Volume 192 — Massachusetts Reports

<p> Landlord and Tenant. Evidence. </p> <p>The servant of a lessee of a part of a building who is injured on the leased premises owing to a want of repairs has no greater rights against the lessor than the lessee himself.</p> <p>Where one takes a lease of certain rooms in a building, covenanting that he will keep the premises in such repair, order and condition as they are in at the commencement of the term or may be put in during its continuance, and the premises are in good condition when he takes the lease, if afterwards he is injured by the plastering of the ceiling falling upon him owing to a leak in a flat roof not included in the premises let to him, he cannot recover from the landlord for his injuries, as it is his own duty to repair the ceiling and the landlord owes him no duty to repair the roof; and the same is true if the person injured is the servant of the tenant who as against the landlord has no greater rights than his employer.</p> <p>If a landlord makes repairs at the request of a tenant this is not an admission of his liability or obligation to make the repairs.</p>

<p> Dower. Husband and Wife. Marriage and Divorce. Equity Jurisdiction. Trust. </p> <p>In this Commonwealth a wife has no dower in real estate in which her husband’s title was merely equitable and of which he never had the legal seisin at any time during the coverture.</p> <p>A wife had obtained a divorce against her husband for the cause of adultery, and thereby under R. L. c. 152, § 24, was “ entitled to her dower in the same manner as if he were dead.” Her husband, before the divorce and while he was living apart from her, had procured the conveyance of certain real estate by its former owner to the husband’s sister, in trust to pay him the rents and profits during his life and to allow him to use and enjoy it during that time, also, at his request, to sell and convey it or any part of it free from the trust and to pay the proceeds to him, to mortgage it at his request, and to convey it to such person as he might direct by his last will, and in default of such direction to convey it to his heirs at law. At the request of the husband his sister as trustee conveyed the real estate by a mortgage deed to a mortgagee who was a purchaser for value in good faith and who recorded the mortgage. Later the mortgagee advertised the land for sale for a breach of a condition in the mortgage, and the wife brought a suit in equity against the mortgagee to restrain the foreclosure. The plaintiff’s divorced husband had died intestate. Held, that the defendant’s title was complete against the plaintiff’s claim of dower, and that the bill must be dismissed.</p> <p>A remark in Leonard v. Leonard', 181 Mass. 458,461, in regard to the deed of conveyance in the case of Brownell v. Briggs, VIZ Mass. 529, being “ left in the grantor’s possession ” explained after inspection of the record in the last named case.</p> <p>A power reserved in an instrument creating a trust to revoke or terminate the trust does not make the trust invalid.</p>

<p>Land Court. Superior Court. Practice, Civil, Appeal. Adverse Possession. Evidence, Competency, Declarations of deceased persons, Declarations concerning boundaries, Opinion.: experts.</p> <p>Under R. L. c. 128, § 13, as amended by St. 1902, c. 458, St. 1904, c. 448, and St. 1905, c. 288, on an appeal to the Superior Court from a decree of the Land Court, if the issues framed in the Land Court are found in the Superior Court to be inadequate properly to present all the matters specified in the appeal, semble, that the Superior Court has power, on the application of a party, to modify or enlarge the issues relating to the matters specified, although the Superior Court would not be expected to frame additional issues or to change existing issues without very good reasons for doing so.</p> <p>When an appeal to the Superior Court from a decree of the Land Court specifies no matters which are not adequately presented by the issues framed by the judge of the Land Court no questions of fact other than those raised by the issues can be tried on the appeal.</p> <p>One proving a title by adverse possession may include the possession of his predecessor in title which has been transferred to him.</p> <p>On the issue, whether the possession of one who claimed certain land under a deed and that of his predecessor in title were adverse, it is competent for the person making such claim to show that he paid $9,000 for the land, that his predecessor in title and possession brought an action for trespass against a street railway company for constructing its railway over a part of the land, and that this same predecessor built a cottage upon the land which cost him about $1,200.</p> <p>On the question, whether the possession of a deceased predecessor in title of one claiming certain land was adverse, the person claiming the land may put in evidence, under R. L. c. 175, § 66, the declarations of his deceased predecessor as to his occupation of the land, and his declarations made on the land in pointing out the boundaries claimed by him, the last also being competent at common law.</p> <p>At the trial of a petition for the registration of the title to certain land, a conveyancer who has examined the title to the land in question cannot be asked by the respondent whether or not in his opinion the petitioner can be said to have a good title to all the land included in the petition, or whether his record title is good only so far as it relates to the share or portion which belonged originally to a certain person, the question apparently calling for the opinion of the witness on questions of law as well as on incompetent questions of fact.</p>

<p>Equity Pleading and Practice, Appeal. Equity Jurisdiction, Equitable replevin.</p> <p>On an appeal in equity .where the testimony is largely oral and is conflicting, the findings of the trial judge are to stand unless they appear to be clearly wrong.</p> <p>Evidence that the defendant had in his possession a certain machine belonging to the plaintiff and that when the plaintiff undertook to obtain possession of it by a writ of replevin the defendant concealed from the officer certain essential parts of the machine which had been taken from it by him so that the officer could not serve the writ properly, is sufficient to sustain a bill of equitable replevin under R. L. c. 159, § 3, cl. 1.</p>

<p>Petition, filed August 26, 1903, under St. 1903, c. 392, for damages to the property of the plaintiff by reason of the removal of the railroad of the Old Colony Railroad Company operated by the New York, New Haven and Hartford Railroad Company, in the abolition of the grade crossing at Dorchester Avenue in Boston under the provisions of St. 1897, c. 519.</p> <p>The answer, after a general denial, alleged that the petitioner in June, 1899, brought a petition against the respondent for the same cause of action, that the case was heard before a jury and damages were awarded to the petitioner, and that the petitioner is not entitled to bring a new petition for the same cause of action.</p> <p>In the Superior Court the case was heard by Lawton, J. The former petition, referred to in the answer, was filed in the Superior Court on June 12, 1899, to recover the value of the land of the petitioner taken in abolishing the grade crossing in question and also for damages to his remaining land caused by the removal of the railroad which was used by him in carrying on the business of a kindling wood manufacturer. That case, after being tried in the Superior Court, was reported to this court upon questions of law, and on February 26, 1902, by a decision reported in 180 Mass. 433, this court decided that the petitioner was entitled to no damages for the injury to his remaining land by the removal of the railroad.</p> <p>On May 27,1903, the Legislature passed St. 1903, c. 392, as follows:</p> <p>“ Section 1. The city of Boston shall be liable to pay to any person owning land abutting on the line of the New York, New Haven and Hartford Railroad Company, as the same was located prior to the abolition of the grade crossing on Dorchester avenue, and having railroad connection with such railroad, and whose land, or any- part thereof, has been taken by said city for the purpose of constructing a highway, such damages to property as he has suffered by reason of the removal of the railroad and of the loss of his railroad connection therewith.</p> <p>“ Section 2. Such damages may be recovered on a petition brought within three months after the acceptance of this act as hereinafter provided, in the manner provided by law for the recovery of damages for land taken for the laying out of highways in the city of Boston.</p> <p>“ Section 3. This act shall take effect upon its acceptance by the city council of the city of Boston.”</p> <p>The facts relating to the question whether this act was accepted by the city of Boston are stated in the opinion.</p> <p>The provision of the charter of the city of Boston, St. 1854, c. 448, § 47, referred to in the opinion, is in full as follows:</p> <p>“ Every ordinance, order, resolution, or vote, to which the concurrence of the board of aldermen and of the common council may be necessary, (except on a question of convention of the two branches,) and every order of either branch involving the expenditure of money, shall be presented to the mayor; if he approve thereof, he shall signify his approbation by signing the same; but if not, he shall return the same, with his objections, to the branch in which it originated, who shall enter the objections of the mayor at large on their records, and proceed to reconsider said ordinance, order, resolution, or vote; and if, after such reconsideration, two-thirds of the board of aldermen or common council, notwithstanding such objections, agree to pass the same, it shall, together with the objections, be sent to the other branch of the city council, (if it originally required concurrent action,) where it shall also be reconsidered, and if approved by two-thirds of the members present, it shall be in force; but in all cases the vote shall be determined by yeas and nays, and if such ordinance, order, resolution, or vote, shall not be returned by the mayor within ten days after it shall have been presented, the same shall be in force. But the veto power of the mayor shall not extend to the election of officers required by any law or ordinance to be chosen by the city council, in convention, or by concurrent action, unless expressly so provided therein.”</p> <p>The respondent asked the judge to rule</p> <p>1. That St. 1903, e. 392, is unconstitutional.</p> <p>2. That the action of the mayor was a legal veto of the acceptance of the act.</p> <p>The judge refused to make these rulings, and ordered that • the case stand for trial, but being of the opinion that this interlocutory order ought to be determined by this court before further proceedings in the Superior Court, at the request of the petitioner he reported the case for such determination.</p> <p>If this court should be of the opinion that St. 1903, c. 392, is unconstitutional, or that the action of the mayor was a legal veto of the acceptance of the act, the petition was to be dismissed ; otherwise, the case was to stand for trial on its merits.</p>

<p>Three actions of tort, the first action at common law by the administratrix of the estate of Max Pearlstein, the owner of a tip cart and two horses, for injuries and conscious suffering of the plaintiff’s intestate caused by a heavy iron machine falling upon him while it was being unloaded from his cart in an attempt to place it in a freight car of the defendant, alleged to have been due to the negligence of the defendant in not supplying suitable appliances for shipping the machine and to the negligence of the defendant’s servants and agents while engaged in such shipping, the second action by the same plaintiff as administratrix under R. L. c. Ill, § 267, for the benefit of herself, as widow of the intestate, and his children, for causing his death by the same accident, and the third action at common law by Antony Yelkin, employed by Pearlstein, for personal injuries caused by the same accident. Writs dated March 8, 1905.</p> <p>In the Superior Court the three cases were tried together before Fessenden, J. The material conclusions of fact warranted by the evidence are stated in the opinion.</p> <p>The testimony of the plaintiff Yelkin was as follows:</p> <p>“ I live in Boston, I know Max Pearlstein, worked for him. I came from Russia about six years ago, I had known Max Pearl-stein three or four years ago, Mr. Pearlstein was a junk man, I went around with him and did a little farming, he owned the horses and the tip cart, I remember November 26, 1904, Mr. Pearlstein was killed that day, we went in morning to Osterville to Mr. Crosby’s to take a machine to West Barnstable for freight, we put it on the tip cart, then went to dinner and fed the horses, after dinner we went to West Barnstable with the machine, went to the freight house, we took it to the platform, I turned the horses around and backed up to the platform, the freight man [Hiller] came and said, ‘ That is the car for the machine,’ and showed us the car in which to put the machine, Mr. Pearlstein said, 61 don’t want to put it in the car; I want to put it on the platform,’ the freight man said, ‘ I want you to put the machine into the car.’ He said, ‘I want you to turn the horses around and back up to the car and put the machine into the car.’ I said, ‘No, I can’t do it.’ I said, ‘The big piece of iron weighs eight or nine hundred, and is pretty heavy, and there is not enough men here —just three men.’ And he said, ‘ I will get you some rope.’ The machine was about two and a half feet wide and about five or six feet long, the platform was just like the tip cart, just the same height when the tailboard was let down, then I turned horses around and backed up to the car and blocked the wheels, Mr. freight man told me to bring that ladder [skids], I picked the ladder up and put it on the cart and put it in the car, after I brought the ladder the freight man put the ladder in the car, and he bring two rollers, Max was pushing the rollers under the machine, I asked the freight man ‘Have you got any rope in here?’and he said, ‘No, I no got any rope ’; and he went and got a rope and he tied up the machine with a rope — the freight man tied the rope in the car, around a rod next to the opposite door of the car, I did not see the place where it was tied ; but I saw it was tied and the freight man tied it, I didn’t see anybody else in the car, I didn’t look, the freight man jumped from the car to see about his ladder and called the fellow who was all the time helping about jobs [Cook], told him to jump in the car and gave him this rope and said, ‘ You keep this,’ when we started to move the machine he said to him, ‘ You hold the rope and pull.’ The man that the freight man called I had seen before, taking barrels of cranberries and lifting them into the car, working for the railroad, came from another car. The freight man called him to help move the machine into the car. ' The floor of the car was about two feet higher than tip cart, about ten feet from car to tip cart, we started moving machine from tip cart on to the ladder, fellow in car holding rope, we had got it about half way up the ladder, about same distance from car and from cart, I said to him [freight man] ‘ we cannot push the machine; it is too high and there is not enough men ’ and he said ‘ push it.’ But he told this fellow to stay in the car and keep the rope and pull, and we pushing the machine, and this fellow stayed in the car and pulled the rope, and started to jump, and dance and whistle, and stopped pulling the machine. And I said ‘ John, you keep the rope good. Do not play with the rope because the machine will fall down.’ Well for three or four minutes the machine went, and then it fell down, and fell on this shoulder, and scraped my head, and I fell with the machine, and moved it four or five inches before it fell down. After I said stop, John’ I started moving the machine and the next thing that happened, the machine fell and I with it. Pearlstein was standing at my back, the freight man and Crocker on the other side of ladder. Crocker came from Parker’s store and was helping the freight man. I could not do anything for five or six weeks. I sat down for five or six minutes, it was dark to me, after the accident I saw Mr. Pearlstein at the machine, it was killing his head, he was taken into a store and in forty minutes was dead. The skid was about a foot and a half wide, the machine was a little wider than the skid. Pearlstein said, ‘ Tony, I can’t get up. I have a broken leg.’ He lived about forty minutes. I was struck by the machine and it made a scar on my head.”</p> <p>His cross-examination was as follows :</p> <p>“We had two horses, we drove into the grounds near the station and near Parker’s store, I did not know station agent or baggage master, nor assistant baggage master, saw a man on platform, Pearlstein said ‘ Where shall we put this machine ? ’ the man asked ‘ Where is it going ? ’ Pearlstein said ‘ It is going to Boston,’ the man said ‘It goes in that car right over there,’ the cart was just about at the platform, and the freight man pointed at the car, the land was perfectly level, I or Pearlstein drove the horses over near the car and backed the cart up against the door of the car, at this time another railroad man was in another car arranging cranberries. The freight man brought the ladder alone, the freight man put the ladder on to the tailboard of the cart, and into the car, the freight man took the bar and bringing these two rollers and lift this machine and was pushing the rollers under the machine, I had two rollers in the wagon from Osterville, and a small piece of rope from Osterville, the freight man worked the machine ahead with the crowbar, he showed us everything to do, a boy * was in the car holding the rope, I and Max were on one side and Hiller and Crocker on the other side.”</p> <p>“ Q. And you were all pushing, and this boy inside of the car was pulling on the rope ? A. Yes.</p> <p>“ Q- Now, do you say he was jumping around, dancing and whistling and jerking on the rope ? A. Yes, sir.</p> <p>“ Q- And you said to him ‘ Stop, John, what are you doing?’, A. Yes.</p> <p>“ Q. ‘ Stop your dancing ’ ? A. Yes, sir.</p> <p>“ Q. Stop your laughing ’ ? A. Yes, sir.</p> <p>“ Q- And what did he do then, when you said Stop, John’, did he stop ? A. He stopped this time.</p> <p>“ Q. And this time he was dancing and laughing and jerking on the rope ? A. Yes, sir.</p> <p>“ Q- And all the time you four men were trying to push this heavy machine up on to those skids ? A. Yes, sir.</p> <p>“ I don’t know what made the machine fall, I did not hear Cook or Hiller say, ‘Look out,’ I did not hear Pearlstein say to the crowd, ‘ All right,’ ‘ all hands pull,’ ‘ All right, go ahead,’ or anything like that.”</p> <p>His re-direct examination was as follows :</p> <p>“ When we drove into the yard we drove up to the platform first, we saw the freight man as we drove in, the freight house is right in front, the car was on our left, we drove to the freight house, we turned our team around and saw the car, he told us he wanted us to put the machine in the car, and I told him we wanted some ladders.”</p> <p>In the first and third actions, at common law, the judge refused to order verdicts for the defendant, and refused to rule as requested by the defendant, that the plaintiff’s intestate and the plaintiff Yelkin were not in the exercise of due care, that there was no sufficient evidence to warrant the jury in finding that the injury to the plaintiff’s intestate and the plaintiff Yelkin occurred by reason of the negligence of the defendant, its servants or agents, and that the plaintiff’s intestate and the plaintiff Yelkin knew the situation, knew the weight of the machine and knew the danger and voluntarily assumed the risk.</p> <p>In the second action, under It. L. c. Ill, § 267, the defendant asked the judge to order a verdict for the defendant, and to rule as follows:</p> <p>1. That the plaintiff’s intestate was not in the exercise of due care.</p> <p>2. That there is no sufficient evidence to warrant the jury in finding that the death of the plaintiff’s intestate occurred by reason of gross negligence of any of the defendant’s servants or agents.</p> <p>3. That the plaintiff’s intestate knew the situation, knew the weight of the machine, and knew the danger and voluntarily assumed the risk.</p> <p>The judge refused to make any of these rulings, and submitted the three cases to the jury, submitting also to the jury two special questions which they answered as follows:</p> <p>“ 1. Was Max Pearlstein (or was Anthony Yelkin) in the exercise of due care?” The jury answered “ Yes.”</p> <p>“ 2. Did Max Pearlstein (or did Anthony Yelkin) assume the risk ? ” The jury answered “ No.”</p> <p>The jury returned a verdict for the plaintiff in each of the cases, in the first case in the sum of $250, in the second case in the sum of $2,000, and in the third case (Yelkin’s) in the sum of $200. The defendant alleged exceptions in each case.</p>

Tort for personal injuries incurred by the plaintiff on February 9,1901, while in the employ of the defendant in its Repair shop at Norwood, by the rolling against him of a pair of driving wheels of a locomotive engine attached to an axle which had been taken from the engine for repairs and were on a fall table in a pit, the first count alleging a failure properly to warn and instruct the plaintiff concerning the risks and dangers of his employment, the second count alleging…

<p>Practice, Civil, Appeal.</p> <p>Under R. L. c. 173, § 97, the right of appeal to the Superior Court from a judgment of a police, district or municipal court or trial justice in a civil action includes an appeal from a judgment rendered on an agreement in writing signed by the parties or their attorneys, and, if the validity of the agreement is called in question by one of the parties in whose behalf it is sighed, he has a right to have his case considered and determined in the Superior Court.</p> <p>Against the oral objection of the plaintiff in person an agreement of counsel was filed in a case in a municipal court that the entry might be made of “ Judgment for the plaintiff in the sum of $75 without costs and judgment satisfied.” After a hearing, in which the plaintiff was represented by new counsel, an entry was made of “Judgment for plaintiff for $75 without costs by agreement,” and another entry was made of “ Judgment satisfied.” The plaintiff appealed to the Superior Court. Held, that under R. L. c. 173, § 97, the plaintiff had the right to appeal from the judgment, and on such appeal could show that the agreement for judgment was made without authority from him, and that he was entitled to a larger sum than the amount named; held also, that the entry “ Judgment satisfied ” was not a part of the judgment and had no effect on the plaintiff’s right of appeal.</p>

<p> Negligence. </p> <p>There is an age of a child, beyond that at which as matter of law he is incapable of exercising care and before reaching that- at which as matter of law he is capable of exercising care, when, in an action by the child for personal injuries, it is a question of fact for the jury whether under the circumstances attending his injury he was incapable of exercising care so that no care on his part personally need be proved.</p> <p>In an action for personal injuries by a child run over by a car of a street railway company, if it appears that the plaintiff was a boy four years and three months of age, a lively child, active and energetic, that the car was running on a city street at the rate of from fifteen to twenty miles an hour, that the plaintiff was crossing the street with another boy who was slightly older ahead of him, and that he walked at a “ pretty lively gait ” or trotted “ at a fair little jog” into the forward fender of the car which ran over him, it is a question for the jury whether the plaintiff has shown that he was incapable of exercising care and so was not required to exercise it in crossing the street.</p> <p>In an action by a child for personal injuries from being run over by a car of a street railway company, if it appears that the plaintiff was a boy four years and three months of age, a lively child, active and energetic, that the parents of the plaintiff with their three children occupied an apartment on the third floor of a house in which lived three families who used the hallway and front door in common, that it was a rainy day and the plaintiff’s mother let him play in the hallway on the ground floor with another little boy who had come to play with him, that the mother was washing at a tub in a small kitchen opening into a small entry that led into the hallway on the third floor and that every few minutes she went about ten or twelve feet to the rail where she looked down to see the little boys, and she also could hear them at play while she was at the tub, that finally she missed them “ because it was so quiet all of a sudden ” and, after looking down and seeing they were not there, called to her husband to go down and see where the plaintiff was, that, while she was washing, her husband was in another room tending the baby who was sick, that the husband on going down learned that the plaintiff had gone with the other little boy out of the front door and had been run over by a car of the defendant, that the plaintiff’s mother never allowed him to go out when it rained, that the father knew that the street outside was a dangerous place, that he heard the mother tell the boy to be sure and stay in the entry, and he told the boy not to go out of the entry on to the door steps, and did not think he would go out when he had told him not to, that “ he was always a good boy to mind.” Held, that the question whether the plaintiff’s parents exercised due care was one of fact for the jury.</p>

<p>Negligence. Street Railway. United States Mail. Practice, Civil, Exceptions.</p> <p>Although a street railway company in operating a postal car carrying the United States mail is required to exercise the same degree of care toward travellers on the highway as in operating other cars on the streets, it is not error for the presiding judge at the trial of an action for personal injuries caused by a collision with such a car, after giving proper instructions as to the due care of the plaintiff and the negligence of the defendant, to call the attention of the jury to the provision of U. S. Rev. Sts. § 3995, making it a criminal offence knowingly to obstruct or retard the passage of the mail, and by way of illustration of the comparative rights-of carriers of mail to refer to the provisions of R. L. c. 16, § 143, in regard to the right of way in the streets of “ United States forces or troops, or any portion of the militia parading or performing any duty according to law,” providing that the carriage of the United States mail shall not be interfered with; and, if the plaintiff has testified that he did not know that the car with which he came in collision was a mail car, this does not make this portion of the charge inapplicable to the case if the plaintiff also has testified that he saw the car while at a distance of one hundred and forty feet from him before he turned to cross the defendant’s track, as the jury may believe in spite of the plaintiff’s testimony to the contrary that he knew the car to be a mail car.</p> <p>In an action against a street railway company for personal injuries from a collision with a postal car owned and operated by the defendant engaged in carrying the United States mail, if the judge in his charge has commented on the character of the postal service and the plaintiff, who has testified that he did not know the car to be a mail car, is apprehensive that this testimony has been overlooked by the judge, he should call his attention to the matter and make this the ground of a specific objection to the charge or a request for further instructions, and in the absence of such objection or request he has no ground for exception if the jury find for the defendant.</p>

<p>Evidence, Declarations of deceased persons. Statute.</p> <p>A declaration of a deceased person otherwise admissible under St. 1898, c. 535, now R. L. c. 175, § 66, is not to be excluded because it was made before the passage of that statute.</p> <p>A declaration of a deceased person otherwise admissible under R. L. c. 175, § 66, is not to be excluded because in the form of a statement in writing signed by the declarant.</p> <p>R. L. c. 175, § 66, providing that a declaration of a deceased person shall not be excluded as hearsay if the court finds that it was made in good faith before the commencement of the action and upon the personal knowledge of the declarant, is remedial in its nature and should be construed liberally so as to extend rather than restrict its application.</p>

<p>Negligence, Employer’s liability, Res ipso loquitur. Electric Light Company.</p> <p>In an action under R. L. c. 106, § 78, by the next of kin of an employee of an electric light corporation against the corporation for causing his instant death, there was evidence that the deceased was an oiler whose ordinary duties were to oil and clean the engines in the engine room of the/ power house of the defendant under the direction of the engineer, that on a shelf about two feet from the level of the engine room floor were instruments called regulators, the purpose of which was to increase or diminish the amount of the current sent out over the lines, and which were connected with a switchboard which was on a platform above the regulators eight or ten feet high reached by steps from the engine room floor, that the passage from the engine room floor to the regulator shelf was closed by two parallel iron bars one end of each of which was supported in a socket in the brick wall of the building and the other end in a socket screwed to a wooden post near one of the iron posts that supported the framework of the switchboard platform, this iron post being about three inches from the engine room floor and separated from it by the bars, that a passage to the regulator shelf could be opened by unscrewing the bars from the sockets at one end and pushing them through the sockets attached to the wooden post which supported them at the other end, that the regulators and the switchboard were in charge of the defendant’s electrician, that while the electrician, the engineer and the deceased were on the engine r.oom floor, there came a loud report and a flash, that one of the regulators was smoking, that a little flame coming out of one corner of it was on the chain cable leading to its side, and that the tape insulation was burning, that the deceased immediately rushed to the bar that had to be unscrewed and pushed through the socket before the electrician could get into the electrical enclosure to put out the fire, that the engineer after seeing to the engine followed, and all three men then took part in unscrewing and pushing aside the upper bar and thus enabled the electrician to step over the lower bar into the space where the regulators were, that he stepped through with a pail of sand in one hand and a scoop in the other and was scooping up the sand, when the deceased in some way came in contact with the iron post and was instantly killed by an electric current passing through his body. The engineer testified that in case of fire it was the duty of the deceased to assist in putting it out if possible, and the electrician testified that there was a fire four or five weeks earlier which he assisted in putting out, and that the engineer and the deceased were there assisting. Held, that the jury were warranted in finding that the emergency justified and required the deceased to be where he was, and in finding that he was in the exercise of due care.</p> <p>It is evidence of negligence on the part of an electric light corporation, that, after having knowledge from the fact that electric shocks were received by masons at work in the basement of its building that its system in use for carrying off superfluous electricity was not working properly and that electricity had found its way into the iron framework in the building, it continued on the next day to use the same system without change and without giving notice to its employees of the danger of receiving a charge, of electricity on coming in contact with the iron work.</p> <p>Semble, that the fact, that a workman employed to oil machinery in the power house of an electric light company on coming in contact with an iron post in the building was killed by a charge of electricity, is not in itself evidence of negligence on the part of his employer.</p> <p>To entitle the next of kin of an unmarried employee to recover against his employer under R. L. c. 106, § 73, for causing his instant death, on the ground that the plaintiffs at the time of his death were dependent upon his wages for support, it is enough to show partial dependence.</p> <p>In an action under R. L. c. 106, § 73, by the father and mother of an unmarried son against his employer for alleged negligence causing his instant death, brought as the next of kin of the deceased, “ who, at the time of his death, were dependent upon his wages for support," it appeared that the. family before the death of the deceased consisted of the plaintiffs with their two daughters, the deceased and another son, that the father was seventy and the wife sixty years of age, that the father earned certain money from time to time but had no regular work for all the year, that the mother was not very well and sometimes could not perform household duties, that the younger daughter had not worked for two years but stayed at home and helped her mother in conducting the household, that the other daughter worked for regular wages, that the other son how surviving, who was a student in a medical school, lived at home but otherwise supported himself, contributing nothing to the support of the family and receiving nothing except his lodging and meals, that the son who was killed received $12 a week which he handed to his mother, that the father kept as pocket money $2 a week, and that his remaining wages, those of the working daughter and those of the deceased son, in all about $24 a week, were given to the mother for the support of the family of six, and the personal expenses of all but the son in the medical school, that after the death of the deceased the family continued to live in the same house and to pay the same rent, and the mother testified that they had " plenty to eat and drink and wear.” It appeared that since the death of the son the working daughter had had a slight increase of pay. Held, that the evidence warranted a finding that the plaintiffs were dependent, at least in part, on the son who was killed, and were entitled to maintain the action as his next of kin dependent upon his wages for support within the meaning of the statute!</p>

<p> Nuisance. Way. </p> <p>A woman passing over a private way on which abuts the house occupied by a person employed by her as a dressmaker, while going to and returning from the house upon this business, has the rights of an abutter on the way as against one maintaining a nuisance thereon.</p> <p>The owner of a house within his control abutting on a private way which is not a part of his premises, who constructs and maintains the eaves, gutter and conductor of the house in such an improper and negligent manner as to cause in the winter a dangerous accumulation of ice in front of the house upon the part of the way designed and fitted for travel, is liable to a person who while lawfully travelling on the way in the exercise of due care is injured by a fall caused by the nuisance thus created.</p>

