Volume 193 — Massachusetts Reports

<p>Way, Defect in highway. Negligence.</p> <p>The absence of suitable railings or barriers at the sides of a bridge over a brook, the bridge being thirty feet long and thirteen and a half feet wide between stringers eight inches high on each side and forming a part of the main highway between two towns, can be found to be a defect in the highway.</p> <p>In an action against a town for personal injuries and for damage to a horse and buggy from an alleged defect in a highway, if it appears that the plaintiff, while crossing a bridge only thirteen and a half feet wide which he knew well and knew to be without suitable railings, was driving a blind horse, gentle and not in the habit of stumbling, at a slow trot with the reins in his left hand and was using his right hand to tuck in the lap robe, when the horse stumbled and jerked the reins, the plaintiff grabbed the reins with his right hand and in an instant the plaintiff with his horse and buggy went over the side of the bridge into the brook below, it is a question for the jury whether the plaintiff was in the exercise of due care.</p>

Three petitions, the first two filed on September 23,1904, and the third filed on October 26,1904, for the assessment of damages sustained by the petitioners to their lands in Hatfield by the taking of water by the respondent under the provisions of St. 1902, c. 486.

<p>Practice, Civil, Exceptions. Agency, Termination. Contract, Consideration, Validity, Performance and breach. Perpetuities. Executor and Administrator. Damages. Fraud, Who can take advantage of. Res Inter Alios,</p> <p>A party to an action of contract cannot at the argument of exceptions taken by him complain of a ruling as to what instruments constituted the contract between the parties which was made by the judge at his request.</p> <p>A power of attorney to convey real estate which is not coupled with an interest in the real estate is terminated by the death of the constituent. Here it was conceded that a right to be paid a compensation from the proceeds of the sale of the real estate was not such an interest.</p> <p>In an action to enforce a promise contained in an instrument under seal reciting the receipt of a valuable consideration the defence of a want of mutuality is not open.</p> <p>In a contract between the owner of lands in a distant State, the title to some of which is incumbered, to pay for the services of a citizen of that State in clearing the title to the lands and disposing of them, there is no lack of mutuality by reason of a provision in the contract that the person who is to perform the services agrees to give to the transaction of the business “ as much of his time as to him may seem necessary ” in order to manage the business properly and ■ to “ use his best judgment ” in the disposition of the property and the settlement of all matters in dispute in regard to it.</p> <p>In a contract between the owner of lands in a distant State, the title to some of which is incumbered, to pay for the services of a citizen of that State in clearing the title to the lands and disposing of them, which expressly provides that in case of the death of the landowner before the contract is completed the executor of his will shall be required to carry it out, there is nothing contrary to the rule against perpetuities, because the contract being one to pay for personal ser- ■ vices must terminate at the death of the person employed if not completed earlier.</p> <p>A contract between the owner of lands in a distant State, the title to some of which is incumbered, to pay for the services of a citizen of that State in clearing the title to the lands and disposing of them, which expressly provides that in case of the death of the landowner before the contract is completed the executor of his will shall be required to carry it out, is not invalid on the ground that it unreasonably and unlawfully interferes with the settlement of the landowner’s estate, it being within the power of a testator to provide for a disposition or , use of his property after his death which will prevent the final settlement of his estate for a long time.</p> <p>If the owner of lands in a distant State, the title to some of which is incumbered, enters into a contract under seal with a citizen of that State to pay him for his services in clearing the title to the lands and disposing of them, whicli expressly provides that in case of the death of the landowner before the contract is completed the executor of his will shall be required to carry it out, and the landowner upon executing the instrument further agrees by letter to execute a codicil to his will directing his executor to carry out the provisions of the contract or to have his executor follow his instructions to that effect, and if, before the services of the person employed under the contract are completed, the landowner dies without making such a codicil and the executor of his will and the beneficiaries thereunder refuse to permit the completion of the contract and assert a right to have the estate of the testator administered as if the contract had not been made, these acts constitute a breach of the contract for which the ' executor is liable in an action for damages.</p> <p>In an action against an executor for damages for breach of a contract in writing, it appeared that by the contract sued upon the plaintiff agreed to take charge of the real estate belonging to the defendant’s testator in a distant State in regard to some of which litigation was pending and to clear the title to the real estate, and the defendant’s testator authorized the plaintiff to sell the real estate and after paying expenses to divide the net proceeds equally between the plaintiff and the defendant's testator, that the title to a part of the real estate had been held in the name of a brother in law of the defendant’s testator, who having become involved in financial difficulties reconveyed it to the defendant’s testator, that a judgment for over $13,000 had been obtained against the brother in law by one of his creditors, and a suit in equity had been brought upon this judgment to set aside the reconveyance, that the plaintiff was the administrator of the estate of the brother in law, that the plaintiff acting under the contract . made a settlement of the suit by which he secured a release of the claim upon the real estate and an assignment of the judgment to the defendant’s testator, that to obtain this he conveyed to the holder of the judgment lands of the defendant's testator worth about $5,000, that the judgment turned out to be worth over $12,000 as a claim against the insolvent estate of the brother in law, and that the defendant as executor collected that amount from the insolvent estate. The defendant contended that the amount of this judgment could not be included as a part of the property of his testator in the distant State in computing the damages which the plaintiff was entitled to recover. It appeared that the plaintiff in the transaction acted in good faith under the contract in the interest of the defendant’s testator in perfecting his title to the lands. Held, that the judgment was a part of the proceeds of the lands of the defendant’s testator within the meaning of the contract; that, even if there was constructive fraud on the part of the plaintiff as administrator of the estate of the brother in law in procuring the assignment of the judgment in which he had a pecuniary interest, this was res inter alios as to the defendant, who moreover had ratified the transaction by collecting the money on the judgment.</p> <p>No exception lies to the refusal of a request for a ruling which although correct as an abstract proposition of law is immaterial and the refusal of which has not injured the excepting party.</p>

<p>Practice, Civil, Exceptions, Default, Set-off, Judicial notice. Set-off. Supreme Judicial Court. Witness, Cross-examination.</p> <p>This court has no jurisdiction to allow an amendment to a bill of exceptions.</p> <p>If when a bill of exceptions is before this court one of the parties desires to amend it, his proper course is to ask this court to strike the case from the" docket and remit it to the court in which the exceptions were allowed, to enable him to move for the allowance of the amendment there.</p> <p>If the defendant in an action of contract has filed a declaration in set-off and has been defaulted, he cannot at a hearing for the assessment of the plaintiff’s damages introduce evidence in support of his declaration in set-off, having lost by his default the right to prosecute it.</p> <p>The denial of a motion to take off a default is within the discretion of the presiding judge and is not the subject of exception.</p> <p>It is within the discretion of a presiding judge reasonably to limit the cross-examination of a witness.</p> <p>Where in an action of contract for compensation for professional services the defendant has cross-examined the plaintiff from about noon until four o’clock, asking many questions which were excluded, it is reasonable for the presiding judge to notify the defendant that he must close his cross-examination by half past four o’clock, there being nothing to show that there is any evidence which the defendant reasonably can expect to elicit by a further cross-examination of the witness.</p> <p>An exception to. the exclusion of papers offered in evidence cannot be sustained unless the bill of exceptions shows that the papers excluded contained material evidence.</p> <p>The courts take judicial notice of the statutes contained in the Revised Laws and a refusal to admit such statutes in evidence is not a ground of exception.</p>

<p>Way, Defect in highway. Hyatt Lights. Negligence. Evidence, Remoteness. Practice, Civil, Exceptions.</p> <p>If a traveller on a highway of a city in cold and stormy weather falls and is injured from slipping on a portion of the sidewalk of the highway consisting of Hyatt lights made partly of glass set in cement or concrete, the surface of which is smooth and slippery and has grown more so from being walked on after it was put in, in an action against the city under B. L. c. 61, § 18, he is entitled to go to the jury on the question whether there was a defect in the highway which might have been remedied by reasonable care and diligence on the part of the city.</p> <p>In an action against a city under B. L. c. 61, § 18, for injuries from a fall caused by slipping on Hyatt lights forming part of the sidewalk of a highway of the defendant, it is within the discretion of the presiding judge to admit or exclude evidence offered by the defendant to show " that the walk was of the usual and ordinary construction for that kind of a walk," and, even if in the opinion of this court the discretion of the presiding judge would have been exercised better by admitting the evidence, its exclusion by him is not a ground of exception.</p>

<p>Tort for the alleged conversion of certain machinery of woollen mills. Writ dated March 28, 1905.</p> <p>The answer as amended alleged that such title as the plaintiff has in the property described in his declaration he acquired on September 18, 1901, by purchase from Nathan P. Avery of Holyoke in his capacity of trustee in bankruptcy of the estate of James Connor of Holyoke; that previously, on August 15, 1901, Avery as such trustee filed in the Superior Court in the county of Hampden a bill in equity against the defendant in this action alleging that the property in question was claimed by the defendant but that it belonged to him as trustee as aforesaid, and praying that the title and possession of the property be decreed to him as such trustee; that the defendant admitted claiming the property and denied Avery’s title, and the case was tried on the merits on the issue of the title as of the day of the date of the bill; that the findings were against the plaintiff in equity, Avery, and in favor of the defendant; that a final decree was entered dismissing the bill; that this decree now remains in full force and unreversed; and that the question of the ownership of the property in question has been fully adjudicated.</p> <p>At the trial in the Superior Court before Hitehcoek, J. the following facts appeared:</p> <p>From a date earlier than October 12, 1883, to June 18,1901, James Connor of Holyoke was engaged in the manufacture of woollen cloth and shoddy in two mills in that city known as the New York Mill and the Bigelow Street Mill. The New York Mill contained eleven sets of woollen machinery. A set of woollen machinery is a set of cards, together with the necessary complement of looms, spinning, finishing machinery, etc. The quantity and kind of machinery constituting the complement of a set of cards is determined by the character of the required product in any given case. In the case at bar changes in the product from time to time made necessary or expedient the purchase and addition of some of the machinery described in the plaintiff’s declaration. The Bigelow Street Mill contained four sets of woollen machinery. On October 12, 1883, Connor sold to Michael Craven, the defendant, four sets of woollen machinery in the Bigelow Street Mill evidenced by a bill of sale, of which the following is a copy:</p> <p>“ Holyoke, Mass., Oct. 12,1883.</p> <p>“ Michael Craven,</p> <p>“ Bought of Connor Bros.</p> <p>“ 4 Entire Sets Woolen Machinery stored in Woolen Mill, corner of Cabot & Bigelow Streets for Ten Thousand Dollars, $10,000.</p> <p>“ Received payment,</p> <p>“ Connor Brothers.”</p> <p>On April 6,1885, Connor sold to Craven eleven sets of woollen machinery including all the machinery, tools, shafting, etc., then owned by him in the New York Mill, evidenced by a bill of sale of which the following is a copy:</p> <p>“ Holyoke, Mass., April 6, 1885.</p> <p>“ Michael Craven, South Deerfield, Mass.,</p> <p>“ Bought of Connor Brothers.</p> <p>“Eleven sets of Woolen Machinery for Twenty</p> <p>Thousand Dollars, $20,000</p> <p>and other valuable consideration, the same being free from all incumbrances and includes all of the machinery, tools, shafting and hangers, bought of Henry Hilton, now on the premises described hereafter, with all machinery and , improvements added thereto since said purchase. Said machinery is at present stored in the brick woolen mill buildings owned by the Holyoke Water Power Co.,, situated on Main street, Holyoke, and known as the New York Mill.</p> <p>“ Received payment,</p> <p>“ Connor Bros.”</p> <p>Immediately after the sale of April 6,1885, Craven leased to Connor by oral agreement the property acquired by him by these two purchases upon Connor’s oral agreement to pay a certain annual rental, and also to pay taxes, insurance and to make repairs. The defendant contended at the trial that, in addition, Connor agreed “ to keep up the depreciation, or to keep depreciation good.” This was denied by the plaintiff. Connor continued to use the property as such lessee until his bankruptcy in 1901. On March 10, 1891, Connor bought twenty Knowles broad looms and installed ten of them in the -Bigelow Street Mill and ten in the New York Mill, and on the same date sold them to Craven, as evidenced by a bill of sale, of which the following is a copy:</p> <p>“ Holyoke, Mass., March 10,1891.</p> <p>“ Michael Craven,</p> <p>“ Bought of Connor Bros.</p> <p>“ 10 ‘ Knowles ’ Broad Looms, $275, $2,750</p> <p>stored for said M. Craven in Bigelow Street Woolen Mills, Cor. of Cabot St.</p> <p>“10 ‘Knowles ’ Broad Looms, $275, $2,750</p> <p>stored for said M. Craven in New York Mills on Main St. Cor. of South St.</p> <p>“ Received payment,</p> <p>$5,500</p> <p>“ Connor Bros.”</p> <p>On June 18,1901, Connor was adjudicated a bankrupt.</p> <p>On August 3, 1901, Nathan P. Avery, Esquire, of Holyoke, was appointed trustee in bankruptcy of Connor’s estate, and on August 6, 1901, he qualified by filing a bond. On August 15, 1901, Mr. Avery, as such trustee, brought a bill in equity against the defendant Craven in the Superior Court, seeking to set aside the conveyance of the personal property to Craven and to acquire possession of that property. The bills of sale therein referred to were the same as those above set forth". The material portions of the bill are quoted in the opinion. The case was referred to a special master who filed a report. On March 31, 1902, the Superior Court made a decree that the bill be dismissed with costs.</p> <p>On September 18,1901, Avery as trustee sold to William J. Corbett, the plaintiff, all the woollen machinery of the estate not covered by the bills of sale to Craven, which included the machinery for the conversion of which this action was brought. At the time of making this sale the trustee was almost wholly ignorant of the amount of machinery not covered by the bills of sale.</p> <p>After April 6, 1885, and before June 18, 1901, Connor purchased and added to the machinery in the two mills from time to time certain machines, parts of machines and other manufacturing implements besides the twenty Knowles broad looms heretofore referred to, and all of the property sued for in this action was property so added after April, 1885. Such additions were of less value than the machinery conveyed to Craven. All the machinery in the shoddy mill building at the Bigelow Street Mill and some of the machinery in the woollen mill building at the same mill belonged to Connor and passed to Avery, trustee, and never’belonged to Craven, but was sold by the trustee before the sale to the plaintiff.</p> <p>At the trial the parties agreed in writing to the following facts:</p> <p>“1. Mr. Avery never acquired any interest or title in the goods sued for other than such interest or title as he acquired by virtue of being appointed trustee in bankruptcy of Connor.</p> <p>“ 2. All the property mentioned in the declaration was from the date of Connor’s adjudication in bankruptcy to the date of the dismissal of the equity suit, Avery, Trustee vs. Craven, located in the buildings and rooms therein specified in the declaration, and none of the property so mentioned was included in the exceptions set out in paragraph numbered three of the bill of complaint in the equity suit.</p> <p>“ 3. Such title as the plaintiff has was acquired by virtue of a sale on September 18, 1901, by Avery as trustee, of all the machinery of the bankrupt estate not covered by the bills of sale given by Connor to Craven, the defendant, on October 12, 1883, April 6, 1885, and March 10, 1891.”</p> <p>4. That certain items named by their numbers should be -stricken from the declaration.</p> <p>At the trial it was contended by the defendant that all the property described in the declaration passed to him by virtue of the condition in the contract of letting that Connor should keep the depreciation good. It further was contended by the defendant that at each of the different times when additions were made to the plant by Connor, certain oral agreements were made by Connor with the defendant, by virtue of which the defendant gained title to all of the property in controversy.</p> <p>The defendant requested the court to make the following rulings:</p> <p>“ 1. On all of the evidence the plaintiff cannot recover.</p> <p>“ 2. The record of Avery Trustee v. Craven and the agreed facts preclude the plaintiff from recovering.</p> <p>“ 3. The decree in Avery Trustee v. Craven constitutes a bar to the plaintiff’s recovery in this action.</p> <p>“ 4. The decree in Avery Trustee v. Craven is a conclusive determination that Avery, as against Craven, did not own the property in question in this suit and is binding on Corbett who purchased from Avery while that suit was pending.</p> <p>“ 5. The decree in Avery Trustee v. Craven is conclusive by way of estoppel that Avery, as against Craven, did not own the property in question in this suit and also concludes. Corbett who purchased from Avery while that suit was pending.”</p> <p>The judge refused to make any of these rulings and submitted the case to the jury under instructions not excepted to. The jury returned a verdict for the plaintiff in the sum of $4,696.02; and the defendant alleged exceptions.</p>

<p> Executor and Administrator. Bond. Estoppel. Waiver. </p> <p>An executor with the consent of the devisees under the will of his testator may collect the rents of real estate or occupy real estate of his testator, accounting for the income to the Prohate Court as provided by R. L. c. 150, § 6.</p> <p>It is not a breach of an executor’s bond for the executor, when there is sufficient personal property to pay all debts, and charges of the estate, to make an attempted sale and conveyance of real estate of his testator, erroneously supposing that the will gives him power to make such a sale when in fact it does not.</p> <p>If an executor, when there is sufficient personal property to pay all debts and charges of the estate, makes attempted sales and conveyances of real estate of his testator, erroneously supposing that the will gives him power to make such sales when in fact it does not, and the devisees under the will, instead of asserting their title to the real estate, accept and receipt for large sums of money received by the executor from these sales of real estate without making any objection to the validity of the sales, the title conveyed or the prices received, and assent to the accounts of the executor in which he has charged himself with the proceeds of the sales, they are estopped to question the propriety of the action of the executor in making the sales or to allege this action as a breach of his bond.</p> <p>Where an executor fails to file an account in the Probate Court within the time required by his bond, but afterwards files an account and three years later files another, and this second account is allowed with the consent of all the parties interested, such consent to the allowance of the account is a waiver of all previous breaches of the bond in not rendering an account.</p> <p>Mo action under R. L. c. 149, § 23, can be maintained on an executor’s bond for a failure to pay the shares in a residuum of the estate of his testator where there has been no previous demand for such payment.</p> <p>Whether when a residuum under a will is to be distributed a decree of distribution is necessary, quaere.</p>

<p> Negligence. Street Railway. </p> <p>Whether a street railway company which sees fit to use as a motive power a force so imperfectly understood as electricity might not be liable for an injury to a passenger caused by a flash from the controller of a car although the flash could not have been prevented by any means that yet have been devised or by any care that could be exercised, quaere.</p> <p>In an action against a street railway company for personal injuries from being struck by the elbow of a fellow .passenger who was pushed and fell upon the plaintiff by reason of a burst of flame from the controller of an electric car of the defendant on which the plaintiff was a passenger, there was evidence that the flame illuminated the whole vestibule of the car and all the vicinity, that it seemed as though the whole front vestibule of the car was on fire, that the coat of a passenger who stood in the vestibule with the motorman was struck by the flame and its wearer could see a very slight mark on it the next morning, that there was dense smoke which affected the sight of this passenger until the next day, that the flame was a continuous one “ with equal force ” and lasted a quarter of a minute or more, that when the door into the front vestibule was opened a volume of smoke came into the car, that the plaintiff all at once heard a noise and turned and looked and the front vestibule seemed to be all ablaze, that when the door was opened the flame seemed brighter, that the plaintiff could see it as high as the door, and that a dense smoke and a stifling smell came into the car. Held, that there was evidence warranting a finding that the flame was not the instantaneous and harmless flame which results from a flash from a controller when in proper condition, but was attended by unusual results which would not have occurred if the controller had been in proper condition and that if proper care had been exercised there would have been no such flame, and that the plaintiff was entitled to go to the jury.</p>

