the permission of the owners of the building, in the vestibule used as an entrance to the stairway leading to the rooms of •the plaintiff, and from tearing down and removing such show case when so placed.</p> <p>In the Superior Court the case was heard by Sheldon, J., who made a decree dismissing the bill. The plaintiff appealed. The findings of fact by the judge, which are referred to in the opinion, were as follows : •</p> <p>■ ■ “• The plaintiff and the defendant are both tenants in the building numbered 491 and 493 Washington Street, Boston, under written leases from Stillman F. Kelly to them respectively, the plaintiff’s lease being of the rooms numbered 1 and 2 on the second floor of the building, dated March 24, 1904, at the annual rental of $2,400, and the defendant’s lease being of the store on the first or ground floor with the basement thereunder, and of the room numbered 26 on the fourth floor of said building, dated July 14, 1903, at the annual rental of $6,100.' Each of these leases was put in evidence, and is to he referred to.. Other tenants occupy other rooms on the different upper floors of the building. The building is on the westerly side of Washington Street, and the staircase to the plaintiff’s rooms and to the defendant’s room on the fourth floor is on the southerly side of the building. The door of this staircase opens from an open vestibule used as an entrance to this staircase. This vestibule is four feet and five inches deep, seven feet and four inches wide on Washington Street, and seven feet and one inch at its rear. The doorway leading upstairs from this vestibule is three feet and ten inches wide. The defendant has occupied his store under his present and previous leases from Kelly as an art store for the sale of pictures, &c., for the last nine years. He has a show window on the northerly side of his store and another narrower one on its southerly side. This latter show window looks upon its front into Washington Street, and on its southerly side is about four feet deep and looks across the vestibule, and so southerly into Washington Street. This was the construction of the show window when the defendant took his present and each of his former leases from Kelly. The defendant uses this show window for. the purpose of exhibiting his goods, and it is correctly described in the defendant’s answer. The right, so to use it is of much value to the defendant in carrying on his business in his store; and in view of the circumstances I am satisfied that this use by the defendant was contemplated by him and his lessor when he took his lease, and constituted a material element in the rental to be paid.</p> <p>“ The plaintiff’s rooms are directly over the defendant’s store. To advertise his business, the plaintiff constructed a show case, which is correctly described in his bill. He obtained the verbal permission of Kelly through his authorized agent to place this show case in the vestibule, so as not to interfere with the rights of other tenants. Then the plaintiff placed this show case in the vestibule against the defendant’s show window, cutting away a part of the defendant’s window sash to make it fit closely, and securing his show case by screws to the wood and iron work of the defendant’s window; and the defendant removed it. The plaintiff now does not claim the right to secure it in this manner, but does claim the right to place it against the defendant’s show window. I find that if this is done it will not substantially obstruct the defendant’s right of passage from his store to his upper room, though it will slightly diminish the available space in the vestibule. It will slightly, but not materially, diminish the light coming into the defendant’s store through this show window. It will materially diminish the value of the show window to the defendant for the purpose of exhibiting his goods therein and attracting the attention thereto of persons going in a northerly direction on Washington Street, and thereby will substantially diminish the rental value of his store.”</p>

<p>Corporation. Bilk and Notes, Holder in good faith.</p> <p>The directors of a Massachusetts corporation, in the absence of a by-law or a rote of the stockholders restricting their power, have authority to establish a reasonable salary for the services of the treasurer of the corporation.</p> <p>A vote of the directors of a Massachusetts corporation fixing the salary of the treasurer of the corporation, if the directors in good faith regard the salary as a fair compensation for the services and there is no purpose to appropriate corporate profits unlawfully under the guise of a salary, is not invalidated by the fact that the board of directors that passed the vote consisted of three • persons of whom one was the treasurer and another the treasurer’s daughter.</p> <p>A woman, the treasurer of a Massachusetts corporation of which she also- was a director and the largest stockholder, resigned as treasurer and director and sold all her stock in the corporation to a person who for two years had been asso-' ciated with her as director and who became her successor as treasurer of the corporation. He paid her for the stock partly in cash and partly in promissory notes payable one in each month for a period of five years. For a period of three years and a half these notes were paid as they fell due by checks of the corporation signed by the treasurer in that capacity, payable to him individually and indorsed by him to the former treasurer from whom he purchased the. stock. The checks were received in good faith. The maker of the notes, after his purchase of the stock, acted not only as treasurer but also as president and general manager of the corporation. His management was bad, and the profits of the corporation rapidly fell off and were turned into large and increasing, losses. The corporation became bankrupt and its treasurer absconded. The trustees in bankruptcy of the corporation brought a bill in equity against its former treasurer to compel repayment of the sums received by her from the checks given in payment of the notes of the absconding treasurer. The judge, who heard the case found that the defendant took the checks in good faith, and made a decree in her favor. Held, that the decree must stand; that the question of the good faith of the defendant in taking the checks was one of fact, and that a finding was warranted that the defendant had sustained the burden of showing that she was a holder in good faith and for value.</p>

<p>Devise and Legacy, Construction. Words, “My surviving sons or daughters.”</p> <p>Where there is a gift by will to the children of the testator for life, providing that as each child dies the share of the child so dying shall go to the issue of that child or if the child has left no issue to the surviving sons and daughters of the testator, the surviving sons and daughters are those who survive the beneficiary for life who has died without issue, unless this ordinary meaning of the words is controlled by the context.</p> <p>A testatrix directed that, after a life interest in her husband, the residue of her estate should be distributed into nine equal parts. Two parts she gave to two sons outright. Another ninth part she gave to four grandchildren, the children of A. who had married successively two daughters of the testatrix, one the mother of one of the four grandchildren and the other of the other three, and both dead. The remaining six parts she'gave in trust to distribute to her six other children, one son and five daughters, naming them, and on the decease of each of them, leaving issue, to give the share of which the child so dying received the income to the issue of that child, but on the decease of any of her said six children “ without leaving issue then the share of said trust property with all accumulation thereon so devised for the use of such son or daughter so dying without issue, shall be held by my trustees aforesaid for the use of my surviving sons or daughters to be equally divided between them and the shares devised in trust are to be held upon the like trusts and purposes herein already before declared and finally to be conveyed, divided and distributed among their issue as herein before provided.” The last surviving child of the testatrix died without leaving issue. On her death the trustee under the will brought a bill for instructions. There were issue living of four children of the testatrix who had survived her. There also were issue living of the two daughters of the testatrix who had died before her, the successive wives of A. One of the sons of the testatrix who survived her had died testate without leaving issue. Held, that the property was to be distributed per stirpes among the issue of the four children of the testatrix who survived her and left issue.</p>