<p> Easement. Water Rights. Waterworks. Municipal Corporations. Walpole. Mills and Mill Privileges. </p> <p>Under St. 1893, c. 277, authorizing the town of Walpole, for the purpose of supplying itself and its inhabitants with water,'to take and hold certain waters and the water rights and water sources connected therewith, and also all lands and easements necessary for holding and preserving such water, a taking of an entire parcel of land for the purposes named in the statute, describing it by metes and bounds and as if it were unincumbered, includes the taking from a riparian owner on a stream below of an easement to flow the land in connection with a dam on that stream, and it is immaterial that no personal notice of the taking was given to the owner of the easement if notice was given by recording the taking in the registry of deeds in accordance with the terms of the statute. Whether a town by a taking of land for the purpose of supplying its inhabitants with water, under a statute authorizing it to take and hold certain waters and the water rights connected therewith and all lands and easements necessary for holding and preserving such water, would deprive a riparian proprietor on the stream below of his right to build a dam under the mill act and set back water on the land above by paying damages to the owner, was not decided in this case because the question was not raised.</p>

<p>Contract, Construction. Option. Words, “ Option.”</p> <p>In a suit in equity to enforce specifically an alleged agreement to purchase certain bonds from the plaintiff the following facts appeared by the bill, to which the defendant demurred: The plaintiff on January 1 of a certain year delivered to the defendant an agreement of option and the defendant acknowledged in writing at the foot of the agreement its delivery to him on that day. By this instrument the plaintiff agreed to sell the defendant on or before February 10 of that year $700,000 of the bonds in question on being paid a price named, and agreed “ in case this option is accepted ” to endeavor to procure $50,000 more of the same bonds for delivery at the same price. The agreement recited that in addition to the $750,000 of the bonds mentioned above there were $59,000 of the bonds pledged for the debts of the corporation that issued them, and the plaintiff agreed “in case this option is accepted” to sell to the defendant these bonds also at the same price. There also were other outstanding bonds which the plaintiff agreed to help the defendant to procure “in case this option is accepted” and the plaintiff also agreed “in case this option is taken up” to sell to the defendant certain shares of the corporation which issued the bonds at certain prices named. After these provisions came the following: “It is also hereby expressly understood that” the defendant “is to purchase upon accepting this option $20,000 of said bonds out of said above mentioned lot of $59,000 ” at the price named, the “ proceeds of said sale to be applied to the payment of certain debts of” the corporation. There was another agreement made between the plaintiff and the defendant of the same date as the agreement of option relating to the coupons of the bonds named in that agreement which among other things made a provision for the coupons of the lot of $59,000 of the bonds which was conditional on the exercise of the option by the defendant. Shortly after January 1 and before February 10 the defendant paid to the plaintiff at his request $100 to be applied toward one of the debts of the corporation in question. The defendant allowed the time to expire without exercising his option and refused to buy any of the bonds. The plaintiff contended that the defendant had agreed in any case to buy $20,000 of the bonds upon accepting the instrument of option. Held, that the words “ upon accepting this option ” in the clause relating to the $20,000 of bonds meant the exercise by the defendant of the option to purchase $700,000 of the bonds and not the acceptance of the agreement of option, having the same meaning as the corresponding words in the other parts of the agreement, that the payment of $100 by the defendant at the plaintiff’s request as a part of the purchase money for the bonds was not an exercise of the option and did not bind the defendant to purchase the bonds, that the conduct of the parties in doing nothing about the $20,000 of bonds when the agreement of option was delivered tended to support the construction of the contract adopted by the court, and that the bill should he dismissed.</p>

<p>Three bills in equity, filed in the Supreme Judicial Court respectively on July 10, July 27 and August 3, 1905, the first by Helen R. Robinson against Charles F. Cogswell and Newbert J. Hall to compel them to provide a suitable and comfortable maintenance for the plaintiff as required by the will of Hannah Etta Cogswell, late of Brookline; the second by Charles F. Cogswell against Newbert J. Hall and others, praying that the plaintiff and the defendant Hall might be ordered to sell the real estate numbered 9 and 11 on Centre Street in Brookline as directed by the will of Hannah Etta Cogswell and from the proceeds pay the plaintiff at once $6,000 and damages for its detention; and the third by George D. Burr age, as administrator de bonis non with the will annexed of the estate of Hannah Etta Cogswell, for a marshalling of the assets of the estate, and for instructions.</p> <p>The will of Hannah Etta Cogswell was dated January 11, 1900. The testatrix died on March 5, 1900, and the will was admitted to probate on July 25, 1900.</p> <p>The material portion of the will was as follows:</p> <p>“ I give and bequeath unto my sister, Helen R. Robinson, all my clothing and wearing apparel, and also all moneys or estate that may be recovered in the action of law of myself against one Francis Fisher Robinson and one Charles C. Morgan, named as trustee in said action entered in the Superior Court, Civil Business, for Suffolk County, in the present January entries. Item. I give and bequeath unto the said Dr. Charles F. Cogswell and the said Dr. Newbert J. Hall, their heirs and assigns in fee simple, all my real estate, wherever or however the same may be situated; but I limit and restrict the sale and conveyance and transfer of the dwelling houses numbered nine (9) and eleven (11) Centre street, in said Brookline, until the elapsing of five years after my decease; also that ail the furniturc in dwelling No. 9 shall go with the said dwelling in the bequest; also that the dwelling numbered nine (9), together with the furniture therein shall be used, occupied and enjoyed as and for a home for said Dr. Charles F. Cogswell, Dr. Newbert J. Hall, Helen R. Robinson and her son, John Brooks Robinson, so long as said Dr. Cogswell and Dr. Hall shall own the same; also that whenever said dwelling shall be sold, that out of the proceeds of such sale the said Dr. Charles F. Cogswell shall be paid and receive from my estate or my said executors the sum of six thousand dollars, without limit, qualifications or restriction, as his sole and separate property, and direct and will that the balance of the money or estate remaining from the sale of said dwelling houses shall be invested in suitable and profitable real estate in said Brookline or in the City of Boston, in our County of Suffolk, and that such part or portion of the said real estate as may be fit and proper is to be had, used, occupied and enjoyed as and for a home, as and for said Dr. Cogswell, Dr. Hall, Helen R. Robinson and John Brooks Robinson. I also direct and will that the said Dr. Cogswell shall pay unto the said Dr. Hall during his natural life one-third of the net income of the premises now numbered 1356 on Beacon street, in said Brookline, and at this date occupied by one J. A. Purrington; and I also direct and request that the said Dr. Hall and the said Dr. Cogswell see to it that the said Helen R. Robinson be suitably and comfortably maintained during her natural life. And I also direct and will that upon the decease of either said Dr. Cogswell or Dr. Hall the whole of the remaining estate, either real, personal or mixed, then shall descend to the survivor of them, discharged of all limitation, conditions, restrictions, and free in full fee simple to the said survivor. Item. I hereby nominate and appoint the said Dr. Charles F. Cogswell and the said Dr. Newbert J. Hall to be the executors of this, my last will and testament, and request that no sureties be required upon their official bonds for the performance and discharge of their duties herein required, and also that no appraisal of my estate shall be ma.de or be required, and that my said executors be exempt from returning any inventory or appraisal of my estate, or any part or portion thereof.”</p> <p>Helen R. Robinson was a sister of the testatrix, Newbert J. Hall was a brother of the testatrix, and Charles F. Cogswell was the son and the only child of the testatrix. The other material facts are stated in the opinion.</p> <p>The cases came on to be heard before Braley, J., who made an order that the three cases be consolidated, and reserved them upon the pleadings and the agreed facts for determination by the full court.</p>

<p> .Devise and Legacy. Trust. </p> <p>A will provided as follows: “ I give and bequeath to my beloved wife L. all my real and personal estate wherever situated of which I may die possessed for the purpose of maintaining herself and our children to her and her heirs forever.” Held, that the widow took an absolute devise in fee simple in the real estate of the testator, and that no trust was created.</p>

<p>Bill in equity, filed in the Superior Court in its substituted form on May 18, 1905, by a physician maintaining a sanatorium for the treatment of diseases of the nerves at the corner of Fuller Street and Washington Street in Newton, under R. L. c. 112, § 100, to review, annul, modify or amend the rulings of the board of railroad commissioners approving an extension of the street railway tracks of the defendant authorized by the board of aldermen of the city of Newton.</p> <p>The bill, after various allegations of fact, alleged that at the hearing before the board of railroad commissioners the plaintiff requested that board to rule as follows:</p> <p>“ 1. That the board of aldermen of the city of Newton did not have jurisdiction of the petition of the Newton Street Railway Company for a grant of said extension.</p> <p>“ 2. That the Newton Street Railway Company as a corporatian has no authority under the statutes to petition for a grant of an extension in the city of Newton.</p> <p>“ 3. That the grant of said extension by the board of aldermen of the city of Newton was illegal and void.</p> <p>“ 4. That upon all the evidence said extension or alteration of location as granted or made is not consistent with the public interest.</p> <p>“ 5. That upon all the evidence said extension or alteration of location as granted, made, or to be made, creates in said Washington Street a public highway, a public and a private nuisance.”</p> <p>The bill further alleged that the board of railroad commissioners refused to make any of the foregoing rulings requested by the plaintiff and approved the location of the extension granted by the board of aldermen, praying that the rulings of the board of railroad commissioners might be reviewed, annulled, modified or amended as law and justice might require, that the defendant might be enjoined from constructing the extension in accordance with the grant of the board of aldermen and approval and rulings of the board of railroad commissioners until a further order of the Superior Court, that the defendant might be permanently enjoined from constructing the extension on the location and operating its cars thereon, and for further relief.</p> <p>In the Superior Court the case was heard by Sheldon, J. After the opening statement of the counsel for the plaintiff the judge made the following ruling:</p> <p>“I am disposed to rule in accordance with the contentions of the defendant; that is, to rule that this court has power simply to review, annul, modify or amend rulings of the railroad commissioners on questions of law, and has not the power to hear evidence to alter any of the findings of fact; that the revision of rulings of law must be upon the evidence, and only upon the evidence, which was before the board whose rulings are brought in question. You have the right to show what was the evidence before the board of railroad commissioners, but you have not the right to offer any other evidence of the facts that were in issue or that may be deemed to be in issue now. Accordingly, I will exclude all other evidence than evidence of what the evidence was before the board of railroad commissioners when the rulings of which you complain were made.”</p> <p>Evidence afterwards was offered by the plaintiff of matters not before the board of railroad commissioners which was excluded by the judge in accordance with this ruling. A stenographic report of the proceedings before the commissioners was proved and admitted in evidence.</p> <p>The judge made an order under Chancery Rule 35 appointing a commissioner to take the evidence in the case to be reported to this court. He made a final decree that the bill be dismissed; and the plaintiff appealed.</p>

<p>Bill in equity, filed as amended on November 28,1905, by Stephen C. Lowe of Boston against the administrator of the estate of Clarence M. Merriam, late of Newton, and the Neponset National Bank of Canton, alleging:</p> <p>First. That on or about May 8, 1903, the plaintiff authorized Clarence M. Merriam to buy for him fifty shares of the preferred stock of the Boston and Suburban Electric Companies at $87.50 per share on the understanding and arrangement with Merriam that the stock should be held on account of the plaintiff until paid for or ordered to be sold by the plaintiff, and that the plaintiff thereupon paid to Merriam on account of the stock $1,350.</p> <p>Second. That on or about September 22, 1903, the plaintiff authorized Merriam to buy twenty additional shares of the stock $79 per share on the same understanding and arrangement as above set forth, and paid Merriam on account thereof the sum of $380.</p> <p>Third. That on or about February 2, 1904, Merriam represented to the plaintiff that he had purchased for the plaintiff the'fifty shares of stock and the twenty shares of stock at the prices and upon the terms and arrangements above set forth, and that the shares of stock were then being held for the plaintiff according to the arrangement and understanding above set forth, and that Merriam then asked the plaintiff for further payments on account thereof, and the plaintiff thereupon paid Merriam on account of the purchases the further sum of $550.</p> <p>Fourth. That on or about March 17, 1904, Merriam represented to the plaintiff that the shares were still being held for the plaintiff and represented that owing to the condition of the market it was necessary that Merriam should have some further security from the plaintiff on account of the balance of the purchase price, and Merriam requested the plaintiff to give to him certain shares of the stock of the Butler Mills to be held as security for the obligation of the plaintiff to pay for the stock; that thereupon the plaintiff believing and relying upon the representations of Merriam delivered to Merriam ten shares of stock in the Butler Mills to be held by Merriam as collateral security on account of the balance of the purchase price of the shares then unpaid for.</p> <p>Fifth. That on or about April 11, 1905, Merriam died intestate, and on or about April 17, 1905, the defendant Jones was appointed administrator of his estate.</p> <p>Sixth. That the plaintiff is informed and believes that the ten shares of stock in the Butler Mills are now in the hands of the defendant Neponset National Bank, and are held by that defendant under an alleged lien by reason of the same having been deposited with that defendant by Merriam as collateral security for a loan to Merriam of $500, the proceeds of which loan were received by Merriam and form a part of the assets of his estate now in the hands of the defendant Jones, and the plaintiff says that he is ignorant whether or not Merriam ever in fact purchased the fifty shares and the twenty shares of stock on account of the plaintiff according to the arrangement, but that he is informed and believes that if any such stock ever was bought it has since been sold by Merriam and the proceeds thereof form a part of the assets of the estate of Merriam now in the hands df the defendant Jones; that the plaintiff has never received any of the stock and never has given any order to have the same sold, and the plaintiff further says that at no time since the purchases were alleged to have been made has the market value of the suburban stock fallen as low as the unpaid portion of the purchase price thereof, if the purchases were in fact made as represented by Merriam, and that if the stock was so purchased and has been used or sold by Merriam it was without authority and in fraud of the rights of the plaintiff, and that the plaintiff is not indebted to the estate of Merriam, but on the contrary is a creditor thereof.</p> <p>And the plaintiff further says that the alleged pledge of the shares of the Butler Mills to the Neponset National Bank to secure the indebtedness of Merriam was unauthorized and was in fraud of the plaintiff’s rights, and that the shares were obtained by Merriam from the plaintiff for the sole purpose of being held as collateral security for the payment by the plaintiff of the balance of the purchase price of the suburban stock, and if the suburban stock was in fact bought the plaintiff is entitled to have it delivered to him together with the shares of the Butler Mills upon the payment by the plaintiff of the unpaid balance of the purchase price of the suburban stock, and the plaintiff has offered, and hereby does offer, to the defendant Jones to pay the balance of, the purchase price upon receiving the suburban stock and the Butler Mills stock, and that the defendant Jones has refused to deliver the same to the plaintiff, and the plaintiff says that if the suburban stock never was in fact bought then the Butler Mills stock was obtained from him by Merriam upon false and fraudulent representations, and that in any event the alleged use of the stock by undertaking to pledge it as security for the indebtedness of Merriam was in violation of the plaintiff’s rights, and was itself a fraud upon the plaintiff, and that as against the estate of Merriam and the defendant Jones the plaintiff is entitled to have the shares of the Butler Mills stock returned'to him forthwith.</p> <p>And the plaintiff further says that he is informed and believes that the defendant Neponset National Bank claims the shares of the Butler Mills as collateral security for the indebtedness of Merriam, and proposes to apply the same to the payment of that indebtedness; and the plaintiff is informed and believes that the defendant Jones has assets of the estate of Merriam more than sufficient to satisfy the indebtedness.</p> <p>And the plaintiff further says that he is informed and believes that the estate of Merriam has been represented to be insolvent, but that the assets of the estate are sufficient to enable the defendant Jones to pay off the note of Merriam above referred to and to redeem the shares of stock from the lien of the bank.</p> <p>The prayers of the bill were:</p> <p>First. That the shares of the Butler Mills may be decreed to be forthwith delivered to the plaintiff.</p> <p>Second. That if it is determined that the defendant Neponset National Bank is entitled to hold the shares of the Butler Mills as collateral security for the indebtedness of Merriam that then the defendant Jones be ordered and directed forthwith to redeem the shares of the Butler Mills from any and all liens by applying to the payment of the indebtedness of Merriam to the Neponset National Bank so much of the other assets of the estate in his hands as may be necessary so to redeem such stock, and thereupon to deliver the shares of the Butler Mills to the plaintiff.</p> <p>Third. That pending a final decree the defendants may be restrained and enjoined from transferring, assigning, disposing of or in any way dealing with the shares in the Butler Mills or any interests which they respectively may have therein.</p> <p>Fourth. For further relief.</p> <p>The defendant Jones demurred to the bill.</p> <p>In the Superior Court the case came on to be heard upon the amended bill and the demurrer of the defendant Jones thereto, before Richardson, J., who after hearing the parties overruled the demurrer, and being of opinion that this order so affected the merits of the controversy that the matter ought, before further proceedings, to be determined by the full court, at the request of the defendant Jones, and with the consent of the plaintiff, reported the case for determination by this court.</p> <p>Under a stipulation agreed to by all the parties, the note of Merriam and the shares of Butler Mills stock referred to in the bill as held by the defendant Neponset National Bank had been taken up on behalf of the plaintiff without prejudice to any rights of the plaintiff to have the estate of Merriam exonerate the stock and pay off the note, and without prejudice to any rights of the defendant J ones or of the estate of Merriam in the premises. The Neponset National Bank, accepted service of the subpoena, but on account of the arrangement above stated took no further part in the proceedings.</p> <p>The contentions of the defendant Jones in support of his demurrer were stated in the report of the judge as follows:</p> <p>First. That the bill cannot be sustained as a bill to follow the proceeds of trust property, without further allegations pointing out some specific property or fund into which the proceeds of the pledge of the Butler Mills stock to the Neponset National Bank can now be traced, or further allegations that any such specific fund or piece of property can be pointed out and identified.</p> <p>Second. That in order to entitle the plaintiff to any relief on the theory of exoneration the bill must allege either, (a) that other property belonging to Merriam was pledged with the bank so as to be applicable as security for the same loan which was secured by the plaintiff’s stock, and that the combined security was more than equal to the amount of the loan; or (b) that some specific fund or piece "of property in Merriam’s estate could be identified as representing the proceeds of the loan in question, or as having been acquired or freed from a lien or charge through the transaction by which the complainant’s stock was pledged to the bank.</p> <p>All other grounds of demurrer were expressly waived by the defendant. If the above contentions of the defendant Jones on both aspects of the bill were sound and the demurrer should have been sustained on those grounds, the bill was to be dismissed, without prejudice to the right of the plaintiff to prove his claim against the estate of Merriam as one of the general creditors; otherwise, the defendant was to answer over, and the case was to stand for trial.</p>

<p> Negligence. Street Railway. </p> <p>In the use of a street of a city the motorman of an electric car and the driver of a vehicle not running on a track each is bound to use due care to avoid coming in contact with the other, and neither is entitled to assume that the other will keep out of his way.</p> <p>In an action against a street railway company for personal injuries from a collision between a car of the defendant and a wagon in which the plaintiff was seated beside the driver, the plaintiff and tlie driver testified that as they approached a street, which entered the one they were on at a sharp descending grade and on which ran cars of the defendant, they were going about four miles an hour, that before crossing the street the driver “ slowed up,” that both looked and saw no car approaching, and listened and heard nothing. The driver further testified that lie first saw the car approaching when his horse’s feet were between the rails of the track, that he turned his horse to the left and the car struck the left front wheel. At the corner of the intersecting street on the side from which the car approached there was a large brick factory which cut off the view of the car tracks. There was a conflict of evidence as to whether the gong was sounded and as to the speed of the car. The plaintiff testified that “ the car was coming at a great speed.” The driver testified that “it was going at a pretty fast clip.” Held, that the questions of the due care of the plaintiff and the negligence of the defendant were for the jury.</p>

Bill in equity, filed in the Supreme Judicial Court on July 21, 1905, by the mayor and aldermen of the city of Worcester against the Worcester Consolidated Street Railway Company under R. L. c. 112, § 100, to compel the defendant to put in proper repair the pavement upon certain streets in .the city of Worcester as required by the terms and restrictions of the original grant of location granted by the plaintiffs on December 8,1890, to the Worcester, Leicester and Spencer…

<p> Municipal Corporations. Nuisance. </p> <p>If a town, acting through its selectmen as its agents, in order to drain certain land taken by the town in widening a street under an order of the county commissioners, digs a ditch through the land of a private owner with his permission connecting with a drain already laid through his land, and thereby turns surface water from its natural course into a shallow pond with no outlet, causing it to overflow and flood a private way and the cellar of a landowner on the opposite side of the way, the landowner may recover from the town for the injury' caused by the nuisance thus created.</p>

<p>Negligence. Street Railway. Practice, Civil, Exceptions.</p> <p>A motorman operating an electric car and the driver of a vehicle not running on a track while using a public highway owe to each other a reciprocal obligation of due care.</p> <p>A street railway company, although it owes to its passengers the duty of safe transportation which is imposed on a common carrier, is not required to exercise the same degree of care toward a traveller using the highway, and its duty toward such a traveller is performed if its servants exercise the care of an ordinarily prudent and careful man when caked upon to act under the circumstances of the case.</p> <p>In the trial of an action against a street railway company for personal injuries from being run into by a car of the defendant while driving in a wagon across the defendant’s track, the presiding judge properly may refuse to rule that as matter of law the plaintiS was not negligent in attempting to drive across the track if he judged at the time that this could be done safely because of the distance of the car from the point where he must cross, as the jury must determine the question of the plaintiff’s due care or negligence on the whole evidence.</p> <p>A refusal to give an instruction in the language requested is not a ground for exception if the instructions given by the judge clearly and adequately cover the point raised by the request.</p>

<p>Practice, Civil, Amendment. Negligence.</p> <p>Under R. L. c. 173, § 48, and Rule 43, now Rule 40, of the Superior Court, that court may allow a plaintiff for whom a jury has returned a verdict on each of two counts, one under R. L. c. 171, § 2, for causing the death of the plaintiff’s intestate, and the other at common law for causing conscious suffering of the plaintiff’s intestate, to amend his declaration by striking out the count at common law, and whether the defendant may have been harmed by the introduction of evidence of conscious suffering is a matter to be considered by the presiding judge.</p> <p>In an action under R. L. c. 171, § 1, against the proprietor of a heavy wagon drawn by two horses, for causing the death of the plaintiff’s intestate, a hoy about five years of age, by the alleged gross negligence of a servant of the defendant, it appeared that the defendant’s servant was driving the team at a pretty fast rate in a street twenty-two or twenty-three feet wide on the right hand side of the road two or three feet from the sidewalk, that the driver had his head partly turned toward the centre of the street and was talking with his helper who stood behind the seat, that a coal team in the middle of the road was coming toward him, and that when the teams were almost on each other, the defendant’s servant gave his horses a quick jerk and turned them in toward the sidewalk to avoid the coal team, that, in so turning, the hind wheels slid in toward the sidewalk at a place where a plank had been placed in the gutter against a depression in the edgestone to make a more gradual ascent to a driveway over the sidewalk and into a yard, that the plaintiff’s intestate had been playing there with another boy and was standing witli his left foot on the plank and his right foot on the edgestone, that, when the wagon slid, one of the hind wheels ran up on the plank and ran over the intestate. It did not appear from the plaintiff’s evidence that the driver saw the boy. Held, that there was no evidence to go to the jury of gross negligence of the defendant’s servant, and that the presiding judge should have ordered a verdict for the defendant.</p>

Petition, filed November 24, 1903, under R. L. c. 162, § 13, for leave to enter an appeal from a decree of the Probate Court for the county of Middlesex made on May 19, 1903, allowing a certain instrument as the last will and testament of Lovisa P. Bachelder and appointing the respondent executor thereunder.

<p> Tax. Corporation. Statute. Railroad. </p> <p>St. 1904, c. 169, relating to Massachusetts corporations authorized to construct railroads in foreign countries, did not revive the provisions of R. L. c. 14, §§ 49, 52, which were repealed by St. 1903, c. 437, § 95, and such corporations are now subject to the domestic franchise tax imposed by § 74 of the last named statute, which was corrected and re-enacted by St. 1904, c. 261, and are not subject to the former tax of one twentieth of one per cent upon the par value of the capital stock for which the domestic franchise tax was substituted.</p>

<p>Bill in equity, filed November 4, 1905, as follows:</p> <p>1. The plaintiff says that he is a dealer in pianos, having a usual place of business at No. 546 Washington Street in the city of Boston.</p> <p>2. That on or about July 8, 1904, he leased a piano, of the value of $265, to one Etta Bailey, then of Chelsea.</p> <p>3. That, shortly thereafter, Etta Bailey hired certain apartments in the premises numbered 78 Chestnut Street in the city of Chelsea owned by the defendant; that, owing to the dimensions of the piano, Etta Bailey was unable to move it into the premises, along with her other household effects, save by enlarging a window opening into the room hired by her of the defendant; that the defendant, well knowing that fact, expressly permitted the opening to be made, and agreed, promised and assured Etta Bailey that if at any time (and which the defendant understood must, of necessity occur) it became necessary or desirable to remove the piano from the premises, full permission would be granted to remove the piano in a manner similar to that in which the piano was placed in the premises.</p> <p>4. That on or about May of 1905 the lease under which Etta Bailey held the piano became terminated and the title to the property became vested solely in the plaintiff; that thereupon, both with and without notice from the defendant so to do, the plaintiff engaged suitable persons and apparatus to remove the piano.</p> <p>5. That the defendant thereupon, although he had expressly requested its removal, refused to permit the piano to be removed from the premises, by refusing to allow any opening of any kind to be made by which the piano could be removed; that the plaintiff has repeatedly thereafter endeavored to remove the piano, and the defendant alternately requests the removal of the piano and refuses to allow the same to be removed.</p> <p>6. That the premises in which the piano is located are a frame building and that it can be removed without any material damage to the premises of the defendant; that the piano is so constructed (being welded together) that it cannot be removed in sections, and any attempt to remove it otherwise than in a manner similar to that under which the same was placed in the premises would irreparably destroy and affect the value of the piano.</p> <p>7. That the plaintiff has offered and now offers to execute and deliver to the defendant a bond with good and sufficient sureties and in any reasonable and proper sum, conditioned upon and for the purpose of securing the defendant against any loss or damage that he may suffer by reason of the removal of the piano in the manner aforesaid, but the defendant persistently, wilfully and maliciously refuses to permit the piano to be removed under any circumstances, although at the same time insisting upon its removal; that the plaintiff has been unnecessarily and unreasonably deprived of the use of and the rentals accruing from the piano.</p> <p>Wherefore he prays that the defendant be enjoined from further interfering with the plaintiff in the reasonable and proper removal of his property as aforesaid, and for further relief.</p> <p>The defendant demurred to the bill, and assigned the following causes for demurrer:</p> <p>Firgt. That there is not stated a case for equitable relief.</p> <p>Second. That on the facts stated in the bill the plaintiff has a plain and adequate remedy at law.</p> <p>Third. Because the title to the piano mentioned in the bill has not been sufficiently set forth, and because the contract or lease under which the plaintiff placed the piano in the house has not been sufficiently set forth.</p> <p>Fourth. Because the facts and circumstances which constitute such a breach of the alleged lease as would entitle the plaintiff to the possession of the property as against Etta Bailey, alleged to be the lessee, are.not sufficiently set forth.</p> <p>Fifth. Because the relief prayed for by the bill, if allowed, would leave the defendant without power to exercise his legal right to resist any forcible trespass upon his premises by the plaintiff, and would deprive him of any legal remedy against the plaintiff for any acts of trespass in the premises in attempting to remove the piano.</p> <p>In the Superior Court the case was heard by Q-ashül, J'., who, it appearing that the allegations in the plaintiff’s bill were true, made a final decree that the demurrer be overruled and that, the plaintiff having filed a bond to the defendant with good and sufficient sureties to make good any damage caused by the removal of the property of the plaintiff, as set forth in his bill, and to the reasonable satisfaction of the defendant, the defendant be perpetually enjoined from further interfering with the plaintiff in the removal of his property as set forth in the plaintiff’s bill. The defendant appealed.</p>

Bill in equity, filed on November 14,1903, against Alfred Hazlett, the receiver of the American Bank of Beatrice, an insolvent corporation organized under the laws of the State of Nebraska, to restrain him from prosecuting certain actions at law now- pending in the Superior Court against the plaintiffs to enforce their liability as stockholders under a judgment or decree of the District Court of Gage County in the State of Nebraska. The defendant demurred to the bill.

Bill in equity, filed in the Probate Court for the county of Middlesex on January 2 and amended January 3, 1906, by the trustee under the will of Martha A. Brigham, late of Framing-ham, for instructions as to the disposition, under the seventh clause of that will which is quoted in the first paragraph of the opinion, of two thirds of the residue of the estate of the testatrix upon the death of Fred W. Richardson, who had died after enjoying the income of the property during…

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

Bill in equity, filed in the Supreme Judicial Court in its amended and substituted form on March 6, 1906, and described in the opinion. The case came on to be heard before Braley, J., who reserved it upon the pleadings and agreed facts for determination by the full court, such decree to be entered as justice and equity might require.