<p>Religious Society. Trust. Deed. Equity Pleading and Practice, Master’s report. Evidence, Extrinsic affecting writings.</p> <p>A conveyance of land, recited to be in consideration of one dollar and other valuable considerations paid by certain persons as trustees of an unincorporated religious society named, to such “ trustees, their heirs and assigns forever,” to have and to hold to the grantees, “ trustees, and their heirs and assigns, to their own use and behoof forever,” paid for by money raised and contributed by the members of the unincorporated religious society, creates only such a trust as results from the payment of the money, the nature of which in this case the court found it unnecessary to consider.</p> <p>For a period of about thirty-seven years the pastors of an unincorporated religious society were appointed by a certain church organized under the laws of another State. For the first twenty-four years of this period the unincorporated society was known as a “ mission ” and was not supplied regularly with a pastor, but during the last thirteen years of the period it was known as a “ station ” and a pastor was assigned to it annually by the incorporated church. The salary of the pastor thus assigned was paid by the unincorporated society. It did not appear that the unincorporated society ever had been dedicated as a church connected with the incorporated church or that any formal union between the two organizations ever existed. In a suit in equity by persons appointed as trustees by the incorporated church, to establish control over the church building and the lot of land used by the unincorporated society, it was held, that the plaintiffs had failed to show any right of property, possession or control of the land and building.</p> <p>On an appeal from a decree m a suit in equity confirming a master’s report it is not open to the appealing party to contend that the master erred in excluding certain evidence offered by him if he took no exception to the report based on the exclusion of the evidence by the master.</p> <p>Where in a suit in equity a party desires to prove that a conveyance of land to certain persons called trustees to their own use was upon a certain trust, although it may be important to show what trust should have been declared by the grantees or what trust resulted from the payment of the purchase money, the intention of the grantor in making the deed is immaterial and cannot be shown.</p> <p>If land and a building thereon have been conveyed by a deed to certain persons as trustees, to hold in trust for a religious society, the appointment of new trustees by the society, although valid, does not transfer the title to the land and building without a deed.</p>

<p> Negligence. Street Railway. </p> <p>In an action against a street railway company under R. L. c. Ill, § 267, for causing the death of the plaintiff's intestate, it appeared that the intestate was nearly seventy years of age, that at about half after ten o’clock in the evening he was seen standing at a corner of the street where the accident happened looking up and down the street, and next was seen going over the cross walk which led across the tracks, that he had crossed one track and had reached the other when he was struck and killed by a car of the defendant. It was undisputed that at the corner where the accident occurred the number of travellers with teams at that time in the evening was so great as to require close observation to ascertain which way they were going. There was conflicting testimony on which it could-have been found that the street was well lighted by an electric arc light and that on coming within one hundred and fifty feet of the place of the accident the motorman saw the intestate standing on the curbing at the corner and did not see him again until he was in front of the car, that the gong was not rung, that the rate of speed was at least ten miles an hour, and that if the motorman, instead of concentrating his attention upon the volume of public travel on the side of the street where the plaintiff’s intestate was, had included in his general observation the entire area from curb to curb, and also had rung the gong seasonably, the accident might have been avoided. Held, that, assuming without deciding it, that there was evidence for the jury of due care on the part of the plaintiff’s intestate, there was no evidence of negligence on the part of the defendant in employing or retaining the motorman as a servant, in the absence of proof of previous misconduct showing unfitness; and that, even if the acts and omissions of the motorman would have been evidence of negligence on his part in an action brought by the intestate had he survived, they were not evidence of gross negligence of a servant of the defendant within the meaning of the statute.</p>

Tort for injuries to the plaintiff’s person and property from being run into by an electric car of the defendant while driving in a low covered milk wagon on West Street in Leominster at its intersection with School Street in that town at about eleven o’clock in the morning of September 9, 1900. Writ dated September 14,1901.

<p>Negligence. Fire. Practice, Civil, Conduct of trial, Exceptions. Evidence, Declarations of deceased persons.</p> <p>In an action for negligently causing the burning over of a woodlot of the plaintiff, where the presiding judge under R. L. c. 175, § 66, admits the declarations of a deceased employee of the defendant that he sent other employees of the defendant to clear certain land and.that in doing so they had started a fire and it had got away from them, which is competent evidence against the defendant if the declarant had authority to give the order, and, on objection of the defendant, the judge says that he admits the evidence de bene leaving the plaintiff to show the authority later, and afterwards the defendant does not bring the matter to the attention of the jildge either by a request to strike out the evidence admitted de bene or by a request for a ruling that there is no evidence for the jury on the question of the authority of the declarant, the defendant can have no ground for exception to the admission of the declarations whether there was evidence of authority or not.</p> <p>On the argument of an exception to the admission of the declarations of a deceased person under-R. L. c. 175, § 66, the excepting.party cannot raise the objection that the declarations stated matters not within the personal knowledge of the declarant, if the question to the witness did not call for facts, beyond the knowledge of the declarant and no motion was made to strike out the answer on this ground.</p> <p>An exception to the admission of evidence cannot be sustained'on the ground that a,witness or declarant stated a matter not within his personal knowledge, if the matter thus stated otherwise appears in the bill of exceptions to have been the - fact, so that the admission of the evidence could have done the excepting party no harm..</p>

<p> Negligence. Street Railway. </p> <p>In an action against a street railway company by a boy eight years of age when injured, for personal injuries from being run into by a car of the defendant while crossing a highway, there was evidence that the plaintiff to reach his destination was obliged to cross the street in question on which were tracks of the defendant where cars frequently were passing, and that the plaintiff with knowledge of these conditions, seeing a car slowly moving past, waited between the sidewalk and this car until it had passed, and then, after listening and not hearing a bell, which he had observed always was rung when a car passed this point, and, seeing no car except at some distance to the south, started to cross over, that, upon reaching the middle of the track used by cars going north, he saw a car coming, and, jumping back to avoid it, was struck by the under side of the running board and thrown under the wheels of the rear truck. It also could have been found that other travellers were passing over the street at the time that the plaintiff attempted to cross. Held, that there was evidence for the jury that the plaintiff was in the exercise of the degree of care which under like conditions would be exercised by an ordinarily prudent child of his age.</p> <p>In an action against a street railway company by a boy eight years of age when injured, for personal injuries from being run Into by a car of the defendant while crossing a highway, if it appears that a rule of the defendant required the gong to be rung at all street crossings and at all points where vehicles or foot passengers were crossing or ordinarily would be likely to cross the tracks, and that this signal was not given by the motorman and had it been given would have prevented the accident, and if there also is evidence from which it could be found that the motorman failed to observe the plaintiff who was in front of the car near the middle of the track, and that had he used reasonable diligence he would have seen him and could have prevented the accident by applying at once the emergency brake, there is evidence to go to the jury of negligence on the part of the defendant.</p>

<p>Evidence, Extrinsic affecting writings. Surety. Bond.</p> <p>In an action by an insurance company against the surety on the bond of an agent of the plaintiff given for the faithful performance of his duties, where the defence is that the defendant was discharged from further liability by a change in the contract under which the agent was employed made without the knowledge of the defendant, and where the contract is not described fully in the bond, it is competent for the defendant to prove by oral evidence the terms of the contract between the plaintiff and its agent to show the nature and extent of the defendant’s liability.</p> <p>A surety on a bond is discharged from further liability by a substantial change in the conditions to which the bond relates made without his knowledge and consent.</p> <p>In an action by an insurance company against the surety on the bond of an agent of the plaintiff for a certain city given for the faithful performance of his duties, it appeared that when the bond was given the agent was employed by the plaintiff at a fixed annual salary of $1,800, the plaintiff paying the office expenses and brokers’ commissions which amounted to about $2,100 a year, and that nearly nine years after the bond was given a new arrangement was made between the plaintiff and its agent without the knowledge of the defendant, whereby the agent instead of receiving a fixed salary was to be paid a certain commission on all business transacted by him in behalf of the plaintiff and was to pay all the expenses of the business in the city where he was agent including advertising and the salaries of sub-agents, and also became responsible to the plaintiff for all premiums due on policies written by him or his sub-agents and not returned by him to the plaintiff for cancellation. In other respects his duties were the same as when he received a fixed salary. If he did as much business under the new arrangement as under the old it would yield him a greater compensation. Held, that there had been a substantial change in the contract to which the bond related and that the defendant was discharged from liability for any breaches of the bond that occurred after the change was made.</p>

<p>Tort for personal injuries sustained on July 26, 1904, at West Boylston while the plaintiff was at work as a civil engineer and inspector for the metropolitan water and sewerage commissioners of the Commonwealth. Writ dated January 14, 1905.</p> <p>At the trial in the Superior Court before Bell, J. the following facts appeared in evidence:</p> <p>Before the accident the defendant had been awarded a contract which provided for the construction of a masonry arch bridge over the Nashua Eiver near the village of West Boylston. The plaintiff was the resident engineer in charge of this and all other work at West Boylston growing out of the construction of the Wachusett reservoir, and it was his duty to inspect all the work as it progressed, and to inspect and approve the materials used. As a preliminary to the construction of the masonry work of the stone arch provided for in the contract it became necessary for the defendant to erect a derrick near the point where the arch was to stand, and the injury to the plaintiff occurred while the derrick mast was being put in position by the employees of the defendant.</p> <p>During the forenoon of the day of the accident the plaintiff, in the performance of his duties, had been inspecting the work in neighboring localities. His first work in the afternoon was to go with one McCauliff, the nephew and representative of the defendant, to show him where suitable sand and gravel might be had, the inspection of sand and gravel being one of the plaintiff’s duties under the contract. The plaintiff then returned with McCauliff to the vicinity of the arch, and there met one Allen, a masonry inspector in the employ of the metropolitan water and sewerage board, and began telling him where suitable sand and gravel could be secured. While the plaintiff and Allen were talking, McCauliff left them and went to the point where the employees of the defendant were engaged in putting up the derrick, and shortly after went to the place where the hoisting engine had been placed. The work of putting up the derrick was in charge of one Goodrhue, a foreman in the defendant’s employ. The plaintiff and Allen first stood at a distance of about one hundred and fifty feet from the point where the defendant’s employees were engaged in putting up the derrick. The mast of the derrick, to the top of which five guy ropes were attached but which was not secured at the bottom, had been raised by means of another derrick standing near by until the foot of the mast dropped into the socket of the foot block, but in such a way that the mast listed slightly from the vertical position. After the mast had been raised to the position described above, the plaintiff and Allen approached somewhat nearer, the plaintiff still explaining to Allen what was to be done and the directions he had just given to McCauliff with reference to sand and gravel.</p> <p>The plaintiff testified that after talking with Allen his next duty was to inspect the work being performed by three laborers of the Commonwealth who were engaged in preparing the foundation for the bridge at a distance of some twenty-five or thirty feet from the hoisting engine and that after he and Allen had walked a short distance toward the bridge they sat down on the westerly end of the derrick boom, sixty-nine feet long, which was lying near by and was supported by timbers. This boom was about fifteen or eighteen feet away from the foot block, and it was about twenty-five feet from the foot block to where the Commonwealth laborers were working. While the plaintiff and Allen were sitting on the boom and discussing the way in which the work was to be done, the defendant’s foreman, Goodrhue, gave the order “ Just take a strain; raise it a little — just an inch,” and immediately thereafter the mast was raised clear of the foot block and swung toward where Allen and the plaintiff were sitting. Allen ran in one direction and the plaintiff in another. It all happened in an instant, and the plaintiff only had time to jump over the boom and take about two steps when the mast of the derrick struck the boom, knocking him down and breaking his leg.</p> <p>The plaintiff testified that he was somewhat familiar with the raising of derricks and knew that it was a little dangerous, but that he thought that this derrick mast was substantially in place when he took his position on the boom, although he saw the defendant’s servants prying the foot block. The only warning given was by the words “ Just take a strain; raise it a little —■ just an inch,” and these statements were made immediately one after another.</p> <p>Derrick experts testified that “ Give it a strain ” had a particular meaning among men familiar with the operation of derricks, and that it meant just to tighten the ropes, to put the power of the hoister through the ropes so as to relieve the pressure, and that it did not mean to lift the mast entirely out of the foot block, as was done in this case.</p> <p>While the plaintiff was in the hospital, where he went immediately after his injury, he signed at the request of his superior officer, Charles E. Wells, the department engineer for the metropolitan water and sewerage board, who explained to him that it was simply a matter of form and something the Commonwealth required from its employees whenever and however they were injured, the following paper:</p> <p>“Metropolitan Water and Sewerage Board.</p> <p>“ Reservoir Department.</p> <p>“ Clinton, September 21,1904.</p> <p>“ To whom it may Concern: —</p> <p>“ In consideration of receiving my pay while absent from duty on account of injury received while working at West Boylston Arch, and of being indemnified for necessary hospital expenses or doctor’s bills, —</p> <p>“ I hereby agree to make no claim against the Commonwealth of Massachusetts on account of said injury.</p> <p>“ Edwin T. Pickwick.</p> <p>“ Witness Charles E. Wells.”</p> <p>At the close of the evidence the defendant asked the judge to rule as follows:</p> <p>1. That the plaintiff was not entitled to recover.</p> <p>2. That there was not sufficient evidence to warrant the jury in finding that the plaintiff was in the exercise of due care.</p> <p>3. That there was not sufficient evidence to warrant the jury in finding that the plaintiff did not assume the risk of an injury occurring under the circumstances disclosed.</p> <p>4. That upon all the evidence the plaintiff must be held to have assumed the risk of an injury occurring as this did.</p> <p>5. That upon all the evidence the plaintiff must be held to be a volunteer, and the only duty which the defendant owed him was not to be grossly and wantonly negligent.</p> <p>6. That the instrument signed by the plaintiff bars him from recovery.</p> <p>The judge refused to make any of these rulings, and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $1,290. The defendant alleged exceptions.</p>

<p>Tort under R. L. c. 106, § 73, by the widow of Jeremiah McCarty, an engineer employed by the defendant, to recover for his instantaneous death alleged to have been caused by the defective condition of the engine and floors of the defendant’s electric light works at Clinton by reason of the negligence of some person in the employ of the defendant charged with the duty of seeing that the engine and floors were in proper condition. Writ dated October 29, 1904.</p> <p>At the trial in the Superior Court before Pierce, J. the judge at the close of the evidence ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Bill in equity, filed January 26 and amended May 31,1906, against Charles L. Straub and Bertha G. Straub, his wife, both of Pittsburgh in the State of Pennsylvania and temporarily residing at Brooklyn in the State of Hew York, and the State Mutual Life Assurance Company, a corporation organized under the laws of this Commonwealth and having its usual place of business at Worcester in this Commonwealth, under R. L. c. 159, § 3, cl. 7, to ascertain and determine the indebtedness of the defendants Straub to the plaintiff and to reach and apply to the payment of such indebtedness a certain policy of insurance issued by the defendant corporation upon the life of the defendant Charles L. Straub.</p> <p>The defendants Charles L. Straub and Bertha G. Straub were not served personally with notice of the suit either within or without the Commonwealth. There was service by publication by order of the court. These defendants appeared specially and moved to dismiss the bill. There was service on the defendant corporation, and a temporary injunction was issued which was served upon that defendant, enjoining it from paying over the cash surrender value of the policy in question to the defendants Straub.</p> <p>In the Superior Court the motions to dismiss were denied by Crashill, J., and the defendants Straub appealed. The judge, being of opinion that it was proper for the question as to jurisdiction raised by the motions to dismiss to be determined by this court before any further proceedings in the Superior Court, reported the case for such determination. If the motions should have been allowed, the bill was to be dismissed or such other disposition was to be made of it as might seem just. If the motions should have been denied, the defendants were to be allowed to answer and the case was to stand for hearing in the Superior Court.</p>

<p>Executor and Administrator. Conversion. Equity Pleading and Practice, Appeal.</p> <p>A transfer by an executor to himself of shares of stock belonging to his testator unexplained is in itself a wrongful conversion. In the present case there was an express statement in the account of an executrix of an appropriation and conversion to her own use of property of her testator which included the shares in question.</p> <p>On an appeal to this court from the decree of a single justice an agreement of counsel, that the copy of a certain will printed in the Massachusetts Reports in the report of another case between the same parties may he referred to, has no effect upon the record before this court, which includes only those matters that were before the single justice when he made the decree.</p>

<p>Attachment, By supplementary process. Trustee Process. Jurisdiction.</p> <p>No attachment by special precept under B. L. c. 167, § 80, can be made by trustee process unless one of the persons summoned as trustees dwells or lias bis usual place of business in the county where the action is pending, as required by R. L. c. 189, § 2.</p>

<p>Negligence, Employer’s liability. Evidence, Inference of fact.</p> <p>In an action by a painter against a contractor employing him, for personal injuries from a fall caused by the breaking of a ladder used as a staging, it is not evidence of negligence on the part of the defendant, that the defendant's superintendent in charge of the work left the plaintiff and two of his fellow workmen, of an average weight of one hundred and sixty pounds each, to paint a house using as a staging an extension ladder, which was safe for such use when not extended, without telling the plaintiff, who was a painter of twenty years’ experience and was conversant with the use of extension ladders as stagings, that it would be dangerous to extend the ladder so as to make it six feet longer if all three of the men were to use it as a staging at the same time.</p> <p>In an action by a painter against a contractor employing him, for personal injuries from a fall caused by the breaking of an extension ladder used as a staging, where it appeared that the accident would not have happened if the ladder had not been extended when used a.s a staging by three heavy men at the same time, the plaintiff had testified “We had used this ladder painting on other jobs in this same way,” and his counsel argued that from this statement the jury could have inferred that the same three men had used the ladder extended and that this was known by the defendant. Held, that from the statement as an isolated piece of evidence the jury would not be warranted in -drawing those inferences ; and moreover an examination of the evidence showed that the statement referred merely to the use of the ladder as a staging and not to its use as such a staging by three heavy men when it had been drawn out.</p>

Tort, against a corporation engaged in the manufacture of bridge building materials and bridges, for personal injuries incurred on September 22,1905, while in the defendant’s employ from the breaking of a chain by which heavy iron trusses were being lifted, with three counts, the first at common law alleging negligence of the defendant in adopting and maintaining an insufficient chain as part of its apparatus, the second under the employers’ liability act alleging negligence…

<p>Two actions 03? tort, one by Margaret Andrews to recover for injuries received by her on June 26, 1903, caused by her breaking through one of the steps of a house owned by the defendant in Everett -and the second by Russell E. Andrews, the husband of Margaret, for expenses and loss of her society caused by the injuries. Writs dated November 16, 1903.</p> <p>On February 28> 1904, the defendant died and the administrator of her estate filed a suggestion of death and came in to defend the action.</p> <p>In the Superior Court the cases were tried together before Bond, J. The facts which were admitted or which could have been-found upon the evidence are stated in the opinion.</p> <p>At the close of the plaintiffs* evidence the defendant rested and asked the judge to order a verdict for the defendant. The judge refused to do so, and the defendant excepted.</p> <p>The defendant then requested in each case the following instructions to the jury:</p> <p>1. There was no sufficient evidence to warrant a verdict for the plaintiff.</p> <p>2. In order to recover the plaintiff must prove that the steps have become defective since the tenement was let to the tenant, Russell E. Andrews, and the defendant is not liable for an original defect in the steps.</p> <p>3. There is no implied undertaking or duty on the landlord’s part to make things better than they were.</p> <p>The judge refused to give the instructions requested, and instructed the jury as reported in the bill of exceptions, the substance of the charge being stated in the last paragraph of the opinion.</p> <p>The jury returned verdicts for the plaintiffs, in the first case in the sum of $1,800, and in the second case in the sum of $500. The defendant alleged exceptions to the refusal to give the rulings requested “and to such part of the charge as states that the landlord is liable if she ought to have known of the defect.”</p>