<p>Tort for an assault by alleged agents of the defendant. Writ dated February 12, 1908.</p> <p>At the trial in the Superior Court before G-asMll, J. the jury returned a verdict for the plaintiff in the sum of $500; and the defendant alleged exceptions.</p>

Contract, for a balance alleged to be due of the price of a steam roller sold to the defendant under a contract in writing printed below. Writ dated January 11,1905. At the trial in the Superior Court the jury returned a verdict for the plaintiffs in the sum of $643.43; and the defendant alleged exceptions.

<p>Contract, against the surety on the recognizance of one Joseph Dews, a poor debtor. Writ dated March 15, 1900.</p> <p>The first trial of this case in the Superior Court was before Mason, C. J., who found for the defendant. Exceptions of the plaintiff were sustained in a decision reported in 188 Mass. 103, and there was a new trial before Hardy, J.</p> <p>At the new trial the following facts were agreed by the parties and found by the judge in accordance with that agreement:</p> <p>The plaintiff recovered judgment against Dews, the principal in the recognizance, in the Superior Court for Suffolk County, on August 20, 1896, in the sum of $4,171.66, debt and $10.13, costs. The writ in that action was dated July 7, 1896, returnable on the first Monday of August, 1896, and service was accepted by Dews personally. The writ was not entered in court on the return day but on August 20, 1896; Dews personally signed an agreement for the late entry, and the writ and declaration and an answer, signed by the defendant personally, were entered on that day. The following agreement in writing was made between the plaintiff, by his attorney, and Dews and was filed on August 20, 1896:</p> <p>“ Commonwealth of Massachusetts, Suffolk ss., Superior Court, "Washington National Bank v. Joseph Dews. It is agreed in the above entitled cause that judgment may be entered for the plaintiff and execution issued forthwith for the amount of $4,174.66 and costs.</p> <p>“ Charles H. Tyler, Plaintiff’s Attorney.</p> <p>“ Joseph Dews.”</p> <p>In accordance with this agreement judgment was entered and execution issued thereon on August 20, 1896, and on the same day the arrest of Dews on the execution was authorized by Forsaith, J. of the Municipal Court of the City of Boston. On the same day Dews was arrested on the execution and was taken before Forsaith, J., where he made application to take the oath for the relief of poor debtors, and entered into a recognizance in the usual form in the penal sum of $4,500 in favor of the plaintiff with Samuel Williams, the defendant in this action, as his surety. Thereafter Dews appeared for examination from time to time in accordance with the condition of the recognizance until May 31, 1899. On September 2, 1898, while the examination of Dews by the plaintiff was pending in the municipal court, Dews was, upon his voluntary petition, adjudged a bankrupt by the District Court of the United States for the District of Rhode Island.</p> <p>Before the filing of the petition in bankruptcy the examination of Dews had been continued by agreement to September 28, 1898, and on that day the time for his examination was continued in the municipal court to January 25, 1899, upon the agreement of the plaintiff and Dews, and thereafter the examination was continued by the municipal court upon similar agreements to February 1, 1899, April 5, 1899, May 10, 1899, and May 31, 1899, respectively. The record of the municipal court shows no suggestion of bankruptcy or any continuance or stay ever requested or granted on account of bankruptcy proceedings. No action was taken by or requested of the United States court with reference to the proceedings in the municipal court. On May 31,1899, the day to which the examination had been continued, and while the question of Dews’ discharge in bankruptcy was pending, Dews failed to appear and submit himself for examination in the municipal court in accordance with the condition of his recognizance. The judge ordered the default of the defendant to be recorded.</p> <p>No written suggestion of bankruptcy ever was filed by Dews in the municipal court, but a verbal statement that bankruptcy proceedings were pending was made by his counsel in open court. The pendency of the bankruptcy proceedings was one of the reasons but not the sole reason for the continuance of the case in the municipal court from time to time. The examination of Dews in the bankruptcy proceedings by the plaintiff had been begun in Rhode Island before May 31,1899, and then was pending. The plaintiff never received any dividend either in bankruptcy or elsewhere on the judgment against Dews.</p>

<p> Municipal Corporations. Taunton. </p> <p>Under the charter of the city of Taunton, St. 1882, c. 211, the provision, contained in section 1 of chapter 12 of the ordinances of that city, that the mayor and aldermen shall annually appoint policemen who shall continue in office until their successors are appointed and qualified, is valid.</p> <p>St. 1904, c. 314, providing that a person holding office or employment classified under the civil service rules of the Commonwealth shall not be removed except for just cause and for reasons specifically given in writing, does not affect the expiration of the term of employment of a police officer appointed under an ordinance of a city authorized by the city charter which prescribes the length of the term.</p>