<p> Negligence. Railroad. Carrier. </p> <p>If a shop girl over eighteen years of age, who is not a student, by means of false representations purchases from a railroad company a season ticket on its road issued at half price only for students under eighteen years of age, while travel-ling on the railroad upon this ticket she is not entitled to the rights of a passenger and is in no better position than a mere trespasser, and if while so travelling she is injured by reason of a collision, and there has been no such wanton and reckless disregard of consequences on the part of the servants of the railroad company as to make the company liable to a trespasser, she cannot maintain an action against the company for her injuries.</p> <p>If a girl over eighteen years of age who is not a student travels over a railroad on a season ticket fraudulently procured by her, which is intended by the railroad company to be issued at half price only to students under eighteen years of age, she has not the rights of a passenger and her position is not improved by the fact that the conductors on the trains of the railroad company have accepted the coupons of her ticket, whether they knew of her fraud or not.</p> <p>If the conductor of a train of a railroad company knows that a person in the train is travelling on a ticket procured by fraud, he has no power by accepting the ticket to give the person travelling on it the rights of a passenger.</p>

Tort for personal injuries incurred at about half past eleven o’clock on the evening of March 4, 1904, while the plaintiff was walking as a traveller on the sidewalk adjoining the premises numbered 105 on Chelsea Street in that part of Boston called East Boston, from a fall caused by an accumulation of snow and ice there, against Rose B. Walsh, the owner of the building, and Morris Yudelman, a shoemaker, the tenant of the ground floor of the building, who occupied it for his…

<p>Contract, Performance and breach.</p> <p>If one who is employed as the sole manager of a business corporation within a certain territory for a period of three years is informed orally by an agent of the corporation who has authority to discharge him that he is discharged, and later in the day he receives a letter from the defendant informing him that his services as manager terminate on the next day, he has the right to treat the discharge as occurring at the time of the conversation, and an action brought by him against the corporation for the breach of contract which is begun after the conversation and before his receipt of the letter can be found not to have been brought prematurely, especially if there is evidence warranting a finding that the letter was but a subterfuge to render the action brought of no effect.</p>

Bill in equity, filed in the Superior Court on June 29,1903, by William Tebbets against Charles A. Rollins, to wind up a partnership between the plaintiff and the defendant in the wholesaló grocery business theretofore carried on by them under the firm name of Henry Callender and Company. A receiver was appointed on July 1, 1903. Later the case came on to be heard before Richardson, J. upon the receiver’s report.

<p> Mechanic's Lien. Contract. Seisin. Husband and Wife. Dower. </p> <p>On the trial of a petition to establish a mechanic’s lien, one of the respondents claimed the real estate in question under a mortgage which he contended was made and recorded before the making of the contract under which the petitioner sought to establish his lien. It appeared that three days before the purchase of the land and the making of the mortgage the prospective purchaser intending to erect a building on the land asked the petitioner, who had been furnished with the plans and specifications of the architect, for what he would do the mason work, the carpenter work and the roofing, and the plaintiff said that he would do it for $71,000, to which the prospective purchaser replied “All right, I will give you the contract,” that the amounts and times of payments were not agreed upon, but it was agreed in a general way that they were to be made as the floors went on, and it also was agreed that the petitioner was to have later what was known as a “uniform contract,” being the form of contract adopted and recommended for general use by the American Institute of Architects and the National Association of Builders, that the next day the petitioner drove some stakes to indicate where the excavation for the cellar was to be made, and after the purchase of the land had frequent interviews with the purchaser in regard to the building, that about three months later the petitioner sent two carpenters to the land to put up the batter boards and on six successive days in the next month laid the brick of cross walls in. the cellar at an estimated cost of $700, that on the second day of the following month, a contract in writing was signed by the petitioner and the purchaser of the land, and “ there was no particular reason why it was not signed before,” that the contract was written upon the uniform contract blank, and provided that the petitioner should provide all materials and perform all the work mentioned in the specifications except cut stone and gas piping, that in addition to the terms of the oral contract dates of payment were specified, and there were provisions that the building should be finished by a certain time, that the petitioner should allow the purchaser of the land insurance money and in regard to other details. The lien sought to be established was principally for materials and labor furnished after the execution of the contract in writing. A judge, sitting without a jury, found that the instrument in writing did not in any essential particular alter the existing oral contract and was an affirmation of it and not a substitute for it, so that the materials and labor were furnished by the petitioner under a contract which was made before the making of the mortgage, and the judge ordered that the lien of the petitioner be established as against the respondent claiming under the mortgage as well as against the purchaser of the land. Held, that the finding of the judge as to the time when the contract was made was warranted.</p> <p>Comments by Hammond, J. on the doctrine of instantaneous seisin as applied to dower, showing that even where the seisin of the husband was instantaneous the wife may have dower if the seisin was in the husband beneficially for his own use.</p> <p>On a petition to establish a mechanic’s lien, as in the case of dower, a mortgagee can take advantage of the doctrine of instantaneous seisin only where the mortgage was made to secure the purchase money or some part of it.</p> <p>At the trial of a petition to establish a mechanic’s lien, one of the respondents claimed under a mortgage made to a title company by the owner of the land at the time he acquired title to it, which was after he had made the contract with the petitioner under which the petitioner furnished the materials and labor for which the lien was claimed. The respondent claiming under the title company contended that the seisin of the owner of the land was instantaneous so that the petitioner’s lien did not attach to the land as against the mortgage. There was evidence warranting findings, that the owner of- the land wished to accomplish two things, one being to get the title to the land and the other to get a building loan to enable him to put up the building on the land for which he had made the contract with the petitioner, that the title company agreed to make the building loan but refused to lend the money to pay for the land, whereupon an individual agreed to lend the purchase money, that the following deeds were recorded simultaneously in the following order: 1, the deed to the owner, 2, his mortgage to the individual lender of the purchase money, 3, the mortgage to the title company; and that" the title company did not intend to pay any of the purchase money as such, although a part of its first advance under the building loan was used to pay and discharge the mortgage given for the purchase money. A judge, sitting without a jury, found that the acquisition of the title to the land and the mortgage to the title company were separate transactions, and ordered that the lien of the petitioner be established as against the mortgage. Held, that the finding was warranted.</p> <p>Where one intending to purchase certain land has made a contract for the construction of a building upon it and thereafter acquires the title to the land and makes a mortgage of it as a separate transaction for a building loan and not to secure the purchase money, the contractor for the building can establish a lien for the materials and labor furnished by him which will be good against the mortgage without showing any ratification of the contract by the owner of the land after he acquired the title to it and before he made the mortgage, no ratification being called for because the contract was his already.</p> <p>Where labor and materials are furnished under a contract for the construction of a building for a person who at the time of making the contract has not the title to the land on which the building is to be built but who afterwards acquires it, the lien extends as well to the labor and materials furnished before the deed was delivered as to those furnished afterwards, and in proceedings to establish the lien it does not matter whether or not the contract was an entire one for a round price.</p> <p>An architect cannot maintain a petition to.establish a mechanic's lien for labor performed under an entire contract to prepare plans and specifications and supervise the erection of a building for a round sum of money, there being no lien for the work of preparing the plans and specifications.</p>

Libel for divorce, filed May 5, 1905, against a wife for her alleged impotency. In the Superior Court the case was heard by Sheldon, J., who reported it for determination by this court, as follows: “ The libellant testified that he and the libellee were married in Boston on November 24, 1897; that immediately after the marriage the libellee was unable to perform the marriage function.

<p>Tort, against the owner of a building numbered 102 on Huntington Avenue in Boston, by Julia F. Peaks, who hired a room from one Mrs. St. Ledger, the lessee of an apartment or suite of rooms in that building, for personal injuries from falling on a walk leading from the entrance of the building to the sidewalk of Huntington Avenue. Writ dated March 25, 1901.</p> <p>At the trial in the Superior Court before Hitchcock, J. the defendant was allowed, against the objection and exception of the plaintiff, to testify to the language of the covenant in the lease from him to Mrs. St. Ledger which is mentioned in the opinion and under the circumstances there stated. The judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Contract. Evidence. Agency. Practice, Civil, Parties.</p> <p>In an action for alleged breach of a contract in writing to hire a certain hall from the plaintiff for Saturday nights from October 10, 1903, to June 1,1904, inclusive, it appeared that the defendant signed the following agreement in writing: “ September 25, 1903. I do hereby agree to hire Armory Hall for Saturday nights commencing October 10th, to run socials from 8 to 11.30 and conduct same in satisfactory manner according to law, etc. I hereby place a deposit of $10 to bind the bargain and agree to deposit $50 the 15th day of October. Said $50 to remain as a deposit on the hall until June 1,1904. Price of hall to be $15 each night including the check room. Payable balance ($5) October 10th and $15 each Saturday night thereafter. If necessary, to hire an officer at my expense.” The plaintiff was allowed to testify, against the objection of the defendant, that when the defendant signed the agreement the plaintiff told him orally that he would let the hall to him for the season and that the defendant stated that he wanted to take the hall for the season, and was allowed to testify further that the season for the letting of such halls lasted until the end of May. Held, that the evidence was admitted properly to explain the ambiguous terms of the contract.</p> <p>An agent may sue on an agreement in writing made by him in his own name in behalf of an undisclosed principal. :/</p> <p>If an agent suing on a contract made by him in his own name in behalf of an undisclosed principal describes himself in his writ as agent, this designation does not affect his right to recover in his own name or make admissible evidence offered by the defendant to show that the contract was that of the undisclosed principal.</p> <p>An agreement to hire a hall on Saturday night of each week during a season lasting to a certain date, which has been accepted by the acts of the p'erson authorized to furnish the use of the hall and during a part of the season has been performed by both parties, is binding on both of them for the whole of the season, and the obligation to pay for the hall is not confined to its use and occupation.</p>

<p> Frauds, Statute of. </p> <p>An oral promise by one who is a stockholder in a corporation and is engaged in its business as a salesman, and who is about to acquire the business of the corporation, to pay the debt of a creditor of the corporation if he will refrain from attaching the property of the corporation and putting a keeper in its place of business, is a special promise to answer for the debt of another within R. L c. 74, § 1, cl. 2, on which no action can be sustained without a memorandum in writing signed by or in behalf of the party to be charged.</p>

<p>Two ACTIONS, the first an action of contract or tort brought by the Merrimac Chemical Company on behalf of the Employers’ Liability Assurance Corporation, to recover the sum of §891 paid by the latter corporation in settling the claim of Ellen Murphy, the widow and administratrix of one Daniel Murphy, who received injuries from the explosion of a centrifugal hydro-extractor or drier while in the employ of the Merrimac Chemical Company, causing his death after conscious suffering; and the second an action of contract brought by the American Tool and Machine Company to recover for labor and materials furnished by the plaintiff in repairing the hydro-extractor after the explosion. Writs dated October 14 and November, 1901.</p> <p>In the Superior Court the cases were tried together before Aiken, C. J. The substance of the evidence is stated in the opinion. At the close of the evidence the Chief Justice ruled in the first ease that upon all- the evidence the plaintiff could not recover and ordered a verdict for the defendant; and in the second case, no defence being set up except the evidence offered in support of the first case, ordered a verdict for the plaintiff for the amount named in the declaration. The Merrimac Chemical Company, being the plaintiff in the first case and the defendant in the second case, alleged exceptions.</p>

<p>Contract with two counts, the first to recover the amount of a betterment assessment alleged to be invalid and paid by the plaintiff under protest, and the second for damages for breach of a covenant contained in a certain deed of release, both counts being for the same cause of action. Writ in the Municipal Court of the City of Boston dated May 3,1901.</p> <p>On appeal to the Superior- Court the case was tried before Bond, J., without a jury, and the facts were shown which are stated in the opinion. At the close of the evidence the defendant asked the judge to rule that on all the evidence the plaintiff was not entitled to recover. The judge refused to rule as requested, and found for the plaintiff on the second count in the sum of $465.55, which was the amount paid by the plaintiff, with interest from the date of payment to the date of the writ. The defendant alleged exceptions.</p> <p>The case was submitted on briefs at the sitting of the court in December, 1905, and afterwards was submitted on briefs to all the justices.</p>

<p>Bill in equity, filed in the Probate Court for the county of Bristol on February 24,1905, by the executrix under the will of Betsey T. Hayward for instructions.</p> <p>The will was as follows :</p> <p>“ I, Betsey T. Hayward, wife of William A. Hayward, of the city of New York, in the State of New York, declare this to be my last will and testament.</p> <p>“ Item 1st. I give and bequeath to’ my beloved daughter Harriet B. Hayward, all my jewelry, trinkets, wearing apparel, linen, books, pictures, prints, plate, silverware, china, household - goods, furniture and fixings.</p> <p>“Item 2d. I give and bequeath to my said daughter Harriet B. absolutely, the one half of all the money, stocks, bonds, mortgages, debts, rents and dividends, and all other personal property belonging, due or owing to me at the time of my death.</p> <p>“ Item 3d. I give and devise to my said daughter Harriet B. to her sole and separate use, the one half of all the real estate of whatever nattire or character of which I may die seized or that may be belonging and coming to me from the estate of my father the late Nathaniel Newcomb of the Town of Norton in the State of Massachusetts, or from any and all other sources at the time of my decease, together with all the hereditaments and appurtenances thereto belonging or in any wise appertaining, to have and to hold the premises above described to the said Harriet B. Hayward, her heirs and assigns forever.</p> <p>“ Item 4th. I give and bequeath to my beloved husband William A. Hayward, during his natural life, the one half of all the personal property belonging, due and owing to me at the time of my decease, excepting the same stated and set forth in the first item of this will. And after his decease, I give and bequeath the same to my said daughter Harriet B. absolutely, if she shall be living at the time of my husband’s decease, subject to certain other bequests hereinafter made.</p> <p>“ Item 5th. I give and devise to my said husband William A. Hayward the one half of all the real estate of whatever nature and character of which I may die seized, or that may be belonging and coming to me from the estate of my father the said Nathaniel Newcomb and from any and all other sources, at the time of my decease, together with all the hereditaments and appurtenances thereto belonging, or in any wise appertaining, to have and to hold the premises above described, to the said William A. Hayward, during his natural life. And after his decease I give and devise the same to my said daughter Harriet B. to have and to hold the said premises above described to my daughter Harriet B. Hayward, her heirs and assigns forever.</p> <p>“Item 6th. In the event that my said daughter Harriet B. shall not be living at the time of the decease of my said husband, William A. then immediately upon his decease, I direct my executrix hereinafter to be named, to pay the following bequests.</p> <p>“ First. I give and bequeath to the Selectmen, or other proper officers of the Town of Norton, in the State of Massachusetts, and to their successors forever, in trust, the sum of two thousand dollars, for the benefit of the Burying Ground in the said Town of Norton, known as ‘ Timothy’s Plain ’ to be applied by my said trustees in keeping the said Burying Grounds in proper condition, that is to say, to keep the same well fenced, with good gates, walks, and to plant trees and flowers and keep the grass in good condition.</p> <p>“ Second. I give and bequeath to the trustees or other proper officers of the Pine Grove Cemetery ’ in the town of Milford, in the State of Massachusetts, and to their successors forever in trust, the sum of two thousand dollars for the benefit of the said ‘ Pine Grove Cemetery/ in keeping the same in proper condition and order, as the proper officers of the said cemetery may deem best.</p> <p>“ Third. I give and bequeath to the trustees or other proper officers of the said ‘ Pine Grove Cemetery/ in the said Town of Milford, and to their successors in trust forever, the further sum of one thousand dollars for the benefit of the Family Lot, standing in the name of William A. Hayward, in the said ‘ Pine Grove Cemetery ’ to be used by the said officers in keeping the said Family Lot in good and becoming condition, that is to say, to keep the grass properly cut, and plant annually, and keep in order shrubs and flowers and all other necessary and proper attentions.</p> <p>“ Fourth. -I give and bequeath to my adopted daughter Almira Hayward, now the wife of -Pierce of Milford in the State of Massachusetts, whose Christian name is to me unknown, the sum of one thousand dollars absolutely, to her sole and separate use.</p> <p>“ Fifth. I give and bequeath to the trustees of Laurel Chapter No. 44, Order of the Eastern Star, in the City of New York, and to their successors forever, in case the said Chapter shall be in existence at the time of the death of my said husband, the sum of one thousand dollars absolutely. And I direct my executrix hereinafter to be named, to pay the said bequests set forth in this item from the personal property of my estate that shall remain at the death of my said husband, in case there shall be sufficient therefor. And in the event that there shall not remain a sufficient amount of my personal estate, then I direct my said executrix to pay the same from the money received from the sale of a sufficient amount- of my real estate that shall remain at the time of the death of my husband.</p> <p>“ Item 7th. I hereby appoint my beloved sister Harriot A. Newcomb to be the sole executrix of this will, revoking all former wills by me made.</p> <p>“ In witness whereof, I, Betsey T. Hayward have to this my last will and testament, consisting of one sheet of legal cap paper, subscribed my name and set my seal this second day of June A. D. 1877.”</p> <p>Here followed the signature and seal of the testatrix and an attesting clause with the signatures of three witnesses.</p> <p>In the Probate Court Fuller, J. made a decree that the several bequests in Item 6th were not payable during the life of Harriet B. Minchew, formerly Harriet B. Hayward, and the executrix was directed to hold the sum of $7,000 of the personal estate of the testatrix and to pay the income thereof to Harriet B. Minchew during her life. The trustees of Pine Grove Cemetery, Almira H. Pierce and Laurel Chapter No. 44 Order of the Eastern Star appealed.</p> <p>The case came on to be heard before Braley, J., who reserved it upon the pleadings, which contained a full statement of all the material facts, for determination by the full court.</p>

<p>Petition filed in the Land Court on May 23, 1904, by the First National Bank of Woburn as the owner of certain land with the buildings thereon bounded northwesterly by Main Street in that city, claiming title in fee simple to the middle line of that highway, to have its title registered and confirmed and to have the line of that highway determined, and also to have the line of a certain private way determined.</p> <p>The city of Woburn appeared and filed an answer objecting to the establishment of the street upon the line asked for by the petitioner. The case was heard by Jones, J., .who ruled “as a matter of law that no easement of way has been acquired by the public or the city of Woburn over a strip of land belonging to the petitioner lying between the base line of its bank building and the easterly line of Main Street as laid out; said strip of land being 60.15 feet long, 2.60 feet wide at the northerly end and 2.47 feet wide at the southerly end.”</p> <p>He made a decree for the petitioner; and the city of Woburn appealed to the Superior Court. Issues for trial in the Superior Court were filed and allowed in the Land Court. In the Superior Court the petitioner moved to dismiss the appeal, on the ground that the appeal and the issues filed with it affected the rights of the public only and not the rights of the city of Woburn, in the highway, and that the city of Woburn was not entitled to represent the public in the proceeding.</p> <p>The motion was heard by Bond, J., who allowed it, and ordered that the appeal be dismissed. The city of Woburn alleged exceptions.</p> <p>The case was argued at the bar in March, 1906, before Knowlton, C. J., Morton, Lathrop, Boring & Braley, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Practice, Civil, Agreed statement of facts. Corporation. Sale. Evidence.</p> <p>When a case is submitted upon an agreed statement of facts, the decision is to be made upon the facts actually stated unless there is a stipulation that inferences from the facts stated may be drawn.</p> <p>A corporation cannot ratify a contract made when it was not in existence by one who assumed to act in its behalf, although it may make a new contract on the same terms.</p> <p>If one sells goods to a certain person, and afterwards a corporation is created and the goods come into the possession of the corporation “ by a transfer from ” the person who bought them, this has no tendency to connect the corporation with the original sale.</p>

<p>Contract on an agreement in writing by which the plaintiffs agreed to build a house for the defendant, the completion of which was alleged to have been prevented by the wrongful acts of the defendant. Writ dated April 27, 1900.</p> <p>In the Superior Court the case was referred to George L. Huntress, Esquire, as auditor. His preliminary report referred to in the beginning of the opinion was as follows:</p> <p>“ This is an action upon a building contract for the erection of a dwelling-house for the defendant.</p> <p>“ One of the main issues involved is, whether or not the said dwelling-house was constructed of proper materials and in a workmanlike manner.</p> <p>“ The plaintiffs request a view of the premises and at the present time. The defendant objects to a view, and particularly objects to a view until the conclusion of the evidence.</p> <p>“ In my opinion a view is necessary to a just decision of the case. I am furthermore of the opinion that the view should be taken before the evidence as to improper construction and workmanship is introduced.</p> <p>Having doubts as to my power to take a view against the objection of the defendant, I report the question to the court for instructions.” ■</p> <p>Fessenden, J. made an order giving the auditor authority to take the view, and the defendant appealed.</p> <p>The proceedings relating to motions of the defendant to restore the case to the jury list and to be allowed to file a claim for a trial by jury are described in the opinion. The motions were denied by Fessenden, J., and the defendant appealed. These motions were made and denied on November 14,1905. On November 20, the defendant was defaulted. The judge found for the plaintiffs in the sum of $5,667.41 and judgment was entered for $5,695.75 damages and costs. The defendant appealed. On January 30, 1906, the plaintiffs moved to dismiss the appeal for want of prosecution. The motion was allowed unless the papers were printed and entered in the clerk’s office of „ this court on or before February 10, which was done.</p>

<p>Negligence. Metropolitan Sewerage Commissioners. Practice, Civil, Exceptions.</p> <p>In an action against a contractor employed by the metropolitan sewerage commissioners for injury to property by the negligent and unskilful acts of persons employed by him in constructing a sewer, it is no defence that on a certain day the defendant sublet the contract to an independent contractor, if under the terms of his contract he had no right to sublet it, and if there is evidence that the contract of subletting was not genuine and the jury find this to have been the case, and if also the work was carried on by the defendant himself for about two months before the alleged subletting and the defendant makes no request that the jury shall separate the damages up to and after that date.</p> <p>If no action can be maintained against the metropolitan sewerage commissioners for injury to property by the negligent and unskilful acts of persons employed by them in the work of constructing a sewer, which in this case there was no occasion to consider, this does not help a contractor employed by the commissioners when sued for injury to property caused by such acts on the part of himself or his servants.</p> <p>No exception lies to the entire charge of a judge.</p>

<p>Mechanic's Lien. Practice, Civil, Verdict.</p> <p>If, at the trial of a petition to establish a mechanic’s lien, issues are framed for the jury and the answers of the jury to certain of the issues are agreed upon by the parties, and if among those agreed upon is the issue “ What amount, if anything, is due the petitioner for labor performed and materials furnished on the house on said premises under said contract,” and the answer is “$917.46,” this disposes of an objection by the respondent that the petitioner abandoned his contract, and if there is no other objection warrants a decree for the petitioner.</p>

<p>Contract to recover a commission for services as a real estate broker. Writ in the Supreme Judicial Court dated July 29, 1899.</p> <p>At the first trial of the case before Morton, J., the declaration as amended contained six counts. The first and second counts were stricken out with the consent of the plaintiff’s counsel. The justice ordered a verdict for the defendant on the fifth and sixth counts, and submitted the case to the jury on the third and fourth counts, but gave instructions which were in effect a ruling that the plaintiff had not made out the case set forth in his third count. The third count was to recover a commission of $2,750 for procuring a tenant for the Hotel Reynolds in Boston belonging to the defendant at an agreed rental, the defendant having refused to carry out her agreement. The fourth count was upon an account annexed for the same amount of money as a commission on a lease of the property with interest from January 1, 1898. The jury returned a verdict for the plaintiff in the sum of $2,847.38. Exceptions alleged by the defendant were sustained by this court in a decision reported in 179 Mass. 474.</p> <p>There was a second trial before Boring, J. The jury, by direction of the justice, returned a verdict for the defendant on the third count, and on the fourth count returned a verdict for the plaintiff, in the sum of $3,257.37. Exceptions alleged by the defendant were sustained by this court in a decision reported in 186 Mass. 7, on the ground that upon all the evidence, as presented at that trial, the jury were not warranted in returning a verdict for the plaintiff on the fourth count.</p> <p>There was a third trial before Knowlton, C. J. Before this trial the plaintiff amended his declaration by adding a seventh count, which was on an account annexed for $2,750, and was exactly like the fourth count as it then stood, except that interest was claimed from March 16,1899, instead of from Januarv 1, 1898. The case was submitted to the jury on this count, and the jury disagreed.</p> <p>There was a fourth trial before Barker, J. At this trial the plaintiff amended the fourth count of the declaration by striking out the account annexed to that count, and inserting in place thereof the following:</p> <p>“ Boston, July 29, 1899.</p> <p>“ Lotta M. Crabtree,</p> <p>“ To John J. Cadigan, Dr.</p> <p>“ (1) To commission upon procuring a person or persons ready to take a lease of the Hotel Reynolds property as requested by defendant, 1 % of total rental $295,000. (This includes total rental to end of renewal term.).......$2,950 00</p> <p>“ (2) Interest on $2950.00 from Jan. 2, 1899, to July 29, 1899 ..... 102 25</p> <p>$3,052 25 ”</p> <p>At the close of the evidence the justice directed the jury to return a verdict for the defendant on the fourth count as amended.</p> <p>Before the submission of the case to the jury upon the seventh count, and with the understanding that the case, if submitted, was to be submitted to the jury upon that count, the defendant asked the justice to makp certain rulings as follows:</p> <p>“ Seventh. The plaintiff cannot recover in this action except upon the ground that he was the procuring or predominating efficient cause of the lease given by the defendant to Gould and Polio; that he was the active and efficient cause of securing the letting of the Hotel Reynolds to Gould and Polio, that his work was the efficient cause of the making of the Gould and Polio lease.”</p> <p>The justice gave this ruling.</p> <p>“ Eighth. Upon all the evidence, the jury would not be warranted in returning a verdict for the plaintiff upon the ground that he was the predominating efficient cause of the lease given by the defendant to Gould and Pollo and that his services brought about the making of that lease.”</p> <p>The justice refused to give this ruling.</p> <p>“Ninth. The terms of the Mann lease, so called, are not substantially the same as the terms of the lease given by the defendant to Gould and Polio.”</p> <p>The justice gave this ruling, and subsequently instructed the jury as follows: “ I will say, Mr. Foreman and gentlemen, in reference to what has been called the Mann lease, and the Gould and Polio lease, as to the similarity of their terms, that they are not substantially the same. The terms of the Mann lease are not, for the purposes of this case, substantially the same as the terms of the lease with Gould and Pollo. I do not consider that it is of crucial importance in this case, because I have said to you that the principal question is, take the Gould and Polio lease as it was made, has the plaintiff satisfied you by a fair preponderance of the evidence that he was the efficient, predominating cause of the making of that lease as it is.”</p> <p>“Eleventh. Upon all the evidence, the jury would not be warranted in returning a verdict for the plaintiff upon any ground whatsoever, and, as matter of law, and upon all the evidence, the jury is bound to return a verdict for the defendant.”</p> <p>The justice refused to give this ruling. The defendant asked the justice to order a verdict for the defendant upon the seventh count of the declaration. The justice refused to do this.</p> <p>Before the charge to the jury, the defendant presented the following requests for instructions, all of which the justice refused to give:</p> <p>“ 8. Upon the evidence, you would not be warranted in finding that the employment or authority of the plaintiff to attempt to procure a tenant for the defendant’s property was not terminated or revoked by the defendant, on or about January 2, 1899, by what took place at the Adams House interview, between the plaintiff and the defendant.</p> <p>“ 9. Upon the evidence, the plaintiff’s employment or authority to attempt to procure a tenant for the defendant’s property was terminated or revoked by what took place at the Adams House interview, between the plaintiff and the defendant, on or about January 2,1899.</p> <p>“ 10. Upon all the evidence, you would not be warranted in finding that the employment or authority of the plaintiff to attempt to procure a tenant for the defendant’s property was not terminated or revoked by the defendant on or about January 2, 1899, or at some time before she finally determined to let the property to Gould and Polio, and that-she was not at the time acting in good faith; therefore you must return a verdict for the defendant.”</p> <p>“ 13. Upon the evidence, you would not be warranted in finding that the defendant was acting in bad faith at her interview with him at the Adams House on or about January 2, 1899, or whenever she terminated or revoked his employment or authority to attempt to procure a tenant for her property.</p> <p>“ 14. There is no evidence to warrant a finding that the defendant was acting in bad faith at her interview with him at the Adams House on or about January 2,1899, or whenever she terminated or revoked his employment or authority to attempt to procure a tenant for her property.”</p> <p>“21. Upon all the evidence in the case, you would not be warranted in finding that the plaintiff was the active, efficient, procuring cause of the Gould and Polio lease.</p> <p>“ 22. Upon all the evidence in the case, you would not be warranted in returning a verdict for the plaintiff.</p> <p>“23. Upon all the evidence in the case, the plaintiff cannot maintain this action, and your verdict must be for the defendant.”</p> <p>The substance of the Adams House interview above referred to is described in the opinion.</p> <p>The case was submitted to the jury upon the seventh count, under which the plaintiff contended that he was entitled to a commission upon the lease which actually was given by the defendant to Gould and Polio.</p> <p>portion of the* charge of the justice upon the question whether the plaintiff had been discharged by the defendant in good faith before the lease to Gould and Polio was made is quoted in the opinion.</p> <p>The jury returned a verdict for the defendant upon the amended fourth count of the declaration in accordance with the instruction of the justice, and returned a verdict for the plaintiff upon the seventh count in the sum of $3,763.37. The defendant alleged exceptions, which after the death of Barker, J. were allowed under R. L. c. 173, § 108, by Braley, J.</p>

<p> Limitations, Statute of. Equity Jurisdiction. Executor and Administrator. </p> <p>In a suit in equity against executors under R. L. c. 141, § 10, by a creditor of the estate of the testator, whose claim had not been prosecuted within the two years prescribed by § 9 of the same chapter, it appeared that the debt was created by the plaintiff, after the testator’s death, taking up certain notes which he had indorsed for the testator’s accommodation, that in taking up the notes he got the bank holding them to discount his personal note for the amount due and gave to the bank as security the notes of the testator which he took up, that the personal property of the testator’s estate was not sufficient to pay the debts, and one of the executors represented to the plaintiff that if a sale of the real estate was forced there might not be enough to pay the debts and that if a sale was not forced and the proceeds were sufficient the plaintiff’s debt would be paid, that he urged the plaintiff not to bring an action and to persuade the bank not to sue on the testator’s notes held by it as security, that the plaintiff forbore to bring action and persuaded the bank also to forbear, that before the two years of limitation expired the executors under a license from the Probate Court sold a part of the real estate and realized a substantial sum of money, more than sufficient to pay all the debts of the estate, that the plaintiff was not informed of this sale and did not learn of it until after the two years of limitation had expired. It farther appeared that the executors acted in good faith, and that the plaintiff and the executors mutually were mistaken in believing that by bringing an action a sale of the land could be forced and in believing that the money due to the plaintiff could be paid at any time whether the action was brought within the two years or not. The presiding justice found that the plaintiff was not chargeable with culpable neglect. Held, that, even if the parties acted under a mistake of law which affected the conduct of the plaintiff, justice and equity required that the debt to the plaintiff should be paid, and that under the statute he was entitled to a judgment for the amount of his claim.</p>

<p> Mortgage. Cloud on Title. Land Court. </p> <p>On a petition in the Land Court under R. L. c. 182, § 15, for the discharge of a mortgage incumbering the record title of the petitioner to certain real estate, if the petitioner shows his record title to the property, the incumbrance by the undischarged mortgage, and his possession for twenty years without payment upon the mortgage or recognition of it in any way, he is entitled to a decree discharging the mortgage.</p>

Two actions of contract by the respective parties to an agreement in writing printed below, for alleged breaches of that contract. Writs dated respectively August 20 and September 19,1902.