<p>Evidence, Presumptions and burden of proof. Judgment, Entry of. District Court of Central Berkshire. Practice, Civil, Exceptions.</p> <p>The record of a district court imports verity and is presumed to be true until the contrary is shown.</p> <p>On the issue whether in a previous action for liquidated damages a judgment upon a default had been entered in the District Court of Central Berkshire on a certain day, which was the Friday following the default, it was found by the trial judge in the Superior Court, that in the district court no specific order for judgment was made on the day in question, and that there was no evidence of any standing or general order of that court that judgment should be so entered except so far as such order might be inferred from the existence of “ the custom [of that court] in a civil action for liquidated damages, where the defendant is defaulted for non-entry of an appearance, for the clerk of said court to assess the damages and enter judgment on the Friday following the day of default; and that it is the rule of said court that all such actions are ripe for judgment upon default.” By St. 1869, c. 416, § 5, the standing justice of that court is given “ power to make all proper rules for the conduct of the business of said court,” but it did not appear that he had made any rule upon the subject. The judge of the Superior Court ruled that there was no rule of the district court requiring the entry of judgment upon a default at any particular time so imperative that in the absence of any record of a judgment such a judgment could be presumed. Held, that the ruling was right; that, whether or not the custom shown would support an entry of judgment appearing upon the record if it was disputed as entered without authority, it was not equivalent to such a direct unvarying order as to create an implication that a record showing no such entry of judgment was wrong.</p> <p>The admission of evidence which in no way could have prejudiced the excepting party is no ground for exception.</p>

<p>Tort for personal injuries alleged to have been sustained while driving in a sleigh on Payson Avenue in Easthampton, by reason of the plaintiff’s horse becoming frightened by a number of mail bags lying in that highway in the custody and control of the defendant, its agents and servants. Writ dated April 14, 1904.</p> <p>At the trial in the Superior Court before White, J. the following facts were shown by the plaintiff’s evidence:</p> <p>Payson Avenue is a public way in the town of Easthampton and crosses at grade the tracks of the defendant. On the morning of January 25, 1904, the plaintiff with his daughter left home about twenty minutes before seven o’clock for the purpose of carrying his daughter to her work in the Glendale Mill in Easthampton. The plaintiff’s house was from a mile and a quarter to a mile and three quarters from this crossing. Upon their way they picked up one Strangford, who seated himself on the right hand side of the sleigh, the daughter being upon the left and the plaintiff, who was driving, being seated between them. About seven o’clock, about ninety feet before reaching the crossing, the plaintiff drove across a spur track, the horse travelling at the rate of about six miles an hour. Near the gate tender’s house there was a large bank of snow which appeared to have been thrown from the track and from the path leading from the gate tender’s house to the tracks. The plaintiff was driving in an easterly direction and this pile of snow slanted in that direction. Lying upon the slanting or easterly side of this pile of snow, and within the limits of the highway, were a number of mail bags. These bags were not visible to a traveller on Payson Avenue travelling in an easterly direction until he was directly opposite them. When the sleigh reached the point where the mail bags lay, the horse snorted, leaped to one side and ran ; the occupants of the sleigh were thrown out and the plaintiff was injured. It further appeared that the mail bags arrived afc twenty-five minutes before seven o’clock, and were in the highway at seven o’clock, and it was agreed that the bags were in the custody and under the control of the defendant during all that time and thereafter until delivered at the post office. It further appeared that the horse was a gentle, docile, safe mare, who had no bad habits, and that during all the time the plaintiff had possessed her she never before or after-wards had shied, plunged or run away, or ever had attempted to do any of these things.</p> <p>The plaintiff was asked how far the bags were from the sleigh path, and said “I should judge from what I could see when I went by they were not more than three feet from the track.” Strangford testified that “ the mail bags were three or four feet from the sleigh path and five or six feet back from the railroad track.” The plaintiff’s daughter testified “ The mail bags were about four feet from the sleigh track. The sleigh, when the mare lurched, was in the sleigh track.”</p> <p>At the close of the plaintiff’s evidence the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Tort for personal injuries while employed in the mule room of a cotton mill of the defendant at Holyoke, the third count of the plaintiff’s amended declaration, upon which the case was submitted to the jury, alleging that the plaintiff was injured by reason of the negligence of some person in the service of the defendant entrusted with and exercising superintendence and whose sole or principal duty was that of superintendence, and the plaintiff’s specifications filed with…

<p>Sales of Merchandise in Bulk. Sale. Words, “ Sale.”</p> <p>A transfer by a dealer of the whole of his stock of merchandise outside his usual course of business in satisfaction of a pre-existing debt is a sale in bulk within, the meaning of St. 1903, c. 415, making such a sale void as against creditors of the seller unless the requirements of that statute are complied with.</p> <p>A sale of fixtures and tools is not a sale of a stock of merchandise within the meaning of St. 1903, c. 415, regulating sales' of merchandise in bulk.</p>

<p>Contract on a promissory note against the maker and the indorser as stated in the first paragraph of the opinion. Writ in the Police Court of Holyoke dated August 2, 1904.</p> <p>On appeal to the Superior Court the case was tried before Flaherty, J. The defendant, Howard A. Crafts, the maker of the note, admitted his liability and the judge ordered a verdict for the plaintiff as against him. At the close of the evidence the defendant Linus D. Crafts, the indorser of the note, asked the judge to rule that on the pleadings and the evidence the plaintiff could not recover against him, and also asked for other rulings, there being in all ten requests. The judge refused to rule as requested, and submitted the case to the jury against the defendant Linus D. Crafts. The jury returned a verdict for the plaintiff in the sum of $451.33; and the defendant Linus D. Crafts alleged exceptions, which, after the death of Flaherty, J., were allowed by Hitchcock, J.</p>

<p>Tort for personal injuries from falling into an elevator well in a building on Pleasant Street in Worcester owned at the time by the defendants. Writ dated December 24,1903.</p> <p>In the Superior Court the case was tried before Pierce, J. The jury took a view of the place of the accident, and a plan was in evidence, a blue print of which was annexed to the bill of exceptions.</p> <p>The plaintiff testified that she was fifty-nine years old; that at the time of the accident she lived at 74 Lincoln Street and was keeping a boarding house; that she had about fifty-two boarders; that the accident happened on September 29,1903; that she was looking for another house, one with steam heat; that on the morning of September 29, she saw in the Worcester Daily Telegram of that day the following advertisement: “ Apartment block to rent consisting of thirty fine, large, airy rooms, modern, steam heated, passenger and freight elevator from the ground floor. Possession given October 1st. Apply to R. F. Taylor, 438 Main Street” ; that thereupon she went to Taylor’s office at about nine o’clock on the morning of September 29, and found there a man, whose name she afterwards learned was Butler; that she asked him where this house to let was and he said it was on Pleasant Street, next to Lothrop’s Opera House; that he gave her the keys and told her to go and see it; and that when she was going out of the door, he said, “ You’ll bring the keys back, won’t you ? ” and she said, “ I certainly will ”; and that no one else was in the office.</p> <p>The plaintiff’s description of the manner in which the accident occurred is quoted in the opinion, where also are stated the other material facts which could have been found upon the evidence.</p> <p>At the close of the evidence, the defendants asked the judge to rule that, upon the whole evidence, the plaintiff could not recover. The judge refused so to rule and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $2,000. The juryalso made the special findings which are stated in the first sentence of the opinion. The defendants alleged exceptions.</p>

Bill in equity, filed in the Superior Court on August 8, 1905, by the owner of a right of way over land of one Tyson in West Boylston and land of the defendant recently purchased by it from Tyson, through which the defendant in the construction of its railway was making a deep cut which wholly would destroy the way, praying for an injunction. A temporary injunction was issued on the day of the filing of the bill.

<p>Negligence, Employer’s liability. Evidence, Circumstantial, Opinion: experts, Remoteness.</p> <p>In an action by a workman in a factory against his employer for personal injuries from the bursting of a cast iron header or section of steam pipe connected with a boiler and which with other similar sections of pipe, each connected with a separate boiler, formed bolted together a continuous line of pipe constituting the steam main of the defendant’s power plant, it appeared that, although the defendant purchased the headers at a reputable foundry where they were tested, the machine work upon the castings was done at the defendant’s shop and the steam main was put together and put in place with its connections to the boilers by the defendant's employees and according to a design both as to construction and connections made by the defendant’s engineer, that the work during construction was examined by a competent inspector, that the defendant applied, to the headers and the steam main the usual tests before the plant was used and made the customary inspection while the plant was in operation. There was evidence from competent experts that the construction of the plant was not proper mechanically, because sufficient arrangements were not provided for the expansion of the steam main, the want of which would have a tendency to weaken the joints throughout the length of the pipe, and because no drip cocks were provided as they should have been along the line of the pipe, and also because cast iron was an unsuitable material of which to make the headers on account of its brittleness and rigidity and because the method of connecting the feed pipes from the boilers to the main pipe was improper. Held, that the fact that the defendant purchased the headers from a reputable manufacturer was no defence, even assuming that, because the material was in common although not exclusive use, the use of cast iron headers was not negligence, for the castings after their purchase were finished by the defendant and incorporated into a structure according to the design of the defendant’s engineer, the faulty character of which could have caused the break if the castings had had no hidden defect; and that the evidence of competent inspection, although it tended to show that the defendant took all the precaution which ordinary prudence required, was not a defence to its liability for a failure to use due care in providing safe appliances for its workmen; that the plaintiff was not required to show the particular cause of the accident, it being sufficient for him to produce evidence of defects in the construction of the steam main which with the evidence of its breaking would warrant the inference by the jury that the accident was due to the negligence of the defendant; and that the case properly was submitted to the jury.</p> <p>In an action by a workman against his employer for personal injuries alleged to have been caused by the failure of the defendant to provide safe appliances for the plaintiS’s use, the plaintiff is not required to show the particular cause of the accident, and is entitled to go to the jury upon evidence of defects in the construction of the defendant’s appliances which together with the happening of the accident would justify the jury in inferring that the plaintiff’s injuries were due to the negligence of the defendant.</p> <p>In an action by a workman against his employer for personal injuries from the bursting of a cast iron header to a boiler forming part of the steam main of the defendant’s power plant, in which one question at issue is whether the material selected by the defendant for the pipe should not have been wrought iron instead of cast iron, it is competent for the plaintiff to show by an expert having special knowledge of the subject matter that in his opinion the best form and quality of cast iron is unsuitable for a pipe of this character on account of its brittleness under the temperature to which it is likely to be subjected.</p> <p>In an action by a workman against his employer for personal injuries from the bursting of a cast iron header to a boiler forming part of the steam main of the defendant’s power plant, the presiding judge excluded the following question addressed by the defendant to its master mechanic: “ Is it customary in the well conducted concerns with which you are familiar, to adopt a hydraulic test or a hammer test on a steam line of substantially this description, after it has been installed and in operation 1 ” The ground of the exclusion did not appear. Held, that, whether the question was excluded on the ground that the experience of the witness with other plants was not wide enough to make his testimony of any value or on the ground that the inquiry was immaterial or that the nature of the information sought was too remote from the issue on trial, the exclusion was within the discretion of the presiding judge.</p>

<p>Tort by a workman for personal injuries incurred while working in the wire factory of the defendant at Worcester, caused by the breaking of a bolt in a wire drawing machine which the plaintiff was operating, with counts both under the employers’ liability act and at common law, alleging respectively a defect in the ways, works or machinery of the defendant, negligence of a superintendent and defective appliances. On motion of the defendant the plaintiff afterwards filed a bill of particulars alleging that the defect mentioned in his first and third counts consisted of a defective bolt to which was attached a lever or treadle of the machine operated by the plaintiff. Writ dated June 3,1905.</p> <p>At the trial in the Superior Court Pierce, J. at the close of the plaintiff’s evidence ruled that there was no evidence on which the plaintiff could recover, and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

Tort, with a count in contract, against a street railway company for personal injuries received by the plaintiff while she was a passenger on an open car of the defendant on July 4, 1905, from being struck by the wadding of a cannon discharged by one Ouellet in his door yard upon River Street in Fitchburg. Writ dated September 18, 1905. In the Superior Court the case was tried before Pierce, J. The use of the cannon by Ouellet during the day is described in the opinion.

Two actions OF tort, the first by a married woman for personal injuries received when alighting from an open electric car of the defendant on Park Street in the town of Gardner at about eight o’clock in the evening of August 16,1903, and the second by the husband of the plaintiff in the first case for the loss of her services by reason of her injuries. Writs dated November 2, 1903.

<p> Libel and Slander. Practice, Civil. Pleading, Civil. </p> <p>In an action for slander an exception of the defendant to a refusal of the presiding judge to rule, that if the defendant spoke certain words which the defendant has testified that he spoke instead of those alleged in the declaration the plaintiff cannot recover for the words set forth in the declaration, is disposed of by a special finding of the jury that the defendant used the language set forth in the declaration, which makes the effect of the other words immaterial.</p> <p>In an action for slander, if the defendant failed to demur to the declaration and went to trial on the issues raised by the pleadings, after a verdict for the plaintiff at the argument of an exception to the refusal of the presiding judge to rule that the plaintiff could not recover oh the declaration, the defendant cannot take advantage of the point that the declaration does not set out a cause of action by reason of its failure to state sufficient circumstances to show the sense, in which the words were spoken, and the only argument open to him is that upon all the evidence the words were spoken under such conditions as not to be slanderous.</p> <p>In an action for slander the words “ W. (meaning the plaintiff’s husband) has sold half of his wife to L. hasn’t he 1 ” may be found uuder the circumstances in which they were used to have been spoken in such a sense as to amount to a charge of adultery, and the fact that the statement was put in the form of a question makes it none the less slanderous.</p> <p>In an action purporting to be by a married woman for charging her with the crime of adultery by spoken words, whether after a verdict for the plaintiff the defendant at the argument of an exception to a refusal of the presiding judge to rule that the plaintiff could not recover can raise for the first time the question of the sufficiency of the proof as to the plaintiff being a married woman, quaere.</p> <p>In an action purporting to be by a married woman for charging her with the crime of adultery by spoken words, in the absence of any evidence tending to show that the plaintiff was not married it is sufficient for her to show that she was reputed to be a married woman.</p>

<p>Equity Pleading and Practice, Appeal. Corporation, Statutory liability of officers and directors. Payment, In cash.</p> <p>The rule that the decision of a single judge sitting in equity will not be reversed on appeal unless clearly erroneous is confined to cases where the evidence is given orally and there is a conflict in the testimony. Where the evidence is documentary the full court on appeal receives the ease in regard to questions of fact and inferences of fact to be drawn from the evidence in the same way that the single judge received it.</p> <p>Where the evidence in a suit in equity coming by appeal to this court consisted of an agreement in writing of counsel as to certain facts, the articles of incorporation and the by-laws of one of the defendants, interrogatories to two other defendants and their answers thereto, certain checks and other documents, and the oral testimony of one witness, it was held, that the questions of fact except so far as covered by the testimony of the one witness were presented to this court as fresh questions unaffected by the decree from -which the appeal was taken.</p> <p>In this Commonwealth, when, before the repeal of R. L. c. 110, § 44, a payment of the capital stock of a corporation could not be made by the conveyance of property except in conformity with the terms of that section, if the corporation agreed to buy property from a subscriber for its stock at a value equal to the amount of his subscription, and the subscriber borrowed this amount of money from a bank and paid it to the corporation for the shares for which he liad subscribed, and the corporation gave him its check in payment for the property it had agreed to buy from him and he conveyed the property to the corporation and repaid the money he had borrowed from the bank with the check of the corporation, this transaction, even if both parties acted in good faith and the property was worth the full amount paid for it, was not a payment in cash for the capital stock of the corporation within the meaning of the statute.</p> <p>In a suit in equity under R. L. c. 110, § 58, cl. 6, by creditors of a corporation to enforce the alleged liability of certain officers of the corporation for its debts on the ground that they had signed a certificate which was required by law knowing it to be false, if it appears that the defendants signed a certificate that certain shares issued by the corporation were paid for in cash, that the shares in fact were paid for by a conveyance of property to the corporation made in a manner which the defendants were advised by a member of the bar was in effect a payment in cash, and that they in good faith acted under his advice in receiving the payment as officers of the corporation and in signing the certificate, the plaintiffs have failed to show that the certificate was known to the defendants to be false and cannot recover against them.</p> <p>In a suit in equity under R. L. c. 110, § 58, cl. 5, by creditors of a corporation to enforce the alleged liability of certain officers of the corporation for its debts on the ground that they had signed a certificate which was required by law knowing it to be false, where the defence is that the defendants in signing the certificate in question acted in good faith under the advice of counsel, if it appears that the member of the bar who advised the defendants was a subscriber for two shares of the stock of the corporation which he had paid for in cash, this fact is immaterial and in no way tends to show that the member of the bar was incapacitated from giving the advice in question.</p> <p>In a suit in equity under R. L. c. 110, § 58, cl. 5, by creditors of a corporation to enforce the alleged liability of the general manager and the treasurer of the corporation for its debts on the ground that they had signed a false certificate that the capital stock of the corporation was paid in in cash and was invested in the purchase of material, supplies, machinery, stock and labor, knowing it to be false, it appeared that the defendants had signed a certificate to the effect alleged, and that ten shares of the corporation stated in the certificate to have been paid for in cash were paid for in the following manner: The defendant general manager had induced a certain person to subscribe for the ten shares by agreeing that he or the defendant treasurer would arrange it so-that the payment for the shares could be made by the subscriber giving a note to the company for the amount. In pursuance of this agreement the subscriber borrowed §1,000 from a bank and gave it to the defendant general manager. On the next day the subscriber gave to the defendant general manager or the defendant treasurer his note for §1,000 payable to the corporation and received from the corporation §1,000, which he used in repaying the money borrowed by him from the bank. The subscriber’s note was discounted by the corporation at the same bank to meet the check signed by the defendant treasurer which was used by the corporation in lending the subscriber the §1,000. No certificate for the shares was issued to the subscriber until his note to the corporation had been paid in full two years after it was received. The certificate alleged to be false was signed by the defendants while tile note of the subscriber was held by the corporation and was unpaid. Held, that the ten shares were not paid for in cash but by a note in violation of the provision of R. L. C.T10, § 44, and that the capital stock was not invested in material or the other things named in the certificate, as $1,000 of it was lent to the subscriber for the ten shares, and that both the defendant general manager and the defendant treasurer had knowledge of these facts when they signed the certificate in regard to the capital stock and were liable for the debts of the corporation under the terms of the statute.</p> <p>In a suit in equity under R. L. c. 110, § 58, cl. 5, by creditors of a corporation to enforce the alleged liability of the general manager, the treasurer and the president of the corporation for its debts on the ground that they had signed a false certificate that the capital stock of the corporation was paid in in cash and was invested in the purchase of material, supplies, machinery, stock and labor, knowing it to be false, it appeared that the defendants had signed a certificate to the effect alleged and that ten shares of the capital stock had been paid for not in cash but by a note which remained unpaid for two years, and that the certificate was signed while the note was held by the corporation still unpaid so that the statements contained in the certificate were false, that the loan was made and the note was received in payment for the ten shares by the defendant general manager and the defendant treasurer without the knowledge of the defendant president, that the president was a director, that the by-laws of the corporation provided that no loan should be made without action by the directors, and that no vote of the directors authorizing the loan was put in evidence. Held, that it could not be assumed in the absence of evidence to that effect that the directors passed a vote authorizing the loan or that the defendant president acted recklessly in signing the certificate as to the capital stock; therefore that there was no evidence that when he signed the certificate - he knew it to be false and he was not shown to be liable under the statute.</p>