<p> Husband and Wife. Bills and Notes. Insolvency. </p> <p>A promissory note payable to the order of the son of the maker and by him indorsed to the wife of the maker, delivered by the maker to his wife in payment for money borrowed from her by him, the son having no beneficial interest in the transaction, is void in equity as well as at law.</p> <p>The authority given to the Court of Insolvency by Pub. Sts. c. 157, § 35, R. L. c. 163, § 44, to expunge claims is without limitation of time, and the power thus unlimited applies to cases of composition. R. L. c. 163, §§ 154, 167.</p> <p>Where in accordance with the terms of a composition with creditors confirmed by the Court of Insolvency assets of the debtor remain in the possession of the assignees after the discharge of the debtor, to secure the payment of the notes given to creditors in pursuance of the composition, it is the duty of the assignees to render an account to the court, and such an account is not filed too late because necessarily after the discharge. In such an account the assignees may be allowed a reasonable compensation for their services under Pub. Sts. c. 157, § 56.</p>

<p>Bill in equity, filed in the Superior Court on April 27, 1908, William G. Reed, George H. Plummer, William A. Clark and Clarence F. Eldredge, praying, 1, that the defendant Plummer be enjoined from selling four hundred shares of the Provident Securities and Banking Company belonging to the plaintiff which wrongfully were pledged to him by the defendant Reed as collateral security for a note of the defendant Reed for $21,000, 2, that the defendant Plummer be ordered to deliver the certificates for the shares to the plaintiff upon payment to the defendant Plummer of such sum, if any, as might be found by the court to have been advanced by him as a loan on such security in good faith, and 3, for further relief.</p> <p>The bill was taken as confessed against the defendant Reed. The other defendants filed answers. The case was referred to a master who filed a report.</p> <p>He found that the plaintiff entrusted the certificates for the four hundred shares- of the Provident Securities and Banking Company to the defendant Reed, indorsed in blank, and at Reed’s request consented that the certificates of stock should be put in Reed’s name to facilitate his using them to raise money for the plaintiff in connection with the purchase of certain mining properties.</p> <p>He found that all the transactions between Reed and Plummer concerning the four hundred shares of stock in question, constituted a violation by Reed of the terms and conditions upon which Reed received the certificates from the plaintiff, the true owner, and a breach of the trust with which the certificates of stock were impressed in the hands of Reed.</p> <p>Upon all the evidence he found that the defendant Plummer, in good faith, and in reliance upon Reed’s apparent ownership of the four hundred shares of stock, the certificates for which stood in Reed’s name as owner, and without notice of the purpose for which possession of the certificates had been entrusted by the plaintiff to Reed, advanced to Reed the sums of money and parted with the other considerations for which the note was given.</p> <p>The master found that the defendant Plummer was a bona fide pledgee of the four hundred shares of stock to the extent of the value he advanced thereon, namely, to the extent of the value of the cash advanced, plus the value of the extensions and accruing interest, amounting in all to $11,000, together with interest at the legal rate of six per cent per annum from April 17,1903, the date of the maturity of the $21,000 note.</p> <p>Both the defendant Plummer and the plaintiff filed exceptions to the master’s report.</p> <p>The plaintiff moved that the master’s report be recommitted to the master, with directions that the master report the facts requested by the plaintiff as set forth in his objections and exceptions, or report such facts in connection therewith as the court might direct.</p> <p>■ The motion was denied by the judge; and the plaintiff appealed.</p> <p>The judge made a decree overruling all the plaintiff’s exceptions, overruling some of the defendant Plummer’s exceptions and sustaining others, and otherwise confirming the master’s report. As to the defendants Clark and Eldredge the bill was dismissed. The remainder of the decree was as follows:</p> <p>“Pursuant to said report, as thus modified, the defendant Plummer is entitled to hold said four hundred shares of the stock of the Provident Securities and Banking Company as collateral security for the note of the said defendant William G. Reed, dated March 17, 1903, with interest thereon according to the terms of said note.</p> <p>“ On payment or tender by the plaintiff to the defendant Plummer, within thirty days from the date of this decree, of the amount due as principal and interest on said note of the defendant William G. Reed, dated March 17, 1903, together with the costs of the defendant Plummer in the suit, to be taxed by the clerk, the defendant Plummer shall deliver to the plaintiff the certificates referred to in said bill, representing said four hundred shares of stock of the par value of $40,000 of the Provident Securities and Banking Company; and such delivery shall forever bar the defendant Reed from any claim for such stock or any part thereof as against the defendant Plummer. On failure to make payment or tender as aforesaid, the bill is, as to the defendant Plummer, to be dismissed with costs.”</p> <p>The plaintiff appealed from the decree.</p>

<p>Executor and Administrator. Real Action. Limitations, Statute of.</p> <p>The former decision in this case, reported in 186 Mass. 59, that a writ of entry was prematurely brought by the demandant as administrator to recover land fraudulently conveyed by his intestate, because when the action was brought an appeal was pending from the granting by the Probate Court to the demandant of a license to sell the real estate, governs the case since the correction of the record in accordance with the decision reported in 187 Mass. 531, as it did before that correction.</p> <p>The provision of R. L. c. 146, § 2, that no claim by an executor or administrator "by entry or by action to land fraudulently conveyed by the deceased shall be made unless within five years after the decease of the grantor,” is a statute of limitation which bars all actions brought after the expiration of the prescribed time. R. L. c. 202, § 31, has no application, as it relates only to extensions of the limitations imposed by c. 202.</p>

<p>Elevator. Negligence, Employer’s liability.</p> <p>R. L. c. 101, § 27, requiring certain safety devices for elevators whether used for freight or passengers does not apply to a temporary elevator erected and maintained by a contractor for transporting materials used in the construction of a building.</p>

<p>Petition, filed on August 28, 1905, by the administratrix with the will annexed of the estate of Frederick J. Herthel, who died testate on January 2, 1904, to dissolve a general attachment upon all the real estate in the county of Suffolk of which the testator died seised and possessed, made in an action brought against the petitioner and a son of the testator by the judge of the Probate Court of the county of Suffolk for the benefit of Eliza Parkman Rkett, a creditor of the testator.</p> <p>The allegations in the petition seem to have been treated as true. The petition stated that the estate of Frederick J. Herthel was given by his will to the petitioner as residuary devisee and legatee after the payment of certain small legacies; that the testator left a small amount of personal property, a large amount of real estate, and debts to the extent of about $20,000; that the personal estate was not over $2,000 in value; that the real estate had a net value of $55,000 after deducting mortgages; and that it therefore would be necessary to sell a substantial part of the real estate to pay debts and legacies.</p> <p>In the Superior Court Lawton, J. ordered that the attachment on the real estate be dissolved. The respondent appealed.</p>