<p>Negligence, Employer’s liability, Assumption of risk. Snow and Ice. Evidence, Presumptions and burden of proof.</p> <p>A plank walk leading from the rear of an iron foundry to a privy provided for the accommodation of the workmen can be found to be a part of the permanent ways of the foundry, so that both at common law and under R. L. c. 106, § 71, it is the duty of a corporation operating the foundry to maintain the walk in a suitable condition for the use of its workmen, and if snow and ice are allowed to accumulate on the walk in such quantities that when trampled and then frozen the surface is rendered uneven and dangerous and so continues for several days until a workman falls upon it and is injured, there is evidence of negligence on the part of the corporation toward the injured workman.</p> <p>A plank walk maintained by an employer for the use of his workmen, which is constructed properly but temporarily is rendered less convenient for travel by an accumulation upon it of snow and ice, may be used by the workmen in the course of their employment without negligence being imputed to them as matter of law if they are injured from falling by reason of the condition of the walk.</p> <p>If a workman uses a plank walk, which it is the duty of his employer to maintain in a suitable condition, knowing from his previous use of the walk that it is covered with uneven and ridgy snow and ice, and knowing also that the night before a light snow has fallen which may cause his footing to be still more unstable, this does not make his use of the walk negligent as matter of law, and if he sues his employer for injuries from a fall caused by the condition of the walk the question of his due care may be one for the jury.</p> <p>If a workman is injured by falling on a plank walk, which it is the duty of his employer to maintain in a suitable condition, and which is in a dangerous condition caused by an accumulation of snow and ice, the fact that he could have gone to his destination by another way which was free from snow and ice but less convenient does not as matter of law show that he was negligent in using the walk, and in an action against his employer for his injuries the question of his due care may be one for the jury.</p> <p>A workman in an iron foundry does not assume the risk of injury from falling by reason of a dangerous accumulation of snow and ice which his employer negligently has allowed to remain on a plank walk leading from the rear of the foundry to a privy provided for the accommodation of the workmen.</p> <p>In an action under R. L. c. 106, § 71, by a workman in a foundry against his employer for injuries caused by falling on a plank walk intended for the use of the workmen on which the defendant negligently had allowed a dangerous accumulation of snow and ice to remain, if the defendant relies on the provision of § 77 of the same chapter that such an employee shall have no right of action if he “ knew of the defect or negligence which caused the injury, and failed within a reasonable time to give, or cause to be given, information thereof to the employer,” the burden of proof is on the defendant to establish this defence affirmatively, and even if the plaintiff admits knowledge of the snow and ice it still is a question of fact for the jury whether he also should have known before the experience gained by his fall that the walk thus was made defective.</p>

<p> Negligence. </p> <p>If a person has passed many times through a corridor of a building and in doing so has walked over a trap door four feet square which can be lifted out by a ring, never having seen it open and not knowing it was there, and if in the performance of his duty and walking in the usual way he again passes along the same corridor by daylight at a time when the trap door has been taken off and the opening is left without barriers or anything else except the opening itself to indicate that the floor is not in its usual safe condition, and walks into the opening and is injured, in an action against the persons in control of the building for his injuries the question of his due care is for the jury.</p> <p>If those in control of a building maintain a trap door in one of its corridors set in an opening in the floor four feet square and lifted out by a ring, the opening being used only about twice a week, it is their duty to furnish suitable barriers, or objects which may be used as such, so that their servants when they have occasion to remove the trap door can guard or warn persons passing along the corridor without knowledge of the opening, and, in an action against them by a person injured from walking into the opening, a failure to provide for the use of such barriers is evidence of their negligence.</p> <p>In an action against those in control of a building by one temporarily in their employ who was injured by falling into an opening in the floor of one of the corridors of the building from which a trap door had been removed by an assistant janitor without guarding the opening by any barrier, if it has been found that the defendants had made no provision for a barricade or warning, it is no defence that it was the practice of the janitor and the assistant janitor when the trap door was taken off to place a ladder or settee or other object across the corridor, that such articles were kept in a room near by, and that the accident was caused by the negligence of the assistant janitor, a fellow servant of the plaintiff, in omitting this customary precaution, unless it also is shown that such precautions were taken with the knowledge and approval of the defendants.</p>

Contract by the executors of the will of Peter F. Hollywood, on a covenant contained in a lease by the First Parish in North Bridgewater, afterwards the First Parish in Brockton,* to Winthrop S. Baker and Rufus P. Kingman, dated March 21, 1854, for the term of fifty years, the administrator de bonis non of the estate of Baker and the executor of the will of Kingman on March 15, 1904, having assigned a portion of the premises and rights included in the lease to the…

<p>Tax, Assessment, Valuation list, Collector’s deed. Deed. Words, “About.”</p> <p>Under St. 1889, c. 84, (R. L. c. 12, § 15, St. 1902, c. 113,) an assessment of a tax on real estate to one holding under a tax deed which is regular on its face and is duly recorded is made to the right person, whether his title is valid or not.</p> <p>The description of real estate in the valuation list kept by the assessors under the statutes now contained in R. L. c. 12, §§ 56-66, need not have the accuracy required for a conveyance. It is sufficient if it fairly designates the property for the information of those interested.</p> <p>A description of real estate in the valuation list kept by the assessors of a city under the requirements of the statutes is sufficient if it gives the number of the house, the designation of the lot on which it stands and the number of square feet in the lot.</p> <p>A description of real estate in a tax deed which is correct except in the use of the word “ about ” before two of the measurements which are in fact exact is not rendered uncertain or incorrect by the use of this word.</p> <p>Where the word “about” is used in a deed in connection with a correct statement of distance it is treated as having no effect.</p> <p>A description of real estate in a tax deed giving the front line of a lot on a city street as “ about sixty-three feet” and giving the point of beginning as “ about one hundred and twelve feet ” from another street, whereas the lot taxed and intended to be sold was sixty-five feet wide on the street and the point of beginning was one hundred and ten feet from the otjier street, makes the sale invalid and the deed void, the collector having no authority to sell less than the whole of the lot.</p>

<p>Tobt for the alienation of the affection of the plaintiff’s wife, with two counts, the first alleging that the defendant on various days and times between August 1,1896, and the date of the writ, intending to alienate and destroy the affections of the plaintiff’s wife, wrongfully and wickedly debauched and carnally knew her, whereby her affection for the plaintiff was wholly alienated and destroyed, and the plaintiff wholly lost the comfort of her society, aid and assistance; and the second count alleging that the defendant persuaded, procured and enticed the plaintiff’s wife to leave his house and to continue absent therefrom. Writ dated July 21, 1902.</p> <p>At the trial in the Superior Court before Aiken, C. J. the plaintiff discontinued as to his second count, and the case was submitted to the jury on the first count. The jury returned a verdict for the plaintiff in the sum of $6,000; and the defendant alleged exceptions, raising the questions as to the exclusion and admission of evidence which are stated in the opinion.</p>

<p>Petition, filed in July, 1904, by Gertrude T. Taylor, a resident and taxpayer in the city of Haverhill, the" owner of certain land with buildings thereon in that city bounded in part by Mill Street, by land of one Jones and by Lake Saltonstall, for a writ of certiorari to quash two sewer assessments as stated in the opinion, one an assessment of' $264 for a sewer running through private lands of the petitioner and others, and the other an assessment of $200 for a sewer running through Mill Street.</p> <p>The following extracts from the Revised Ordinances of the city of Haverhill were annexed to the petition as an exhibit:</p> <p>“ Sect. 5. The City Engineer shall make and prepare all needed plans and specifications for the construction of all sewers built under the provisions of this ordinance and shall prepare plans and profile of such sewers when so built, showing their location and depth in relation to the street lines and grades, which plans and profile shall be filed in the office of the City Clerk; after being so filed shall be deposited and kept in the office of the City Engineer, which shall be deemed a part of the City Clerk’s office for the keeping of such plans.</p> <p>“ The City Engineer shall certify to the Board of Mayor and Aldermen for the purpose of assessments, the frontage and area of abutters on the street or way through which the sewer has been constructed, together with the amount certified to him by the Superintendent of Highways as the cost of constructing such sewer.</p> <p>“ Sect. 6. Assessments upon owners of estates within the territory of the sewer system heretofore adopted, shall be by fixed, uniform rates based upon the estimated average cost of all sewers therein, both according to the frontage of such estates on any street or way where a public sewer is constructed and according to the area of such estates within a fixed depth of 150 feet from such street or way.</p> <p>“ Assessments upon owners of estates without the territory of the sewer system heretofore adopted by the City of Haverhill, shall be by the same fixed, uniform rate, and assessed in like manner as the territory within. When such estates abut upon more than one street or way, assessments for frontage shall be made upon the shortest side of such street or way. Such estimated cost of all the sewers in said sewer system is hereby fixed at $2.16 per running foot, the same having been so found and determined. The said fixed uniform rates to be assessed upon estates is hereby established at 20 cents upon each foot of frontage on any street or way where a sewer is constructed, and four mills upon each square foot of area within said fixed depth of 150 feet from such street or way, the same having been found and determined to be 35 per centum of the estimated cost of all the sewers in said sewer system.</p> <p>“ Owners of estates or parts of estates not liable to assessment or not in fact assessed, shall pay for the use of common sewers for the disposal of their sewerage from such estates or parts of estate such reasonable sum as the Mayor and Aldermen may determine.”</p> <p>The order of the board of aldermen for the construction of the sewer running through private lands, which was called by the master “ the first sewer ” although considered last in the opinion, was as follows:</p> <p>“In Board of Aldermen, August 28, 1902.</p> <p>“ Ordered:</p> <p>“ That the Superintendent of Highways be and hereby is authorized and directed to construct a sewer, as hereinafter specified, from the end of the present sewer at the junction of Summer and Mill Streets, through Mill Street and through private lands south and west of Lake Saltonstall, to a point in Mill Street, near the culvert leading to the said lake at its westerly end, a total distance of about Three Thousand Eight Hundred (3800) feet.</p> <p>“And be it further ordered that the exact location of the said sewer, the grade of said sewer, the size, and materials of which the said sewer is to be constructed, the location of manholes, and of inlets for the admission of surface water, and the waste weir near the southerly end of the lake, shall be as indicated in a set of plans, profiles, etc. on file in the office of the City Engineer, dated March, 1902, and numbered 1654.</p> <p>“ And be it further ordered that the owners of the lands through which the said sewer shall be built, and the owners of lands abutting on highways through which said sewer shall be built, shall pay to the City of Haverhill assessments at the rates of twenty cents per foot frontage and four tenths of a cent per square foot of area as set forth in the Revised Ordinances of the City of Haverhill for all lands abutting upon said sewer which can be drained into said sewer but no assessment to be made upon any lands reserved for public purposes or upon any lands lying between the said sewer and Lake Saltonstall not exceeding fifty (50) feet in depth measured on a line running at right angles with said sewer to said Lake Saltonstall and it is further ordered that the said Superintendent of Highways shall certify to the City Engineer the cost of said sewer and the City Engineer is hereby instructed to hereafter certify to the Board of Mayor and Aldermen, for the purpose of assessments, the frontage and area of all lands abutting on said sewer or on the streets or ways through which said sewer is constructed together with the amount certified to him by the Superintendent of Highways as the cost of constructing said sewer.</p> <p>“ And be it further ordered that the cost of constructing said sewer shall not exceed the sum of ninety-seven hundred dollars, said cost to be charged to the appropriation for sewer construction.”</p> <p>Here followed a revocation of a previous order, and the attestation of the passage of the foregoing order by the board of aldermen and of its approval by the mayor.</p> <p>The order for the construction of the Mill Street sewer was as follows:</p> <p>“In Board of Aldermen, Nov. 20, 1902.</p> <p>"Ordered:</p> <p>“ That the Superintendent of Highways be and hereby is authorized and directed to construct a sewer on Mill Street, from the regulator manhole south of the west end of Lake Saltonstall, southerly to a point near Arlington Square. The said sewer to be of ten inch pipe for a distance of about four hundred and fifty (450) feetj and of eight inch pipe for the remaining distance of about four hundred and fifty (450) feet, the cost of the said sewer not to exceed eight hundred (800) dollars, the same to be charged to the appropriation for sewers.”</p> <p>The orders and schedules of sewer assessment by which the assessments were apportioned to the several landowners began in case of both sewers as follows:</p> <p>“ Ordered: That the property and estates named in the following schedule be and are hereby severally charged and assessed in the amounts therein named, as a reasonable sum for the use of the common sewer, for the disposal of their sewage, as determined by the mayor and aldermen under the provisions of section 6 of the ordinance relating to sewers.”</p> <p>The case was referred to a master, who in his amended report found that the first or marginal sewer constructed on the shore of Lake Saltonstall was constructed wholly through private lands not abutting on any street or way; and as to the assessment of $200 levied for the construction of the sewer in Mill Street, found that it was levied under § 6 of the ordinances, printed above. He found as a fact, that, upon the facts stated in the respondents’ answer, there was no such loches as to bar the remedy sought by the petitioner.</p> <p>The case came on to be heard before Sheldon, J., who reserved it upon the petition, the return of the respondents, the amended report of the master and the exhibits for determination by the full court.</p>

<p>Negligence, Employer’s liability.</p> <p>It is not the duty of an employer, who sets a boy seventeen years of age at work to clean and polish a circular bicycle chain on a revolving brush attached to a simple machine, with which the boy is familiar although he does not know the number of revolutions of the brush per minute, to warn or instruct him of the danger that the chain being flexible may get caught in the brush and be wound around the brush and shaft.</p> <p>A workman employed to clean and polish articles by means of a revolving brush attached to a simple machine assumes the obvious risk of an accident caused by a flexible object, such as a circular bicycle chain which he is cleaning, getting caught in the brush and wound around the brush and shaft.</p>

<p>Negligence, Res ipso loquitur. Street Railway.</p> <p>If, in an action against a street railway company for personal injuries, there is evidence that the plaintiff was seated at about the middle of a box car of the defendant which was “ going quite fast ” when a “ big crash ” came and the car did not go any farther and a piece of iron came up through the wooden part of the seat between the cushions, that the plaintiff fell over on the iron and then swayed back and fell over on the other side on her right wrist and was injured, and if there is no evidence to show where the piece of iron came from and the defendant does not offer any explanation of the accident, there is evidence for the jury of negligence on the part of the defendant.</p>

<p>Tax, Assessments for benefits. Statute, Repeal. Boston.</p> <p>The right to levy betterment assessments exists only by statute and the Legislature may at any time suspend or repeal the law authorizing such assessments, either generally or in a particular case, except so far as obligations of contract are involved.</p> <p>St. 1900, c. 296, § 1, authorizing the street commissioners of the city of Boston to lay out, widen and order the construction of the causeway and other parts of the highway between Malden Bridge and the boundary line between the city of Boston and the city of Everett, and providing that “no assessment shall be made for such laying out and construction,” repealed by implication the law relating to betterment assessments in relation to the particular improvement authorized, and the repeal applies to relocation proceedings relating to the highway in question instituted before the passage of St. 1900, c. 296, including an order purporting to make assessments under St. 1891, c. 323, § 14, as amended by St. 1899, c. 433.</p>

<p> Veteran. Civil Service. Mandamus. Contract. Damages. Statute. </p> <p>Under R. L. c. 19, §§ 23, 24, however it may he in other matters, in regard to the right to preference for continuous employment there is no distinction between a veteran who has been registered, certified and employed in the labor service of a city, or town and a veteran who has been examined, registered and employed as a public officer.</p> <p>Rules made by the civil service commissioners under R. L. c. 19, § 24, in regard to the preference of veterans, provided that “ when laborers are required, the employing officer shall make requisition upon the commissioners, stating the number of men wanted, the precise nature of the labor in which they are to be employed and the time and place of employment,” that "upon such notice, the commissioners shall certify the names of any and all veterans upon the eligible list, and the employment must be made from the list so certified,” and that “ the employing officer shall, before selecting or employing any other person, first employ from the list of veterans certified.” Held, that under these rules a veteran employed in the labor service of a city or town has the right to continuous employment in preference to those laborers who are not veterans so long as there is work to be done of the kind for which he was employed and he is competent to perform it.</p> <p>If a public officer de jure whose salary has been paid to an officer de facto must establish his right by mandamus before he can be given any pecuniary relief, this rule has no application to an action brought by a veteran against a city for refusing to continue to employ him as a laborer and employing other persons not veterans to his exclusion.</p> <p>Where a veteran is employed by a city as a laborer under the terms of R. L. c. 19, §§ 23, 24, and of rules made by the civil service commissioners under the last named section, there is a contract between the veteran and the city in accordance with the provisions of the statute and the rules in regard to the terms of his employment, and if he is discharged or refused employment in violation of these provisions he may recover his damages in an action of contract.</p> <p>In an action by a veteran who has been employed by a city as a laborer against the city for refusing to continue his employment and employing others, not veterans, to do work which he might have done, if the plaintiff proves his case the measure of his damages is the pay which he would have earned less what he earned or in the exercise of proper diligence might have earned elsewhere.</p> <p>The fact, that R. L. c. 19, § 35, imposes a punishment by fine for a violation of the provisions of that chapter relating to the civil service or of the rules of the civil service commissioners made under those provisions, does not deprive a veteran employed by a city as a laborer of a right of action against the city for a breach of contract in failing to comply with the terms of such provisions and rules under which he was employed.</p>

<p>Negligence. Elevated Railway. Evidence, Circumstantial. Boston Elevated Railway Company.</p> <p>In an action against a corporation operating an elevated railway for an injury from a particle of metal thrown out in the operation of the railway getting into the plaintiff’s eye while he was crossing a street under the elevated structure as a train was passing overhead, the fact that the plaintiff crossed the street under the moving train shows no lack of ordinary care on his part.</p> <p>In an action against a corporation operating an elevated railway for an injury from a particle of metal thrown out in the operation of the railway getting into the plaintiff's eye while he was crossing the street under the elevated structure as a train was passing overhead, the jury in answer to a question from the judge found that the piece of metal in the plaintiff’s eye came from the operation of the contact shoe. The plaintiff testified that he was going under the structure and heard the noise of a train passing overhead and then the particle got in his eye. There was evidence that sparks frequently had been seen to fall in the general vicinity of the place of the accident when trains were in motion and that they sometimes fell in showers and reached the pavement. There also was evidence that the injury was caused by a particle of metal and not by a cinder, that there was a burn on the plaintiff's eye and that the particles thrown off by the contact shoe were hotter than those from the brake shoe, and also that the train was going in a direction where owing to the position of the stations there would have been no occasion to apply the brakes. There also was evidence tending to show that, although there had been a good deal of trouble from the sparking of the contact shoes, there had been no difficulty and no accidents to persons underneath by reason of sparks from the brake shoes. Held, that there was evidence warranting the finding of the jury.</p> <p>In an action against a corporation operating an elevated railway for an injury from a particle of metal thrown out in the operation of the railway getting into the plaintiff’s eye while he was crossing the street under the elevated structure as a train was passing overhead, if no one saw where the particle of metal came from and the plaintiff contends that it was thrown off by the contact shoe and that the defendant was negligent in failing to provide an appliance for preventing the falling of such particles upon the street below, the plaintiff is not bound to exclude the possibility of the accident having occurred in some other way, but only to satisfy the jury by a fair preponderance of evidence that the' accident occurred in the manner in which he contends that it did.</p> <p>In an action against the Boston Elevated Railway Company for an injury from a particle of metal thrown out in the operation of its elevated railway getting into the plaintiff’s eye while he was crossing a street under the elevated structure as a train was passing overhead, in which the jury found on evidence warranting such a finding that the particle of metal came from the operation of the contact shoe, the jury also found that the defendant was negligent in failing to apply to the railroad commissioners for the approval of a pan to prevent the falling of such particles on persons below. St. 1894, c. 648, and St. 1897, c. 600, required the railroad commissioners to approve the plans for the railway before it could be constructed, and, after the completion of the whole or a part of it, required a certificate from them that it appeared to be in a safe condition for operation before the corporation could operate it. The commissioners approved the plan for the railway and gave the certificate for operation after it was constructed. There was evidence that after the operation of the railway began it was known that there was a good deal of trouble from the throwing out of particles of metal, called “ sparking,” which had not been anticipated when the railway was constructed, but that nothing was done to remedy it, and that it would have been feasible to construct a trough or pan which would have prevented the falling of sparks upon persons in the street, that the railroad commissioners had the matter of sparking under investigation and had made no recommendation and taken no action except to cause the investigation to be made. Held, that whether as matter of law the defendant should have applied to the railroad commissioners for the approval of a pan it was unnecessary to decide, but that, the jury having found that a pan was reasonably necessary, it was the duty of the defendant either to apply to the commissioners for their approval or to put up a pan without such approval, and that the finding of the jury was warranted.</p>

<p> Board of Health. Smallpox Hospital. Landlord and Tenant. Evidence. </p> <p>The board of health of a city which had no hospital for contagious diseases, finding a case of smallpox in the family of one of the tenants of a certain house belonging to a woman, quarantined the building and occupied it for a smallpox hospital, treating forty or more cases there. The board of health caused no warrant to issue under Pub. Sts. c. 80, § 43, which then was in force, to take the building as a hospital, but the owner of the house executed a lease to them for a certain period for a monthly rent named therein which it was stipulated should continue for such further time as the lessees should hold the premises. After the expiration of the term of the lease the monthly rent was increased in amount, the occupation as a hospital continued and the owner of the house continued to receive the rent. Later she brought an action of tort against the members of the hoard of health for damages for alleged unlawful occupation of her premises. In this action she offered to show that in executing the lease she did not believe or realize that she was signing away any rights to recover damages and that since the occupation by the defendants her house had been commonly known as “ the pest house.” The evidence was excluded, and a verdict was ordered for the defendants. Held, that the lease and the continued receipt of rent by the plaintiff after its expiration operated as a consent to the occupancy of the house by the defendants for a smallpox hospital and rendered any action by them under the statute unnecessary; that the evidence offered by the plaintiff properly was excluded as incompetent and immaterial; and that the verdict for the defendants was ordered rightly.</p>

<p>Tort, by a workman employed in the stone yard of the defendants at a wharf in that part of Boston called Charlestown, for personal injuries received on June 13, 1899, with three counts, the first of which was waived by the plaintiff, the second count being under St. 1887, c. 270, § 1, cl. 2, alleging negligence of a superintendent, and the third count being at common law. Writ dated July 14, 1899.</p> <p>At the first trial in the Superior Court Richardson, J. refused to order a verdict for the defendants and submitted the case to the jury upon the second and third counts. The jury returned a verdict for the plaintiff on the count at common law in the sum of |5,000; and the defendants alleged exceptions, which were sustained by this court in a decision reported in 181 Mass. 329.</p> <p>At the second trial before Stevens, J. the plaintiff relied only on the second count under the employers’ liability act alleging negligence of a person entrusted with and exercising superintendence. The following facts were not in dispute, nor were they in- dispute at the first tr^al:</p> <p>The defendants were copartners, and for many years had carried on a general teaming business in Boston, requiring about one hundred horses, and also had carried on a granite business, with several stone yards, one of which was at a wharf in Charles-town where the accident occurred. They dealt principally in large curbstones. Some were straight, and some of the stones, called circle stones, were curved, forming segments of circles of different radii. The stones varied from five to ten feet in length, from eighteen to twenty inches in width, and from seven to twelve inches thick, being about seven inches thick on the top and from seven to twelve inches on the bottom. These stones came by water, and were unloaded from scows upon the wharf.</p> <p>Some forty or fifty feet back from the cap of the wharf stood a permanent derrick with a long boom which could be raised and lowered in the usual way, and which also swung around describing a circle. After the stones were unloaded, they were taken by means of this derrick from the wharf and placed in piles or tiers around the circle described by the boom, one end of each pile pointing toward the derrick. These tiers of stones formed two circles, an inner and an outer circle. The stones were deposited in or taken from the outer circle by lowering the boom, and from the inner circle by raising it. The circle stones were placed with their convex sides down, those having the same radii being placed in the same tier or tiers, and piled from five to seven stones high. Two sticks or pieces of wood called “dunnage ” were placed»between every two stones as they were piled at right angles with their length, from one quarter to one third distant from each end, separating the stones three inches, more or less; and often long binder sticks were used running through two or more piles to steady them. Ordinarily two pieces of wood were used, but sometimes it was necessary to chink up and put in several small pieces in order to keep the piles level.</p> <p>As stones were sold, they were taken in the same way by the derrick from the tier where the stones of the same radius and dimensions were piled and loaded upon teams, so that the heights of the tiers would vary from time to time. At the time of the accident a tier in the outer circle contained five or six circle stones. The next tier on the water side contained one stone, and the next tier beyond contained two or three.</p> <p>At the time of the accident, the plaintiff and one Hanlon, employed by the defendants, were about to remove the top stones from the tier of five or six to get out the third stone from the top. The plaintiff had just walked in on the water side of the tier to assist when the three top stones fell or slid off toward him, throwing him down and causing the injuries complained of.</p> <p>The plaintiff had been in the employ of the defendants as a teamster for fifteen or sixteen years. Several months before, the plaintiff had been thrown from his team and received injuries which had prevented him from working until about two or three weeks before the accident now in question. When he returned to the defendants’ employ he was set at work to look after paving stones in their yard at Cambridge and after that he worked in their yard at the Boston and Maine Railroad before coming to the yard in Charlestown where the accident occurred.</p> <p>Other evidence in the case is described in the opinion.</p> <p>At the close of the evidence the judge ruled that the plaintiff was not entitled to have the case submitted to the jury, and ordered a verdict for the defendants. The plaintiff alleged exceptions.</p>