<p>Tort for personal injuries sustained while in the employ of the defendants, the first count alleging that the defendants put the plaintiff to work in an unsafe and dangerous place, and that the defendants knew, or in the exercise of reasonable care might have known, that the place was unsafe and dangerous; the second count making the same allegations and describing the place of danger as a pump pit or well hole in an engine room on the defendants’ premises, in close proximity to the exhaust pipe from a gasoline engine from which noxious gases escaped into the pit, and alleging that the plaintiff while at work for the defendants entered the pit by direction of the defendants’ agents and was injured by the gases; and the third count alleging failure on the part of the defendants to notify the plaintiff of a danger known to them. Writ dated June 16, 1904.</p> <p>The answer, in addition to a general denial, alleged that the defendants were trustees of a public charitable institution, and that as individuals they had no interest in the premises where the plaintiff was injured.</p> <p>In the Superior Court the case was tried before Pierce, J. The plaintiff in his opening, in answer to a question from the judge as to the special defence set up in the answer, admitted that the defendants were the trustees, and as such the managers and directors of the Stetson Home, an institution, not incorporated, situated in the town of Barre in the county of Worcester, and so called in memory of the mother of one of the defendants, who was himself the founder and chief benefactor of the institution, which was established and is maintained under a perpetual trust solely for the free and gratuitous education and maintenance of deserving and indigent boys, the entire property and income of the institution being held by the trustees in perpetual trust for that purpose, there being no dividend, profit or emolument whatsoever derived therefrom by or for any of the defendants or any other person.</p> <p>The plaintiff further admitted that none of the defendants was present when the accident occurred or had knowledge of the incidents or conditions attending the time, place or occasion of the alleged injury to the plaintiff, nor did any of the defendants give, or have knowledge of the giving of any orders or directions by the defendants’ agents to the plaintiff in the premises, nor have any participation in or knowledge of the work in which the plaintiff alleged that he was engaged at the time of his injury.</p> <p>The plaintiff further admitted that there was no personal negligence of the defendants or any of them in the premises “attributable as the proximate cause of the plaintiff’s alleged injury,” and that if there was any negligence in the premises, causing the alleged injury to the plaintiff, it was that of servants and agents of the defendants, as such trustees, acting in the absence of the defendants and without their knowledge or direction.</p> <p>The judge ordered a verdict for the defendants; and the plaintiff alleged exceptions.</p>

<p>Bill in equity, filed July 5, 1899, by the proprietors of mills and mill privileges on a natural watercourse called Millers River flowing through the town of Winchendon, against the proprietor of mill privileges and mills appurtenant thereto above them on the stream, to restrain the defendant from preventing the permanent flow of the water of that watercourse and the reservoirs thereof from passing to the several mill privileges or mills of the plaintiffs in the natural, ordinary and customary manner and extent during the usual working hours of the daytime of each day; to restrain the defendant from interfering with or preventing the natural, ordinary and customary flow of the waters of the watercourse during the usual working hours of the daytime of each day; to restrain the defendant from causing or permitting the waters of the watercourse to flow through the gates of the defendant’s mills in the night-time, and from using the waters in the night-time in any manner that should in any wise prevent the waters from flowing in the customary, usual and natural manner and extent during the working hours of the daytime of each day; with prayers also for the assessment of damages and for further relief.</p> <p>In the Superior Court Piehardson, J. made a final decree granting an injunction and giving damages to the several plaintiffs. The defendant appealed.</p>

<p>Tort for the killing of the plaintiff’s horse and injury to his wagon and harness and the contents of the wagon from being run into by a car of the defendant at a place called Braggville between the towns of Milford and Holliston, as the defendant’s car was going from Milford toward Framingham about seven o’clock in the evening of December 8, 1904. Writ dated December 17, 1904.</p> <p>In the Superior Court the case was tried before Pierce, J. The driver employed by' the plaintiff had left the team unhitched in the highway in which the defendant’s track runs while he went into a house to deliver groceries. Upon his return the horse had gone, and it afterwards was struck' while proceeding up the track toward an approaching car at a substantial, distance from the place where the team had been left. The track of the defendant at the place where the team was left and also at the place of the accident runs on the side of the highway .outside the general travelled path of the road.</p> <p>The material evidence is described' sufficiently in the opinion. At the close of the evidence, the defendant asked the judge to rule that upon all the evidence the plaintiff could not recover, and that the jury must find for the defendant. The judge refused to rule as requested and submitted the case to the jury.</p> <p>The jury returned a verdict for the plaintiff in the sum of $293.20; and the defendant alleged exceptions.</p>

<p> Assignment. Payment. Estoppel. </p> <p>In an action of contract by a bank for the price of goods sold and delivered to the defendant by the plaintiff’s assignor, a corporation which had become bankrupt, it appeared that the plaintiff before the bankruptcy from time to time had discounted certain notes of the plaintiff’s assignor and had taken as security an assignment of the accounts sued upon, and that the defendant in spite of notice-from the plaintiff pf each assignment had paid the money due on the accounts to the plaintiff’s assignor at its request. The defendant introduced evidence tending to show that it had become the regular course of business between the defendant and the plaintiff’s assignor for the defendant to pay the money due-on the accounts to the assignor after the assignments, although in the majority of cases where these payments were made the loans to secure which the accounts bad been assigned had not been paid. There was no evidence that the plaintiff authorized ariy of these payments and its officers testified that they had no knowledge that the payments were made, although the plaintiff’s president testified that the bank might have given the defendant an occasional oral reminder that the amount had not been paid and should be; and the plaintiff’s vice-president testified* that complaint had been made from time to time to the treasurer and assistant treasurer of the assignor that debtors did not remit directly to the plaintiff as they should do although he was unable to say whether such complaint was made in regard to the defendant. The judge, before whom the case was tried without a jury, found for the plaintiff. Held, that the finding for the plaintiff was warranted; that, even if the course of business between the defendant and the plaintiff’s assignor was as contended by the defendant, there was no such knowledge of and acquiescence in it on the part of the plaintiff as to estop the plaintiff from denying that the payments to its assignor had been made by its authority; and that the extent to which the plaintiff knew or had reasonable cause to know the course of business between its assignor and the defendant was a question of fact to be determined by the judge who heard the case.</p>

<p>Tax, Abatement, Exemption. Amherst College. Words-, “Tax bill.”</p> <p>The list of taxable property required of taxpayers by R. L. c. 12, § 41, the filing of which within the time fixed by the notice is made by § 74 of the same chapter a prerequisite to an abatement of taxes, must be sworn to before one of the persons authorized to administer the oath by § 43 of the same chapter.</p> <p>In the requirement of R. L. c. 12, § 73, that an application for the abatement of a tax shall be made within six months after the date of the tax bill, the term “ tax bill ” means the notice which the collector is required to send to each taxpayer of the amount of his tax; and such a notice on a postal card properly addressed stating the amount of the tax and for what, from whom and_ to whom it is due and where and when it is to be paid, and stamped with a post mark showing the day on which it was mailed although not otherwise dated, is a sufficient tax bill within the meaning of the statute, so that an application for an abatement of the tax filed more than six months after the date of such a notice is too late.</p> <p>Under R. L. c. 12, § 5, cl. 3, parcels of real estate belonging to a college consisting of a house used as the residence of the president of the college and also for his official entertaining and for meeting members of the faculty, students and others who wish to see him on business, another house used as the residence of the professor of astronomy and also for astronomical work and to some extent for hearing classes in astronomy, a grove open to the public as a park and used as a place of recreation by such students of the college as wish to walk,, stroll or saunter there, a field used for outdoor sports especially at times when a larger athletic field belonging to the college is not available, and a triangular lot given to the college to make a suitable approach to the larger athletic field, are occupied for the purposes for which the college was incorporated within the meaning of the statute, and consequently are exempt from taxation.</p> <p>A house assessed at $800 and a barn assessed at $300 standing on land assessed at $700 and situated a short distance in the rear of the official house of the president of a college without any fence or other indication of boundary between the two properties, built for a servant of a former president who was a janitor of the college while he lived in the house, the house being let to a person not in the employ of the college at a rent of $35 a quarter, and the bam being used by the president of the college for storage purposes, are not occupied by the college or its officers for the purposes for which the college was incorporated within the meaning of R. L. c. 12, § 6, cl. 3, and consequently are not exempt from taxation.</p>

<p>Covenant. Landlord and Tenant. Words, “Improvements.”</p> <p>The lease of a farm for three years, containing no restriction as to its assignment, gave the lessees the right to purchase the premises at any time during the term at their option, at a different price named for each of the three years. The lessees covenanted “ to make all repairs needed or required by them to revert to the owners,” and also “ to make improvements on said premises to the value of at least $1,000 during said term and to leave the same therein at the end of said term if they do not purchase the premises.” Within three months the lessees assigned the lease to a corporation organized for the purpose of selling poultry, which took possession of the premises and erected and occupied certain poultry buildings. Neither the original lessees nor their assignee attempted to exercise the option to purchase the premises. There was a default in the payment of rent, and the lessors brought a summary process against the lessees for possession of the premises and recovered judgment. The assignee voluntarily vacated the premises while the summary process was pending. A creditor of the assignee attached the poultry buildings as its property, obtained judgment, sold the buildings on execution and purchased them at the execution sale. In a suit in equity brought by the lessors against the purchaser at the execution sale to enjoin him from removing the buildings from the plaintiffs’ land, it was held, that the covenant in the lease, to make improvements on the premises during the term and to leave such improvements thereon at the end of the term if the lessees did not purchase the premises, ran with the land and was binding on the assignee of the lease; therefore that the buildings upon their erection became part of the realty and no title passed to the defendant under the execution sale, and the plaintiffs were entitled to a decree.</p>

<p>Equity Pleading and Practice, Appeal, Injunction. Rules of Court.</p> <p>Where a bill in equity sets out a sufficient ground for relief and the findings of the judge who heard the case support the allegations of the bill, on an appeal from a decree for the plaintiff without any report of the evidence the findings of the judge are conclusive.</p> <p>Under the provision of Equity Rule 2 of the Superior Court, that no injunction shall issue except upon a bill which has been sworn to or verified by affidavit, it is sufficient if the bill is sworn to by one of two plaintiffs.</p> <p>On an appeal in a suit in equity from a decree granting an injunction it is too late to raise for the first time the point that the injunction should not issue because the bill was not sworn to as required by the provision of Equity Rule 2 of the Superior Court.</p>

<p>Appeal under R. L. c. 12, § 78, from the refusal of the assessors of the town of West Springfield.to abate a tax assessed to the petitioner upon a bond of the American Writing Paper Company, a corporation organized under the laws of the State of New Jersey, filed in the Superior Court on December 4, 1905.</p> <p>In the Superior Court the case was submitted to Sitohcoclc, J. upon the following agreed statement of facts :</p> <p>The petitioner is a resident of West Springfield. He brought to the assessors of that town a tax list, as alleged in the petition. Thereupon the assessors assessed a tax upon his property, as alleged, which included a bond of the American Writing Paper Company, a corporation organized under the laws of the State of New Jersey, of the denomination of $1,000. Being aggrieved by the tax assessed on this bond, the petitioner within six months after the date of his tax bill applied to the assessors for an abatement of the tax, which the assessors refused to grant, and, within ten days after their decision, the assessors gave a written notice thereof to the petitioner on October 18,1905. The bond was one of an issue of seventeen millions, each of the denomination of $1,000. The issue of seventeen millions was secured by a first mortgage on all of the real estate of the American Writing Paper Company in the States of Massachusetts, Connecticut, Wisconsin, Ohio and Michigan. - The value on the first day of May, 1905, of all the real estate so mortgaged to secure these bonds was $16,604,534.03. Of this real estate seventy-nine and ninety-eight one hundredths per cent was in the Commonwealth of Massachusetts; seven and fifty-three one hundredths per cent was in the State of Connecticut; six and forty one hundredths per cent was in the State of Wisconsin; five and six one hundredths per cent was in the State of Ohio ; and one and three one hundredths per cent was in the State of Michigan. The mortgage securing the bonds bore date July 1, 1899, and was held by the Old Colony Trust Company, a corporation established under the laws of this Commonwealth, in trust to secure the bonds, and the mortgage was duly recorded in the registry of deeds of the counties in this Commonwealth in which the real estate in this Commonwealth was situated. On May 1, 1905, when the tax was assessed, the corporation was the owner, free from incumbrances or liability for debts of any kind except indebtedness on these bonds, of personal property of the value of $5,613,614.98; which was the only personal property owned by it and which was in the States of Massachusetts, Connecticut, Wisconsin, Ohio and Michigan.</p> <p>By the copy of the mortgage, which was incorporated by reference in the agreed statement of facts, it appeared that the corporation conveyed by the mortgage “all its real estate, buildings and machinery, equipment, patents and trade-marks, including all now owned and all hereafter acquired and whez’ever situate, together with all its franchises and all the rights, easements and privileges thereto appertaining, and with full power on the part of the Trustee (so far as it lawfully may) to succeed to and enjoy all the said rights, privileges, immunities and franchises, corporate and otherwise, of said Company.”</p> <p>The judge ruled pro forma that the petitioner was not entitled to an abatement, and found for the respondent. At the request of both parties he reported the case for determination by this court, such judgment to be entered as law and justice might require.</p>

<p> Interest. Damages. Waterworks. Tisbury. Vineyard Haven Water Company. Statute. </p> <p>Where interest is to be allowed on money due the computation is to be of simple interest unless there is an express requirement to the contrary.</p> <p>St. 1887, c. 157, § 6, gave the town of Tisbury the right to take the franchise, corporate property and all the rights and privileges of the Vineyard Haven Water Company “ on payment to said corporation of the total cost of its franchise, works and property of any kind held under the provisions of this act, including in such cost interest on each expenditure from its date to the date of talcing, as hereinafter provided, at the rate of seven per centum per annum. If the cost of maintaining and operating the works of said corporation shall exceed, in any year, the income derived from said works by said corporation for that year, then such excess shall be added to the total cost; and if the income derived from said works by said corporation exceeds, in any year, the ^ost of maintaining and operating said works for that year then such excess shall be deducted from the total cost.” Held, that, in ease of a taking by the town, the effect of this provision was to guarantee to the corporation the return of all the money invested in the enterprise with simple interest thereon at the rate of seven per cent per annum for the length of time that it remained invested.</p>

<p>Equity Pleading and Practice, Memorandum of findings, Appeal. Contract, Validity. Husband and Wife.</p> <p>In a suit in equity a memorandum of findings made by the judge who heard the case, consisting of a brief extract of material evidence and a statement of his findings of fact, which was made by the judge voluntarily without the request of either party, is a part of the record and has the same effect as a report made under R. L. c. 159, § 23.</p> <p>In a suit in equity coming to this court by appeal, a decree, made by a judge who heard the ease on oral evidence somewhat conflicting which would warrant a finding in behalf of either party, will not be reversed unless plainly wrong, especially where certain letters and other documents which were in evidence at the hearing are not before this court.</p> <p>A contract by a married man by which he transfers a substantial sum of money, which practically is all the property he has, to a certain person upon the agreement and understanding that the donee shall hold and care for the money and pay therefrom any sums required for the support of the donor or which he may demand, and that on the death of the donor any sum remaining in the hands of the donee shall become his property, is not invalid as against the widow of the donor.</p>

<p>Practice, Civil. Estoppel. Poor Debtor. Evidence, Presumptions and burden o£ proof.</p> <p>A defendant in a civil action in a pólice, district or municipal court by consenting to the entry of a default and a judgment against him is not estopped from appealing to the Superior Court under R. Xi. c. 173, § 97.</p> <p>In an action upon a poor debtor’s recognizance, the plaintiff put in evidence docket entries of a district court constituting the record of proceedings in that court as follows: “ Hearing upon said debtor’s application was begun May 3, 1905, and thereupon continued to August 3, 1905, at 9 A. M., and on August 3, 1905, was further continued to September 30, 1905, at 9 a. m., on which last date nothing was done in said proceedings between the hours of 9 and 10 o’clock a. m. At 2 minutes past 10 o’clock a. m. on September 30, 1905, the debtor first called the court’s attention to his presence in court, and moved to continue the proceedings herein, but this motion was overruled.” Held, that the entries were consistent with the assumption that the judge of the district court had been present personally during the whole of the hour that elapsed while the debtor also had been in attendance, and that it did not appear that the creditor attended either personally or by counsel, and therefore that the plaintiff did not sustain the burden of proving affirmatively that there had been a breach of the recognizance.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on July 16, 1898, by William F. Nye and other stockholders of the Onset Bay Grove Association, a corporation created by St. 1877, c. 98, to cancel a certain lease described in the opinion and to compel the defendant lessees to account for all moneys received by them from the leased property.</p> <p>The case was referred to Arthur M. Alger, Esquire, as master. The material portions of his report are quoted in the opinion.</p> <p>The master’s report was filed on September 29, 1902. On April 20,1904, the plaintiffs filed exceptions to the master’s report. On the same day Morton, J. made the order “ Motion to file exceptions allowed if court has authority to allow the same.” The plaintiffs’ first two exceptions were to the following rulings made by the master:</p> <p>“ 1. That on the facts found the plaintiffs are barred from questioning the authority of the corporation to carry on camp meetings, and that it is accordingly not open to them to assail the lease, on the grounds that it was an evasion of the charter of the Onset Bay Grove Association.</p> <p>“ 2. That on the facts found by the master it was within the corporate powers of the association to expend money to carry on camp meetings.”</p> <p>There were two other exceptions, which were not argued.</p> <p>On December 15, 1904, Braley, J. made the following final decree:</p> <p>“ And now this case came on to be further heard at this sitting, on the coming in of the master’s report, and was argued by counsel upon the exceptions alleged by the plaintiffs to the report on April 20, 1904; and thereupon, upon consideration thereof, it appearing that all the payments required to reimburse the corporation, and, as found by the master, having been fully paid to it, it is ordered, adjudged, and decreed that said alleged exceptions be overruled, and the master’s report confirmed, and the lease heretofore made by the corporation to the individual defendants be adjudged void and of no effect, and that the motion of the plaintiff Nye to be allowed his disbursements for counsel fees and expenses taxed as between solicitor and client, and the motion of the defendants for reimbursement for money paid for taking evidence, all to be paid by the corporation, are severally denied.”</p> <p>The plaintiffs appealed.</p>

<p>Evidence, Materiality, In rebuttal, Presumptions and burden of proof. Practice, Civil, Exceptions. Witness, Contradiction. Insurance, Life. Words, “Application.”</p> <p>In an action on a policy of life insurance where the defendant’s answer contains a general denial, the proofs of death required by the terms of the policy are material to the plaintiff’s case and so are admissible in evidence.</p> <p>If documents which are admissible in evidence only on a particular issue are put in evidence generally against the general objection and exception of the adverse party, it is within the discretion of the presiding judge either to submit such documents to the jury or to withhold them, and to the exercise of this discretion no exception lies.</p> <p>If documents are admitted in evidence generally which are admissible only on one issue, and the party against whose objection and exception they have been admitted does not ask for an instruction limiting their use to the special purpose for which they were offered, he afterwards cannot complain that their use was not so limited.</p> <p>Previous material statements made by a witness contrary to those in his testimony are admissible for the purpose of contradicting him.</p> <p>In an action on a policy of life-insurance where witnesses for the defendant have, testified that the insured when he took out .the policy appeared to be of unsound health and that his appearance gave indications of the excessive use of intoxicants, the plaintiff may be allowed to introduce evidence to rebut this testimony.</p> <p>Where a policy of life insurance incorporates by reference the application of the insured, the word “ application ” includes all the questions and answers on both sides of the paper containing the application which are signed by the insured, including the declarations made and signed by him in the presence of the medical examiner of the insurer and excluding only the medical examiner’s report.</p> <p>In an action upon a policy of life insurance which incorporates by reference the application of the insured, where there was attached to the policy a copy of the contents of one side of the paper on which the application was written with the signature of the insured but no copy of the contents of the other side of the paper containing the declarations made and signed by the insured in the presence of the medical examiner of the defendant, the defendant under the provisions of R. L. c. 118, § 73, cannot introduce in evidence a question and an answer of the insured thereto which are written on such other side of the original paper no copy of which was attached to the policy.</p> <p>In an action on a policy of life insurance, if the defendant offers in evidence the answer of the insured to a question on the back of his application, no copy of which was attached to the policy, and seeks to have it admitted as a misrepresentation which was part of a general scheme of fraud, it is not enough to make this evidence admissible that the defendant in his answer alleged a fraudulent conspiracy to obtain a series of policies on the life of the insured. Before such evidence can be admitted the defendant must have laid a foundation for it by previous evidence of fraud.</p> <p>In an action on a policy of life insurance, an answer of the insured to a question on the back of his application, which under the provisions of R. L. c. 118, § 73, cannot be admitted in evidence because no copy of the contents of the back of the application was attached to the policy, is not made admissible by the fact that a copy of the face of the application, which was attached to the policy, has been admitted in evidence without any objection by the plaintiff.</p> <p>In an action on a policy of life insurance, if the defendant sets up in his answer that the policy was made voidable by material misrepresentations of the insured as to his health and habits of sobriety, the burden is on the defendant to prove these allegations.</p>

Tort for personal injuries from being struck by an electric car owned and operated by the defendant on Main Street in Brockton at about half past five o’clock in the afternoon of October 24, 1901. Writ dated February 3, 1902. The action was brought by Theodore D. Blackwell, who sustained the injuries. Later, on the suggestion of his death, Emily A. Blackwell, the executrix of his will, was admitted to prosecute the action.