<p>Petition, filed March 24,1904, alleging that on and before June 27, 1899, the petitioner was the owner in fee of a certain parcel of land in that part of Boston called Roslindale; that she has continued to be the owner of this parcel of land subject to the easement of “ the relocation of the Neponset Avenue branch of Stony Brook ” through said land by an order of the board of street commissioners of the city of Boston passed on June 27, 1899; that on December 21, 1908, the respondent took an additional easement to enable it “ to build sewerage works ” through this parcel of land ; that the petitioner being aggrieved by such taking for sewerage works, for which taking she has not received from the respondent any compensation, petitions that her damages for the taking for sewerage works may be assessed by a jury. There followed a description of the land.</p> <p>In the Superior. Court the case was heard by Bond, J. upon an agreed statement of facts.</p> <p>It appeared that on June 27, 1899, the street commissioners made the taking through the petitioner’s land which is described in the opinion; that in 1900 a trench was dug; that on May 22, 1900, the street commissioners notified the city auditor that the petitioner had been awarded $283; that on May 29,1900, the petitioner signed a release which is described in the opinion, and on June 1,1900, the award was paid upon the petitioner’s order; that on November 30, 1903, it was decided by the proper authorities of the city to construct a sewer through a portion of the strip of land in which the above mentioned easement had been taken, and on December 11, 1903, the superintendent of streets of the city filed in the registry of deeds a notice of his intention to construct such a sewer; that in the spring and summer of 1904, the respondent enlarged the trench already dug and constructed and laid the pipe for the branch of Stony Brook and the pipe for the house sewer within the limits of the strip previously taken.</p> <p>The judge found for the petitioner, and assessed damages in the sum of $250. The respondent appealed.</p>

<p> Negligence. Street Railway. </p> <p>In an action against a street railway company under R. L. c. Ill, § 267, for causing the death of the plaintiff’s intestate by the negligence of the defendant or the unfitness or gross negligence of its agents or servants, it appeared that at an early hour in the morning the intestate was driving a milk wagon from an intersecting street across the tracks of the defendant when his team was struck by a car of the defendant transporting coal to its power house. The evidence warranted findings, that the intestate was in the exercise of due care, that the motorman saw the team shortly before it reached the tracks, and on seeing it tried to stop his car, and that the accident was caused by the failure of the motorman to keep a proper lookout, or to check his car in time, or by both of these things. Held, that a trial judge sitting without a jury was right in refusing to find that the negligence of the motorman was gross within the meaning of the statute.</p> <p>In an action against a street railway company under R. L. c. Ill, § 267, for causing the death of the plaintiff’s intestate by the negligence of the defendant or the unfitness or gross negligence of its agents or servants, it is right to refuse to make a ruling that “if the motorman of the defendant was operating its car at the time of the accident at a rate of speed in excess of that allowed by law, then that fact is prima facie evidence of gross negligence,” although this fact in connection with other facts would be evidence of a failure to exercise ordinary care.</p> <p>A street railway company, although not authorized to engage in the business of carrying freight for others, lawfully may run cars loaded with coal over its tracks for the purpose of supplying its power house.</p> <p>Semble, that an employee of a street railway company, sometimes called the trolley man, whose duty it is to stand at the rear end of a car used for transporting coal to the power house of the company and look out for the trolley strings, also to turn the switches, and to load and unload the coal, may be found not to be a conductor of the car within the meaning of St. 1897, c. 343, providing for the licensing of conductors of street cars by the board of police commissioners of the city of Boston.</p> <p>In an action against a street railway company under R. L. c. 111, § 267, for causing the death of the plaintiff’s intestate by the negligence of the defendant or the unfitness or gross negligence of its agents or servants, in running a car of the defendant into a team which the plaintiff’s intestate was driving from an intersecting street across the defendant’s tracks, if it appears that the conductor of the ear was negligent in not having obtained a license from the police commissioners of the city of Boston under St. 1897, c. 343, but that the car was so constructed that the conductor from his position at the rear could not see teams coming in front, and the only negligence that caused the accident was that of the motorman, the negligence of the conductor in failing to obtain the license is immaterial and does not affect the liability of the defendant.</p> <p>The violation by a motorman of an ordinance of a city requiring every person having the control of the speed of a street railway car to keep a vigilant watch for all teams, carriages and persons, under R. L. c. 112, § 40, which imposes a penalty on a street railway company whose servants and agents wilfully or negligently violate regulations of the board of aldermen of a city as to the rate of speed allowed in its streets, does not constitute negligence on the part of a street railway corporation as distinguished from negligence of its agents and servants within the meaning of R. L. c. 111, § 267.</p>