<p> Negligence. Elevated Railway. </p> <p>In an action for personal injuries against a corporation operating an elevated railway, it appeared that the plaintiff was a small and frail woman who was unfamiliar with elevated cars and platforms and never had crossed from the platform of one car to that of another, that she had a young child in her arms, got upon the platform of a car of one of the defendant’s trains and was entering the door when a brakeman speaking sharply said ■“ Smoking car, madam; you can’t go in there; cross over into the front car, and move quickly,” that in attempting to obey him she fell between the cars receiving the injuries sued for, that in attempting to pass between the cars she did not look down, her mind being on the child, and the brakeman gave her no warning or assistance, that the platforms of the cars curved away from each other, the space between them being seven inches at its narrowest part and eleven inches at its widest part, that the curves of the platforms of the cars were determined by the shortest curve of the track which it was necessary for cars coupled together to pass and were no greater than was required for that purpose, that experiments had been made with a buffer coupling, which was the best device known for covering the space between the ends of the cars, and that the device had been shown to be impracticable. 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 on the part of the defendant.</p>

<p>Fraternal Beneficiary Corporation. Insurance, Life. Pleading, Civil. Estoppel.</p> <p>A misrepresentation, which is not a warranty, in an application to a fraternal beneficiary corporation for membership and insurance, unless made with actual intent to deceive or unless the matter misrepresented increased the risk of loss, does not avoid a certificate issued on the application.</p> <p>Although by R. L. c. 119, § 22, the provision of R. L. c. 118, § 21, that no misrepresentation or warranty by the assured shall defeat a policy of insurance unless “made with actual intent to deceive or unless the matter misrepresented or made a warranty increased the risk of loss,” does not apply to fraternal beneficiary corporations, that provision, so far as it relates to misrepresentations which • are not warranties, is merely declaratory of the common law.</p> <p>In an action against a fraternal beneficiary corporation by the beneficiary named in one of its certificates, the defendant contended that the certificate was void because the insured member upon whose death the benefit was payable had made misrepresentations in her application for insurance and membership. It appeared that the insured in her application had stated that she had not been treated ,by a physician within the past twelve months; that she never had had any protracted illness; that she was in perfect healtli so far as she knew or believed; that she had not been obliged to consult a physician or lose any time from her usual occupation on account of sickness at any time during the past five years; that no physician ever had given an unfavorable opinion upon her life or health; and that no material facts bearing upon her life or health had been omitted or suppressed. It further appeared that during the year preceding her application the insured had consulted a physician and had received medical advice and treatment for slight ailments which caused her to be confined to her bed for about eight or ten days, that, although she formerly had believed or suspected that a serious physical trouble existed, her family physician after an examination assured her to the contrary and she accepted and acted upon his opinion which was a correct one, that her occupation was that of a housewife and the evidence warranted a finding that it had not been interrupted by any long continued or severe sickness which rendered her incapable of supervision of the household. Held, that the incorrect answers of the insured were representations only and not warranties, that it was for the jury to find under suitable instructions whether the incorrect answers were material or intentionally false, and that unless they were intentionally false or increased the risk they were no bar to the plaintiff’s recovery.</p> <p>The by-laws of a fraternal beneficiary corporation provided that any member who - gained admission by reason of any false statements contained in his application for membership should on conviction be expelled, but that before such expulsion could be ordered the accused was entitled to be informed of the charges made against him and to be heard in defence. An insurance certificate had been issued to a woman upon her application, and the corporation had recognized her as a member by receiving dues and assessments from her. Thereafter, without any previous notice giving her an opportunity to- be heard, in obedience to an order of .the principal officer of the corporation authorized to act in its behalf, the subordinate commandery voted to return to this woman the amount previously paid by her for dues and assessments and to notify her that having gained admission through misrepresentation she was disconnected, but no tender ever was made nor notice communicated to her, because she was mortally sick and substantially unconscious at the time the vote was passed and until her death. In an action by the beneficiary named in her certificate to recover the amount of the insurance, the defendant asked for a ruling that if the defendant rescinded the contract and expelled or disconnected the insured from the order, it became her duty if she desired to continue her membership to exhaust by an appeal the remedies provided by the constitution and by-laws for reinstatement. The ruling was refused. Held, that the ruling was refused rightly; that if the expulsion, although declared without granting the member an opportunity to be heard, could be upheld as valid until suspended by an appeal, no effective notice of expulsion or disconnection having been given to the insured the attempted act of rescission never was perfected and there was no occasion for resorting to an appeal.</p> <p>In an action against a fraternal beneficiary corporation by the beneficiary named in one of its certificates, if the defendant relies on the defence that the insured had forfeited his membership by a failure to pay the regular monthly assessments, this defence must be pleaded specially and is not open to the defendant under an answer which as to this issue contains only a general denial.</p> <p>In an action against a fraternal beneficiary corporation by the beneficiary named in one of its certificates, whether the defendant can set up the defence that the insured had forfeited his membership by a failure to pay or tender the regular monthly assessments, if the failure to pay or tender the assessments was after the defendant had declared that the membership of the assured was terminated and had ordered its subordinate commandery not to receive dues or assessments from the insured or from any person acting in his behalf, quaere.</p>

<p>Appeals, filed in the Supreme Judicial Court on June 15, 1905, by James C. Jordan, one of the life beneficiaries under the will of Eben D. Jordan, late of Boston, from decrees of the Probate Court for the county of Suffolk allowing the accounts of the trustees under that will. '</p> <p>There were six accounts filed by the trustees, covering the period from November 15, 1895, the date of the death of the testator, to October 30, 1900.</p> <p>Objections were filed by James C. Jordan, the appellant, to these accounts as well as to accounts filed by the executors. The matter was referred to John C. Gray, Esquire, as auditor, who made a report. Thereafter the matter came before the Probate Court, and the entry of the decrees appealed from was consented to by the appellant “ except in so far as items involved questions as between capital and income.”</p> <p>The appeals came on to be heard before Braley, J., who at the request of the parties reserved them on the pleadings (omitting the schedules annexed to the objections), the will, the auditor’s report so far as it related to the questions raised by the appeals, a stipulation and a statement of the facts admitted, for determination by the full court, such decrees to be entered as equity and justice might require.</p> <p>The following facts by agreement were taken as admitted at the argument: The testator’s widow survived him, and died in February, 1897. Four children of the testator survived him, and now are living, namely, James 0. Jordan, Eben D. Jordan, Jr., Julia M. Dumaresq and Alice M. Foster. No child of the testator died before him leaving issue. The appellant had two daughters of his first marriage, both of whom are living. The testator died seised of vacant lands in Brookline and Boston in addition to the lands in regard to which the questions were raised which are considered in the opinion.</p> <p>The following provisions of the will relate to the duration and termination of the trust:</p> <p>“ . . . And upon the further trust at the end of said period of suspension to pay, transfer and convey to each descendant then living of said James C. Jordan, Eben D. Jordan Junior Julia M. Dumaresq or Alice M. Foster as the case may be for whose benefit a general share or a part of a general share shall then be held in trust under this my will or.who has been receiving income from any general share or part of a general share, the general share or the part of the general share itself held in trust for his or her benefit or of which he or she received the income in either case discharged of all trusts. . . .</p> <p>“ And provided further that the words ‘son’ ‘daughter’ ‘child’ ‘ children ’ ‘ brother ’ ‘ sister ’ ‘ issue ’ ‘ lawful issue ’ ‘ descendant ’ ‘beneficiary’ ‘heir at law’ ‘next or nearest of kin’ or other word or words wherever used in this will, whether hereinbefore or hereinafter with reference to persons descended from my said son James 0. Jordan shall in all cases be taken to refer only tp such persons as shall have descended from the said James and his said former wife Helen L. Jordan and in no instance to those persons, if any, who shall have descended from, said James and his present or any other wife except said Helen it being my intention to exclude from sharing in any part of my property whether principal or income any and all children issue or descendants however near or remote of my said son James, except his said daughters by his said former wife Helen L. Jordan and their respective issue and descendants.</p> <p>“ Said period of suspension shall be and continue from the time of my death during the lives of such of my lawful descendants as shall be living at the time of my death and during the lives and life of the survivors and survivors [sic] of them and for twenty years after all of them shall have died, whether such descendants living at the time of my death shall be a child or children and grand child or grand children and great grand child or great grand children and more remote issue of mine, or shall embrace less generations.”</p> <p>The following article of the will is referred to in the opinion as a “ cautionary direction ” :</p> <p>“Article Twenty-fourth: — I think after a long experience on the subject, very highly of real estate as a permanent investment and I suggest that the executors or executor or administrators or administrator for the time being under this my will and the trustees or trustee for the time being thereunder, fully consider the expediency of making any sale of real estate, under the power given in and by this will, "before making sale thereof, but this is only by way of suggestion, and is not in any manner whatsoever to control, lessen, impair or affect the power to sell real estate hereinbefore given in and by this will.'”</p> <p>Other portions of the will necessary for a proper understanding of the decision of the court are quoted or described in the opinion, where also other material facts are stated.</p>

<p>Bill isr equity, filed October 30, 1905, by William T. DeFriest of Boston and the William J. Lemp Brewing Company, a corporation organized under the laws of the State of Missouri, against the trustees under the will of John D. Williams, late of Boston, to enjoin the defendants from cancelling a lease of a brick building numbered 28 and 30 on Avery Street in Boston made by the defendants’ predecessor in the trust to the plaintiff DeFriest who afterwards assigned his rights therein to the plaintiff corporation.</p> <p>In the Superior Court the case was heard by Fessenden, J. The material portions of the lease were contained in its granting and habendum clauses, which were as follows :</p> <p>“This indenture, made the ninth day of May in the year nineteen hundred, between Richards Bradley, trustee under the will of John D. Williams, late of Boston (hereinafter called the lessor) of the one part and William T. DeFriest of Boston, Mass, (hereinafter called the lessee) of the other part</p> <p>“Witnesseth, that in consideration of the covenants herein contained, on the part of the said William T. DeFriest and his representatives, to be kept and performed, the said Richards Bradley, trustee doth hereby lease unto the said William T. DeFriest the brick building numbered twenty-eight (28) and thirty (30) Avery Street in said Boston, reserving unto himself and his representative the right to cancel this lease at any time by paying the said lessee the sum of three thousand (3000) dollars if cancellation takes effect during the first year and a half of the term hereof and by paying him the sum of fifteen hundred (1500) dollars if cancellation takes effect subsequent to the above mentioned period: provided that said lessor shall give written notice of intention so to cancel said lease three months in advance, said written notice to be delivered to said lessee or mailed with address to said lessee on said premises; except in case the taking of the whole or any part of said leased premises is authorized by public authority, in which case the lease may be cancelled at once by written notice to that effect addressed and mailed or delivered as above provided ; payment of three thousand (3000) dollars or of fifteen hundred (1500) dollars, according to time of cancellation, as above provided, to be due from said lessor to said lessee upon such cancellation.</p> <p>“ To have and to hold the said premises hereby leased unto the said party of the second part and his representatives, from the first day of May in the year nineteen hundred and one during the full term of four years thence next ensuing.”</p> <p>The agreement of extension referred to in the opinion was as follows:</p> <p>“It is hereby agreed that the term of a certain lease dated May 9, 1900, between Richards Bradley, trustee under the will of John D. Williams, as lessor, and William T. DeFriest, as lessee, shall be extended for the period of five years from the expiration thereof, so that the term of said lease as extended shall extend t'a and expire on the 30th day of April, 1910 ; and all provisions, agreements, terms and conditions in said lease and the assignment thereof to The William J. Lemp Brewing Company, which assignment is dated 'December 13,1901, shall apply to said term as extended.</p> <p>“ Witness our hands and seals this sixth day of November, 1903.”</p> <p>Here followed the signatures of the trustees under the will of John D. Williams and of the plaintiff DeFriest, below which was an assent to the extension executed by the plaintiff corporation as assignee of the lease.</p> <p>On July 6,1905, the following notice of cancellation signed by the defendants was sent to the plaintiff DeFriest:</p> <p>“ Dear Sir:</p> <p>“ By virtue of the provisions of the lease to you, dated May 9, 1900, from Richards Bradley, trustee under the will of John D. Williams, which lease was on November 6, 1903, extended to April 30, 1910, we, the lessors of the leased premises hereby notify you of our election to cancel the lease, said cancellation to take effect October 31, 1905.</p> <p>“Pursuant to the terms of the lease there will be due from us on said date when said cancellation is to take effect, the sum of fifteen hundred (1500) dollars, and that amount we will pay over at that time.”</p> <p>Afterwards a tender of $1,500 was made by the defendants and refused by the plaintiffs.</p> <p>The judge made the following findings of fact:</p> <p>“ In July, 1903, the plaintiff DeFriest, being in possession of the premises described in the bill in this suit under the lease a copy of which is annexed to the bill, and desiring to extend his business, entered upon negotiations for an extension of the term of the lease. The negotiations were all oral. The defendants seasonably objected to the admission of the evidence; but I admitted it, subject to the objection and exception of the defendants. DeFriest requested the lessors to make certain alterations and improvements on the leased premises. The lessors declined so to do unless he would pay the expense thereof. He told them that he would not as he would have to carry on the business for some time at a loss, that he would be put to considerable expense in making the alterations and improvements, that he would have to borrow the money therefor, that the lease had only about a year and a half to run, that the business would be interrupted while the changes were being made and that he could not get the money back in the time during which the lease was to run. They offered him three years more in addition to the term of the lease; but he declined this saying that he could not get the money back and that he would not make the improvements unless they gave him five years’ extension of the lease.</p> <p>“ Early in September of the same year the lessors informed him that they had decided to give him the five years, and to</p> <p>allow him. one month’s rent ($250.00) for the interruption to his business. Nothing was said about the right to cancel the lease as provided in the lease, and the plaintiff did not understand that the lessors had such right. It was understood that the assignment to the Lemp Brewing Company and the guaranty of that company were to apply to the extension.</p> <p>“ Early in October DeFriest began the alterations and improvements. He completed them in November. The lessors knew of the beginning and the progress of the work, which was inspected from time to time by their representatives.</p> <p>“ He expended about $1600 on them, and also about $600 in equipping his restaurant.</p> <p>“ During the first year after he began the enlarged business he lost about $2000. There was no profit from the new business until after the expiration of "eighteen months from the time he began carrying it on. It has become profitable. The lessors have not made any objection to the business or his method of conducting it. He borrowed $4900 of the Lemp Brewing Company to cover his losses and the expense of the alterations and improvements. This was contemplated when he began the changes.</p> <p>“ The lessors executed the extension instrument about November 6, 1903, and while the alterations and improvements were being made, and it was left with H. E. Warner, Esquire, in escrow until March, 1904, when, the work having been completed and the term for claiming mechanic’s liens having expired, it was delivered. Mr. Warner acted as attorney for the Lemp Brewing Company when the extension was prepared and signed, and looked after the interests of that company and DeFriest.</p> <p>“I do not find any waiver or estoppel on the part of the lessors.</p> <p>“ The several instruments and notices annexed as exhibits to the plaintiffs’ bill were duly executed and delivered.</p> <p>“ At the request of the plaintiffs’ counsel I state that Mr. DeFriest gave his testimony in an honest and truthful.manner and told the truth.”</p> <p>The judge under Chancery Rule 35 appointed a commissioner to take the evidence and report it to this court. Afterwards he made a final decree that the bill be dismissed without prejudice</p> <p>to any remedies that the plaintiffs might have at law. The plaintiffs appealed.</p> <p>The case was argued at the bar in March, 1906, before Knowlton, C. J., Morton, Lathrop, Braley, & Sheldon, JJ., and after-wards was submitted on briefs to all the justices.</p>

<p>Equity Pleading and. Practice, Master’s report, Hearing before master, Election of remedy. Equity Jurisdiction. Partnership. Election. Contract, Implied: common counts.</p> <p>Where in a suit in equity the case is referred to a master under an order of court which does not require a report of the evidence but only of such facts and questions of law as either party may request, and the master makes a full report setting forth the facts on which his rulings of law are based, he is not obliged to report the evidence on which his conclusions of fact were reached.</p> <p>Where a master is not required to report the evidence on which his findings of fact are based and does not report it, a finding by him that certain oral contracts alleged by the plaintiff were not proved is final.</p> <p>Where in a suit in equity a master is not required by the order of reference to report the evidence on which his findings of fact are based and does not report it, a finding by him, upon a claim by the plaintiff for compensation for services alleged to have been rendered by the plaintiff to a firm of which he had been a member, that the plaintiff after a certain date was acting as a member of the firm and not as an employee and that his employment had ceased at a previous date, is final.</p> <p>Where a member of a business partnership organized in the form of a trust with transferable shares, who also is employed by the partnership at a salary, has made an agreement in writing with a copartner that whenever he leaves the employ of the company he will sell and convey his shares to his copartner at a certain price which the copartner agrees to pay, and subsequently gives a notice in writing under the contract that his employment has ceased, offers to transfer his shares, demands a settlement, and about two years afterwards brings a suit in equity to enforce the contract specifically and compel the payment to him of the agreed price for his shares, he cannot also maintain another suit in equity against his copartners or their representatives for an accounting for the profits accruing from his shares after the date on which he offered them to his copartner under the contract which he is seeking to enforce specifically.</p> <p>Where a member of a business partnership organized in the form of a trust with transferable shares, who also is employed by the partnership at a salary, has made an agreement in writing with a copartner that whenever he leaves the employ of the company he will sell and convey his shares to his copartner at a certain price which the copartner agrees to pay, and subsequently gives a notice in writing under the contract that his employment has ceased, offers to transfer his shares and demands a settlement, but, instead of acually severing his connection with the company after giving his notice, continues to render services which are of value to the company and are performed with the knowledge of the representatives of his copartners and without any dissent from them, until they finally discharge him, when he brings a suit in equity to enforce the contract specifically and compel the payment to him of the agreed price for his shares, he is entitled in another suit in equity to recover from the members of the partnership the reasonable value of his services from the time of his giving the notice to the time of his discharge.</p> <p>When by an order of court in a suit in equity the case has been recommitted to a master to report further on certain points named in the order, a motion that the whole case be reopened for the introduction of further evidence must be addressed to the court and not to the master, and the denial of such a motion by the master is not a matter of exception to his report.</p>

Bill in equity, filed in the Supreme Judicial Court on March 29 and amended on October 10, 1905, by the trustees under the will of Thomas Whittemore for instructions as to the distribution of the property held by them under the residuary clause of that will which is described and quoted in the opinion.

<p>Tort, by a boy thirteen years of age when injured, for personal injuries received on December 15, 1902, from being struck by a car of the defendant while he was sitting on the side of a pung loaded with grease boxes by permission of the driver of the pung. Writ in the Municipal Court of the Roxbury District dated August 10, 1903.</p> <p>On appeal to the Superior Court the case was tried before Stevens, J., and the jury returned a verdict for the plaintiff which was set aside by the judge. Later there was a new trial before ¡Wait, J., who ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Petition, filed in the Probate Court for the county of Suffolk on December 19, 1905, under R. L. c. 144, § 9, by Jennie M. Purdon of Winchester who was granted a divorce from James L. Purdon, formerly of Boston, by the Superior Court for the county of Middlesex, which became absolute on September 8, 1905, by which decree James L. Purdon was ordered to pay the petitioner the sum of $4,000 in gross as alimony, praying that the petitioner’s claim for $4,000 might be proved as a debt against James L. Purdon and against his property and estate now in the hands of George R. Blinn of Bedford appointed under R. L. c. 144 as receiver to the property of James L. Purdon, an absentee, and for an order directing the payment of the petitioner’s claim out of such property.</p> <p>A citation was issued on the petition ordering service by mail or personal service, and also by publication, upon the receiver and the children of the absentee, and the service was made as ordered. The Probate Court appointed Charles H. McIntyre, Esquire, to act as next friend of all persons not ascertained or not in being and also appointed him guardian ad litem for Evelina T. Purdon, a minor child of the absentee and the petitioner. As next friend and as guardian ad litem he filed his assent to the granting of the petition. The Probate Court made a decree allowing the petitioner’s claim and ordering that the payment be made, subject to the reservation of the amounts which might be necessary to pay the expenses of the receivership and for the support and maintenance of Evelina T. Purdon. The receiver appealed.</p> <p>The appeal came on to be heard before Hammond, J. No persons were present, or represented by counsel, other than the petitioner, the receiver and the guardian ad litem and next friend. No notice was given other than that required in the citation issued by the Probate Court. With the consent of these parties the justice reported the case for determination by the full court, such decree to be entered, or such other disposition to be made of the case, as to the full court should seem meet.</p>