<p>Tort against David M. Anthony and E. C. Swift, described as partners, doing business under the firm name of Anthony, Swift and Company, for personal injuries from being run over or knocked down by a horse and wagon driven by one Ely alleged to have been a servant of the defendants on Mott Street in Fall River on November 4, 1904. Writ dated January 21, 1905,</p> <p>In the Superior Court the case was tried before Bell, J. The plaintiff at the time of the accident was one year and nine months old and~was in charge of his grandmother who lived on the west side of Mott Street.</p> <p>The contentions of the defendants and the evidence in support of them are stated in the opinion.</p> <p>The witness Pritchard, mentioned near the end of the opinion in the paragraph numbered 4, was a deputy sheriff and testified for the plaintiff that he had lived in Fall River for a great many years; that he knew of the place there run by Anthony, Swift and Company; that he had occasion as a deputy sheriff to serve papers on Anthony, Swift and Company since 1904; that he knew the concern of Anthony, Swift and Company in business there previous to November, 1904; and that he believed the concern consisted of E. C. Swift and David Anthony.</p> <p>On cross-examination he testified that he had knowledge of the fact that there was a place there on Plymouth Avenue with a sign marked Anthony, Swift and Company, but that his knowledge that Anthony, Swift and Company consisted of David M. Anthony and E. C. Swift was derived from the directory, in which he had had occasion to look it up at different times.</p> <p>The counsel for the defendants asked that the evidence be stricken out. The judge afterwards charged the jury on this matter as follows;</p> <p>“I instruct you that so far as the evidence came from the directory as to who was in this firm, or who was a firm, that you are to disregard it, because it is mere hearsay evidence; it has no authority in court. All that was offered in any directory I think I excluded at the time, but all that was offered on cross-examination, that is, if it came second hand, if it came through a witness, if a witness said that he knew that a firm was Swift and Anthony and it appeared that all the source of knowledge he had was from the directory, we are back to the directory again, and the stream does not rise higher than its source, and his quoting the directory to you here or giving the contents of the directory here has no additional validity because it has so passed through his mind on the way rather than been read to you direct from the book, so far as the evidence shows it you will leave out of your consideration that which has no better foundation, no better source, than the directory.”</p> <p>• At the close of the evidence the defendants asked the judge to make the following rulings:</p> <p>1. The defendant Swift is not liable.</p> <p>2. The defendant Anthony is not liable.</p> <p>3. The driver of the wagon was not negligent.</p> <p>4. The plaintiff was not in the exercise of due care.</p> <p>5. The plaintiff’s caretaker was not in the exercise of due care.</p> <p>8. There is no evidence that the defendants were partners.</p> <p>9. There is no evidence that the defendant Swift employed the driver.</p> <p>10. There is no evidence that the defendant Anthony employed the driver.</p> <p>11. The evidence of Pritchard as to who composed the firm of Anthony, Swift and Company should be stricken out.</p> <p>13. The jury should find for the defendants.</p> <p>15. There is no evidence that the defendants employed the driver.</p> <p>17. The evidence that the defendants constituted the partnership is hearsay and should be stricken out.</p> <p>The judge refused to make any of these rulings except so far as quoted above, and instructed the jury that in order to hold the defendants liable the plaintiff must show that the relation of master and servant, employer arid employee, existed between Ely and the defendants.</p> <p>The jury'found for the plaintiff in the sum of $1,200; and the defendants alleged exceptions.</p>

<p>Contract on an account annexed for goods sold and delivered. Writ in the Second District Court of Bristol dated April 27, 1905.</p> <p>On appeal to the Superior Court the case was referred to L. Elmer Wood, Esquire, as auditor, in accordance with an agreement of the parties filed in court, in which it was stipulated “ that his findings on the facts shall b,e final and that he shall hear the parties and make his report to the court on or before Dec. 21st, 1905.”</p> <p>The rule to the auditor was as follows:</p> <p>“It appearing to the court that the trial of the above entitled cause will require an investigation of accounts, or an examination of vouchers by the jury, the court appoint as auditor L. E. Wood, Esq., to hear the parties, examine their vouchers and evidence, state the accounts, and make report thereof to' the court.</p> <p>“ Findings upon facts to be final and report to be filed on or before December 21st, 1905.”</p> <p>The auditor filed a report, in which he found the following facts:</p> <p>The plaintiff was a dealer in mason’s supplies, and the defendant, Samuel Benoit, was a mason and contractor. The action was for the price of supplies which the plaintiff alleged that he sold and delivered to the defendant, the items beginning on April 2,1904. Before that time the defendant had asked the plaintiff to sell him supplies on credit, and the plaintiff had agreed to do so to a limited extent. In March, 1904, the defendant ordered supplies, which later were paid for, the money being delivered to the plaintiff by the defendant’s son A. F. Benoit. These supplies were ordered at different times, sometimes by the defendant’s teamsters, sometimes by his son, and in one or two instances during that month or later by himself, and they were put aboard the defendant’s teams at the plaintiff’s premises. Practically the same course was followed with reference to the items sued on. The plaintiff furnished all the supplies itemized in his account, and the prices charged were the fair market value of the goods.</p> <p>The question in the case was whether the supplies so furnished were furnished to the defendant or to his son, A. F. Benoit. The latter was doing business on his own account in the autumn of 1903 and the spring of 1904. The goods furnished in April and included in the first thirteen items in the account were ordered and delivered in the same way as those furnished in March. The original entries of sales were made by the plaintiff or his clerks on slips of paper and from them were copied at the end of the month into a sales book, and the totals were carried to a ledger account. All the original charges up to April 26 were made against the defendant. The plaintiff testified that on that date the defendant’s son stated to him that his father was in trouble financially and did not want to mix the plaintiff’s account up with it, and asked him to send the bills in his name, A. F. Benoit, but said that his father would be responsible for them. The auditor found that A. F. Benoit did make the statement to the plaintiff. From that time charges in the sales book and ledger were made under the name of A. F. Benoit, and bills were sent out by the plaintiff in that name. The original charge slips still were made against the defendant excepting certain items made by the plaintiff’s bookkeeper, which were charged to A. F. Benoit. The defendant objected and excepted to the admission in. evidence of A. F. Benoit’s statement to the plaintiff.</p> <p>In April the defendant went into bankruptcy. His teams previously had been transferred to his son, and business was carried on by his son. The auditor found, however, that the plaintiff furnished all the goods charged, with the exception of certain items on which no evidence was introduced, to the defendant, in the same way after his bankruptcy as he had before, excepting that the charges were made and bills sent to A. F. Benoit as stated ; that the plaintiff sold the goods on the credit of the defendant and that the defendant did nothing to stop the plaintiff from continuing his dealings with him.</p> <p>The auditor found for the plaintiff in the sum of $152.78, with interest from July 1, 1904, to the date of the writ.</p> <p>The defendant moved to recommit the report to the auditor for further hearing and a supplemental report or for amendment, for the reasons that the auditor admitted the testimony of the plaintiff as to certain declarations made by A. F. Benoit affecting the question of the defendant’s liability, to the admission of which testimony the defendant objected and excepted, that this testimony was hearsay only and the declarations were admissible only on the question of the defendant’s liability, that no facts were shown in the report from which it could be found as a matter of law that A. F. Benoit was the agent of the defendant at the time the declarations were made or that A. F. Benoit had any authority to make such declarations to affect the defendant, and that there was no finding of fact that A. F. Benoit was such agent or other finding which showed any legal grounds why the declarations were admitted.</p> <p>In the Superior Court Holmes, J. denied the motion, and made an entry that this was done as a matter of discretion. There was a hearing on the auditor’s report and judgment was ordered for the plaintiff in the sum of $276.95. The defendant appealed.</p>

<p>Negligence, Employer’s liability. Evidence, Remoteness.</p> <p>In an action by a boy employed by a manufacturer of jewelry against his employer for personal injuries, there was evidence that the plaintiff was about nineteen years of age and was not of average intelligence, that he was sent by one H. in the employ of the defendant to fetch some liquid called “ dip ” from a large crock standing in the yard of the factory, that the liquid was composed of oil of vitriol, nitric acid and muriatic acid, that it was heavier than water and made slippery everything dipped into it, that the plaintiff did not know what the mixture was composed of or contained and was not instructed by any one as to its dangerous character or told to look out for it, that he was given a pitcher which would hold about half a gallon and also a little pitcher from which the handle had been broken off, and was told to “ take this pitcher and go down and get dip; and take that little pitcher beside it and put it in this pitcher,” that he went down and set the larger pitcher on the ground beside the crock and took up the little pitcher and dipped it in the crock until it was pretty nearly full, that as he was “ bringing it up ” it was heavy and slipped out of his hand, and the liquid splashed into his face and eyes causing the injuries sued for, that it had become a part of the plaintiff’s duty to do errands, that the foreman in the department, where the plaintiff worked as a scratcher of silver and on a foot press, had told the plaintiff to do as H. wanted him to and on two occasions before the accident had directed H. to ask the plaintiff to go or himself had sent the plaintiff with H. when H. went to the yard for dip, but that the plaintiff on these occasions had had nothing to do with bailing out the dip and that H. did not tell him about it or give him any instructions. Held, that there was evidence that the plaintiff did not assume the risk of the accident, evidence of due care on the part of the plaintiff, and evidence of negligence on the part of the defendant in failing to instruct the plaintiff properly and in providing him with a pitcher without a handle to dip the mixture from the crock; also, that there was evidence that the plaintiff at the time of the accident was acting within the scope of his employment.</p> <p>In an action by a boy employed by a manufacturer of jewelry against his employer for personal injuries alleged to have been caused by a dangerous acid splashing in the plaintiff’s face and eyes when he was sent without proper instructions and with unsuitable appliances to fetch some of it in a pitcher from a large jar standing in the yard of the factory, the defendant contended that the accident was caused by the plaintiff tipping the large jar a little and then slipping, and dropping the jar so that the acid splashed in his face. The defendant put in evidence the deposition of the person in its employ who sent the plaintiff for the acid and who testified that it was about ten or fifteen minutes after the plaintiff was injured when he saw the jars containing acid and those used in transporting it. The following questions and answers in the deposition, on objection, by the plaintiff, were excluded by the judge: “ What was the location and condition of the jars referred to when you first saw them after the plaintiff was injured ? The jar had been moved about two or three inches. Was there any acid after the accident in the pitcher that the'plaintiff carried down with him before the accident 1 There was not.” A witness for the defendant, who testified that he saw the jars about twenty minutes or half an hour after the accident, said on his cross-examination that for all he knew a dozen or more persons might have gone into the yard from the time the plaintiff was injured up to the time he saw the jars. The defendant made no offer to show that the condition of things had not changed between the happening of the accident and the time referred to in the questions and answers excluded. Held, that, although the interval was short, this court could not say that the likelihood that other persons might have gone to the jar for acid was so slight.that the exclusion of the evidence was a wrongful exercise of the discretion of the presiding judge.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action by a boy eighteen years of age employed in a laundry against his employer, for personal injuries from being hit by a piece of the rim of the revolving basket of an extractor which broke -immediately after the plaintiff had started the machine, it appeared that the plaintiff had been working on the machine for, nineteen days when the accident occurred, that he started the machine in the way in which he had been instructed to start it, and followed his instructions in other matters except possibly in the matter of packing the basket. The evidence of the plaintiff tended to show that the basket was packed properly while that of the defendant tended to show that it was overloaded and that this was the cause of the accident. Held, that the question whether the plaintiff was in the exercise of due care in packing the basket as he did and in failing to discover a defect in the machine, if it existed, was for the jury.</p> <p>In an action by a boy eighteen years of age employed in a laundry against his employer, for personal injuries from being hit by a piece of the rim of the revolving basket of an extractor which broke immediately after the plaintiff had started the machine, it appeared that the extractor had an outer shell of cast iron, within which and of the same shape, with a space of three and a quarter inches between, was the revolving basket into which clothes were put to be dried, that it was expected that when the power was applied and the basket began to revolve it would vibrate more or less but that after a few revolutions it would cease to vibrate and revolve steadily, and that it was not expected or intended that the basket would “ bang ” against the shell. There was evidence tending to show that the basket had “ banged ” against the shell before the accident causing the rim to strike the shell and break, that this “ banging ” was due to the machine being out of order, and that the defendant knew of it or might by the exercise of reasonable care have known of it, that after the accident the basket was lying against the shell and that this ought not to have happened if the machine had been in order, also that the machine had been repaired before the accident and that in making the repairs one of the discs, which formed a part of the conical bearing for the vertical shaft on which the basket rested, had been left out. Held, that there was evidence for the jury of negligence on the part of the defendant.</p>

<p>Evidence, Relevancy and materiality. Witness, Cross-examination.</p> <p>In an action against a street railway company for personal injuries from the alleged negligent starting of an open electric car of the defendant as the plaintiff was attempting to board it, the jury returned a verdict for the defendant, and the plaintiff excepted to the exclusion of the question asked the defendant’s conductor on cross-examination “If it was not a common occurrence for the cars to be slowed down for the purpose of allowing intending passengers to board the cars while the cars were moving at a slow rate of speed, and if that was not customary? ” It appeared from the uncontradieted testimony at the trial that the car came to a full stop for the purpose of discharging and receiving passengers before the plaintiff attempted to get on it. The plaintiff did not testify that he knew of any such custom as that referred to in the question, or that he supposed the car to be in motion or found it to be moving when he stepped upon it. Held, that proof of a custom not to stop cars on other occasions had no bearing on the question whether this car started suddenly after being stopped, and would not have shown an implied invitation to board the car while in motion because no such invitation ever reached the plaintiff or was acted upon by him, and therefore that the evidence excluded was irrelevant and immaterial.</p> <p>The extent to which cross-examination upon collateral issues shall be allowed for the purpose of testing a witness’s honesty, credibility or accuracy of recollection must be determined largely by the trial judge in the exercise of his discretion.</p>

<p>Negligence, Employer's liability. Railroad.</p> <p>■ In an action against a railroad company by the widow of a train checker who was employed in a freight yard of the defendant for causing the death of the plaintiff’s husband, who was killed instantly by three cars that were kicked down upon the track where he was at work, it could be found that the plaintiff’s husband after dark in the performance of his duty was standing with a lantern on his arm on the middle track at a crossing, taking down with a pad and pencil the numbers of the cars on a train that was moving slowly past him, when the cars that struck and killed him came upon him without any warning or light and without any brakeman upon them. There was evidence tending to show that when cars were kicked down on a track in the yard it was customary to have a brakeman upon them, with a lantern if it was at night, to warn the checkers who were taking the numbers, and that such warnings usually were given. There also was evidence tending to show that cars sometimes were kicked down without any brakeman or light upon them, some witnesses testifying that this happened several times a day or night and others testifying that it did not occur very often, but it could have been found that if this was done it was contrary to the rules and that the person doing it was liable to a reprimand. Held, that the case properly was submitted to the jury, who were warranted in finding that the plaintiff’s husband was in the exercise of due care and that his death was due to negligence on the part of the conductor in charge of the three cars in sending them down without a brakeman or a light upon them to warn the checkers.</p>

<p>Bill in equity, filed February 3, 1906, by Bridget Campbell and Sarah Campbell Lima, the owners in common, with one Margaret A. O’Connor, of certain parcels of improved real estate in the city of Fall River composing the John Campbell estate, alleging that on April 10, 1905, the plaintiffs and O’Connor appointed the defendant their agent and attorney to manage and control the property in question for the term of five years, for a compensation of $25 per month, that the defendant agreed to act as agent in the management of the property for the term of five years, to act faithfully in the agency and to render an account to each of the owners separately in each and every month, that the defendant rendered an account each month to each of the owners, but an incomplete one, that* on January 23, 1908, and on divers other days, the plaintiffs requested the defendant to render a more complete account and to exhibit to the plaintiffs or their attorney the items contained in certain bills enumerated which were charged against the estate and paid with money out of the estate, that the plaintiffs requested further that the defendant should state what insurance he had procured for the estate during his agency, from whom he procured such insurance, how much of such insurance of every kind and description was .carried by each piece of property in the estate and at what rate, and that the defendant refused to comply with either of these requests; praying that the defendant be compelled to render an account to the plaintiffs, 1, of the items contained in the bills enumerated, 2, of the amounts of insurance carried by each parcel of the properties of the John Campbell estate, the rate paid for such insurance and the names of the companies in which such insurance is carried, whether it be fire or any other kind of insurance, 3, for a subpoena, and 4, for further relief.</p> <p>The power of attorney and agreement referred to in the bill was as follows:</p> <p>“This agreement made this tenth day of April, 1905, by and between Bridget Campbell, Sarah Campbell Jjima, and Margaret A. O’Connor, all of Fall River, County of Bristol, State of Massachusetts, widow and children of John Campbell, late of said Fall River, deceased, parties of the first part, and Charles C. Cook of said Fall River, party of the second part,</p> <p>“ Witnesseth, that in consideration of the signing of these presents by the respective parties, said parties of the first part hereby jointly and severally covenant and agree with the said party of the second part and also severally covenant and agree with each other as follows:</p> <p>“1. That they will constitute and appoint, and they do hereby constitute the said Charles C. Cook to be the true and lawful attorney irrevocable of them and each of them for the term of five years from this date, to manage and control, as their agent and attorney and in their names and for their use and benefit, all the real estate belonging to them jointly situated in Fall River and devised to them under and by the will of the said John Campbell, deceased, together with all buildings thereon, with full power to let and rent, and with the approval of a majority of them, to lease for a term not exceeding five years said real estate or any portion thereof or any buildings, stores or tenements thereon, and to collect all moneys due to them or each of them from tenants of said real estate whether as rent or for use and occupation of any part thereof, or of any building, tenement, or store thereon, and to give in our names receipt and acquittance therefor; also to make, and out of the moneys so received to pay for, all proper repairs upon and about said property, and to keep the buildings insured in our name against fire, explosion and casualties, and to pay for the same out of the said receipts; also out of said moneys so received, to pay all taxes, water rates and assessments levied or assessed upon said property, and to pay the interest upon all mortgages on said property and such instalments of the principal of said mortgages as may be from time to time required by the mortgagees; also to account to each of us monthly under this power of attorney and to pay to each one of us one-third of the moneys so received, after deducting and holding sufficient thereof to meet the disbursements hereinbefore provided for, together with such further sum as may be agreed upon in writing between them or a majority of them and said attorney as compensation for his services hereunder.</p> <p>“And for the consideration aforesaid the Charles C. Cook, party of the second part, hereby covenants and agrees with the parties of the first part, to act as said agent and attorney in the management and control of said property as aforesaid for and during said term of five years for such sum as compensation for Ms services as shall be agreed upon in writing by and between him and the parties of the first part, or a majority of them.</p> <p>“And the parties of the first part hereby grant and confirm unto said attorney full power and authority in their names to begin and defend legal proceedings for the purpose of collecting said moneys,"terminating tenancies, ejecting tenants from the property, and defending and preserving their rights and interests therein, and generally to do and perform any act or thing,in and concerning the'premises aforesaid as fully and effectually as they or either of them might do if personally present.</p> <p>“ In witness whereof we hereto set our hands and seals this tenth day of April, 1905.</p> <p>Her</p> <p>“Bridget X Campbell.</p> <p>Mark</p> <p>Sarah Campbell Lima.</p> <p>Margaret A. O’Connor.</p> <p>Charles „C. Cook.”</p> <p>Here followed the signature of a witness.</p> <p>The following is a copy of the contents of a letter sent by the counsel for the defendant to the counsel for the plaintiffs:</p> <p>“ Mr. Cook declines to accede to the request contained in your letter .to me of Jan. 23, 1906, for the reason that he has not only submitted for the inspection of yourself and Mr. Coughlin his books, his checks, and the original receipted bills, but has also submitted to your clients every month a statement giving the names of every party paid and the date and amount of every payment. If' upon inquiry of any of the persons named or any other person who knows anything about the work done or materials furnished there appears to you to be anything wrong in regard to any bill, I will submit the matter to Mr. Cook for explanation ; if he does not satisfactorily explain it you will of course be at liberty to take any action that you think best for the interests of your client.</p> <p>“ As to the insurance Mr. Cook says that he has already submitted to you the gross amount of insurance carried on the property and the premiums paid; but he is willing, if you care to do so, to allow one of the leading insurance agents of the city, — L. N. Slade, W. B. M. Chace, Geo. N. Durfee or Chester W. Green, to examine at your expense the insurance that he is carrying on each building, and the rates he is paying therefor; provided such examiner is to certify to you and to him whether or not the amount carried on each building is for a proper amount, and at the regular rate established by the insurance companies of Fall River, but not to disclose the names of the companies with which the insurance is made as Mr. Cook considers that his own private affair.”</p> <p>A judge of the Superior Court made the following decree :</p> <p>“ This case came on to be heard at the June sitting of the Superior Court in New Bedford in 1906. The court heard the evidence of the parties which was both oral and written. The case was argued by counsel. It appeared to the court from the whole evidence that the plaintiffs prior to bringing the suit had ample opportunity to examine all the itemized bills in detail, and that the names of the insurance companies were immaterial as long as they were sound companies; and thereupon, upon consideration thereof, it is</p> <p>“ Ordered, adjudged and decreed that the defendant render to each of the plaintiffs a detailed statement of all insurance upon each piece of property belonging to the plaintiffs under the defendant’s control and charge, including the premiums paid therefor from April 10, 1905, to June 11, 1906, save and except the names of the companies. No costs to be allowed to either party.”</p> <p>The plaintiffs appealed “ from the decree of the court in refusing to order the defendant to render to the petitioners the names of the insurance companies in which the defendant carries the insurance upon the property belonging to the plaintiffs and of which he, the defendant, is their agent.”</p>