<p>Damages, For property taken under statutory authority. Metropolitan Park Commission. Parks and Park Commissioners. Practice, Civil, New trial, Verdict.</p> <p>Under St. 1894, c. 288, § 5, providing for the assessment of damages from the taking of land or any right' therein by the metropolitan park commissioners for the construction of roadways and boulevards, one whose ¡and is damaged by the taking of other land for the purposes named in the act may recover damages although no part of his own land is taken. Following Hyde v. Fall River, 189 Mass. 489.</p> <p>On a petition under St. 1894, c. 288, § 5, for the assessment of damages from the taking by the metropolitan park commissioners of land near that of the petitioner for the construction of a boulevard, it appeared that the only land of the petitioner shown to have suffered special and peculiar damage was land used as a mill pond adjacent to the park. The petitioner asked the presiding judge to make various rulings relating to the right of access from his land to the boulevard under the rules of the park commissioners, which could be material only in reference to the possible future use of the land after a change in its condition by filling. Tiie judge instructed the jury that if the land should be filled and cut into building lots with separate ownership, the owners would have a right of access from their lots to the boulevard, that the rules of the park commissioners were and would be valid only so far as they were reasonable, and that rules that were reasonable under certain conditions might not be reasonable under different conditions. Held, that the petitioner was not aggrieved by the failure of the judge to instruct the jury more fully as to the rules of the park commissioners in their application to the petitioner’s land either in its present condition or in its conjectural future condition.</p> <p>Whether a rule of park commissioners is reasonable and binding as applied to known facts is a question of law, but where the facts are in dispute or uncertain it is a question to be decided by a jury under proper instructions.</p> <p>On a motion for a new trial, on the ground that before the returning of the verdict the judge communicated with the jury during an adjournment of the court in the absence of counsel, it appeared that the case was a petition for the assessment of damages to the petitioner’s land from the construction of a boulevard by the metropolitan park commissioners, and that four issues were submitted in writing to the jury two of which were to be answered by giving nominal damages and the other two by filling in such damages as the jury might find, that, after the adjournment of the court, at about nine o’clock in the evening the judge at his house out of town was notified by telephone by the court officer in charge of the jury, that the jury had agreed on the amount of damages but did not understand which of the forms were to be used for filling in the nominal damages and which for the amount found by them, that the judge by telephone directed the officer to bring the jury to the room in the court house in which the telephone was, that the officer did so, there being no one present in the room except the officer and the members of the jury, and that thereupon the judge by telephone explained to the foreman, who repeated the explanation to the jury, which forms were intended for the nominal damages and which for the amount found by them, that the jury then returned to their room and filled out the forms, which were signed by the foreman and sealed in the usual manner and the next morning were returned into court by the jury, when the verdict was affirmed. Held, that, although such communications with a jury are open to grave objections on account of the possibility of misunderstanding or mistake, in this case as no miscarriage of justice had resulted the communication did not require the court to set aside the verdict.</p>

<p> Westminster Chambers. Damages. Copley Square. </p> <p>At the trial of a petition under St. 1898, c. 452, § 4, by the owners of the building called the Westminster Chambers in Boston for damage or loss to their real estate by reason of the limitation of the height of buildings on and near Copley Square imposed by § 1 of that statute, the presiding judge in his discretion may admit evidence of the value of the building as planned before the limitation of height and of its value as finished under that limitation, of the rental value of the two, and of the cost of completing the building in connection with evidence showing that completing the building was the best thing to do and that the cost so incurred was reasonable.</p> <p>The provision of St. 1896, c. 318, § 1, accepted by the city council of Boston, limiting the height of buildings bordering on a park where the park commissioners have established a building line to seventy feet does not apply to the buildings on a square where such a building line has not been established.</p> <p>The violation by the owners of the Westminster Chambers in Boston of the provisions of St. 1898, c. 452, § 1, by erecting “sculptured ornaments” approved by the park commissioners extending above the height of ninety feet allowed by that statute, they having been found to have acted in good faith on the advice of counsel in trying to make the best use possible of their unfinished building after the enactment of the statute, does not deprive them of the right to compensation under §§ 3, 4, of the statute.</p> <p>In St. 1898, c. 452, limiting the height of buildings on and near Copley Square in Boston, § 4 gives compensation for damage or loss to real estate, and § 3 gives to the owner of or any person having an interest in a building on the land described in that statute in process of construction before a certain day compensation for any damage suffered from the operation of the act other than damage or loss to real estate, the amount recoverable under one of these sections being exclusive of anything that can be recovered under the other. Thus extra foundations and extra iron for a building one hundred and twenty feet high not needed for a building ninety feet high, if they were incorporated in the building before the enactment of the statute, are an element of damage under § 4 in determining the difference in the value of the building as it was before the act and after it, and the loss on these materials which have become part of the real estate cannot be recovered under § 3.</p>

<p>Contract against Brackley Shaw and Walter S. Keene, the sureties on a bond to dissolve an attachment given in the case of Morton v. Clark, reported in 181 Mass. 134 and 184 Mass. 555. Writ in the Supreme Judicial Court dated March 9, 1904.</p> <p>The defendant Keene suggested to the court his discharge in bankruptcy and moved that the action be discontinued as against him. By agreement of the plaintiff this motion was allowed by Hammond, J.</p> <p>The case was presented to the full court under JR. L. c. 156, § 6, upon a case stated, the substance of which appears in the opinion.</p>

<p>Tort by the administrator of the estate of Losetta O. Hunt, late of Westfield, against the sheriff of the county of Hampden for the alleged conversion by one King, a deputy of the defendant, of certain personal property belonging to the estate of the intestate. Writ dated May 15,1908.</p> <p>At the trial in the Superior Court before DeCourey, J. it appeared that the plaintiff’s intestate died on March 16, 1903, leaving a husband and a son, and that the property in question was attached by King, on April 9, 1903, upon various writs against Alfred S. Hunt, the husband; that the intestate on May 9, 1901, had purchased the farm with her own money and that she and her husband had lived on it since that time up to the time of her death; that the personal property attached belonged to the intestate and during her lifetime had been employed in carrying on the farm, the business being done mostly in the name of the husband; and that no certificate for the intestate to do business as a married woman ever was recorded under R. L. c. 153, § 10. The plaintiff introduced evidence tending to show that the management, control and carrying on of the farm were solely in the charge of the intestate, and that such acts as her husband did about the carrying on of the farm were solely as her agent.</p> <p>The judge ruled that this personal property of the plaintiff’s intestate was not liable to be attached after her death as the property of her husband or to be taken on execution against him in the actions brought after his wife’s death. He found for the plaintiff in the sum of $699, and reported the case for determination by this court.</p> <p>If the ruling was correct, judgment was to be entered on the finding. If the husband’s creditors had a legal right to attach the personal property of the wife after her decease and sell it on executions against him, the finding was to be set aside, and judgment was to be entered for the defendant.</p>