<p>Bill in equity, filed in the Superior Court on June 13, 1898, by the New York Bank Note Company, a corporation organized under the laws of the State of West Virginia and having its principal place of business in the city of New York, the successor under a reorganization of a corporation of the same name organized under the laws of the State of New Jersey, against the Kidder Press Manufacturing Company, a corporation organized under the laws of the State of Connecticut and having its principal place of business in the city of Boston, and Eugené A. Bascom, having a usual place of business in Boston, the assignee under a voluntary conveyance from the Kidder Press Manufacturing Company of its entire assets, in trust, alleged to be in fraud of the plaintiff’s rights, praying, first, that the defendant corporation and the defendant Bascom might be enjoined from selling or disposing of any of the assigned property under or in accordance with a published notice of a mortgagee’s sale, second,, that the defendant Bascom might be enjoined from continuing and conducting. hereafter the business of the defendant corporation and from making any new contracts for the manufacture of printing presses for others, third, that some suitable person might be appointed as receiver to take possession of all the assets and property of the defendant corporation and administer and wind up the same under the order of this court, fourth, that the trust created under the conveyance to the defendant Bascom might be executed only under the order and direction of this court, and that the defendant Bascom, or some suitable person appointed as trustee in his place, might be ordered and adjudged to collect as soon as might be all bills receivable, and debts due the defendant corporation and sell for cash all manufactured and salable .product now on hand and apply the proceeds in payment of the outstanding indebtedness of the defendant corporation, and fifth, for further relief.</p> <p>By an interlocutory decree of June 20, 1898, receivers were appointed. On July 13,1898, a cross bill was filed by the Kidder Press Manufacturing Company by leave of court. On September 27,1898, the original plaintiff filed a petition for the removal of the receivers, and the appointment of others in their stead. By a decree of January 19, 1899, the receivers and certain creditors of the corporation on their petition were made parties to the suit. On May 28, 1902, the receivers filed their fourth report and a petition for an order of final distribution or for instructions. On May 2, 1904, the plaintiff filed a petition for distribution.</p> <p>On February 13,1905, there was a hearing upon the petition of the receivers for distribution or for instructions filed May 28, 1902, and an interlocutory decree was made that the case be assigned for hearing on April 3, 1905, at the equity session of the Superior Court upon the issue whether or not the plaintiff was a creditor entitled to participate in the fund in court, and that the petition of the receivers be reserved for the further consideration of the court.</p> <p>On April 3, 1905, an order was made under Chancery Buie 35 appointing a commissioner to take the evidence to be reported to this court.</p> <p>On May 1, 1905, Fessenden, J. made the following decree:</p> <p>“ This cause came on to be heard under the interlocutory decree dated February 13, 1905, and after hearing evidence and arguments of counsel, it appearing to the court that the contract of October 12, 1891, between the New York Bank Note Company of New Jersey and the defendant the Kidder Press Manufacturing Company was entered into by and between such parties, as stated in the plaintiff’s bill, and that the said contract was afterwards assigned by the said New York Bank Note Company of New Jersey to the plaintiff by an assignment dated December 27, 1892; and it appearing to the court that said contract was not assignable without the assent of said defendant; and it further appearing to the court that said assignment was not assented to by the said defendant; and it further appearing to the court that the said defendant prior to said December 27, 1892, and in said December, 1892, committed a breach of said contract as follows, viz: by the sale of a certain press to the Hamilton Bank Note Engraving and Printing Company, and that the plaintiff by virtue of said assignment acquired a right of action against said defendant for and on account of said breach of said contract, and that said defendant prior to said assignment committed no other breach of said contract, and that in such respect and such respect alone the plaintiff is a creditor of said defendant; thereupon and in consideration thereof it is ordered, adjudged and decreed that this cause be, and the same hereby is, referred to James R. Dunbar, Esquire, as special master, to hear the parties and to determine the amount of damages, if any, occasioned by such breach of such contract, the hearings to begin forthwith and to continue from day to day, said special master to file his report on or before the first Monday of July, 1905.”</p> <p>The defendant corporation appealed “ from so much of the decree of this court, dated May 1, 1905, as finds that prior to December 27,1892, and in December, 1892, the defendant committed a breach of the contract of October 12,1891, referred to in said decree, by the sale of a certain press to the Hamilton Bank Note Engraving and Printing Company, and that the plaintiff by virtue of the assignment dated December 27, 1892, referred to in said decree, acquired a right of action against the defendant for and on account of said breach of said contract, and that in such respect the plaintiff is a creditor of the defendant.”</p> <p>On J une 6, 1905, the New York Bank Note Company, organized under the laws of the State of New Jersey, filed a petition for leave to intervene. The petition was denied ; and that corporation appealed.</p> <p>On November 8, 1905, the special master filed a report. He found that the damages caused by the breach of contract were $11,400 ; that the right of action to recover such damages passed from the New Jersey company to the plaintiff by assignment; and that the damages which the plaintiff was entitled to recover were $11,400, and interest thereon from December 24, 1892.</p> <p>Both the plaintiff and the defendant corporation filed exceptions to the report.</p> <p>On January 27, 1906, Fox, J. made a decree overruling all the exceptions of both parties and confirming the report, ordering that the clerk pay to the plaintiff out of the fund-deposited with him by the receivers the sum of $20,349, being the damages found due by the master as the depreciation in value of the printing presses owned by thé New York Bank Note Company of New Jersey at the time of the breach of contract and caused by the breach, and interest thereon from December 24, 1892, to the date of the decree, with interest on that sum from the date of the decree to the date of payment, and the further'sum of $583.88 as costs. The defendant corporation appealed.</p> <p>On February 19, 1906, the receivers by leave of court filed an amendment to their petition for an order of final distribution or for instructions, alleging that the New York Bank Note Company of West Virginia on February 6, 1906, received from the Hamilton Bank Note Engraving and Printing Company of New York the sum of $12,500 in full settlement of all damages occasioned by the breach of the contract of October 12, 1891, between the New York Bank Note Company of New Jersey and the Kidder Press Manufacturing Company, including all damages occasioned by the sale of the Kidder Perfecting Press in December, 1892, the basis of the master’s report and the decree of January 27,1906 ; that the New York Bank Note Company executed to the Hamilton Bank Note Engraving and Printing Company a release under seal of all damages and demands, including all damages occasioned by the breach of December, 1892; that the New York Bank Note Company had consented to an order discontinuing the action as against the Hamilton Bank Note Engraving and Printing Company; that the action had been discontinued by the court as against the Hamilton Bank Note Engraving and Printing Company, a copy of the agreement for discontinuance being annexed; and that the payment, release and discontinuance were a bar to any further recovery of damages by the New York Bank Note Company against the said Kidder Press Manufacturing Company; praying the court to hear and determine the question whether the payment, release and discontinuance were such a bar, and if the court should determine such to be the effect of the payment, release and discontinuance, that the receivers might be allowed to pass their final accounts, and that an order of distribution of the surplus assets among the stockholders of the Kidder Press Manufacturing Company might be made, or for further instructions from the court.</p> <p>The plaintiff filed an answer to the amendment of the receivers’ petition, alleging that it received the sum of $12,500 named in the amendment from the Hamilton Bank Note Engraving and Printing Company in settlement of a separate and distinct cause of action against that company; that the release included no damages or demands occasioned by the breach of contract mentioned in the amendment; also that the settlement with the Hamilton Bank Note Engraving and Printing Company was entirely made, executed and carried out in the State of New York, and that by § 1942 of the Code of that State “ joint debtors may compound separately ” ; so that even assuming that the Hamilton Bank Note Engraving and Printing Company and the Kidder Press Manufacturing Company were joint debtors of the plaintiff, which the plaintiff denied, the causes of action against the Hamilton Bank Note Engraving and Printing Company and that against the Kidder Press Manufacturing Company were entirely separate and distinct.</p> <p>The release executed by the plaintiff contained the following declaration:</p> <p>“ This release is not intended to release any claim which said New York Bank Note Company now has or may have against the Kidder Press Manufacturing Company, a Connecticut corporation, and is made in pursuance of the statute in such case made and provided.”</p> <p>On March 7, 1906, the case came on to be heard before Richardson, J., who reported it to this court as follows:</p> <p>“ This cause came on to be heard before me after the appeal taken by the defendant Kidder Press Manufacturing Company from the decree entered herein on January 27, 1906, upon the amendment to the receivers’ petition for order of final distributian which amendment was filed on February 19,1906, and upon the answer of the plaintiff to said amendment, and having heard the parties thereon, I make the following findings of fact in addition to the facts already appearing in the record on appeal from the decree of January 27, 1906, which record is made a part of this report, upon all the material issues raised by said amendment and answer, and report the same to the full court.</p> <p>“ The plaintiff corporation received from the Hamilton Bank Note Engraving and Printing Company of New York on February 6, 1906, the sum of $12,500 and assented to the discontinuance as against the Hamilton Bank Note Engraving and Printing Company of a certain action pending in the Supreme Court of the State of New York, and said action was thereupon discontinued as against the Hamilton.Bank Note Engraving and Printing Company, and the plaintiff also executed to said Hamilton Bank Note Engraving and Printing Company a certain release, and assented to the cancellation of two bonds filed in said action for $50,000 each, and one bond of $500, and said bonds were thereupon cancelled. ...</p> <p>“I find that said action in the Supreme Court of the State'of New York was originally begun by the plaintiff against the Hamilton Bank Note Engraving and Printing Company as sole defendant, and that the said Hamilton Bank Note Engraving and Printing Company demurred on the ground, among others, that the Kidder Press Manufacturing Company ought to have been made a party. This demurrer was sustained by the New York court, the decision thereon is reported in 83 Hun, 593, which is made' a part hereof and may be referred to but need not be printed, and the plaintiff amended and made the Kidder Press Manufacturing Company a party defendant.</p> <p>“ The Kidder Press Manufacturing Company was a nonresident of the State of New York, but its treasurer, W. P. Kidder, was personally served in New York City, which service was good legal service upon that corporation under the laws of New York.</p> <p>“ At the time of said payment the case in the Supreme Court of the State of New York was pending against the Hamilton Bank Note Engraving and Printing Company and the Kidder Press Manufacturing Company.</p> <p>“ I find that the said discontinuance, release, receipt and payment of said sum by the plaintiff all took place within the State of New York and that the entire settlement of the plaintiff with the Hamilton Bank Note Engraving and Printing Company was a New York contract, and I further find that the Law of New York as contained in sections 1942 and 1207 of the Code of that State is as follows:</p> <p>“ ‘ § 1942. Joint debtors may compound separately. Mode and effect.</p> <p>‘ A joint debtor may make a separate composition with his creditor, as prescribed in this section. Such a composition discharges the debtor making it; and him only. The creditor must execute to the compounding debtor a release of the indebtedness, or other instrument exonerating him therefrom. A member of a partnership cannot thus compound for a partnership debt, until the partnership has been dissolved by consent or otherwise. In that case the instrument must release or exonerate him, from all liability incurred by reason of his connection with the partnership. An instrument, specified in this section, does not impair the creditor’s right of action against any other joint debtor, or his right to take any proceeding against the latter ; unless an intent to release or exonerate him, appears affirmatively upon the face thereof.’</p> <p>“ ‘ § 1207. When judgment for plaintiff not to exceed judgment demanded.</p> <p>Where there is no answer, the judgment shall not be more favorable to the plaintiff, than that demanded in the complaint. Where there is an answer, the court may permit the plaintiff to take any judgment, consistent with the case made by the complaint, and embraced within the issue.’</p> <p>“ The receivers contended and asked the court to rule that the payment by, and release to, the Hamilton Bank Note Engraving and Printing Company of February 6, 1906, is a bar in whole or in part to the recovery of damages by the said New York Bank Note Company against the said Kidder Press Manufacturing Company as decreed by this court under date of January 27, 1906.</p> <p>“ The plaintiff contended and asked the court to find and rule that said payment, release and discontinuance in no way affected its right to recover the amount fixed by the decree entered in this cause on January 27, 1906, from the respondent Kidder Press Manufacturing Company.</p> <p>“ I declined to rule as requested by the receivers, but found and ruled as requested by the plaintiff and ordered a decree in accordance therewith.</p> <p>K But being of the opinion that this decree so affects the merits of the controversy between the parties that the matter ought to be determined by the full court before further proceedings are had, at the request of the parties, I report the question for that purpose to the full court, such decree to be entered as justice may require.”</p> <p>The contract for the breach of which the plaintiff was given damages was made between the plaintiff’s predecessor, the New York Bank Note Company, organized under the laws of the State of New Jersey, and the defendant corporation, and was dated October 12, 1891. Its material provisions were as follows:</p> <p>“ 33. It is hereby agreed that the price of the press shall be the sum of Four thousand Five hundred dollars ($4500.) but that the amount of this contract shall be the sum of Six Thousand Dollars ($6000.) the additional Fifteen hundred dollars ($1500.) being a payment to the Kidder Press Company by the New York Bank Note Company for an insurement, protection, guarantee, contract and delivery to the Bank Note Company of a monopoly of all future machines built or that may be built by the Kidder Press Company or any party on the lines of its patents on the press herein contracted for, upon which there can or may be printed strip tickets substantially the same as those now printed by the New York Bank Note Company, or of similar form or design, to wit:</p> <p>“ 34. The Kidder Press Company hereby agrees not to sell any presses on which strip tickets may be printed, as'-aforesaid, that they make, control, are interested in the patents on, may be interested in the patents on, or have been interested in the patents on, to any one except the New York Bank Note Com-pony, the object being to insure the said press or presses against being used for the printing of strip tickets of form, design or purpose similar to those now printed or that may be printed by the Bank Note Company upon the press now operated by it, purchased from the Kidder Press Company. But there is nothing in this contract, nor is it the intention of either of the contracting parties, to limit the sale of this press alluded to above either as the one now used in the Bank Note Company purchased from the Kidder Press Company, or the one hereby contracted for to be delivered to the Bank Note Com-pony by the Kidder Press Company, for any purpose except for printing of strip tickets substantially the same as those now made by the Bank Note Company. On the contrary it is the pleasure of the Bank Note Company, its officers and directors, as well as, presumedly, the profit of the Kidder Press Company, that it shall make, sell, deliver and collect the money for as many presses similar to the one now in use by the Bank Note Company, heretofore adverted to, or the one hereby ordered from the Press Company, and shall enjoy all of the emoluments of the utmost possible extension to the Press Company’s business by reason of the sale of printing presses identical with those herein alluded to.</p> <p>“ 35. The Fifteen hundred dollars ($1500.) paid or to be paid to the Kidder Press Company, as herein mentioned, is for the purpose of securing to the New York Bank Note Company whatever advantages may arise from the impossibility of any of its competitors obtaining or using a press built by the Kidder Press Manufacturing Company of substantially the same design as those with [sic] which the Bank Note Company is contemplating using in its strip ticket business aforesaid.</p> <p>“ 36. This contract shall remain in force not to exceed a term of twenty years from the date of this contract.</p> <p>“ 37. The Press Company hereby agrees not to make alterations or additions to any existing presses that they have already built that would enable the press to print strip tickets, without requiring the parties owning press, or might buy it thereafter, to make the same terms and agreements regarding it as though it were a new machine.</p> <p>“ 38. The Kidder Press Company hereby states that the only presses of their manufacture upon which strip tickets can be possibly run are as follows:.—</p> <p>“ One owned by Allen, Lane & Scott of Philadelphia, and</p> <p>“ One owned by Weed, Parsons & Co. of Albany.</p> <p>“And the Kidder Press Company hereby agrees not to sell any press to either of the two foregoing concerns without an agreement which shall bring the presses that they now have, as above enumerated, capable of printing strip tickets, within the same restrictions as though these two presses above enumerated were sold to them now, subsequent to the date of this contract.</p> <p>“ 39. It is hereby agreed and assented to by the Kidder Press Company and the New York Bank Note Company that the most feasible and proper way to protect the interests of the Bank Note Company in and to the proper control and ownership hereby acquired in the Kidder Perfecting Press, which is the technical name by which the machinery herein adverted to is known, is that whatever sales of this press or presses are made by the Kidder Press Company shall be made to the New York Bank Note Company for the account of the party desiring to use the press or presses, and the New York Bank Note Company shall execute a perpetual lease to said third party for such money as the Kidder Press Company shall nominate; but the New York Bank Note Company shall in no wise part with the title in and to the machine delivered, but shall retain its actual ownership of the press or presses under agreements permitting its use for all purposes except strip tickets, within the United States; but that the presses shall not under any pretext whatever be taken out of the jurisdiction of the United States of America during the said twenty years. And this form of agreement, as substantially set forth herein, it is hereby agreed by the Kidder Press Company shall be used in whatever sales are made of its perfecting presses. And the New York Bank Note Company shall deliver to the Kidder Press Company the full consideration it (the Press Company) may nominate, and the Bank Note Company shall have its own agreements with the purchaser in accordance with the above plan, and litigate at the Bank Company’s own expense the agreements with said purchaser or purchasers if the agreements are broken.”</p>

<p>Petition, filed March 5,1906, by Nathaniel A. Eldridge of Chatham for a writ of mandamus addressed to Mériton E. Nickerson, Alvin Z. Atkins and Oliver E. Eldredge, acting as selectmen of that town, commanding the respondents Nickerson and Atkins to recognize the petitioner as a selectman and member of their board in place of the respondent Eldredge, and commanding the respondent Eldredge to refrain from intruding himself as a member of that board or doing any act as such member.</p> <p>The case came on to be heard upon the petition and answers before Hammond, J., who reported it for determination by the full court, such action to be taken as law and justice might require.</p> <p>The justice made the following findings:</p> <p>“ I find that' at the town meeting the tellers duly appointed by the moderator reported that for the office of selectman, assessor and overseer of the poor the petitioner received one hundred and fifty-two votes and the respondent one hundred and forty-nine votes, and that thereupon the moderator announced that the petitioner was elected and the records of the clerk were made up accordingly and„ were approved before the meeting adjourned; and that upon such adjournment no question was made of the petitioner’s election.</p> <p>“ As to the ballots I find that they were tied and carefully kept together, but not placed in a sealed envelope, and at the close of the announcement by the moderator were delivered by one of the tellers into the possession of the town clerk, who retained them until they were delivered to the board of registrars for a recount. I find that the recount was carefully conducted and that the petitioner was represented by counsel, who at the close of the recount said he was satisfied and suggested in substance to the registrars that their certificate of, the result of the recount should close with a statement that the town records should be amended in accordance therewith, but I do not find that any of the rights to insist upon the invalidity of the recount were waived either by the petitioner or by his counsel. I find that the registrars had before them all the ballots and none others which were cast at the election, and, if it be material, I find that the recount shows the true result of the election, namely, that the petitioner had only one hundred and fifty-one votes, while the respondent had one hundred and fifty-two votes.</p> <p>“I find that the petition for the recount was not sworn to by any of the subscribers thereto, but only by the respondent, Oliver E. Eldredge, and that the town clerk before whom it was sworn was not a justice of the peace nor a notary public, but was town clerk and a member of the board of registrars.</p> <p>“ At the hearing the petitioner contended that the declaration by the moderator was the official declaration of the result of the election; that there was no provision in law for the recount of votes cast at such an election, and moreover that even if there was, the petition was not sworn to by the right persons or before proper officer. The respondents contended that the recount was in accordance with law, and that the result was the legal result of the election.”</p>

<p>Tax, Exemption. Statute, Construction. Evangelical Baptist Benevolent and Missionary Society. Tremont Temple.</p> <p>The provision of St. 1857, c. 154, § 2, that the Evangelical Benevolent and Missionary Society incorporated by that chapter “ may hold real and personal estate to the amount of three hundred and fifty thousand dollars, which property, and the net income thereof after the same has been paid for, shall be appropriated exclusively for the purposes in this act specified, and the same shall be exempted from taxation,” exempts from taxation the property of that corporation only to the amount named, and does not operate as a specific exemption from taxation of the first property acquired by the corporation which consisted of real estate worth at the time of its acquisition less than $350,000. Hardy v. Waltham, 7 Pick. 108, and Harvard College v. Boston, 104 Mass. 470, distinguished.</p>

<p>Negligence, Employer’s liability. Elevated Railway.</p> <p>In an action against an elevated railway company by a workman in its employ for personal injuries, if it appears that the plaintiff was put at work by a superintendent of the defendant upon a track on a loop of the defendant’s elevated structure over which trains frequently were passing, both the superintendent and the plaintiff knowing it to be a dangerous place, that the plaintiff looked up to see whether a train was approaching and the superintendent, who was standing near, saw him do it and said “ All right, Jack,” that thereupon the plaintiff went on with his work and was struck and knocked off the track by a passing train, and was injured, that an approaching train could be seen one hundred and fifty feet away, and that the superintendent as he stood there was doing nothing and gave the plaintiff no warning of the approach of the train; this warrants a finding that the plaintiff was justified in assuming that the superintendent was looking out for him and in acting accordingly, and therefore was in the exercise of due care, and also warrants a finding that the superintendent was negligent.</p>

<p>Will, Undue influence. Evidence, Circumstantial.</p> <p>A finding that the execution of an instrument purporting to be a will was procured by fraud or undue influence can be sustained on evidence which is wholly circumstantial.</p> <p>At the trial of an appeal from a decree of the Probate Court allowing a will, the jury found that the testator was of sound and disposing mind and memory, and also found that the alleged will was procured to be made through the fraud or undue influence of the testator’s second wife who was named in the instrument as executrix. It appeared that at the time of the marriage the second wife was thirty years of age and the alleged testator seventy-five years of age and unattractive in person, and there was evidence warranting a finding that the marriage on the part of the wife was wholly mercenary. There was evidence that after the marriage the relations between the testator and his children and their families, and his old friends, which formerly had been affectionate and intimate, underwent a great change, and that after the marriage he saw them very little, that before the marriage the testator had declared repeatedly that he would not make a will and that his property should go according to law and his children should have it, that he promised his first wife in her last sickness that he would see that the children had it, that by the instrument purporting to be his will he left to each of his children the sum of $2,000, increased from $1,000 at the suggestion of his legal adviser, and left all the rest of his estate amounting to upwards of $50,000 to his second wife, that he requested the scrivener in drawing his will to make a memorandum that his wife did not know of the matter, that at the time the instrument was executed he was a feeble old man suffering from a complication of diseases incident to his age and was mentally in a condition to be easily influenced by a designing person. Held, that the court could not say that the jury were not warranted in finding that the execution of the instrument was procured by fraud or undue influence on the part of the testator’s second wife named as executrix.</p>

<p>Tort for personal injuries sustained while the plaintiff was in the defendants’ employ as a carpenter. Writ dated June 20, 1902.</p> <p>At the trial in the Superior Court before Mason, C. J. it appeared that at the date of the accident, which occurred on April 4, 1902, the defendants were engaged in rebuilding Lincoln Wharf in Boston; that one Logan was the general superintendent in charge; and that there were employed upon the work over fifty or sixty men; that the plaintiff wits hired by Logan and went into the employ of the defendants as a carpenter on or about March 1, 1902 ; that on the night before the accident just as the men were quitting work Logan told one Landry that there was a load of lumber out in the yard and directed him to take it in in the morning. The happening of the accident is described in the opinion.</p> <p>At the close of the plaintiff’s evidence, the Chief Justice ruled that upon all the evidence the plaintiff was not entitled to recover, and ordered a verdict for the defendants. The plaintiff alleged exceptions, which after the death of Mason, C. J. were allowed by Fessenden, J.</p>

Tort against the Boston Elevated Railway Company for an injury on June 16, 1902, from several particles of metal thrown out in the operation of the elevated railway of the defendant falling into the plaintiff’s eye as he was passing along a public highway at City Square in that part of Boston called Charles-town. Writ dated July 11,1902.

<p> Negligence. Street Railway. Evidence. </p> <p>If a passenger, who is riding on the front platform of an electric car after he has read a sign stating that persons riding on the front platform do so at their own risk, is injured by a collision of the car with a repair wagon of the company operating the car, which would not have injured him had he been inside the car where there was room for him, he cannot recover from the company.</p> <p>In an action against a street railway company for personal injuries from a collision while the plaintiff was riding on the front platform of an electric car of the defehdant after he had read a notice stating that persons riding on the front platform did so at their own risk, evidence that the only other person on the front platform was the motorman, that the conductor collected the plaintiff’s fare while he was there, and that nothing was said to him by the conductor or the motorman about standing on the platform, that persons frequently rode on the front platforms of the defendant’s cars, that the conductors collected their fares there and that neither the conductors nor the motormen objected to their riding there', has no tendency to show that the defendant’s rule had been waived or abandoned.</p> <p>In an action against a street railway company for personal injuries from a collision while the plaintiff was riding on the front platform of an electric car of the defendant after he had read a notice stating that persons riding on the front platform did so at their own risk, the plaintiff on his cross-examination was asked whether he did not appreciate that if he rode on the front platform and suffered an accident he took the risk of its happening, and answered “ I knew that the sign was a dead letter.” Held, that this answer, at the most, was only an expression of opinion, and had no tendency to show that the rule had been waived'or abandoned by the defendant.</p>

<p>Alteration of Instruments. Guaranty. Corporation. Pleading, Civil, Declaration. Practice, Civil, Amendment.</p> <p>If an unexecuted lease of real estate bearing upon it a guaranty of the performance of the covenants of the lease purporting to be under seal but with no seals affixed is executed by the guarantors and by the lessee, and thereafter one having no authority to do so affixes seals to the signatures of the guarantors and sends the lease to the lessor, who executes it with no knowledge of the alteration and delivers it to the lessee who occupies the premises under the lease, the lessor can sue the guarantors upon their contract of guaranty as if no seals had been placed opposite their names.</p> <p>The provisions of St. 1903, c. 437, §§ 58, 60, requiring a foreign corporation doing business in this Commonwealth to appoint the commissioner of corporations its attorney on whom service can be made and to file a copy of its charter or articles of incorporation, apply only to business corporations and do not relate to an educational corporation organized under the laws of another State.</p> <p>The facts that an educational corporation organized under the laws of another State owns a hotel which it leases to a tenant, that it has caused repairs to be made on the property, and, for some purpose which does not appear, has a representative in the liquor licenses issued to its lessee, do not make it a business corporation to which the provisions of St. 1903, c. 437, apply.</p> <p>Under R. L. c. 173, § 3, a declaration in an action of contract against the guarantors of the performance of the covenants of a lease, who signed a guaranty providing that they should be severally and equally but not jointly liable, properly consists of different counts describing the different contracts entered into by the several defendants.</p> <p>In an action upon a guaranty of the performance of the covenants of a lease, if the declaration is upon the guaranty as an instrument under seal and after the action is brought the fact is disclosed for the first time to the plaintiff that the defendants signed the guaranty without seals and that seals afterwards were affixed opposite their respective signatures by a stranger to the contract, the plaintiff may be allowed to amend his declaration by adding counts declaring upon the contract of guaranty as an unsealed instrument.</p>

<p> Patent. Jurisdiction. Equity Jurisdiction. Slander of Title. Corporation. Equity Pleading and Practice. </p> <p>Even if the patentee of his own invention is estopped to deny the validity of the patent as against the assignee of his rights, yet in a suit brought against him by his assignee for an alleged infringement he always can show the previous state of the art to which his invention relates as bearing upon the construction and scope of the patent and to show that the alleged acts are not violations.</p> <p>A suit for the infringement of a patent which involves an inquiry into its scope and nature is within the exclusive jurisdiction of the federal courts.</p> <p>A bill in equity founded on the violation of a contract cannot be maintained where the sole defendant is not a party to the contract and the party to the contract other than the plaintiff is not a party to. the bill.</p> <p>A bill in equity cannot be maintained on the ground of alleged slander of the plaintiff’s title for false representations as to the character and quality of the plaintiff's property or as to his title thereto which involve no breach of trust or contract.</p> <p>A bill in equity against an individual defendant founded on a breach of contract by a corporation cannot be maintained upon allegations that the defendant owns a large amount of the capital stock of the corporation, that he is “the dominant factor therein ” and controls and dictates its policy, without alleging that he is the owner of all of the capital stock or even of a majority of it.</p> <p>A bill in equity founded on a breach of contract by a corporation cannot be maintained against a stockholder of the corporation alleged to control and dictate its policy without making the corporation a party.</p>

<p> Equity Pleading and Practice. Stable. License. Metropolitan Park Commission. Board of Health. Statute. </p> <p>On an appeal from a decree dismissing a bill in equity which does not state the ground of the decision, the burden is bn the plaintiff to show that on the facts which appear a decree in his favor was necessary.</p> <p>On an appeal from a decree in equity where substantially all of the evidence was oral the findings of the judge who heard the case will not be disturbed unless plainly wrong.</p> <p>R. L. c. 102, § 69, providing that “ no person shall erect, occupy or use for a stable any building in a city whose population exceeds twenty-five thousand unless such use is licensed by the board of health of said city ” does not apply to a stable placed temporarily on land taken for a reservation by the metropolitan park commissioners for the use of a contractor employed by the commissioners in the preparation of the land for a park, which is reasonably necessary for the prosecution of that work and was erected under a vote of the commissioners and by their sanction.</p> <p>The general statute R. L. c. 102, § 69, requiring in cities of a certain population a license from the board of health before a stable can be erected, must be held to be subordinate to the special statute St. 1893, c. 407, § 4, which authorizes the metropolitan park commissioners to “ do all acts needful for the proper execution of the powers and duties granted to and imposed upon ” them as agents of the Commonwealth.</p>

<p>Appeal, by the administrator of the estate of Joseph H. Horgan, from a decree of the Probate Court disallowing certain payments made by him to or under the order of one George A. Smythe and charging the administrator with such amounts with interest. The respondents were the heirs at law and next of kin of Horgan, all living in Ireland.</p> <p>The case was heard by Morton, J., who made the following memorandum of decision:</p> <p>“ The appellant, Robbins, was duly appointed administrator of the estate and duly qualified by giving bonds as such. Thereupon he became bound to administer the estate according to law and to distribute the proceeds, if any, amongst those entitled to the estate. The fact that his appointment was procured by Smythe and that he was in Smythe’s office and acting under his direction did not release him from the obligations imposed upon him by law and by his bond. The estate amounted to about $11,000 and there are six heirs living in Ireland. There were some debts due from the testator and there have been of course some expenses incurred in the settlement of the estate. But it is not denied that there was a large surplus for distribution amongst the next of kin. They have never received any of it.</p> <p>“ The administrator’s defence and excuse is that he has paid it over to Smythe as attorney for the heirs or next of kin and that Smythe appropriated it and absconded. The defence being payment, the burden is on the administrator. To establish Smythe’s right to receive the money and to justify himself in paying it over, the administrator relies upon a power of attorney from five of the heirs to Smythe and one Lucien J. Walker, the United States consul at Queenstown. The power of attorney was a joint one. It was drawn in Smythe’s office and sent by him to Walker. As originally drawn, the names of the principals were left blank and Smythe’s name was inserted as the sole agent or attorney. This was the condition in which it was when received by Walker. Under Walker’s direction, the names of five of the heirs were inserted as the principals with their residence and his own name was inserted as attorney in addition to that of Smythe and the instrument altered throughout to correspond with those changes, and the month and the day of the month were inserted. In this condition it was executed by the five heirs. The other heir, Ellen Horgan, never executed it and never authorized Walker or Smythe to collect or receive her share of the estate. Walker’s name was inserted in the power of attorney because of doubts entertained by Walker and his secretary Mr. Piatt as to the financial responsibility of Smythe.</p> <p>“ When completed the power of attorney was forwarded by Walker to Smythe and was duly received by him and the contents were known to Bobbins. Upon the receipt of the power of attorney, Smythe caused a petition praying for the appointment of Bobbins as administrator to be presented to the Probate Court. This was signed by the five heirs by Smythe as their attorney. As already stated Bobbins was duly appointed and gave bond as required and duly returned an inventory of the estate. He reduced the estate to possession and within a short time, by Smythe’s direction, transferred and paid over to him substantially the whole of it. This was done without any knowledge on the part of Walker of what was transpiring and without any authority from him to the administrator to make such payments or to Smythe to receive them. Walker supposed, if that is competent and material, that Smythe would attend to such legal matters as required to be attended to here, but that any money that might be collected or realized would be sent to him for distribution among the heirs.</p> <p>“ Assuming that under the power of attorney to himself and Walker Smythe would have authority to attend to all such legal matters as pertain to the settlement of the estate here, nevertheless' I do not think that the administrator was justified in paying over or transferring to Smythe the funds and property of the estate without authority from Walker to Smythe or himself.</p> <p>“ Walker now says that Smythe had no such authority and I find as a fact that he had not, and that the administrator had no authority from Walker to pay over or transfer to Smythe the funds or property of the estate. I think that in the absence of such authority he was not warranted, the power of attorney being a joint power, in paying over or transferring the funds and property of the estate to Smythe as he did. The heirs did not know of it and have done nothing to ratify or approve of what the administrator has done.</p> <p>“ I do not find that the administrator profited personally by Smythe’s wrongdoing, but it is almost inconceivable that he should not have been put upon inquiry as to the use which Smythe was making of the funds and property transferred to him.”</p> <p>The remainder of the memorandum of decision related to certain items in the accounts of the petitioner, in regard to which the respondents had taken an appeal and which were allowed by the justice.</p> <p>The petitioner contended at the hearing, and asked the justice to rule, that Smythe, as one of the attorneys named in the power of attorney, had, by virtue thereof, authority to receive payment of any and all sums belonging to the heirs who signed the power of attorney.</p> <p>The justice refused to rule as requested, and upon all the evidence in the case found for the respondents, and ordered that a decree be entered modifying the account as stated in the memorandum of decision, directing that if the parties could not agree the case should be sent to an auditor to state the amount. The petitioner alleged exceptions.</p>

<p>Deed. Trust. Estoppel. Equity Jurisdiction, Laches.</p> <p>One of two partners having acquired certain land in his own name executed a declaration of trust to the effect that he held the land in trust for his partner J. R. and himself, for the benefit of the firm until its dissolution, declaring that “ the rest and residue, if any there be, shall be held by me or my heirs, in trust one half for myself and my heirs and one half in trust for the said J. R. and his heirs as tenants in common, and at the request of any party interested the trust shall then cease and by proper conveyances the legal title shall then be made to stand one half in me and my heirs and one half in the said J. R. and his heirs as tenants in common.” Held, that J. R. took an equitable estate in fee simple which he might devise.</p> <p>In a suit in equity by persons claiming as heirs at law of J. R. for an accounting for rents and profits and for a conveyance of their alleged shares in certain land against a person who had held the legal title to the land for the benefit of himself and J. R., copartners in business, it appeared that J. R. had an equitable fee as a tenant in common of the land in question, which he devised to his wife, that the plaintiffs were legatees under the will of the widow of J. R. and agreed that the business in which her estate was invested should be carried on by the executors of her will and the defendant for the benefit of all the parties in interest, that the business was so carried on for eight years at the end of which time by agreement of all the parties a corporation was formed which took over the business, that the plaintiffs received shares of stock in the corporation in proportion to their interests under the will of the widow of J. R., that the interest of J. R. in the land in question was treated as part of the estate of the widow and was conveyed to the corporation with the other property of her estate, and that the plaintiSs gave receipts for the full payment of their legacies under the will of the widow. Held, that the plaintiffs were estopped to assert a claim to any interest in the land as heirs at law of J. R.</p> <p>A bill in equity by the heirs at law' of a person who died twenty years before the filing of the bill, claiming certain land as against the widow and sole devisee of the deceased and those claiming under her who have been in open enjoyment of the land during the whole of that period under a claim of right, is barred by loches.</p>

<p>Trust, Precatory. Devise and Legacy. Words, “ Wish and desire.”</p> <p>A will creating a trust, after providing for paying one half of the net income of the trust fund to the widow of the testator during her life, contained the following provision: “ After the decease of my said wife, one half of the principal of said trust estate is to he paid over and conveyed to such person or persons, and in such proportions as my said wife shall by will appoint, but it is my wish and desire that if my wife has received from my daughter and her family the affection and respect, to which she is entitled, that she then will appoint said share of said trust estate to my daughter and her children, in such way and manner, and in such proportions, as to her may seem best—but in case my said wife shall die without making any appointment of her share of said trust estate, then the same shall be added to the share held in trust for my daughter and her children and be held upon the same trusts.” The widow exercised the testamentary power by appointing her share of the fund to persons other than the daughter of her husband and the children of such daughter, and declaring that since the death of her husband she had not received from his daughter and her family the affection and respect to which she was entitled. Held, that the words “ wish and desire ” did not create a precatory trust, and therefore that the question of fact whether the appointing testatrix had received from her husband’s daughter and her family the affection and respect to which she was entitled was immaterial.</p>