<p>Acushnet River Bridge. Bridge. County Commissioners. Bristol County. Old Colony Railroad Company. Constitutional Law. Statute, Construction. Interest. Jurisdiction.</p> <p>By § 6 of St. 1900, c. 439, relating to the relocation and completion of the bridge over the Acushnet River between the city of New Bedford and the town of Fairhaven, providing that the $220,000 of the cost of the completion of the bridge under that statute apportioned upon the county of Bristol should be apportioned by the commissioners appointed under St. 1893, c. 368, § 6, “between the cities and towns in the county of Bristol, as provided in said section six,” the apportionment is directed to be made among the cities and towns in that county “ which are or will be specially benefited ” without apportioning any part of the cost to the county of Bristol itself.</p> <p>The provision of St. 1900, c. 439, § 6, apportioning thirty-three per cent of the excess over $220,000 of the cost of the completion of the bridge over the Acushnet River between the city of New Bedford and the town of Fairhaven, which carried it over the railroad of the Old Colony Railroad Company instead of crossing it at grade, upon that company to an amount not exceeding $90,000, is constitutional and valid.</p> <p>St. 1906, c. 238, authorized the commissioners, appointed under a previous statute to apportion the cost of the bridge over the Acushnet River between the city of New Bedford and the town of Fairhaven, to report their apportionment to the Superior Court so far as such cost had been determined and paid, although certain items of cost remained unascertained and unpaid, and to provide for the apportionment of such part of the cost as had not been ascertained or paid at the date of the report by declaring in what percentages such cost should thereafter be apportioned when it. should have been ascertained and paid. Held, that, the statute being silent in regard to the manner in which this future apportionment should be made, the proper construction was that it should be made as it would have been if the cost already had been determined and paid at the date of the commissioners’ report, that is, under the provisions of St. 1900, c. 439, § 6, the only purpose of the Legislature being to permit the direction of the apportionment before the ascertainment of the amount.</p> <p>St. 1893, e. 368, amended by subsequent acts, providing for the appointment of a board of three commissioners to apportion the cost of the bridge over the Acushnet River between the city of New Bedford and the town of Fairhaven, made no provision for the payment of interest upon the amounts payable under the report of the commissioners to the Superior Court from the time of the filing of the report until the entry of judgment. Held, that R. L. c. 177, § 8, had no application, and that no interest before judgment could be charged.</p> <p>The commissioners appointed under St. 1893, c. 368, § 6, to apportion the cost of the bridge over the Acushnet River between the city of New Bedford and the town of Fairhaven were authorized by that section and by St. 1900, c. 439, § 7, to determine and name the cities and towns by which the expense of the care, maintenance and repairs of the bridge and draw with the approaches, abutments and piers should be paid, and also to determine and name the proportion of such expense that should be paid by each of such cities and towns. Held, that the determination of the commissioners in regard to the maintenance and support of the bridge was not subject to revision.</p>

Tort by the driver of an express wagon for personal injuries caused by a collision with an electric car of the defendant. Writ dated October 12, 1904. In the Superior Court the case was tried before Bell, J. The plaintiff was a teamster driving an express wagon, and was about to deliver a barrel of flour at the house of one Powers on the west side of Washington Street, a public highway in Attleborough.

<p>Chattel, Life interest. Personal Property. Contract, Construction. Execution. Practice, Civil. Trustee Process.</p> <p>The questions, whether the owner of a building which is personal property can create a life interest in it ip favor of another with a reversion in himself, and, if so, whether such an interest can be created orally, here were not passed upon, the court assuming that such an interest could be created and could be created orally, for the purpose of deciding the case upon the point that the oral arrangement alleged to have transferred a life interest in the building was merely an executory contract</p> <p>A wooden building standing on leased land was owned as personal property by a woman with a husband and two daughters. The owner died leaving a will, not assented to by her husband, bequeathing all her property to her daughters equally. One of the daughters was appointed administratrix with the will annexed. The surviving husband made an arrangement with his daughters by which “he transferred all his interest in his wife’s estate to them, and they agreed that he should take charge of the wooden building, collect the rents, pay all the expenses, and from the balance left, if any, should keep §3 a week for his living expenses, and pay over the remainder” to the administratrix. This arrangement was to continue during his life and the estate was not to be settled until after his death. He took possession of the building and continued to occupy it, collecting and receipting for the rents in his own name, settling losses with insurance companies, paying the charges and taking out the §3 a week, after which there was nothing left to be paid to the administratrix. A judgment creditor of the surviving husband seized and sold his alleged interest in the building under an execution against him, and the purchaser at the execution sale brought a suit in equity against the two daughters under R. L. c. 159, § 3, cl. 4, alleging that he and the defendants were joint owners of personal property, and seeking to have their respective rights determined and the building sold and the proceeds distributed. Held, that, assuming without deciding, that the owner of a chattel can create a life interest in it in favor of another with a reversion in himself, and that this can be done orally, and also that, the estate being free from debt, the administratrix with the consent of her co-legatee could create such an interest in the building, and that a gift or transfer of the income or use for life accompanied by possession of the building would constitute such an interest, yet the arrangement between the father and his daughters did not transfer to the father any interest in the building but on the part of the executrix and her co-legatee was merely an executory contract; so that nothing passed to the plaintiff by the seizure and the sale on execution.</p> <p>Where an action of contract, begun by trustee process, in which a judge of the Superior Court ruled that the trustee should be discharged, comes to this court by report, and it appears that the trustee had in his hands no goods, effects or credits of the defendant, so that the ruling of the judge was right, but no reason appears why the plaintiff is not entitled to judgment for a balance due to him and there is no way of ascertaining from the report what that balance is, tiie case will be remitted to the Superior Court with directions to ascertain the amount due and, when it is ascertained, to enter judgment accordingly in favor of the plaintiff.</p>

<p>Devise and Legacy. Words, “ Glue,” “On hand.”</p> <p>On a bill by an executor for instructions the following facts appeared: The plaintiff’s testator in the seventh clause of his will made this bequest: “ I give and bequeath all the glue (but not the glue stock) which I may leave on hand at my decease ” to a trustee for the benefit of certain beneficiaries. To a brother not included in these beneficiaries lie made the following bequest: “ I give and bequeath to my said brother all the tools, fixtures and machinery in my glue factory, and all my personal property of whatever kind or description that at the time of my death shall be in or on the premises described in section second of this will [which described the glue factory], excepting the glue, which I have hereinbefore disposed of in section seven of this will.” It appeared that at the time of his death, the testator had on hand in his glue factory a large quantity of glue and also a large quantity of gelatine, worth a little more than the glue. He also had in the hands of a selling agent in another city another quantity of gelatine. Glue and gelatine are made from the same stock and by the same .process of manufacture, there being no difference between gelatine and common glue except that gelatine is a higher grade of the same substance. There was evidence that, although gelatine and glue are sold in the market under different names, from the point of view of manufacturers they are both in a broad general sense glue, and that the manufacture of gelatine as a distinct product for a use .different from that of common glue had begun in the testator’s factory and other similar factories not very long before the will was made. There was no mention in the will of gelatine as distinguished from glue. Held, that the word “glue” included gelatine and that the words “on hand” included the goods sent away to be sold by the selling agent as well as those at the factory, so that both quantities of gelatine passed to the trustee.</p>

<p>Practice, Civil, Agreed statement of facts. Tax. Corporation, Foreign. Way.</p> <p>In a case presented on an agreed statement of facts which does not provide that the court may draw inferences of fact the plaintiff Cannot recover unless the matters stated entitle him to a judgment as a matter of law.</p> <p>The pipes and mains of a water company are not machinery employed in any branch of manufactures within the meaning of the second exception of R. L. c. 12, § 23, in regard to the assessment of personal property for taxation.</p> <p>In an action by the collector of taxes of the town of Salisbury against a foreign corporation supplying the public at Salisbury Beach with water, to recover a tax assessed upon the defendant’s water mains and pipes as personal property, on the ground that they were underground pipes laid in public streets by a cor- • poration other than a street railway company within the meaning of St. 1902, c. 342, § 1, the case was submitted on an agreed statement of facts without the power to draw inferences, by which it appeared that all the water mains and pipes assessed ran through private land without any question except two hundred feet which were under a way seventy-flve feet wide on Salisbury Beach on land which before August, 1903, had belonged to a quasi corporation called the Commoners of Salisbury, and that the town in July, 1903, had given to the Commoners of Salisbury a release containing this exception: "Excepting however from this conveyance any right of the public and the marsh owners in and to the old way to the marshes as the same now exists, and is used, and in and to the way seventy-five feet wide running across said beach in continuation of the town road leading to the same, . . . and reserving to itself and its successors the right to use and to permit any person residing in said town to use for purposes of travel only . . . the way seventy-five feet wide as now laid out extending from the present highway to the sea. . . . The location of said ways may be changed from time to time as agreed in writing by the selectmen of said town and by said Commoners, their successors and assigns.” Held, that there was no statement that the way seventy-five feet wide was a public street, and that if inferences could have been drawn it might have been inferred that it was not; so that the case was not brought within the statute and the water mains and pipes were not taxable as personal property.</p> <p>Whether the water mains and pipes of a foreign corporation supplying water to a portion of a town, laid entirely through private land, the corporation " having a lease to maintain said pipes from the owners of the fee," can be assessed to the corporation as real estate, here was not considered, the only question raised being whether the mains and pipes were taxable as personal property.</p>

<p>Contract, Implied: common counts, Performance and breach. Practice, Civil, Findings of fact by judge.</p> <p>In an action to recover compensation for hauling wood from a woodiot of the defendant, it was found by a judge, sitting without a jury, that the agreement was that the plaintiff should haul all the wood at the price of one dollar a cord, the defendant to cut it and have it ready for him, that the agreement made no provision for deferment of payment until all the wood was hauled, that the plaintiff performed his part of the contract as far as he could, and that there was a breach of the contract on the part of the defendant. It appeared that the plaintiff hauled all the wood that the defendant had cut and ready at a certain time, and was paid for it, that, there being no more wood ready at that time, he went to another job, and afterwards returned and hauled more wood for the defendant, for which the defendant refused to pay him until all the wood on the lot had been hauled away. Held, that, even if the contract was an entire one to haul all the wood upon the lot, the defendant by his breach of the contract having prevented full performance on the part of the plaintiff, the plaintiff was entitled to recover on a quantum meruit the fair value of the work done by him.</p> <p>The findings of fact of a judge sitting without a jury will not be revised unless it is made to appear that they were unwarranted by the evidence.</p>

<p>Tort by the administratrix of the estate of Patrick Creeden of Newburyport for the benefit of his widow and children under R. L. c. Ill, § 267, to recover damages for causing his death. Writ dated March 6, 1906.</p> <p>The declaration alleged that the defendant on December 26, 1905, operated a steam railroad through Newburyport and for a lo.ng time previous to the injuries complained of had maintained a station in Newburyport at which its trains stopped, for the purpose of taking on and letting off persons rightfully upon its trains; that contiguous to and adjoining the station was a bridge spanning Merrimac Street in that city, which was constructed without railings, barriers, lights, warnings or safeguards; that between the outer rail of the track and the girder of the bridge there was a piece of timber running lengthwise with the bridge and extending about two inches above its surface ; that beyond this timber planks were laid at an angle with the surface of the bridge, sloping upward and outward to the girder, so that they formed an inclined plane running the whole length of the bridge, joining the girder in such a way as to cause a person walking beyond the outer rail to pitch forward toward and over the girder, and that this condition could not be observed owing to the darkness at the time of the accident to the plaintiff’s intestate, who, when walking along the bridge, was thrown to the street below and was killed; and that the defendant negligently failed to furnish suitable lights and safeguards upon the bridge and negligently caused its cars to be stopped on the bridge.</p> <p>The further material allegations in the declaration were that the “ plaintiff’s intestate was a duly appointed and qualified officer of the watch and constable for criminal service in said Newburyport, doing his duty as such, and wearing his uniform; that on or about said date and in the night-time, the defendant, by its servants and agents, stopped one of its trains at or near its station in said Newburyport for the purpose of allowing persons rightfully to board its said train and alight therefrom, in such a manner and place as to cause the rear of said train to stand upon or beyond the aforesaid bridge of the defendant over said Merrimac Street; that the plaintiff’s intestate, acting as an officer and constable aforesaid, and in the performance of the duty delegated to him under the instructions of a superior officer, and upon information received by him, and upon his belief that criminals were escaping on said train from said Newburyport, and for the purpose of apprehending said criminals in the performance of his duty as said officer and constable, and for the purpose of examining certain persons abroad whom he had reason to suspect of an unlawful design, boarded said train and walked through one or more cars thereon toward the rear of said train and to or beyond the bridge aforesaid ; that he found one of said suspected persons in said car; that, accompanied by said suspected person, the plaintiff’s intestate then alighted and walked away from said train, toward said station upon said bridge; . . . that he was rightfully upon said train under an implied invitation from the defendant; that said defendant had accepted as passengers on its said train during the night-time a person or persons whom the plaintiff’s intestate had reason to suspect of some unlawful design.”</p> <p>The defendant demurred to the declaration. The Superior Court sustained the demurrer and gave judgment for the defendant; and the plaintiff appealed.</p>

<p>Devise and Legacy. Words, “To share equally.”</p> <p>A testator devised and bequeathed the residue of his estate “ to the persons who at my decease are my heirs at law, such heirs at law to share the same equally.” He left as his heirs at law a surviving sister, two nieces, who were the daughters of a deceased sister of the testator, and a grandnephew, who was the son of a deceased daughter of his deceased sister. The same persons would have been his heirs at law had he died at the date of his will. Held, that the distribution must . be per stirpes, the testator’s surviving sister receiving one half of the residue and each of the other three heirs receiving one sixth, the direction to share equally being given effect by applying it to the division between the classes of the testator's heirs.</p>

<p>Equity Jurisdiction, To remove cloud from title. Land Court. Superior Court. Supreme Judicial Court. Jurisdiction.</p> <p>The jurisdiction over suits in equity to remove a cloud from the title to land, mentioned in R L. c. 182, §§ 6-10, was not transferred by St. 1904, c. 448, § 1, from the Superior Court to the Land Court, and such suits remain within the general equity jurisdiction of the Superior Court and the Supreme Judicial Court.</p>

<p>Contract for the amount paid by the plaintiff in satisfaction of a judgment obtained against him as surety on the defendant’s bond given on January 30,1899, to dissolve an attachment against the defendant. Writ dated September 22,1904.</p> <p>The case came on to be tried before Fox, J., the facts being undisputed and agreed to by the parties. Those which are material are stated in the opinion. The defendant relied in defence on his discharge in bankruptcy. His petition in bankruptcy was filed on November 26,1902, and his discharge was granted on April 14,1903. The action against the plaintiff and another as sureties on the defendant’s bond to dissolve the attachment was brought on January 2, 1902, and judgment was entered against the plaintiff on September 6, 1904. On September 20, 1904, the plaintiff satisfied that judgment by paying the amount of $617.90. The plaintiff bad no notice or actual knowledge of the bankruptcy proceedings.</p> <p>The judge ordered a verdict for the plaintiff in the sum of $668.37, and at the defendant’s request reported the case for determination by this court, under an agreement of the parties that if the ordering of the verdict was affirmed judgment was to be entered thereon, and that otherwise judgment was to be entered for the defendant.</p>

<p>Contract, Implied: common counts, Consideration. Frauds, Statute of. Trust, Oral concerning land. Evidence, Extrinsic affecting writings, Relevancy. Limitations, Statute of. Deed, Consideration.</p> <p>If one conveys land to another under an oral agreement which the other refuses to perform and cannot be compelled to perform on account of his setting up the statute of frauds, he who conveyed the land can recover its value from the grantee on the ground that the consideration for the conveyance has failed and he is entitled to be reimbursed.</p> <p>In an action by a brother against his sister to recover the value of land which he conveyed to her by an absolute deed, he can be allowed to show by oral evidence that, being about to go to sea, he conveyed the land to the defendant so that if he did not return she should have it, but with the agreement on her part that if he did return and wanted the land at any time she should reconvey it to him.</p> <p>In an action by a brother against his sister to recover the value of land which he conveyed to her by an absolute deed, in which the defendant set up the statute of limitations, the plaintiff testified that twenty-four years before the action was brought, being about to go to sea, he conveyed the land to the defendant so that if he did not return she should have it, but with the agreement on her part that if he did return and wanted the land at any time she should reconvey it to him, that he returned, but the fact that he had given the deed to the defendant escaped his attention until it was recalled to him by a transaction about two years before his action was brought, when he demanded a reconveyance of the land, which the defendant refused. It appeared that in the first year after the conveyance the defendant had sold a part of the land and had paid the proceeds to the plaintiff. She claimed the rest of the land as an absolute gift. Held, that the statute of limitations did not begin to run until there was a demand for a reconveyance and a refusal, that the fact that the defendant sold a part of the land and accounted to the plaintiff for the proceeds did not constitute a repudiation of the agreement as to the remaining land, and that it would have been wrong to comply with a request of the defendant to instruct the jury that if the agreement was as testified to by the plaintiff the sale constituted a violation of it and the right of action accrued then and was barred by the statute.</p> <p>In an action by a brother against his sister to recover the value of land which he conveyed to her by an absolute deed, the plaintiff testified that twenty-four years before the action was brought, being about to go to sea, he conveyed the land to the defendant so that if he did not return she should have it, but with the agreement on her part that if he did return and wanted the land at any time she should reconvey it to him, that he returned, but the fact that he had given the deed to the defendant escaped his attention until it was recalled to him by a transaction about two years before his action was brought, when he demanded a reconveyance of the land, which the defendant refused. The presiding judge excluded evidence offered by the defendant to show acts of friendliness and kindness on the part of the defendant toward the plaintiff-and their amicable relations. It was conceded by the plaintiff that the relations between them were entirely friendly and amicable down to the time when the plaintiff demanded a reconveyance. Held, that the exclusion was right, the evidence offered having no tendency to show that there was a consideration for the ■ deed.</p>