<p>Evidence, Expressions of pain, Declarations of deceased persons. Negligence. Street Railway.</p> <p>In an action by an administrator for personal injuries incurred by the plaintiff’s intestate, evidence that after the injuries the plaintiff’s intestate looked sick and complained of pain, that during a drive in her own carriage she said that “ it seemed as though it never rode so hard before,” that she complained of her head aching, that she frequently would put one hand on her chest and one on her back and speak of distress, that she made gestures about her head and spoke of her head as paining her severely, is admissible as showing exclamations and expressions manifesting the existence of present pain.</p> <p>Under St. 1898, c. 535, now R. L. c. 175, § 66, after one witness has testified to certain declarations of a deceased person admissible by the terms of that act, other witnesses may testify to similar statements of the declarant made to them.</p> <p>In an action by a woman against a street railway company for injuries from being thrown down by the sudden starting of a closed electric car with a violent and unusual jerk while the plaintiff who had entered the car as a passenger had proceeded up the passageway of the car five or six feet without taking a seat, the jury may find that the plaintiff was exercising ordinary care in proceeding toward the front of the car even if she passed an empty seat which she could have taken.</p> <p>It is no evidence of negligence on the part of the conductor of a closed electric car that while a woman passenger of ordinary strength and health who had entered the car was proceeding on her way to a seat he gave the signal for starting the car without waiting for her to be seated and without notifying her that he was about to give the signal.</p>

<p>Contract on a guaranty in writing of the performance of the covenants of a lease of the land and buildings called Warner’s Block at the corner of Centre Street and Elmwood Street in Newton, for $450 due as rent for the months of August, September and October, 1902, and unpaid by the lessee. Writ in the Municipal Court of the City of Boston, dated May 29, 1903.</p> <p>The guaranty declared on was as follows:</p> <p>“I, Albert L. Gordon for a valuable consideration, hereby covenant and agree with the lessors named in the within lease and their legal representatives, that I will guarantee the prompt payment of the rent as within stipulated, and also the faithful performance of all the covenants and agreements therein contained to be kept and performed by the said lessee.</p> <p>“ Witness, my hand and seal this first day of May, A. D. 1899.</p> <p>“Albert L. Gordon” (seal).</p> <p>The answer contained a general denial, alleged that there was no consideration for the guaranty, and further set up that the plaintiffs and Alvin J. Gordon, the lessee, made an agreement by which the lease was surrendered and cancelled, and a further agreement to extend the time of payment of the rent sought to be recovered without the consent of the defendant and that the defendant was thereby discharged from liability.</p> <p>The agreement of surrender set out in the answer was as follows:</p> <p>“ Boston, November 1, 1902.</p> <p>“Henry E. Bothfeld and Chloe M. Warner, Trustees, Successors to the within named lessors, in consideration of the assignment to them of certain underleases made by Alvin J. Gordon, the within named lessee, of parts of the premises .demised in the within lease, and of other valuable considerations, do hereby release and forever discharge said Alvin J. Gordon, his heirs, executors and administrators of and from all claims, demands and causes of action of and concerning the within lease, and especially all claims by them for rent thereunder, excepting rent for August, September and October, 1902; and said Alvin J. Gordon, the lessee, does hereby surrender and yield up the said lease and the premises within described to said lessors, and such surrender is hereby accepted by said lessors, but without prejudice to the leases cf parts of the premises assigned to said lessors as above mentioned.</p> <p>“Henry E. Bothfeld and Chloe M. Warner,</p> <p>“Trustees under will of John Warner,</p> <p>“ by Henry E. Bothfeld (seal).</p> <p>A. J. Gordon” (seal).</p> <p>The case came by appeal to the Superior Court where it was submitted upon an agreed statement of facts. That court ordered judgment for the defendant; and the plaintiffs appealed.</p> <p>Besides the execution of the lease, the guaranty, the agreement of surrender, and the non-payment of the rent sought to be recovered, the following facts were agreed relating to the defence of the alleged agreement to extend .the time of payment of the rent sought to be recovered without the consent of the defendant:</p> <p>On October 1, 1902, the plaintiffs brought an action in the Newton Police Court against Alvin J. Gordon, the lessee, for rent of the premises for the months of August and September, 1902, and on November 1, 1902, the plaintiffs brought an action in the same court against Alvin J. Gordon for the rent of the premises for the month of October, 1902.</p> <p>On or about November 1, 1902, the lessors and the lessee, Alvin J. Gordon, made the agreement of surrender printed above, and Alvin J. Gordon assigned to the plaintiffs certain underleases of parts of the premises, and thereupon surrendered possession of the premises to the plaintiffs.</p> <p>Pending the actions and at the time of the surrender of the lease and as part of that transaction, the trustees named having no funds of the defendant in their hands, the plaintiffs and the defendant in the actions made and entered into the following agreements in writing relating to the actions, which were filed in court on December 2,1902:</p> <p>“ In case No. 433 :</p> <p>Commonwealth of Massachusetts.</p> <p>Middlesex, ss. Police Court of Newton.</p> <p>Henry E. Bothfeld al., Trustees.</p> <p> vs. </p> <p>Alvin J. Gordon & Trustees.</p> <p>Agreement for Judgment.</p> <p>“ It is hereby agreed that Charles C. Prescott and Stephen J. Quinn, copartners as Prescott & Quinn, summoned as Trustees in the above case be discharged and that judgment be entered for the plaintiffs in the sum of Two Hundred and Eighty and 70.100 dollars ($280.70) with interest from the date of the writ and costs, executions not to be issued until February 15, 1903.</p> <p>“A. H. Wellman,</p> <p>A. W. Dana,</p> <p>Attorneys for Plntffs.</p> <p>“ Charles R. Darling,</p> <p>Attorney for Deft.”</p> <p>“ In case No. 467.</p> <p>Commonwealth of Massachusetts.</p> <p>Middlesex, ss. Police Court of Newton.</p> <p>“ Henry E. Bothfeld al., Trustees.</p> <p> vs. </p> <p>Alvin J. Gordon & Trustees.</p> <p>Agreement for Judgment.</p> <p>“ It is hereby agreed that Charles C. Prescott and Stephen J. Quinn, summoned as trustees in the above case, be discharged and that judgment be entered for the plaintiffs in the sum of One Hundred and Forty dollars ($140.) with interest from the date of the writ and costs, execution not to be issued until February 15, 1903.</p> <p>“ A. H. Wellman,</p> <p>A. W. Dana,</p> <p>Attorneys for the Plaintiffs.</p> <p>“ Charles R. Darling,</p> <p>Attorney for the Defendant.”</p> <p>In pursuance of these agreements judgment was entered for the plaintiffs in each action, on December 5, 1902, in No. 433 for $283.60 damages and $9.26 costs, and in No. 467 for $140.75 damages and $9.06 costs. Execution was issued on these judgments on February 19,1903, in accordance with the agreements above set forth.</p> <p>No part of the judgments or executions was paid, and the judgments were in full force and unsatisfied at the date of the writ in this action. Albert L. Gordon, the defendant, had no notice of the surrender of the lease or the assignment of underleases, or of the actions for rent against Alvin J. Gordon or of the proceedings therein, or of the agreements as to judgment and execution, and did not consent to any of these contracts or transactions.</p>