<p>Municipal Corporations. Conspiracy. Fraud. Waterworks. Equity Jurisdiction, To remove cloud on title, Specific performance. Statute. Constitutional Law. Contract. Revere Water Company. Winthrop. Words, “Ratified.”</p> <p>Where the selectmen of a town called a town meeting to act on a proposition to purchase the plant of a water company at a certain price and before the meeting but after they had issued the warrant for the meeting voted to purchase the plant at the price named, but they had not stated in the warrant for the meeting their intended vote to purchase the plant and did not disclose their vote to the community before the meeting, this failure to give the information, although it may have been ill advised and an error of judgment, is not evidence of corruption to support a charge of conspiracy unless there is proof to connect it with fraudulent conduct or an unlawful purpose.</p> <p>Under R. L. c. 25, § 31, a vote of a town to purchase the plant and privileges of a water company for the purpose of supplying its inhabitants with water is of no effect unless preceded by a vote of the selectmen authorizing the purchase.</p> <p>Under R. L. c. 25, § 31, a vote by a majority of the voters of a town can have no effect in ratifying a vote of its selectmen to purchase the plant and privileges of a water company for the purpose of supplying the inhabitants of the town with water unless the selectmen voted to make the purchase before the warrant for the meeting was issued and their action was stated in the warrant.</p> <p>Where a vote of a town to purchase the plant and privileges of a water company for the purpose of supplying the inhabitants of the town with water is void under R. L. c. 25, § 31, because when the warrant for the meeting at which the vote was passed was issued the selectmen of the town had not voted to make the purchase and no action on their part was stated in the warrant, if thereafter the water company gives notice of its acceptance of the vote passed at the meeting, and a deed is delivered in pursuance of the vote and a semblance of taking possession of the works by the town occurs, these acts impose no obligation on the town to accept or pay for the works under the terms of the vote, especially where the town by another vote less than three months later expressly rejects the attempted purchase; and, if the deed has been recorded and the town has acquired a right to the conveyance of the plant and privileges under an agreement made according to a subsequent statute, it is entitled in equity to a decree of cancellation to remove the cloud upon its title.</p> <p>St. 1882,'c. 142, incorporating the Revere Water Company and St. 1884, c. 259, authorizing it to supply the town of Winthrop with water, which were enacted subject to Pub. Sts. c. 105, § 3, gave to that corporation no vested rights inconsistent with a subsequent grant by the Legislature to the town of Winthrop to construct, operate and maintain a water supply system and furnish itself and its inhabitants "with water.</p> <p>St. 1905, c. 477, § 12, gave the Revere Water Company, which was incorporated by St. 1882, c. 142, and was authorized by St. 1884, c. 259, to supply the town of Wintlirop with water, the right, on a notice within thirty days of the acceptance of the act by that town, to sell to the town all its property therein used for supplying the town or its inhabitants with water at a fair value to be ascertained as provided in § 13 of the act, authorized such purchase by the town to be voted for at a town meeting, and provided that the town should not construct a distributing system for supplying water to its inhabitants under the authority of the act unless it first should have purchased the property which the company had notified the town that it desired to sell, and provided further that in case the company failed to perform all the terms set forth in the section, the town might proceed to construct, operate and maintain a water supply system and furnish itself and its inhabitants with water under the terms of the act. Held, that the statute was not an appropriation of private property for a public use without due process of law under the fourteenth amendment of the Constitution of the United States.</p> <p>St. 1905, c. 477, § 12, gave the Revere Water Company, which was authorized to supply the town of Winthrop and its inhabitants with water, the right on a notice within thirty days of the acceptance of the act by that town to sell to the town all its property therein at a fair value to be ascertained as provided in § 13 of the act, authorized such purchase by the town to be voted for by ballot at a special or an annual town meeting, and provided that if the town should vote to purchase the property after notice given by the company, the company should within thirty days after the vote execute and deliver to the town proper deeds and writings conveying the property to the town. . The town accepted the act, and the company within thirty days thereafter gave the notice of its desire to sell its property to the town. At a meeting held about two months after its acceptance of the act the town rejected the company’s offer to sell the property, but two months later at another meeting voted to accept the offer and purchase the property. The company tailed to deliver a deed of the property either within thirty days of the last named vote or at any time thereafter. The town brought a suit in equity against the company to compel the specific performance of the contract under the statute by a conveyance of the property. Held, that a contract of sale existed under the terms of the statute; that the rejection of the company’s offer at the first town meeting after it was made did not exhaust the right of the town to vote upon the proposition of purchase, and that the vote of acceptance at the second meeting was within a reasonable time; that the failure to deliver a deed within thirty days after the vote, to purchase, as required by the statute, did not lessen the obligation of the company to deliver such a deed after the thirty days had expired, and that the town was entitled to a decree for the specific performance of the contract.</p>

<p>Insurance, Life. Words, “ Sane or insane.”</p> <p>Under R. L. c. 118, § 73, an application for life insurance, of which a copy is attached to the policy issued upon it and which is referred to therein, forms part of the contract of insurance although neither the original application nor the copy of it has printed upon it in large bold-faced type or otherwise the words “ Under the laws of Massachusetts, each applicant for a policy of insurance to he issued hereunder is entitled to be furnished with a copy of this application attached to any policy issued thereon.”</p> <p>A policy of life insurance incorporated by reference the following agreement contained in the application for insurance signed by the insured : “ And I do further agree that if within two years from the date of said policy I shall pass south of the Tropic of Cancer, or . . . shall within one year from the date of said policy whether sane or insane die by my own hand, then and in every such case any policy issued on this application shall be null and void.” Held, that the words “sane or insane” covered ever)' case of suicide, and that there could be no recovery on the policy where the insured killed himself within the year although his act “ was the result of a blind and irresistible impulse over which the will of the deceased had no control and was not an act of volition,” and “he did not know or understand the nature and consequences of the act.”</p>

<p>Equity Pleading and Practice, Parties. Equity Jurisdiction, To enforce performance of negative contract. Good Will. Contract, Construction.</p> <p>In a suit in equity by a milliner to restrain the defendant from carrying on the millinery business in Boston after having sold her good will to the plaintiff and the plaintiff’s partner and agreed not to engage in the millinery business in Boston for the term of ten years, if it appears that the plaintiff and her partner after purchasing the defendant’s business dissolved their copartnership and that the plaintiff’s partner' sold all her interest in the business to the plaintiff and made to her an absolute and unconditional assignment of it, the plaintiff’s former partner need not be made a party to the suit, having no interest which could be affected by a decree therein. ■</p> <p>In a suit in equity by a milliner to restrain the defendant from carrying on the millinery business in Boston after having sold her good will to the plaintiff and the plaintiff’s partner and agreed not to engage in the millinery business in Boston for the term .of ten years.it appeared that the plaintiff and her partner after purchasing the defendant’s business dissolved their copartnership and that the plaintiff’s partner sold all her interest in the business to the plaintiff who thereupon formed a new partnership for the purpose of carrying on the millinery business and transferred to her new partner half of her interest therein. The contract by which the defendant and the defendant’s partner sold their good will to the plaintiff and the plaintiff’s former partner contained a provision that if at any time before the expiration of ten years the plaintiff and her partner should cease to carry on the millinery business in Boston the defendant and her partner might at such time, if they wished, re-engage in the millinery business in Boston either jointly or separately. The defendant contended that because the plaintiff’s partner sold out to the plaintiff the defendant’s negative contract was at an end and she might re-engage in business. Held, that the plaintiff and her former partner had not ceased to carry on the .millinery business in Boston within the meaning of the contract, and that the plaintiff, having acquired all the interest of her former partner represented both that partner and herself and was entitled to enforce the contract.</p>

<p> Fraternal Beneficiary Corporation. </p> <p>Under St. 1882, c. 195, § 2, now incorporated in R. L. c. 119, § 6, a person may be found to be dependent on a member of a fraternal beneficiary corporation, so as properly to be named as a beneficiary of a death benefit, if the assistance rendered by the member to such person was not trivial or casual or wholly charitable, but was substantial and material, and if the obligation to furnish it, although it might not be enforceable at law, rested upon moral and equitable grounds and the assistance was furnished in recognition of that obligation.</p> <p>Under St. 1882, c. 195, § 2, now incorporated in R. L. c. 119, § 6, a woman named in a certificate of a fraternal beneficiary corporation as a beneficiary to whom a death benefit is to be paid may be found to have been dependent upon the member within the meaning of the statute where she was the sister of the deceased wife of the member and came with another sister, who was not strong and could not work, to live with the member and his wife upon his agreement that if the sister that became his wife would marry him the other sisters should go with her and always have a home as long as he lived, and where after the death of his wife the member said that they would go on “ giving in together and keeping house” just as they did before and that if the sisters “would keep on keeping house for him ” they might go on and live in the same way they had been living, and where in pursuance of this arrangement the home was kept up as before until the death of the member, the sister who could not work acting as treasurer, the member contributing from $12 to $15 a week and the person named as beneficiary contributing $4 a week and sometimes more.</p>

<p> Negligence. Elevated Railway. </p> <p>In an action against an elevated railway company, which operated its elevated trains by means of a third rail transmitting electric power, for personal injuries incurred by the plaintiff while working as a night laborer with a large gang of workmen in relaying about five hundred feet of the defendant’s north bound track, it appeared, that the plaintiff was injured from being burned by a flash of electricity when in compliance with an order of his foreman he struck the third rail with a long bladed hammer, called a chisel, that the accident happened about half past four o’clock in the morning, that the electric power usually was turned off the rail between the morning hours of one and five o’clock, when the trains did not run and the night gangs were at work on the tracks, that on the night of the accident the men were instructed when they went to work at one o’clock that the third rail was dead, that this was true, but that during the night the power was turned on for about one half the length of the job including the place where the plaintiff was at work, that this was done for the purpose of picking up some old rails on the south bound track by means of a working train, that for this purpose it was unnecessary to turn on the power on the north bound track which was being relaid, because the old rails could have been reached wholly by the south bound track, that some of the men were told in a general way that a portion of the rail was alive but the plaintiff was not so informed, and the evidence was conflicting as to whether the foreman under whom he worked was so informed, that at the time the plaintiff was injured he was assisting to remove a rail saw from one of the rails of the track within a few inches of the third rail, and in the performance of his work was ordered by the foreman to strike a blow with the chisel, which the foreman handed to him for the purpose, the use of whicli necessitated hitting the third rail, that he asked the foreman whether it was all right, and the foreman answered that the rail was dead, and the accident followed, that the defendant’s engineer and foreman in control of the power had full knowledge that a large job was to be done that night, that it would have been an easy matter and a reasonable precaution to make the third rail dead along the whole portion of the track which was undergoing repairs, and that the defendant’s chief operator received no orders that night to make the third rail dead. Reid, that the jury were warranted in finding that the plaintiff was in the exercise of due care; that the plaintiff did not assume the risk of the unnecessary and concealed danger in the place where he was set at work; and that there was evidence of negligence on the part of the defendant in turning on the power on the north bound track when the south bound track could have been used for the running of the working train.</p>

Petition, filed May 4, 1905, by Lydia N. Raymond of Newburyport, under St. 1902, c. 543, as amended by St. 1905, c. 224, to recover the amount by which the lot on the corner of Park Street and Beacon Street in Boston was damaged more than it was benefited by the limitation of the height of buildings to seventy feet, the laying out of the park east of the State House, and the other improvements connected therewith.

<p>Petition, filed December 5,1904, under R. L. c. 12, § 73, for an abatement of certain taxes assessed upon the property of the petitioner in the town of Hopkinton for the year 1904.</p> <p>On appeal from a refusal of the abatement by the assessors, the case was tried in the Superior Court before Hardy, J. It appeared that all the preliminary statutory requirements to entitle the petitioner to an abatement had been complied with.</p> <p>The petitioner was incorporated by St. 1881, c. 77, “ for the purpose of furnishing the inhabitants of Milford with pure water for the extinguishment of fires, and for domestic and other purposes, with all the powers and privileges, and subject to all the duties, restrictions and liabilities set forth in the general laws which now are or may hereafter be in force regulating such corporations.” •</p> <p>Section 2 of the act authorized the petitioner to take and hold water from any streams and springs in Milford, and to construct dams and lay water pipes, and to take and hold real estate for the preservation and purity of its water supply in Milford, and do the other acts necessary for the establishment of a municipal water supply.</p> <p>Section 9 of the act is as follows:</p> <p>“ The town of Milford shall have the right at any time during the continuance of the charter hereby granted, to purchase the corporate property and all the rights and privileges of said com-pony, at a price which may be mutually agreed upon between said corporation and the said town of Milford; and the said corporation is authorized to make sale of the same to said town. In case said corporation and said town are unable to agree, then the compensation to be paid shall be determined by three commissioners, to be appointed by the supreme judicial court upon application of either party and notice to the other, whose award, when accepted by said court, shall be binding upon both parties. And this authority to purchase said franchise and property is granted on condition that the same is assented to by said town by a two-thirds vote of the voters present and voting thereon, at a meeting called for that purpose.”</p> <p>The first two sections of St. 1882, c. 188, are as follows:</p> <p>“Section 1. The Milford Water Company may take and bold any real estate situated south of Granite Street in the town of Hopkinton, necessary and proper for the purpose of supplying the town of Milford with water, as provided by chapter seventy-seven of the acts of the year eighteen hundred and eighty-one, and for the preservation and purification of such water and for forming any dams or reservoirs to hold the same.</p> <p>“ Section 2. Said corporation shall, within sixty days after the taking of any land under the provisions of this act, file and cause to be recorded in the registry of deeds for the southern district of the county of Middlesex a description of the land so taken, sufficiently accurate for identification, and stating the purposes for which it is taken ; and the title of the land so taken shall vest in said corporation. Any person whose property is injured in any way by any act of said corporation, and who fails to agree with said corporation as to the amount of damages, may have the same assessed and determined in the manner provided when land is taken for a highway. Any person whose land is thus taken or affected may apply as aforesaid within three years from the time the land is actually taken, and not thereafter; and no suit for injury done under this act shall be brought after three years from the date of the alleged injury.”</p> <p>In 1882 the petitioner built a dam and reservoir in the town of Hopkinton, from which water flowed in the natural channel of the stream to a point in Milford, where from a pumping statian water was taken into the mains of the petitioner and distributed to the consumers. In 1901 the dam was raised ten feet, flowing a much larger area. All the land thus used and occupied by the petitioner in the town of. Hopkinton, whether previously acquired by deed or not, was included by the petitioner on May 1, 1904, in a taking under the authority of eminent domain conferred upon it by the two statutes above named, its ownership on that date being one hundred and fifty-eight and four-tenths acres.</p> <p>The judge found and ruled as follows:</p> <p>“ The fair cash value of the dam on May 1, 1904, was twelve thousand dollars.</p> <p>“ The remaining land of the petitioner in Hopkinton was one hundred and fifty-eight and four-tenths acres in area and the value of such land apart from the dam if it had not been devoted to the uses of the water supply, was at that date, thirty dollars an acre.</p> <p>“I find, however,the cash value of the latter parcel of land in connection with its use for a water supply has been enhanced by reason of the purposes for such water supply to which it has been devoted, and for which it is necessary under the limitations and provisions of- the statute, to the amount of seventy-five dollars an acre. In accordance with such finding the value of the land and dam was twenty-three thousand eight hundred and eighty dollars. ,</p> <p>“ Inasmuch as the petitioner admitted in its schedule returned to the respondent that the area of the land was one hundred and seventy-five acres and both parties acted on a mutual understanding as to such admission and because of the pleadings in the case, I find the petitioner is not entitled-to an abatement by reason of the error as to the area of the land assessed.</p> <p>“ I rule that such enhanced value created by the uses for a water supply is incident to the land herein assessed. I therefore find that the valuation of the assessors of the respondent is reasonable and the prayer of the petitioner is denied, with costs.”</p> <p>The petitioner alleged exceptions, raising the questions which are dealt with in the opinion.</p>

<p>Partnership. Agency. Contract, Construction.</p> <p>One agreed in writing to lend to another $200 for three years with interest at the rate of six per cent per annum upon the security of a chattel mortgage on the stock of goods and fixtures of a cigar store in a certain place of which the lender was to procure a lease for the borrower. The lender also agreed to secure for the borrower a stock of cigars and tobacco to an amount of not more than $250, and wot to be allowed interest at the rate of six per cent per annum on payments for this purpose until repaid by the borrower, the payments to be secured by the chattel mortgage. The borrower was to devote his time and attention to carrying on the cigar store in question, and from the proceeds of the business was to pay, first, the expenses of the business, second, the interest due to the lender, third, to take for his own use any balance not exceeding $20 per week, fourth, to pay one half of the remaining balance or net profit to the lender, keeping the other half for his own use, and also, when he had repaid all sums advanced by the lender, thereafter until the expiration of three years from the date of the lease of the cigar store, he was to pay to the lender one quarter of the net profits instead of one half. Goods and fixtures were obtained to fit up a cigar store in accordance with this contract and were mortgaged by the borrower to the lender to secure about $530 advanced by him under the contract. The lender never held himself out to any one as a partner of the borrower. An action of contract was brought against the lender and borrower as copartners for a balance of about $370 alleged to be due to the plaintiff for cigars and tobacco sold and delivered to the borrower for the business carried on under the contract. Held, that the lender was not liable as a partner, not being entitled under the contract to share in the profits as such, but only entitled to sums of money, to be determined by the amount of the profits, as a compensation for what he did and the risk that he ran in furnishing the money at six per cent interest. Held, also, that for the same reason the lender was not liable as an undisclosed principal for whom the borrower was acting as an agent.</p>

<p>Tort or contract, the first count being in tort and the second in contract on an account annexed. Writ dated Novemher 18, 1898.</p> <p>At the trial' in the Superior Court before Ailcen, C. J. the plaintiff, having been required by the court, to elect, elected to go to the jury upon the first count, and a verdict was ordered for the defendants upon the second count.</p> <p>The first count contained allegations that the defendants Bowditch, Edes and the Conveyancers Title Insurance Company entered into a conspiracy and conspired to deceive and defraud the plaintiff in the matter of the accounts and accounting existing and continuing between him and them, and carried into effect their combination to deceive, oppress and defraud him in the accounts and accounting by false representations and statements, that he believed the representations to be true, acted thereon and was defrauded of the following sums:</p> <p>First Item. The sum of 12,350 on certain transactions relating to a loan of money by the defendant company for the construction of certain buildings on Westland Avenue in Boston.</p> <p>Second Item. The sum of $4,312.50 on certain transactions relating to the loan of money by the defendant company for. the construction of certain buildings on Beacon Street in Brookline.</p> <p>Third Item. The sum of $296.68 on interest represented to be due to the defendant Bowditch.</p> <p>Fourth Item. The sum of $1,000 on brokerage commission represented to be due to the defendant Bowditch.</p> <p>Fifth Item. The sum of $405 on interest represented to be due to the defendant company.</p> <p>Sixth Item. The sum of $170.80 on insurance premium payments represented to be due to the defendant company.</p> <p>The facts in regard to the several items are stated in the opinion.</p> <p>At the close of the evidence each of the defendants asked the Chief Justice to make the ruling, which is quoted in the opinion, that there was no evidence to warrant a finding in favor of the plaintiff against that defendant alone or with either or both of the other defendants.</p> <p>The Chief Justice instructed the jury that it was competent for them to find for the plaintiff the following sums and no more:</p> <p>Under Item “ First,”</p> <p>($2,350 reduced, by admission, at the trial, to $1,450) $1,450.</p> <p>Under Item “ Second ”......4,312.50</p> <p>“ “ “ Third ”...... 296.68</p> <p>“ “ “Fourth”...... 1,000.</p> <p>“ “ “Fifth”...... 405.</p> <p>“ “ “Sixth”......170.80</p> <p>A total of........$7,634.98</p> <p>with interest from the date of the writ, November 18,1898, to the date of the verdict.</p> <p>The jury returned a general verdict for the plaintiff in the sum of $10,101.98, which afterwards by requirement of the Chief Justice was reduced to $9,089.35. The defendants alleged exceptions, inserting for the purpose of shortening the record the admissions which are quoted in the opinion.</p>

<p>Set-off. Bills and Notes. Practice, Civil, Set-off, Parties, Exceptions, Equitable defences.</p> <p>In an action on a promissory note the defendant cannot set off as a defence at law under R. L. c. 174, § 1, a note of the plaintiff which he purchased after the action was brought. \</p> <p>The holder of a negotiable promissory note indorsed in blank, in which he has no beneficial interest, may maintain an action on the note against the maker if he has the assent of the beneficial owner to whom he is accountable for the proceeds.</p> <p>Whether the placing of an overdue negotiable promissory note indorsed in blank in the hands of an attorney with directions to collect it but with no further instructions gives the attorney authority, in the absence of facts showing such a course to be necessary or advisable, to transfer the note to a third person having no interest therein in order that an action upon the note may be brought in the name of that person, here was not considered, an exception raising this point having been treated as waived because not argued.</p> <p>Where an action on a promissory note is brought by one having no interest therein, to whom it has been transferred for the purpose of bringing the action for the sole benefit of the owner of the note who is not named in the writ, the defendant under R. L. c. 174, § 6, may be allowed to set off a claim against the beneficial owner of the note.</p> <p>Where after the bringing of an action on a promissory note by a holder having no interest therein the plaintiff in interest dies, and the solvency of his estate is admitted by the executrix of his will to he doubtful but in the Probate Court she does not represent the.estate as insolvent, if the defendant after the bringing of the action has acquired in good faith and for value certain unmatured notes of the plaintiff in interest, and thereafter while the action is pending and before the death of the plaintiff m interest the notes mature, but a year has not elapsed since the appointment of the executrix, the defendant cannot prove against the plaintiff as an equitable defence under E. L. c. 173, § 28, the notes he has acquired, although he could do so if the estate of the plaintiff in interest had been declared insolvent by a decree of the Probate Court; but in such a case the defendant on his motion may be granted a continuance until a year from the appointment of the executrix has expired so that he can obtain judgment on his claim and set it off.</p>

<p>Two actions OF tort, one by a married woman for personal injuries and the other by her husband for expenses and the loss of her services and society caused by the injuries. Writs dated November 80,1904.</p> <p>The following agreement of the parties was filed in the Superior Court on June 19, 1905:</p> <p>“ Be it known that Lucy S. Nay, wife of George M. Nay, of Boston, in the County of Suffolk, and George M. Nay, of said Boston, as her husband, of the first part, and the Boston & Worcester Street Railway Company, a corporation duly organized under the laws of the Commonwealth of Massachusetts, of the second part, hereby agree to submit the demands, a statement of which is contained in two declarations filed in said Superior Court for Suffolk County, copies of which are sent herewith, and all other demands between them, to the arbitration of Dr. Edward Reynolds of 65 Marlborough Street, Boston, and Dr. James R. Chadwick of 230 Clarendon Street, Boston, the award of whom being made and reported within six months from this date, the judgment thereon shall be final, but without costs of court, against the said Boston & Worcester Street Railway Company, and on application of party of the first part execution may issue thereon. If the said Dr. Edward Reynolds and the said Dr. James R. Chadwick are unable to agree, they shall call in as a third arbitrator some reputable physician on whom they may agree, and the award of a majority of the three arbitrators may then be reported and shall be final. If either of the parties hereto neglects to appear before the arbitrators, after due notice given to them of the time and place appointed for hearing said parties, if said arbitrators consider hearings necessary, said arbitrators may proceed in the absence of the parties so neglecting to appear before them.</p> <p>“The liability of the Boston & Worcester Street Railway Company is admitted and the question of damages, if any, to be decided by the arbitrators hereunder, is based upon the following propositions:</p> <p>“ First: Taking into consideration the previous medical history and age of Lucy S. Nay, what injury, if any, did she suffer as a result of the accident at Chestnut Hill on October 22,1904. Counsel agree that as a matter of law, if injured, she is entitled to recover fair and reasonable compensation based on her suffering and the duration thereof, her incapacity as to her ordinary occupation resulting from said accident according to the length thereof, her permanent injury, if any, her loss of earnings if any. All the foregoing in so far only as the same are the result of said accident.</p> <p>“ Second: All reasonable expenses in excess of usual and ordinary expenses made necessary by the accident of October 22, 1904. The written statement of George M. Nay, her husband, annexed, may be considered.</p> <p>“ If any questions arise as to the law of damages, regarding which the arbitrators desire legal advice, they may submit these questions in writing to both counsel, who will return an answer to the same in writing.</p> <p>“ Dated this 16th day of June, 1905.</p> <p>“Lucy S. Nay, and George M. Nay, as her husband, by Frank N. Nay, Attorney, Party of the First Part.</p> <p>“ Boston & Worcester Street Railway Company, by Guy Murchie, Attorney, Party of the Second Part.”</p> <p>“ Commonwealth of Massachusetts. Suffolk, ss. Boston, June 16,1905.</p> <p>“ Then personally appeared the above named Frank N. Nay, attorney for the party of the first part, and Guy Murchie, attorney for the party of the second part, and severally acknowledged the above instrument by them signed to be the free act and deed of the several parties represented by them, before me,</p> <p>“ Alton W. Eldredge, Notary Public.”</p> <p>On June 30,1905, the following award by the persons named as arbitrators was filed in court:</p> <p>“ Whereas, an agreement for arbitration made and executed between the above parties has been referred to us, and we have examined said Lucy S. Nay, and have considered her claim and the claim of her husband, and have agreed without the need of calling in a third physician;</p> <p>“ Now therefore, we as arbitrators find that the Boston & Worcester Street Railway Company should pay said Lucy S. Nay and said George M. Nay jointly the sum of Fifteen Hundred Dollars ($1500) and an award of that amount is hereby made this 26th day of June, 1905, in accordance with the terms of said agreement for arbitration, to be reported to the Superior Court for the County of Suffolk, in accordance with the terms of said agreement for arbitration.</p> <p>“ James R. Chadwick, M. D., Edward Reynolds, Arbitrators.”</p> <p>After the award the plaintiffs filed a motion to dismiss the reference to the physicians of the question of damage on which they had made an award, and attached to the motion an affidavit of the plaintiff Lucy S. Nay. Subsequently affidavits of Dr. Edward Reynolds, Dr. James R. Chadwick and Frank N. Nay, counsel for the plaintiffs, were filed.</p> <p>The motion was heard by Lawton, J. upon the affidavits filed in court.</p> <p>The defendant requested certain rulings, of which some were given and the others refused. The judge was asked, generally, to find and rule upon all the competent evidence presented that the motion of the plaintiffs should be denied, that the agreement of arbitration was valid and should not be dismissed, and that the award of the physicians was a valid and binding award. The judge refused so to rule', but allowed the motion of the plaintiffs, and made an order rejecting the award and dismissing the order of reference. The defendant appealed, and also alleged exceptions.</p> <p>The first, second and thirty-first rulings requested by the defendant which are mentioned in the opinion were as follows:</p> <p>“ 1. The reference to arbitration in these cases is valid and in compliance with the terms of chapter 194 of the Revised Laws of Massachusetts.</p> <p>“ 2. The award of the arbitrators is in form and substance in compliance with the terms of chapter 194 of the Revised Laws of Massachusetts.”</p> <p>“ 81. I rule that inasmuch as no hearings as contemplated by the statute, Revised Laws, chapter 194, were held, and the defendant had no notice of any examination of Mrs. Nay and was not present and had no part in the proceeding, and the proceeding yas devoid of any formality or attempt at formality, that the rule that ‘all the arbitrators shall meet and hear the parties’ does not apply.”</p> <p>The judge gave the rulings I numbered 1 and 2 and refused to give the ruling numbered 31.</p>

<p>Way, Laying out of highway. Municipal Corporations.</p> <p>In laying out a street the members of a city council act as public officers representing a continuous body, and such a laying out begun by and partly heard before one city council, after a further hearing before another city council, finally may be completed by a third city council before which there has been no hearing.</p> <p>Under the provision of § 94 of R. L. c. 48, relating to highways and town ways, that “ the provisions of the preceding sections, so far as applicable, shall apply to cities, except as may be otherwise provided by their charters or by special laws,” the provision of § 4 of the same chapter that the county commissioners in laying out a highway shall, if requested, view the premises, does not apply to the laying out of a highway by a city council, and in that case a view taken by the joint committee on highways of the city council is sufficient.</p> <p>Where a city council has referred the matter of the laying out of a street to its joint committee on highways, and that committee, after taking a view and giving a hearing to all persons interested, by a report to the city council recommend the laying out of the street and the adoption of an order accompanying the report which recites that public convenience and necessity require that the street should be laid out, and the city council, after a hearing of which all persons interested have had notice, refers this order to the board of survey, a body created by statute for the purpose of passing upon the laying out and construction of highways in the city, this constitutes an adjudication by the city council that the public convenience and necessity require the laying out of the street.</p>