<p>School and School Committee. Evidence, Presumptions and burden of proof. Municipal Corporations.</p> <p>On the trial of a petition for a writ of mandamus to compel the school committee of a town to reopen a certain school, if the respondents in their answer aver that in their judgment the interests of the pupils who formerly attended the school closed by the committee required that they should be transferred to other schools affording greater facilities for education, and that the number of pupils attending the school closed by the committee was so small as in the judgment of the committee to render its maintenance inadvisable and unnecessary, it will he assumed, in the absence of any evidence to the contrary, that the respondents acted in good faith and that their judgment was correct.</p> <p>Under R. L. c. 42, § 27, which gives to the school committee of a town “ the general charge and superintendence of all the public schools,” the committee in the performance of this duty act as public officers and not as the agents of the town, and a vote of a town to reopen a certain school, which would operate and 'is intended to operate to take pupils from schools to which they have been assigned by the school committee and transfer them to the reopened school, is not binding on the committee.</p>

<p>vWrit of entry, dated February 11,1903, to recover certain lands in Williamstown claimed by the plaintiff as purchaser at a foreclosure sale upon alleged default in the performance of the condition of a mortgage given by the tenant to one Mary E. Phelps, the tenant’s' mother.</p> <p>In the Superior Court the case was tried before Hitchcock, J. The tenant had filed a plea setting forth several defences but before going to trial the parties entered into the following agreement : “ It is agreed that all defences in this action are waived except the one issue raised in the second specification of the defendant’s answer, namely: Whether at the time of the foreclosure of the mortgage given by George L. Phelps to Mary E. Phelps, there was a breach of the condition of the mortgage.” Upon this agreement and the issue thus raised the case was tried and submitted to the jury.</p> <p>The demandant offered in evidence the mortgage from the tenant to Mary E. Phelps, and the deed under the power of sale contained in the mortgage. The mortgage deed was dated August 27,1888, was in the usual form of power of sale mortgages and was given to secure the payment of $70 to Mary E. Phelps, each and every year during the term of her natural life.</p> <p>This mortgage passed to the demandant by virtue of a decree of the Superior Court at the July sitting in Franklin County in 1895, and was foreclosed on February 17, 1896, by a sale of the premises to the demandant.</p> <p>The contention of the tenant was that at the time of the foreclosure there had been no breach of any of the conditions of the mortgage, and he introduced evidence upon this issue, a part of which consisted of four receipts given by Mary E. Phelps to the tenant before the foreclosure and while she still was the holder and owner of the mortgage. The contention of the demand-ant was that these receipts were without consideration and were but a subterfuge and were not given on the days they were dated.</p> <p>The tenant introduced in evidence an affidavit made by Mary E. Phelps, dated April 5,1902, in which among other things she stated that nothing was due on the mortgage at the time of the foreclosure, and also offered evidence of other statements made by Mary E. Phelps, which tended to show there was nothing due on the mortgage at the time of the foreclosure.</p> <p>It was agreed that Mary E. Phelps died in 1902. The demandant called as a witness Charles E. Hibbard, who testified that he was an attorney at law and at one time was acting for the tenant in another action. The witness said that he was present as counsel for the tenant at the first hearing before H. C. Joyner, Esquire, the master in that case, at which the four receipts above mentioned were produced and placed in evidence by the tenant; that a second hearing of the case was held possibly a year after the first, at which Mary E. Phelps was present and testified that while her son George [the tenant] was sick in the hospital her son Gersham brought to her four papers which he desired her to copy and that the four receipts already referred to were the ones that she made at that time at his request ; she said that all four receipts were made by her at one time.</p> <p>The witness then testified as follows under objection and exception : “ Q. Did the old lady make any statement in her testimony before Mr. Joyner as to the conversation with reference to these four papers that was had between herself and Gersham ? A. She stated that Gersham asked her to copy and sign these four papers that George might have his mind relieved; that he was in the hospital and there was some trouble over the mortgage and that if he could have these four papers that it would relieve his mind from anxiety and that she told him it was not right, or words to that effect, to do so, but she did it. — Q. Did she testify before Joyner with reference to any statements she made to Gersham as to what she would do in case this matter came into court? A. She said she told George, I am not sure whether she testified she told Gersham, that she should tell the truth about it if they came into court, but she said that subsequently she went to the hospital to see George and then demanded back these receipts and he refused, to give them to her and she told him that it was not right and that if she was ever called into court she should tell the truth, but I wouldn’t say she told Gersham at the time she signed them although I have the impression that she did say the same thing to Gersham. But she. did testify that she told that to George at the hospital.”</p> <p>The witness testified that Mary E. Phelps also testified that all she had ever received from George either in money or produce was approximately $75. The witness -further was permitted to testify subject to the objection and exception of the tenant as follows:</p> <p>“ Q. Did you state to George (the tenant) that his mother had testified ? A. I repeatedly told Mr. Phelps just what his mother testified to and I think he came to my office the day following, might have been the afternoon of the hearing. — Q. Was there anybody else present at the time of this first interview you had with Phelps after this hearing ? A. I wouldn’t be .able to state that. — Q. After that time did you have any further conversation with Phelps with reference to this testimony of his mother ? A. Why, I can only repeat the answer which I gave you before, that I repeatedly told him what his mother had testified to and discussed the matter with him.”</p> <p>In the course of the trial the tenant offered in evidence a stenographic copy of the testimony of one Lucy Phelps, taken at a former trial of this action, who it was agreed was insane and in the Northampton Insane Asylum. The testimony was excluded subject to. the exception of the tenant.</p> <p>The judge in charging the. jury gave the instructions in regard to the burden of proof which are quoted and described in the second paragraph of the opinion, the tenant excepting to this portion of the charge.</p> <p>The jury returned a verdict for the demandant; and the tenant alleged exceptions.</p>

<p>Bill in equity, inserted in a common law writ dated May 10, 1905, to restrain the defendant from entering the plaintiff’s premises on Bryant Street in Taunton and from cutting trees and otherwise injuring the property of the plaintiff, and to compel the defendant to remove from the plaintiff’s property all poles and wires there erected and maintained by it.</p> <p>In the Superior Court the case was heard by Holmes, J., who by agreement of the parties reserved and reported it for determination by this court.</p> <p>The report was as follows:</p> <p>The plaintiff is seised in fee simple of a piece of land described in her deed as “ a certain lot of land with the buildings thereon situate in' said Taunton on the southwesterly side of High Street,” describing a lot on the corner of Bryant Street and High Street in that city.</p> <p>The defendant legally operates an electric street railway in several public streets in Taunton, but has not and never has had a street railway track in Bryant Street, and no location for a track in Bryant Street has ever been granted to the defendant or to any other person or corporation. There are no poles or wires in that street except those maintained by the defendant as hereinafter set forth.</p> <p>In the summer of the year of 1904 the defendant built a new power house or sub-station on High Street in Taunton, near the plaintiff’s estate. In October of the same year, upon the petition of the defendant, the board of aldermen of the city of Taunton without notice to the plaintiff and without public hearing granted to the defendant permission to erect poles in Bryant Street, including those complained of in this suit, and to attach wires and other fixtures thereto. Since the granting of that petition the defendant has erected several poles in Bryant Street, two of which stand in the portion of that street adjacent to the plaintiff’s premises, and has attached cross arms and wires thereto. These wires, which are known as “ feed wires,” measure about one and one quarter inches in diameter and are seven in number. The poles, cross arms and wires are used by the defendant for the transmission of electricity for purposes necessary or incident to' the operation of its street railway, being its main and only line of feed wires for the transmission of electricity from its sub-station on High Street to its railway to Providence, Fall River, Brockton and other points, and being the shortest and best route through public ways for such transmission between that sub-station and the railway. They extend from the sub-station of the defendant on High Street through Bryant Street and Sumner Street to the defendant’s track on Weir Street. The defendant has succeeded to all the rights and privileges of the Brockton Street Railway Company. Maps were annexed to the report showing the plaintiff’s premises, the locations of the poles in the portion of Bryant Street adjacent to the plaintiff’s premises, the location of the defendant’s power house or sub-station and those of such of its tracks and lines as were material to the case.</p> <p>If the plaintiff was entitled to relief in equity on the facts above stated a decree for the plaintiff requiring the removal of the poles, cross arms and wires upon the portion of the street adjacent to her premises was to be entered; otherwise, a decree dismissing the bill was to be made.</p>

<p>Negligence, Imputed.</p> <p>it one, while being driven in a carriage as a guest of the person driving, is injured by a collision on a public way caused directly by the negligence of a third person, to which negligence on the part of the driver contributed, he may recover against the negligent third person in spite of the negligence of the driver if personally he was in the exercise of all the care which ordinary caution requires.</p> <p>If one has accepted an invitation of a friend to be driven by him in his carriage and in entering the vehicle and continuing in it has acted with reasonable caution, having no ground to suspect incompetency or to anticipate negligence on the part of the driver, and while so being driven is injured by a collision on a public way caused directly by the negligence of a third person, which would not have happened unless the driver also had been negligent, and if the impending danger was so sudden or of such a character as not to require or permit any act for his own protection, the guest may recover from the negligent third person for his injuries.</p>

<p>Two actions OF tort, the first for injuries alleged to have been caused by the negligence of the servants of the defendant in starting suddenly one of its open electric cars as the plaintiff was attempting to board it on Franklin Street in Lynn at the corner of Boston Street on September 22, 1901, and the second by the husband of the plaintiff in the first case for his loss and damage caused by her injuries. Writs dated April 21, 1902.</p> <p>At the trial in the Superior Court Aiken, C. J. ruled that upon the evidence the plaintiffs were not entitled to recover, and ordered a verdict for the defendant. The plaintiffs alleged exceptions.</p>

<p>Constitutional Law. Tax, Assessments for street watering. Pleading, Civil, Declaration or petition, Statute of limitations. Equity Pleading and Practice. Limitations, Statute of.</p> <p>St. 1897, e. 419, now R. L. c. 26, §§ 26, 27, authorizing assessments for the watering of streets in cities, is constitutional as applied to occupied estates in the central portion of a large city. Following Sears v. Boston, 173 Mass. 71.</p> <p>In a petition 'to recover from a city assessments for street watering paid under protest, an averment, that the lot opposite the petitioner's estate is unoccupied, belongs to two owners and is divided in the middle by a fence, is not equivalent to an averment that the petitioner’s estate is not an occupied estate in the central portion of a large city.</p> <p>A petition in the nature of a bill in equity to recover from a city assessments for street watering paid under protest, even if it can be amended in such a way as to show that the remedy is a proper one, must be dismissed on demurrer if it contains no averments showing the assessments to have been illegal.</p> <p>The defence in a personal action that the cause of action accrued more than six years before the date of the writ must be taken by answer and not by demurrer.</p> <p>A declaration in an action against a city, purporting to be an action of contract, alleging that the defendant is indebted to the plaintiff in a sum named, by reason of making a forcible entry upon the plaintiff’s close and appropriating a certain portion of the plaintiff’s front yard for sidewalk use, and continuing in adverse possession thereof for nearly twenty years, assessing and collecting taxes against the land and refusing the plaintiff compensation, the plaintiff claiming sufferance rent for the period of detention of the land by the defendant, does not set forth a cause of action.</p>

Petition for a writ of mandamus. The case was heard by Braley, J., who made a final decree as follows: “ Upon the evidence of the petitioner and after full argument by him and upon consideration thereof it is found that the allegations of said petition are not proved, and it is ordered and decreed that said petition be dismissed without costs as to all the respondents and without prejudice to the rights of said petitioner, if any he has, to proceed under R. L. c. 156, § 4.”…

<p>Evidence, Judicial notice, Force of words. Negligence. Railroad.</p> <p>It is a matter of common knowledge that from time to time the tracks of steam railroads must be repaired and bridges must be Replaced, and that in the performance of this work it may be necessary to use crossovers from one main track to another.</p> <p>It is a matter of common knowledge that in the proper operation of a passenger train on a steam railroad there may be jerks and lurches.</p> <p>In considering the description of an accident by a witness little if any weight is to be given to expletive or declamatory words or phrases which appear to have been used in an exaggerated or distorted sense.</p> <p>If a passenger in the smoking car of the train of a steam railroad, knowing but unmindful of the facts that the train is about to pass over a bridge that is undergoing repairs where there are double tracks and will have to pass by means of a crossover from one track to the other, that when the car strikes the switch there will be more or less of a jar, its force depending upon the speed of the train, and that the train is moving swiftly, and being unable to find a seat in the smoking car where five or six passengers are standing in the aisle, stands immediately inside the threshold of the doorway leading to the back platform of the car, with his back against the door, which is open, and his hands down at his sides, when there come a lurch and jar of the train which throw him against another passenger and then out on the platform and backward to the ground, where he is injured, he has not exercised due care and cannot recover from the railroad company for his injuries, even if the company was negligent.</p>

<p>Practice, Civil, Special questions to jury, Exceptions. Co-operative Society. Corporation. Bankruptcy. Evidence.</p> <p>A party to an action, who at the trial took no exception to the submission of a special question to the jury and apparently made no objection to the manner in which it was submitted, when his case is before this court on exceptions cannot raise the point that he was prejudiced by the form of the question to the jury, especially where as here the description in the bill of exceptions of the transaction to which the question-related makes clear both the meaning of the question and the correctness of the answer.</p> <p>In an action by the trustee in bankruptcy of a co-operative trading corporation to recover money paid to the defendant by the manager of the corporation after it became insolvent, it appeared that the payment was of the sum of $500 and was made by the manager to the defendant for “shares withdrawn.” It was shown that the manager had no right to make the payment without authority from the board of directors, even if the company had been solvent. The jury found that the defendant was a shareholder of the corporation, that the manager was not authorized by the board of directors to make the payment to the defendant on account of the withdrawal of his shares, and that the corporation was insolvent at the time of the payment. The defendant contended that the manager by virtue of his position had authority to make the payment to the defendant. The only by-law of the corporation in regard to the withdrawal of money by stockholders on account of their stock gave the manager and the president acting jointly authority to permit a stockholder to withdraw a sum not exceeding $10 and to 'submit the matter to the directors at their next meeting. Evidence was admitted, subject to the exception of the defendant, that in all cases of the withdrawal of sums greater than $10, previous to the payment to the defendant, an application was made to the directors and the withdrawal was authorized by them before the money was paid out. Held, that the evidence was admitted properly, being competent to controvert the defendant’s contention as to the manager’s authority to make the payment to the defendant.</p> <p>In an action by the trustee in bankruptcy of a co-operative trading corporation to recover money paid to the defendant by the manager of the corporation after it became insolvent, it appeared that the payment was of the sum of §500 and was made by the manager to the defendant for “ shares withdrawn.” It was shown that the manager had no right to make the payment without authority from the board of directors, even if the company had been solvent. There was evidence that the stockholders had voted to add an amendment to the by-laws “ that no person be allowed to hold more than $400 in stock of the society,” and there also was evidence that from that time to the date of the adjudication of the bankruptcy of the society “ various shareholders held shares in excess of $400 with the knowledge and consent of the society.” Held, that the vote did not enlarge the defendant’s rights in regard to the withdrawal of his shares, nor make him a creditor for the amount invested above the sum of $400.</p>

<p>. Tort for personal injuries from being struck' by an electric street car of the defendant on October 24, 1903, at about 1.15 o’clock P. M. while the plaintiff was at work in the employ of the city of Haverhill assisting in macadamizing Main Street in that city. Writ dated January 16,1904.</p> <p>In the Superior Court the case was tried before Schofield, J. At the close of the evidence the defendant asked the judge to rule that the plaintiff could not recover and the verdict must be for the defendant, that the plaintiff did not exercise due care and that it did not appear that the defendant was guilty of negligence. The judge refused to rule as requested, and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $750. The defendant alleged exceptions. The only question argued before this court was whether there was evidence for the jury that the plaintiff was in the exercise of due care at the time of the accident. T)ie facts which are held by the court sufficient to constitute such evidence are stated in the opinion.</p>

<p>Carrier, Of passengers. Negligence. Street Railway. Subway. Evidence.</p> <p>It is the duty of a common carrier of passengers to select and employ a sufficient number of competent servants to meet any exigency which, in the exercise, of the high degree of diligence and care toward its passengers to which such a carrier is held, it reasonably ought to have anticipated.</p> <p>In an action by a woman against a street railway company for personal injuries incurred while entering as a passenger a ear of the defendant at a station in a subway through which the defendant had a right to operate its cars by permission of the lessee of the subway, if it appears that the injuries of the plaintiff were due to the surging and struggling of the crowd in attempting to get on the car, and there is evidence that at the time of day when the accident occurred there usually was a large crowd in this subway station, and that on many previous occasions there had been the same surging and struggling to get upon the cars as occurred at this time, the jury are justified in finding that the defendant and its servants ought to have anticipated what actually took place and in the exercise of necessary care ought to have taken precautions to give the plaintiff the degree of protection to which she was entitled.</p> <p>In the trial of an action against a street railway company for personal injuries incurred while entering as a passenger a car of the defendant at a station in a subway through which the defendant had a right to operate its cars by permission of the lessee of the subway, if it appears that the injuries to the plaintiff were due to the surging and struggling of the crowd at an hour when a crowded condition of the station was usual, it is a question for the jury, whether, if in carrying on the defendant’s business the crowding of the station platforms and cars at certain hours of tlie day was unavoidable, the high degree of care which it was bound to exercise toward its passengers did not require as a reasonable precaution the employment of an increased number of men to prevent such jostling and crowding at the entrance of the cars as involved danger to passengers.</p> <p>At the trial of an action by a woman against a street railway company for personal injuries incurred in entering as a passenger a car of the defendant at a station in a subway through which the defendant had a right to operate its cars by permission of the lessee of the subway, if it appears that the injuries of the plaintiff were due to the surging and struggling of the crowd at an hour when a crowded condition of the station was usual, and if it further appears that the plaintiff had been in similar crowds at the same station before, had seen the same pushing and struggling and the same failure of the defendant to control the assemblage, and on former occasions had escaped injury so narrowly that in testifying she said “ Many a night I have almost got killed,” this is evidence to be considered by the jury in passing upon the questions whether the plaintiff was in the exercise of due care and whether she assumed the risk of such an accident as happened to her, but the fact that with the knowledge gained by her experience she joined the general rush to get into the car is not conclusive against her as matter of law upon either of these issues.</p> <p>At the trial of an action against a street railway company for personal injuries incurred while entering as a passenger a car of the defendant at a station in a subway, the defendant, for the purpose of showing the conditions of its occupation of the subway, offered in evidence an agreement in writing between its predecessor in title and the Boston Elevated Railway Company, by which it contended that it would appear that the subway and the stations in it were constructed by the Boston Transit Commission and were owned by the city of Boston, that the platform at the station where the accident occurred was of the same width and in the same condition as when constructed by'the commission, that the Boston Elevated Railway Company operated its cars in the subway under a lease of the subway, that the defendant operated its cars there under permission of the elevated railway company authorized by the Legislature, and that the elevated railway company had the entire management, charge and control of the subway, the stations and platforms, except that it could make alterations therein only by the permission of the Boston Transit Commission. The judge excluded the agreement. The agreement related principally to the pecuniary relations between the parties, but contained a provision that the cars of the defendant’s predecessor in title while on the tracks in the subway should be subject to “ the rules of the elevated railway company and the reasonable directions of its officials.” There was no offer to show what rules, if any, had been established by the elevated railway company, or what “ reasonable directions,” if any, had been given to the defendant, nor was there any offer to show that the defendant had not been given full power to make whatever police arrangements might be necessary for the proper supervision of any expected crowds of passengers. It was conceded at the trial that the defendant held out the station where the accident occurred as a proper place for its passengers to go to for the purpose of taking its cars. Held, that, the plaintiff having gone to the station by the defendant's invitation, the defendant could not be injured by the exclusion of the agreement; that the details of the agreement did not appear to be material to the issues raised at the trial, and its effect if admitted might have been to district the attention of the jury from the true issues of the case; so that there was no error in its exclusion.</p>