<p>Marriage and Divorce. Practice, Civil, Judgment or decree.</p> <p>Under R. L. e. 152, § 33, a decree for alimony may be revised and altered after the expiration of the period during which the payment of alimony was ordered if there has been such a change of circumstances as to warrant it.</p> <p>A decree for alimony directed a husband who was granted a divorce to pay to his former wife “ as alimony the sum of $25 per week for two years from the date of the decree nisi.” After the expiration of the two years the former wife filed a petition for additional alimony alleging inability to support herself by reason of ill health and bodily weakness. The court made a decree in substance as follows : “ The form of the former decree indicates that the judge intended that the alimony then ordered to be paid should be in full for all alimony to which the petitioner was entitled, but this is not entirely clear, and by reason of the present condition of the petitioner it is ordered that the respondent pay to the petitioner $15 per week for one year.” Held, that the order allowing further alimony must be construed to include a finding that there was a change in the circumstances of the petitioner since the former decree was made.</p>

Tort by a car sweeper employed by the defendant for injuries from falling through an opening in the floor of the Reservoir car house of the defendant at Brookline. Writ dated March 16, 1908.

<p>Complaint under St. 1904, c. 460, § 2, received and sworn to in the Third District Court of Plymouth on September 20,1904, charging that the defendant at Carver on September 18,1904, that being the Lord’s day, did labor, business and work, to wit, the gathering of cranberries, the same not being a work of necessity or charity.</p> <p>The case came by appeal to the Superior Court where it was tried before Lawton, J.</p> <p>There was evidence tending to show that the defendant on the day named in the complaint and for some time before was a part owner and the superintendent and sole manager of seventeen cranberry bogs in the town of Carver, upon which four gangs of pickers were at work on the Sunday in question ; that on that day, which was pleasant, he was seen by the complainant, a constable, at a short distance from the bogs driving toward them ; that his attention was called to the fact that pickers were at work on the bogs, and he thereupon asserted his intention to continue to do this work on Sunday, saying that he had about ten or fifteen thousand barrels, and would spend it all in fighting rather than quit working Sundays; that later on the same day he was seen on the premises somewhere between the screen house and the bogs while the pickers were at work; and there was evidence tending to show that on that day the work was carried on under his superintendence.</p> <p>He testified that he had, on the Sunday in question, from three hundred and fifty to four hundred pickers at work; that he could not harvest the crop without working on Sunday ; that he had been in the habit of gathering on Sundays; and that he had picked cranberries every Sunday since he had been in the business. He admitted that he had said to the complainant that he could not afford to stop working on Sunday and that he should keep on. He also said, on cross-examination, that the only reason he picked on Sunday was to save his crop; that if he had employed men enough, one sixth more, he could have done the same work in six days that he was doing in seven; that the crop this year was the largest they ever had, almost three times greater than that of any previous year; that he knew the last of July or the first of August that they were going to have such a crop, and that he should have to employ a great many more men to take care of it; that he could not accommodate any more men ; that they lived in shanties owned by him; that the shanties cost money; that he did not try to put up tents; that he began to employ three hundred or four hundred men about September 15 and kept them from that time on.</p> <p>At the close of the evidence the defendant among other requests asked the judge to rule, that gathering cranberries on the Lord’s day is not necessarily unlawful; that the question depends upon the existence of a reasonable necessity, and it is only when the work is clearly unnecessary that the statute is violated ; that if, owing to the size of the crop, the difficulty of procuring or housing labor, the prospect of frost or the danger of the fruit getting overripe, and other circumstances, the defendant believed, and had reason to believe, that the crop might be injured or lost if he did not gather it on the Lord’s day, he was justified in so doing.</p> <p>The judge refused to give these and other instructions requested by the defendant. He instructed the jury, in substance, that the work alleged to have been done was not, under the circumstances, work of necessity within the meaning of the statute, and submitted the case to them upon the issue of fact whether the defendant gathered cranberries upon the day named in the complaint. The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p> Mechanic’s Lien. </p> <p>On a petition to establish a mechanic’s lien for work and labor performed and furnished in the erection of a building under a contract with the contractor who built it, if it appears that the petitioner failed to perform his contract, that the contractor suffered loss from this cause and that the work furnished by the petitioner was of no value to the contractor, a jury is not justified in finding for the petitioner.</p>