<p>Evidence, Presumptions and burden of proof. Bills and Notes. Payment. Mistake. Municipal Corporations.</p> <p>In an action against a' town on promissory notes purporting to be signed in approval by the selectmen of the defendant, which were negotiated fraudulently by a defaulting treasurer of the town who then was in good standing and which came into the hands of the plaintiff as a bona fide purchaser, where the defence is that the signatures of the selectmen were forged by the treasurer, the burden is on the plaintiff to show by a fair preponderance of the evidence, with all reasonable inferences to be drawn from it, that the notes sued upon are genuine, but he is not bound to exclude the possibility that they were forged.</p> <p>In an action against a town on two promissory notes purporting to be signed in approval by the selectmen of the defendant, which were negotiated fraudulently by a defaulting treasurer of the town who then was in good standing and which came into the hands of the plaintiff as a bona fide purchaser, where the defence was that the signatures of the selectmen were forged by the treasurer, it appeared that meetings of the selectmen were held regularly on a certain evening of every week and that notes usually were signed at such meetings, that notes usually were signed two or three days before their dates, that the notes sued upon bore date four days after a meeting at which two notes for the same amounts as the notes sued upon had been signed by the selectmen, that the notes sued upon were sold by the treasurer on the day before the next meeting of the selectmen, that these notes did not appear in the list of genuine notes of the town nor in the treasurer’s accounts and were not to be found, the plaintiff having parted with them in exchange for a renewal note forged by the treasurer,</p> <p>. There was nothing to show that at the meeting last preceding the date of the notes the selectmen signed more than two notes or that more than two notes were signed by them between that meeting and the next one. Held, that there was evidence warranting a finding that the two notes signed by the selectmen at the meeting four days before the date of the notes sued upon were the two notes purchased by the plaintiS.</p> <p>The surrender of a genuine note of a town in exchange for an instrument purporting to be a renewal note forged by the treasurer of the town does not extinguish the surrendered note, which, although not to be found, still can be sued upon by the holder thus induced to give it up.</p> <p>If the holder of a genuine note of a town surrenders it in exchange for an instrument purporting to be a renewal note which has been forged by the treasurer of the town by raising it from $5,000 to $15,000, and the holder is acting under a mistake in supposing that the treasurer has authority to renew the note as well as in believing the renewal note to he genuine, his mistake of law as to the authority of the treasurer does not prevent him, when suing later on the surrendered note, from showing that the instrument accepted in renewal was a forgery and therefore that the note surrendered by him was not extinguished.</p>

<p>Bills and Notes. Maryland. Conflict of Laws. Evidence, Proof of foreign law. Pledge. Conversion.</p> <p>In this Commonwealth the rule, that the holder of a promissory note which is payable at a particular time and place can maintain an action on the note against the maker without showing a demand or presentment at the place named, applies also to a note which is payable at a particular place on demand, and the presentation of such a note and a personal demand on the maker in a State other than that in which the place named for payment is situated are sufficient, if any demand is necessary before suing on the note.</p> <p>In an action on a promissory note payable on demand against the maker, it appeared that the note was dated and apparently was made in the city and State of New York, that it was given in renewal of a note held by a firm doing business at Baltimore in the State of Maryland, was delivered to the plaintiff, a bank organized under the laws of the United States and doing business at Annapolis in the State of Maryland, at its usual place of business in Annapolis, and was made payable at the office of the firm doing business in Baltimore. There was evidence that the note was presented personally to the defendant and that a demand was made upon him for its payment in the city of New York. There was no evidence of a presentation or demand at the office of the firm in Baltimore which was named as the place of payment. There was evidence that by the law of the State of Maryland a demand at the office of the firm in Baltimore was not necessary to enable the plaintiff to maintain its action. No evidence was introduced as to the law of the State of New York. Held, that the contract was governed by the law of Maryland or the law of New York; that in the absence of evidence as to the law of New York it was presumed to be the same as the common law of this Commonwealth; and that in' either case no demand at the place named for payment was necessary.</p> <p>Where bonds are pledged as collateral security for the payment of a promissory note which provides that the holder on non-performance by the maker of his</p> <p>• promise may sell the collateral or any part of it “ in such manner as the holder hereof may deem proper, without notice, at any stock exchange, or at public or private sale, at the option of the holder hereof, and with the right on the part of the holder hereof to become purchaser thereof at such sale,” and where upon default in payment of the note the holder, after actual and ample notice to the maker of the time and place of the sale, sells the bonds held as collateral by a proper auctioneer at a proper place at one of the auctioneer’s regular auction sales, and bids in the bonds at a price very much less than other bonds of the same issue were sold for before and after the sale, and the person who bids in the bonds for the holder is the only bidder, these facts show no ground for setting aside the sale and do not constitute a conversion of the bonds by the holder of the note in thus purchasing them.</p> <p>A sale of bonds pledged as collateral security for the payment of a promissory note under a power of sale in the note is not invalidated by the fact that the bonds were advertised as six per cent bonds whereas the rate of interest had been reduced to five per cent, if the reduction in the rate of interest had taken place before the bonds were pledged and the pledgor never had caused them to be stamped as five per cent bonds, although he had called the attention of the pledgee to the reduction in interest and had suggested to the pledgee that it should have the bonds properly stamped as five per cent bonds, and if there is nothing to show that the sale was affected adversely by advertising the bonds as six per cent bonds, and it appears that six per cent bonds of the same issue were sold at auction by the same auctioneer before and after the sale in question for the same price as the five per cent bonds, and that both the pledgee and the auctioneer were justified in believing that it would make no difference whether the bonds were advertised and sold as six per cent bonds or as five per cent bonds.</p>

<p>Tort for personal injuries received by the plaintiff on January 6, 1903, while in the employ of the defendant in the boiler room of its car shop in that part of Hyde Park called Readville, with a count at common law alleging that the defendant furnished the plaintiff with an unsafe and defective ladder with which to work, and counts under R. L. c. 106, § 71, cl. 1, 2, alleging respectively a defect in the ways, works or machinery of the defendant and negligence of a person in the service of the defendant entrusted with and exercising superintendence and whose sole or principal duty was that of superintendence. Writ dated March 16,1903.</p> <p>In the Superior Court the case was tried before Holmes, J. The plaintiff testified that he went to work for the defendant as a fireman about December 12,1902, and worked in the boiler shop at the fire doors firing until January 6, 1903; that he was employed by one Pearson who was called the general foreman; that one Dutton was the chief engineer of the plant; that Dutton had charge of all the boilers and engines that were there; that the plaintiff did not see him do anything in particular except looking over the plant, that is, the steam plant, boilers and engines, steam pipes; that Dutton gave the plaintiff orders and directions and also gave orders to the firemen that were working with him; that there were three firemen on the day shift and four on the night; that the plaintiff always obeyed Dutton’s orders; that he never saw any other men refuse anything Dutton asked them to do; that he heard him give orders to the other men, tell them what to do; that the orders he gave to the other men were obeyed; and that he never saw Dutton discharge any one. The duties performed by Dutton are stated in the opinion.</p> <p>The plaintiff’s account of the happening of the accident was as follows:</p> <p>“ On the 6th of January I was working at the fire doors in the boiler house about three o’clock in the afternoon and Dutton came over and he says — ‘ Go up the ladder and shut off that steam up there, that valve.’ He also tapped me on the shoulder and he said ■—■6 Go ahead Mac,’ and I went and I got up. Mr. Dutton was standing right beside me at the front of the boiler. I went around to the ladder about eight or ten feet from where we were standing. I don’t know how long the ladder had been there exactly. It might have been there a day or so. I am not sure just what time the ladder was put there. I saw it put there by Mr. Dutton. It was up against the side of the boilers and I went over to the ladder when I got the order and went up the same as I would any ladder. I went up — when I was just about getting off the ladder it went right from under me like that. When I made the move to the ladder he was facing toward the front of the boiler, just stood there in front of the boiler, you know, about eight or ten feet from the ladder. In the act of getting off the ladder the ladder slipped from under me and I came down. The ladder was long, I should say fourteen or fifteen feet long and probably more. I never measured the ladder and was never up on it before and never had any occasion to use it and when I made the move to get off the ladder, the ladder went right from under me and I did not know anything, I went so quick, until I was on my back on the floor. I never saw any one going up on the ladder before myself, I never saw any one use the ladder before myself, but I know the ladder was used, I know the ladder had been there for that purpose I suppose. I did n’t think of making any examination of the ladder because I started to go up the ladder, as I thought as the ladder was put there it was all right. I did n’t think there was anything at all the matter with the ladder. I went up the ladder just the same as I would now if I was going to do anything. I didn’t think of making any examination at all of the ladder. I saw when I put my hand on the ladder it was standing there on the concrete floor and I went up, I didn’t think there was anything more to it.”</p> <p>Later the plaintiff testified “ Dutton placed the ladder the minute before I went on the ladder,” and also testified “ Dutton came over from the ladder after placing the ladder that day, for me to go up on it, he came over to me and he told me to go up on the ladder then, and that is the time he gave me the order.”</p> <p>There was evidence that previously there had been a step ladder in the boiler room; and that about two days before the accident Dutton had taken the step ladder away and had brought the ladder in question into the boiler room; that this ladder was without any hooks or stays to hold it in place and had V shaped points of iron at the bottom or foot.</p> <p>One Haudel testified that about two days before the accident he told Dutton that he would not go up on that ladder again: that when he was ready to go down on the ladder it slid away from him ; and that Dutton only laughed at this.</p> <p>One Karklin testified that he was in the defendant’s employ when the foregoing conversation occurred, and heard Haudel tell Dutton that “ the ladder wasn’t safe, there was' danger there,” and “ that he would not go up the ladder any more.”</p> <p>Dutton was called by the defendant and testified, on cross-examination, that he got this ladder in one of the defendant’s shops; that he took it into the boiler room a few days before the accident and placed it against the brick wall for the use of the firemen ; that this was the only ladder in the boiler room at the time of the accident which could be used by a person to go up and turn off the steam and that when he ordered any one to go up and shut off the steam “ he would go on that ladder.”</p> <p>At the close of the evidence the judge ruled that on the evidence the plaintiff could not maintain his action on any count in his declaration, and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Equity Pleading and Practice, Master’s report, Appeal. Bills and Notes. Pledge. Limitations, Statute of. Partnership. Equity Jurisdiction, Accounting.</p> <p>The denial of a motion, made after the filing of a master’s report, that the master be ordered to report certain portions of the evidence, is generally within the discretion of the trial judge and will not be revised unless erroneous as matter of law.</p> <p>The denial of a motion to recommit a master’s report with directions to report upon certain matters specified in the motion is generally within the discretion . of the trial judge and will not be revised unless erroneous as matter of law.</p> <p>In a suit in equity the order of procedure is entirely within the discretion of the trial judge, and there is nothing erroneous in hearing a motion that a master who has filed a report be ordered to report certain portions of the evidence and a motion to recommit the master’s report with directions to report upon certain matters specified in the motion at the same time that a motion to confirm the master’s report is heard.</p> <p>Where the evidence is not reported the findings of a master on matters of fact' cannot be revised, and on an appeal from a decree confirming the report the only question open is whether there is anything in the facts found by the master which requires a different conclusion from that expressed by the decree.</p> <p>The holder of a negotiable promissory note secured by collateral may pledge the note with its collateral to secure his own note, and the pledgee thereby becomes • the holder of the pledged note with the right to collect it either by an action or by a sale of the collateral or both.</p> <p>On the dissolution of a partnership the right to an accounting accrues, and' a bill in equity for an accounting between the partners filed more than six years after such dissolution is barred by the statute of limitations.</p>

<p>Executor and Administrator. Equity Jurisdiction, Fraud, Laches. Equity Pleading and Practice, Commissioner to report evidence".</p> <p>In a suit in equity by an heir at law of an intestate to set aside a conveyance of real estate made by the administrator of the estate of the intestate througli a third person to himself and to recover the plaintiff’s share in the real estate thus conveyed, there was evidence that the administrator represented the estate to be insolvent and was licensed to sell the real estate for payment of debts, that by previous arrangement he sold and conveyed the real estate for the nominal sum of $500 to the third person who as part of the same transaction conveyed it to the administrator in his own right for the same nominal price, that no money passed in the transaction, that the administrator filed a first and final account in which he charged himself with $500 as the proceeds of the real estate, that it was inventoried at $2,700, and he credited himself with payments and charges to the amount of $1,245.44, stating a balance due him of $700.44, that after due notice the account was allowed by a decree of the Probate Court more than twenty-two years before the filing of the plaintiff’s bill, that the plaintiff was the niece of the administrator and her relations to him were such as to lead her to repose confidence in him and refrain from inquiry, that she had no more than constructive notice of the allowance of the administrator’s account and did not know that the real estate had been conveyed to him until his death about one year and two months before the filing of the bill, supposing that he had had charge of the real estate as administrator of the estate of the intestate who also was her uncle, having been the brother of the administrator. The judge who heard the case upon oral testimony made a decree for the plaintiff, and the defendants, who claimed the real estate as devisees under the will of the administrator, appealed. Held, that the evidence warranted a finding that the sale by the administrator to himself was in fraud of the plaintiff’s rights and therefore was void; that there could have been found to be actual fraud on the part of the administrator, and that the defendants could not be permitted to charge the plaintiff for sums expended by their testator in the payment of taxes or otherwise in the preservation of the real estate in question, these expenditures having been made in furtherance of his fraud; also, that the evidence warranted a finding that the plaintiff was not guilty of loches; and that the decree should be affirmed.</p> <p>In a case of actual fraud mere delay on the part of the defrauded party seeking relief in equity, especially where there has been no change in the situation of the parties in respect to the matter in which the relief is sought, will not deprive him of his right to relief if until a short time before filing his bill he was ignorant of the fraud and had no knowledge of facts which in the exercise of reasonable prudence ought to have put him on inquiry.</p> <p>In a suit in equity the allowance or denial of a motion for the appointment under Chancery Rule 35 of a commissioner to take and report the evidence is within the discretion of the judge hearing the case.</p>

<p>Contract to recover $27 as a broker’s commission for the sale of certain real estate in Lynn. Writ in the Police Court of Lynn dated October 28, 1905.</p> <p>On appeal to the Superior Court the case was submitted to ■Aiken, C. J., upon an agreed statement of facts, signed by counsel, which was as follows:</p> <p>The plaintiff is engaged in business as a real estate broker in the city of Lynn. Some time before October, 1905, the defendant placed in the hands of the plaintiff for sale a house belonging to the defendant on Robinson Street in Lynn. At the time the property was placed in the hands of the plaintiff, the plaintiff was directed not to advertise the property for sale in any newspaper. The plaintiff had the property for sale for some months without finding any purchaser, and then advertised the property for sale in a newspaper called the Lynn Item, together with other property owned by people other than the defendant. As soon as the defendant learned that the property was being advertised, he made objection to the plaintiff on the ground of. his direction, and the plaintiff withdrew the advertisement after it had appeared twice. At the time of the advertisement the plaintiff had no recollection of the direction, and has none now. Later, one Everett Arbing, who saw the advertisement in the paper, and who learned thereby that the property was for sale, went to the defendant solely as a result of the advertisement, and informed the defendant that he had seen the advertisement and that he desired to purchase the property. The defendant at first said that he had concluded not to sell the property, but later in the same conversation the defendant and Arbing agreed together as to the sale and purchase of the property, and the defendant sold the property to Arbing for $1,350. The plaintiff had no connection with the sale except as above stated. It is agreed that the plaintiff’s commission on the sale, if he is entitled to any commission, is two per cent, or $27.</p> <p>Upon the foregoing statement of facts the Chief Justice ruled that the plaintiff was entitled to recover, and ordered that judgment be entered for the plaintiff in the sum of $27 damages; and the defendant appealed. At the request of the parties the Chief Justice reported the case for determination by this court. If the foregoing ruling was right, judgment "was to be entered for the plaintiff as above stated; otherwise, judgment was to be entered for the defendant.</p> <p>The case was submitted on briefs at the sitting of the court in May, 1906, and afterwards was submitted on briefs to all the justices.</p>

<p> Widow. Executor and Administrator. </p> <p>A petition under R. L. c. 140, § 2, seasonably filed, for an allowance to the widow of a testator may be granted although the previous payment of debts by the executors of his will before the expiration of a year from the time of their appointment has exhausted the estate and the granting of the petition will render it insolvent.</p> <p>If an executor or administrator before the expiration of a year from the time of his appointment pays in full debts of his testator or intestate that are not preferred, thus exhausting the personal property of the estate so as to leave nothing in his hands with which to provide for an allowance to the widow under R. L. c. 140, § 2, and such an allowance afterwards is ordered by the Probate Court, such previous payments in full may be disallowed in his account.</p>

<p>Bill in equity, inserted in a common law writ dated February 17, 1905, and filed on March 6, 1905, by John C. Poland, Edward F. Poland and John J. Mahoney, copartners doing business under the name of the Poland Laundry Machinery Company and engaged in selling, installing and dealing in laundry machinery, equipment and supplies, against William F. Beal of Boston and Arthur H. Bowditch of Brookline, the owners of all the shares of the Carlton Hotel Trust, created by a declaration of trust under which Leslie C. Wead, and Gordon Prince now deceased, were trustees, to enforce the payment of a bill for laundry furnishings and fixtures known as laundry machinery supplied to the Carlton Hotel, for the payment of which it. was alleged that the defendants agreed to provide and to furnish the money. '</p> <p>In the Superior Court the case was heard by Sheldon, J. He appointed a commissioner under Chancery Rule 35 to. take the evidence to be reported to this court, and made a final decree dismissing the bill. The plaintiffs appealed.</p> <p>The letter of the defendants containing the promise for the benefit of the plaintiffs on which they relied was as follows:</p> <p>“ Boston, March 12, 1902.</p> <p>« Leslie C. W ead and Gordon Prince, Trustees of the Carlton Hotel Trust:</p> <p>“ Dear Sirs: —</p> <p>“The undersigned, owners of all the shares issued by the trustees of the Carlton Hotel Trust, hereby request you to accept the proposition for a lease of the Carlton Hotel for a period of ten (10) years from October 1st, 1903, at an average annual net rental of twenty-five thousand (25,000) dollars, as contained in the letter from F. L. Dore and R. O. Hammond to Whitcomb, Wead & Co., dated March 10th, 1902, and we agree that we will furnish the money (not exceeding four thousand (4,000) dollars) necessary to provide for the kitchen and laundry furnishings and fixtures required under the terms of their proposition.</p> <p>“And we further request that you will pay to Whitcomb, Wead Co. a commission for negotiating the lease at the usual rate, amounting to twenty-five hundred (2500) dollars, such payment to be taken from the rentals as collected at the rate of five hundred (500) dollars per annum until the whole amount is paid. The lease shall be drawn in such usual form as may be acceptable to the trustees.</p> <p>“ Yours truly,</p> <p>“William F. Beal.</p> <p>Arthur H. Bowditch.”</p> <p>The case was argued at the bar in March, 1906, before Knowlton, C. J., Morton, Lathrop,* Braley, & Sheldon, JJ., and afterwards was submitted on briefs to all the justices except JRugg, J.</p>

<p>Gift. . Savings Bank. Trust.</p> <p>To pass the title to property by gift there must be a delivery and an acceptance actual or constructive.</p> <p>A widow made a deposit in a savings bank in her name “in trust for E.” E. was her nephew, whose first name at her request had been changed to that of her deceased husband. At the time of making the deposit she signed a declaration that no written trust existed, that the deposit was to be payable to her or her order during her life, and after her death to E. She made statements to E.’s father and mother and to other persons that she had remembered E. well and that she wanted him to have the money that she had deposited in the bank for him. She retained the possession and control of the bank book until her death, and left a will in which no provision was made for E. Held, that there was no evidence of a delivery and acceptance of a gift during the lifetime of the depositor or of anything tantamount to a delivery and acceptance, and that the deposit continued to be the depositor’s as long as she lived and when she died passed to the executor of her will.</p>

<p>Easement, By prescription. Metropolitan Water Supply Act. Damages, For property taken by statutory authority.</p> <p>Where the owner of land on which there is a pond gives his son oral permission to cut ice upon the pond and afterwards the son erects ice houses and sells ice from the pond for a series of years, whether these acts of the son would warrant a finding that his use of the pond was adverse and not permissive, so that if continued for twenty years he might acquire an easement "by prescription, quaere.</p> <p>Where a petitioner for damages under a statute, for the taking by the right of eminent domain of an alleged easement in gross to maintain a certain pond for the purpose of cutting ice, shows that the land under the pond belonged to his father and that the petitioner a little more than nineteen but less than twenty years before the taking built a dam to raise the waters of the pond and shortly afterwards built ice houses there, the fact that during the year before the building of tlie dam the petitioner worked by odd jobs on the land does not show an exclusive occupation nor a use of the land for cutting and taking ice such as would mark the beginning of an adverse use and extend it to a period of twenty years.</p> <p>Under St. 1895, c. 488, § 14, as amended by Sts. 1899, c. 842, 1900, c. 108, §§ 1, 2, 1901, c. 498,1904, c. 186, a petition for damages for the taking by the metropolitan water commissioners of an alleged easement in gross to maintain a certain pond for the purpose of cutting ice, where by the same instrument of taking the land under the pond was taken, must be filed “ within two years after the actual taking by right of eminent domain of such real estate or any interest therein,” and the provisions of- the amending statutes extending the period of limitation in the case of petitions for damages for the taking of water rights where no land is taken in connection with such water rights have no application.</p>

<p>Equity Jurisdiction, To enjoin conspiracy, To enjoin unlawful interference with contract, Remedy at law. Conspiracy. Labor Union. Strike. Equity Pleading and Practice, Parties, Amendment, Decree.</p> <p>A strike by the members of a bricklayers’ union and the members of a stone masons’ union in refusing to lay bricks or stone for a contractor in the construction of a certain building unless also employed to do the pointing of the mortar after the bricks and stones have been laid, and unless other persons, who are pointers but not bricklayers or stone masons and whom the contractor prefers to employ because they do the work of pointing better and for less pay, are discharged by him, does not entitle the pointers, when discharged by the contractor by reason of the strike, to maintain a suit in equity to enjoin the acts of the members of the unions on the ground that such acts constitute an unlawful conspiracy.</p> <p>What is lawful for an individual may be unlawful when done by a combination of individuals.</p> <p>A union of bricklayers and a union of stone masons lawfully may exclude from membership in their respective unions pointers of mortar who are not bricklayers or masons.</p> <p>The right of coercion and compulsion which a labor union lawfully may exercise is limited to strikes against persons with whom the organization has a trade dispute.</p> <p>A pointer of mortar employed by the owner of a building to point the mortar on the building after the bricks and stones have been laid may maintain a suit in equity to enjoin the members of a bricklayers’ union and the members of a stone masons’ union from refusing to work for a contractor in laying brick or stone in the construction of the building unless the contractor will join them in compelling the owner oí-the building to discharge the pointer, and also to enjoin the defendants from exercising compulsion on the contractor for the same purpose by refusing to work for him in the construction of other buildings.</p> <p>In a suit in equity against the officers and members of a labor union to enjoin the defendants from unlawful interference with a contract between the plaintiff and the owner of a building for the doing of certain work thereon, whether the bill will be dismissed on the ground that damages in an action at law would give the plaintiff adequate compensation for the breach of contract, if that objection is taken properly, quaere. Here the point was not passed upon because the objection was not taken.</p> <p>An unincorporated labor union cannot be made a party to a suit in equity to enjoin the unlawful acts of its officers and members.</p> <p>In a suit in equity to enjoin certain unlawful acts of the officers and members of an unincorporated labor union, if the union itself which has no legal entity has been joined improperly as a defendant, the plaintiff after a decree in his favor may be allowed to amend his bill by striking out the union as a defendant and inserting proper allegations to bind the members of the union as parties defendant, if these members would suffer no damage from the bill being so amended at that time.</p> <p>On an appeal from a final decree in favor-of a plaintiff in a suit in equity it was ordered that on the bill being amended in- a certain manner as to the parties defendant within sixty days the decree might be modified as required by this court and on being so modified should be affirmed; otherwise, that it should be reversed.</p>

<p>Indictment, found and returned in the county of Berkshire on January 8,1906, charging, in the first count, that George L. Phelps of Williamstown on December 15, 1904, at North Adams bought, received and aided in the concealment of three thousand yards of cloth of the value of fifteen cents a yard, the property of the Arnold Print Works and stolen from that corporation, well knowing the property to have been stolen, in the second count, that on February 15, 1905, the defendant in like manner received three thousand yards of cloth, and, in the third count, that on May 29,1905, the defendant in like manner received three thousand yards of cloth; in each case similarly owned and stolen and known to the defendant to have been stolen.</p> <p>At the trial in the Superior Court before Qrosby, J. it appeared that the stolen property consisted of about ten thousand yards of new “ ladies’ dress goods ” worth about $2,000 manufactured by the Arnold Print Works at North Adams and stolen from the finishing room of that corporation by one Dooley, one of its employees, who at the time of the trial was under indictment for stealing the goods.</p> <p>Dooley was the principal witness for the Commonwealth. He testified that he told the defendant that if he would take the goods away from North Adams and dispose of them he would give him half of the proceeds and that the defendant agreed to try it; that they took the goods in boxes to the house of the defendant and afterwards shipped them tó Troy in the State of New York.</p> <p>The defendant testified that he had known Dooley several years and had sold him farm produce, and always had found him and believed him to be an honest man; that in December, 1904, Dooley met him on the street and said “ George, I want to see you. I have got some goods I bought at a bargain and want to dispose of”; that about a week later Dooley met the defendant and told him he bought those goods and that they were remnants, that he would like to have the defendant help sell them and w'anted to make Williamstown headquarters, and said he would come over and show him about prices, and would give him half they made ; that the defendant brought over to Dooley some apples and got three boxes of goods; that they were dry goods boxes and heavy; that afterwards Dooley came over to the defendant’s house in Williamstown and they took the goods out of the boxes and marked them with tags, so that the witness would know what to sell them for; that these tags Dooley brought with him ; that they measured the pieces of goods; that the defendant sold some of the goods at his house ; that Dooley said they could sell the goods in Troy; that the defendant had nothing to do with shipping the goods to Troy and did not go to Troy with Dooley at the time the goods were shipped; that the name of A. L. Brooks was marked on the boxes by the defendant at the request of Dooley; that afterwards Dooley told the defendant that the sale had fallen through and that he wanted the defendant to go to Troy, and the defendant went to Troy with Dooley ; that Dooley said that he wanted to hire a store and sort out some of the best goods, so they hired a store and moved the goods into the store and sorted out two boxes of the best goods and shipped them to New Jersey; that the defendant went to Albany and tried to sell the goods, but did not sell any; that the defendant afterwards shipped the goods to Chatham, and, finally sold them at Waterbury, Connecticut, to one Curran at five cents a yard.</p> <p>The defendant also testified, that Dooley told him that he had bought the goods from an assignee, that Dooley never told him that the goods were not “straight goods,” and that he never knew the goods were stolen until he was arrested.</p> <p>The course of the trial is described in the opinion, where the defendant’s requests for rulings and the manner in which they were dealt with by the judge are stated.</p> <p>The jury returned a verdict of guilty on each count; and the defendant alleged exceptions. The judge imposed a sentence on each count, but afterwards on motion of the defendant suspended the sentence until the questions of law involved should be determined by this court.</p>

The will of Jeremiah Broderick was dated May 14, 1897, and, omitting the introductory and the attesting clauses and the signatures, was as follows: “ After the payment of my just debts and funeral charges, I bequeath and devise as follows : “1st. To my son Robert William Broderick and my daughter Mary Cooney, wife of Patrick Cooney, all my personal property of every name and nature in equal shares, share and share alike, as well as equal shares in my Home Lot, where I now…

<p>Practice, Civil, Costs.</p> <p>In an action of tort in the nature of trespass quare clausum fregit, where no right to an easement or a title to land is drawn in question, if the plaintiff obtains a verdict for more than $20 and afterwards by requirement of the presiding judge as an alternative to the setting aside of the verdict as excessive remits all of the' damages in excess of $20, under R. L. c. 203, § 5, he can recover no costs.</p> <p>In an action for a trespass to land, if the trespass was casual and involuntary and the defendant tenders the damages, disclaims title and makes a payment into court in accordance with the requirements of R. L. c. 185, § 8, and if a verdict for more than the amount tendered is reduced by the plaintiff’s voluntary act to less than the amount tendered, semble that the defendant is entitled to recover his costs.</p>