<p>Tort against a constable of the city of Boston for the alleged conversion of certain goods and chattels attached by him. Writ dated June 10, 1897.</p> <p>At the trial in the Superior Court in October, 1903, before Gashill, J. the jury returned a verdict for the defendant. The plaintiff reduced to writing a bill of exceptions and filed it with the clerk of the court within twenty days after the verdict.</p> <p>The defendant moved to dismiss the bill of exceptions because no notice of the filing was given to him. At the hearing on the motion it appeared that within the required time after the filing of the bill of exceptions the attorney for the defendant received through the mail, postage prepaid, a copy of the bill of exceptions without signature of counsel, but that there was no letter accompanying the copy, and no memorandum or statement as to the filing thereof.</p> <p>The plaintiff requested the judge to rule as follows:</p> <p>First, If the court finds that the exceptions in the case at bar were properly reduced to writing and a copy of such exceptions so reduced to writing was delivered by the plaintiff to the defendant within the time required for filing'such exceptions, and for giving notice thereof to the adverse party, then the delivery of such copy amounted to the giving of a sufficient notice by the plaintiff to the defendant of the filing of such exceptions.</p> <p>Second, On all the evidence before the court a sufficient notice of the filing of the bill of exceptions in question was given.</p> <p>The judge refused to rule as requested and allowed the defendant’s motion. The plaintiff alleged exceptions.</p>

<p>' Insurance, Fire. Agency. Practice, Civil, Costs.</p> <p>The unrestricted general agent in this Commonwealth of a fire insurance company organized under the laws of another State has authority not only to accept risks and receive proofs of loss but also to adjust and settle losses, and the company is bound by his acts although contrary to special instructions which are unknown to the insured.</p> <p>The authority of an insurance broker acting for one desiring insurance may be found to have ended when a policy for the insurance has been countersigned by the general agent of the company and has been given by him to his clerk for delivery directly to the insured to whom it subsequently is delivered without the intervention of the broker.</p> <p>Where a policy of insurance against fire upon mortgaged real estate provides that it shall be payable in case of loss to the mortgagee, if an action on the policy is brought by the insured without the knowledge of the mortgagee a subsequent assent of the mortgagee is sufficient to enable the plaintiff to maintain his action. The question whether in such a case the plaintiff is entitled to costs was not raised by the record.</p>

<p>Equity Pleading and Practice, Hearing before master. Practice, Civil, Auditor, Appeal.</p> <p>In a hearing before a master appointed by a single justice of this court in a case coming by appeal from the Probate Court, the report of an auditor appointed by the Probate Court under R. L. c. 165, § 56, which was filed in the case in the Probate Court and relates to the issues on trial is admissible as a part of the case which it is the duty of the master to hear.</p>

<p>Bonds were issued by the city of Boston under St. 1897, c. 500, on each of which under the requirement of that statute were stamped the following words: “ East Boston Tunnel. The whole amount of the rentals for the use of and tolls for persons passing through the East Boston tunnel is pledged for the payment of the principal and interest of this loan.” The statute provided that the city of Boston should collect from each person passing through the tunnel in either direction a toll of one cent, which under certain conditions might be reduced or abolished by the railroad commissioners on petition of ten citizens. Held, that the sale of the bonds with the above stipulation expressed on their face by direction of the Legislature created a contract with the purchaser of each bond which it was not in the power of the Legislature to impair ; that the tolls referred to were those then established by law and that they could not be diminished without reducing the security to which the owners of the bonds were entitled.</p> <p>In the stipulation on the face of the bonds issued to pay for the construction of the East Boston tunnel, stating as required by St. 1897, c. 500, § 17, that “ the whole amount of the rentals for the use of and tolls for persons passing through the East Boston tunnel is pledged for the payment of the principal and interest of this loan,” the words “the whole amount of the tolls” mean the net amount, and the city of Boston may deduct a reasonable charge for the cost of collection.</p> <p>In the stipulation on the face of'the bonds issued to pay for the construction of the East Boston tunnel, stating as required by St. 1897, c. 500, § 17, that “ the whole amount of the rentals for the use of and tolls for persons passing through the East Boston tunnel is pledged for the payment of the principal and interest of this loan,” the tolls pledged by the contract include the payments made by those who leave the tunnel without passing through the whole of it, and the Legislature has not the power to abolish the toll of one cent required from persons travelling in the tunnel between Scollay Square and Atlantic Avenue.</p>

<p>Under the Constitution of the Commonwealth, c. 8, art. 2, it is not the duty of the justices of this court to answer a question from a branch of the Legislature upon an important question of law which is asked merely to obtain general information without reference to any proposed legislation.</p> <p>A statute attempting to equalize the bounties paid to soldiers in the Civil War by giving to soldiers who served in that war under a contract of enlistment further compensation, because other soldiers enlisting in the same war at other times and places made more advantageous contracts, would be unconstitutional as authorizing taxation for a private purpose. Such a statute would not be changed in character, and so would not be made constitutional, by inserting in it recitals that the payments were authorized in recognition of valuable services with a view to the promotion of loyalty and patriotism.</p> <p>Whether this Commonwealth might not grant pensions in recognition of the services of its citizens in the army of the United States, quwre.</p> <p>A statute providing for the reward of distinguished public services, with a view to the promotion of loyalty and patriotism, by the payment of money, the erection of statues, or the bestowal of medals, decorations or other badges of honor would be constitutional.</p>

<p>Under the Constitution of the Commonwealth, where the Governor is given power to act “by and with the advice of the council” or “by and with the advice and consent of the council,” the responsibility rests primarily on the Governor to determine whether any action is called for and what action, if any, is desirable, and the approval and concurrence of the Council are required only to complete an affirmative act.</p> <p>Under Const. Mass. c. 2, § 1, art. 8, the Governor before denying a petition to pardon a person convicted of a crime or to commute his sentence is not required to submit the petition to the Council.</p> <p>The commutation of a sentence is a pardon upon condition that the convict voluntarily submits to a lighter punishment.</p>