<p>Contract, Validity. Sale, Of good will. Fraud. Good Will. Equity Jurisdiction, To enforce negative contract. Equity Pleading and Practice, Appeal.</p> <p>In a suit in equity by a manufacturer of shoe machinery, conducting business in all parts of the world where shoes are made by machinery, against a manufacturer of certain articles used in manufacturing shoes, who liad been engaged in that business in a city in this Commonwealth and had sold out his business and its good will to the plaintiff with a covenant not to manufacture or deal in the articles formerly made by him for a period of fifteen years, to enforce by injunction the negative covenant of the defendant, if the defendant relies on the defence that the sale and the covenant were procured by fraud on the part of the plaintiff, and the only evidence in support of this defence is that there had been competition between the plaintiff and the defendant in the sale of the kind of articles manufactured by the defendant and that the plaintiff’s agent had told the defendant what difficulties he would encounter in conducting his business against the plaintiff’s competition, a finding of the justice who heard the case that the matters relied on to show fraud were only such as legitimately might result from competition where each party was striving to obtain an advantage over the other by the usual methods of business, and that there was no fraud or mistake in the making of the sale and covenant, will not be disturbed on appeal.</p> <p>The sale of a business carried on in a city in this Commonwealth, consisting of manufacturing and dealing in needles, awls, drivers and like articles used in manufacturing boots and shoes, to a corporation engaged in manufacturing and selling machinery and devices for manufacturing boots and shoes, including needles, awls, drivers and like articles and conducting this business in all parts of the world where shoes are made by machinery, expressly including the good will of the business sold with a covenant on the part of the seller not to engage in or be interested in any business which consists in whole or in part in manufacturing or dealing in needles, awls or drivers for a period of fifteen years and without restriction as to place, where the time limit has been found as a fact not to be unreasonable, is valid, and the seller’s negative covenant will be enforced against him in equity.</p>

<p>Negligence. Railroad. Carrier, Of goods.</p> <p>It is the duty of a railroad company as a common carrier of goods to provide a safe and proper place for their delivery, and, if in transporting a car load of hay it chooses to deliver the hay from the car while standing on a track in its freight yard instead of unloading the car and delivering the hay at its freight house, it is bound to keep the ear in a safe condition for the use of the persons employed by the owner of the hay to take it out.</p> <p>If a railroad company receives a car belonging to another company loaded with goods for transportation over its road, and on the arrival of the car at its destination leaves it standing on a track in one of its freight yards and directs the' owner of the goods to unload them from the car at that place, it has made the car one of its appliances for which it is responsible; and the fact that the car is the property of another is immaterial as affecting its duty to keep the car in a safe condition for the delivery -of the goods.</p> <p>In an action against a railroad company by a teamster sent by his employer, who had purchased a car load of hay, to help in unloading the hay from the car, and injured by a defective door of the car which fell upon the plaintiff as he was trying to open it, there was evidence that the car had been placed on a track in a freight yard of the defendant for the purpose of being unloaded by the purchaser of the hay who had been directed by the yard clerk of the defendant to unload it at that place, and that two or three days before the happening of the accident the plaintiff’s employer went to the car to remove some of the hay and found that the door was defective, whereupon he notified the yard clerk that the car was in bad order. The defendant contended that the proximate cause of the accident was the negligence of the plaintiff’s employer who, having full knowledge of the existing defect, sent the plaintiff to unload hay from the car and failed to give him any warning in regard to it. Held, that, apart from the question whether the defect in the car was a latent one or whether it could have been discovered by a proper inspection, as to which no opinion was expressed, there was evidence warranting a finding that the defendant’s yard clerk after due notice from the plaintiff’s employer failed to make any proper examination of the car or the door, and that the defendant was negligent in not having remedied the defect or having done something to guard against injury resulting from its existence, there having been other evidence in the case from which the jury might have found, irrespective of the notice from the plaintiff’s employer, that the defendant had had a sufficient opportunity to discover and remedy the defect or to guard against injurious consequences resulting from it before using the car as a place of delivery; and that, the defendant having invited the plaintiff’s employer and the plaintiff as his employee to come to the car to remove the hay therefrom, the plaintiff’s employer owed no duty to the defendant to warn the plaintiff of the danger to be apprehended if, as turned out to be the case, the defendant should neglect to repair the defect to which he had called the attention of its servant.</p>

<p>Petition, filed December 21,1905, and amended February 19, 1906, for a writ of mandamus addressed to the members of- the board of appeal from the building commissioner of the city of Boston ordering the respondents to direct the building commissioner to grant to the petitioner a permit to erect on the lot of land numbered eight on Arlington Street in Boston on the corner of Marlborough Street in that city, owned by the petitioner as trustee, a certain building, described and designated in an application and plans filed with the building commissioner, of the height of one hundred and twenty feet and six inches measured from the sidewalk to the highest point of the roof. The permit was refused by the building commissioner on September 26,1905, on the ground that the proposed structure would exceed in height the limit permitted by St. 1904, c. 333, and St. 1905, c. 383, and the orders of the commissioners thereunder. On the same day the petitioner appealed to the respondents from this refusal on the ground that the statutes named and the orders of the commissioners thereunder are unconstitutional and void.</p> <p>On September 29,1905, the respondents made the following decision:. “ Upon hearing before this Board on September 29, the appellant, through his attorney, Mr. Owen D. Young, admits and concedes that on the facts incidental to his application to erect the building in question a permit was rightly refused by the commissioner if Stat. 1904, Chap. 333, and Stat. 1905, Chap. 383, and the respective reports of the commissions thereunder be constitutional, and on this admission and concession the Board directs the commissioner to withhold a permit.”</p> <p>The case came on to be heard before Braley, J., who found the facts to be as alleged in the petition and admitted in the answer, and reserved the case upon the findings and the pleadings for determination by the full court. If the statutes therein referred to are constitutional and valid, the petition was to be dismissed; otherwise, such order was to be entered thereon as law and justice might require.</p> <p>St. 1904, c. 383, entitled “ An Act relative to the height of buildings in the city of Boston,” is as follows:</p> <p>“ Section 1. The city of Boston shall be divided into districts of two classes, to be designated districts A and B. The boundaries of the said districts, established as hereinafter provided, shall continue for a period of fifteen years, and shall be determined in such manner that those parts of the city in which all or the greater part of the buildings situate therein are at the time of such determination used for business or commercial purposes shall be included in the district or districts designated A, and those parts of the city in which all or the greater part of the buildings situate therein are at the said time used for residential purposes or for other purposes not business or commercial shall be in the district or districts designated B.</p> <p>“ Section 2. Upon the passage of this act the mayor of the city shall appoint a commission of three members to be called 6 Commission on Height of Buildings in the City of Boston.’ The commission shall immediately upon its appointment give notice and public hearings, and shall make an order establishing the boundaries of the districts aforesaid, and, within one month after its appointment, shall cause the same to be recorded in the registry of deeds for the county of Suffolk. The boundaries so established shall continue for a period of fifteen years from the date of the said recording. Any person who is aggrieved by the said order may, within thirty days after the recording thereof, appeal to the commission for a revision; and the commission may, within six months after its appointment, revise such order, and the revision shall be recorded in the registry of deeds for the county . of Suffolk, and shall date back to the original date of recording. The members of the commission shall serve until the districts have been established as aforesaid; and any vacancy in the commission caused by resignation, death or inability to act shall be filled by the mayor, on written application by the remaining members of the commission or of ten inhabitants of the city. The members of the commission shall receive such compensation as the mayor shall determine.</p> <p>“ Section 3. In the city of Boston no building shall be erected to a height of more than one hundred and twenty-five feet above the grade of the street in any district designated A, and no building shall be erected to a height of more than eighty feet above the grade of the street in any district designated B. These restrictions shall not apply to grain or coal elevators or sugar refineries in any district designated A, nor to steeples, domes, towers or cupolas erected for strictly ornamental purposes, of fireproof material, on buildings of the above height or less in any district. The supreme judicial court and the superior court shall each have jurisdiction in equity to enforce the provisions of this act, and to restrain the violation thereof.</p> <p>“ Section 4. This act shall take effect upon its passage.”</p> <p>St. 1905, c. 383, entitled “ An Act relative to the height of buildings in the city of Boston,” is as follows:</p> <p>“ Section 1. Within thirty days after the passage of this act the mayor of the city of Boston shall appoint a commission of three members to determine, in accordance with the conditions hereinafter provided, the height of buildings within the district designated by the commission on height of buildings in the city of Boston as district B, in accordance with chapter three hundred and thirty-three of the acts of the year nineteen hundred and four.</p> <p>“ Section 2. Said commission shall immediately upon its appointment give notice and public hearings, and shall make an order establishing the boundaries of or otherwise pointing out such parts, if any, of said district B as it may designate in which buildings may be erected to a height exceeding eighty feet but not exceeding one hundred feet, and the height between eighty feet and one hundred feet to which buildings may so be erected, and the conditions under which buildings may be erected to said height, except that such order may provide for the erection of buildings as aforesaid to a height not exceeding one hundred and twenty-five feet in that portion of said district B which lies within fifty feet from the boundary line separating said district B from the district designated by the commission on height of buildings in the city of Boston as district A in accordance with said chapter three hundred and thirty-three, provided said boundary line divides the premises affected by such order from other adjoining premises both owned by the same person or persons, and within sixty days after its appointment shall cause the same to be recorded in the registry of deeds for the county of Suffolk. Any person who is aggrieved by such order may, within sixty days after the recording thereof, appeal to the commission for a revision.; and the commission may, previous to the first day of January in the year nineteen hundred and six, revise such order, and the revision shall be recorded in the registry of deeds for the county of Suffolk and shall date back to the original date of recording. The boundaries so established shall continue for a period, of fifteen years from the date of the recording of the order made by the commission on height of buildings in the city of Boston under chapter three hundred and thirty-three of the acts of the year nineteen hundred and four. The members of the commission shall receive such compensation as the mayor shall determine.</p> <p>“ Section 3. Within such parts of district B as may be designated by the commission as aforesaid (which may, except as hereinafter provided, include any parts of said district B affected by prior acts limiting the height of buildings) buildings may be erected to the height fixed by the commission as aforesaid, exceeding eighty feet but not exceeding one hundred feet, or one hundred and twenty-five feet as hereinbefore provided, and subject to such conditions as may be fixed as aforesaid by the commission; but within the following described territory, to wit: — Beginning at the corner of Beacon street and Hancock avenue, thence continuing westerly on Beacon street to Joy street, thence continuing northerly on Joy street to Myrtle street, thence continuing easterly on Myrtle street to Hancock street, thence continuing southerly on Hancock street and Hancock avenue to the point of beginning, no building shall be erected to a height greater than seventy feet, measured on its principal front, and no building shall be erected on a parkway, boulevard or public way on which a building line has been established by the board of park commissioners or by the board of street commissioners, acting under any general or special statute, to a greater height than that allowed by the order of said boards; and no building upon land any owner of which has received and retained compensation in damages for any limitation of height or who retains any claim for such damages shall be erected to a height greater than that fixed by the limitation for which such damages were received or claimed.</p> <p>“ Section 4. No limitations of the height of buildings in the city of Boston shall apply to churches, steeples, towers, domes, cupolas, belfries or statuary not used for purposes of habitation, nor to chimneys, gas holders, coal or grain elevators, open balustrades, skylights, ventilators, flagstaffs, railings, weather vanes, soil pipes, steam exhausts, signs, roof houses not exceeding twelve feet square and twelve feet high, nor to other similar constructions such as are usually erected above the roof line of buildings. ■</p> <p>“ Section 5. This act shall take effect upon its passage.”</p> <p>On July 5,1904, Nathan Matthews, Jr., Joseph A. Conry and Henry Parkman, the commissioners appointed by the mayor of Boston under St. 1904, c. 333, made an order, which was recorded in the registry of deeds for the county of Suffolk on the same day, establishing the boundaries of districts A and B under that statute. This was revised by an order made by the same commissioners on December 3 and recorded on December 5,1904.</p> <p>On July 21, 1905, the .same persons, having been appointed by the mayor of Boston commissioners under St. 1905, c. 383, made the following order, which was recorded on the same day:</p> <p>“ The undersigned having been appointed on May 25,1905, by the Mayor of the City of Boston, under the provisions of chapter 383 of the Acts of 1905, members of a commission to determine, in accordance with the provisions of said acts, the height of buildings within the district designated by the Commission on Height of Buildings in the City of Boston, as District B, in accordance with chapter 333 of the Acts of 1904, and having given notice and public hearings, hereby determine and order that in any of the Districts B, as designated by said Commission on Height of Buildings, in its order of July 5, 1904, as amended by its order of December 3; 1904, the said orders being recorded with Suffolk Deeds, book 2976, page 45, and book 3008, page 129, respectively, buildings may be erected on streets exceeding sixty-four (64) feet in width, to a height equal to one and one quarter times the width of the street upon which the building stands; and, if situated on more than one street, the widest street is to be taken, the height to be measured from the mean grade of the curbs of all the streets upon which the building is situated, and not exceeding one hundred (100) feet, in any event.</p> <p>“ If the street is of uneven width, its width will be considered as the average width opposite the building to be erected.</p> <p>“ The width of a street shall be held to include the width of any space on the same side of the street upon which a building stands, upon or within which space no building can be lawfully erected by virtue of any building line established by the Board of Street Commissioners or the Board of Park Commissioners acting under general or special laws.</p> <p>“ All streets or portions of streets upon which buildings may be erected on one side only shall be considered as of a width of eighty (80) feet as to that portion upon which buildings may be erected on one side only.</p> <p>“ In the case of irregular or triangular open spaces formed by the intersection of streets, the width of the street shall be taken as the width of the widest street entering said spáce at the point of entrance.</p> <p>“ No building shall, however, be erected on a parkway, boulevard or public way on which a building line has been established by either of said boards acting under general or special laws to a height greater than that allowed by said general or special laws, nor otherwise in violation of section 3 of said chapter 383, Acts of 1905.</p> <p>“No building shall be erected to a height greater than eighty (80) feet unless its width on each and every public street upon which it stands will be at least one-half its height.</p> <p>“ Nothing in this order shall be construed as affecting any condition or restriction imposed by deed, agreement or by operation of law on any property in said District B.</p> <p>“ The said Commissioners further provide that buildings may be erected to a height not exceeding one hundred and twenty-five (125) feet in that portion of the District B as established by the Commission on Height of Buildings in its order dated December 3, 1904, recorded with Suffolk Deeds, book 3008, page 129, which lies fifty (50) feet westerly from the boundary ■line running from Columbus avenue to the centre of Boylston street, separating said District B from District A, as established by said order; provided, however, that said portion of District B is owned by the same person or persons who own the adjoining premises in District A.</p> <p>“In witness whereof, the undersigned, being a majority of said commission, the third member (Nathan Matthews) being in Europe, hereto set their hands, this 21st day of July, 1905.</p> <p>“ Joseph A. Conry,</p> <p>Henry Parkman,</p> <p>“ Commission on Height of Buildings in the City of Boston.”</p>

<p>Agency, Termination. Contract, What constitutes. Pleading, Civil, Declaration.</p> <p>By an instrument in writing, executed under seal by a lumber company and one B. named therein, the company appointed B. its “ sales agent, for the sale of all the lumber that will or may be sawed from the timber now owned by the company on ” a certain tract named, “ the said B. agreeing on his part to sell all our lumber by the time it is in shipping condition at the market price.” The instrument further provided that “the said B. shall receive a commission of five per cent for selling on the f. o. b. shipping point prices on all lumber sold by him and shipped by the company in compliance with the terms of this agreement, which appointment is made in accordance with the authority given the board of directors in article second of section third. . . . We, the company, to pay all necessary travelling expenses of the said B.” The article of the by-laws referred to provided that “The board of directors shall have the power ... to appoint and remove at pleasure all employees and agents of the corporation.” The agent sued the company upon this instrument as a contract, alleging as a breach that the defendant “ notified the plaintiff that it would not require his services as selling agent for said lumber ” and refused “ to allow him to carry out his part of said contract.” On demurrer, it was held,, that the. declaration set forth no cause of action, the appointment of the plaintiff being revocable at the pleasure of the directors of the defendant, and the agreement contained in the instrument relating only to the nature of the plaintiff’s agency and the compensation to be paid him while the agency was in force.</p> <p>In an action of contract against a lumber company on an agreement in writing under which the plaintiff was appointed the selling agent of the defendant for a certain territory and afterwards was notified by the defendant that his services as selling agent no longer would be required, the declaration alleged “that before said denial of the existence of said contract and said notification by the defendant to the plaintiff that it would not require his services as said selling agent the plaintiff relying upon said contract consumed much time and went to great expense in arranging and negotiating with purchasers for the sale to them of said lumber when the same would be in shipping condition, and had rendered a great amount of service to the defendant for the purpose of carrying out said contract and had expended large sums of money in placing the defendant in a position to operate and saw said timber into lumber in order that the same would be in shipping condition.” On demurrer, it was held, that the foregoing portion of the declaration contained no allegation that the plaintiff set on foot any negotiations which resulted in sales or that he incurred any expenses in negotiations so resulting.</p>

Complaint, received and sworn to in the Police Court of the City of Brockton on January 30, 1905, against Charlie Joe, otherwise known as Joe Chung, otherwise known as Joe Hay, of. Brockton, under R. L. c. 214, § 5, charging him with'keeping a common gaming house during the three months next before the thirtieth day of January, 1905.

<p> Commonwealth. Commonwealth Flats. Landlord and Tenant. Tax. </p> <p>St. 1904, c. 385, provides that lands of the Commonwealth " known as the Commonwealth Flats, shall, if leased for business purposes, be taxed by the city of Boston to the lessees thereof.” A lease for business purposes of land on the Commonwealth Flats, made by the Commonwealth before the enactment of this statute, contained a covenant of the Iqssor of quiet enjoyment by the lessee, and a covenant of the lessee to pay the rent, " and also all water rates and all taxes which may be assessed upon any buildings, fixtures or other property put upon said premises by the lessee and which are between the parties hereto treated as and agreed to be personal property.” Under the statute above named the city of Boston demanded from the lessee the payment of a tax assessed upon the land, and the lessee paid the tax, and sued the Commonwealth for the amount thus paid. Held, that, whether or not R. L. c. 12, § 20, is applicable to the Commonwealth, the lessee by a petition under R. L. c. 201 could recover from the Commonwealth the amount of the tax on the land thus paid by him.</p>

<p>Equity Pleading and Practice, Multifariousness. Nuisance. Equity Jurisdiction, To enjoin nuisance.</p> <p>The objection that a bill in equity is multifarious is waived by going to a hearing on the merits.</p> <p>The owner of a building in a city adjoining a passageway ten feet wide, having the right to maintain windows, doors and other openings into and upon the passageway for light and air and to ventilate into it by any proper means, has no right to maintain and operate an. electric fan in such a way as to send a current of heated air impure and charged with offensive smells into and across the passageway so as to strike a window of a building on the opposite side of the passageway and to enter it when open; and the owner and the lessee of such opposite building may maintain a suit in equity to enjoin such maintenance and operation of the fan as a nuisance, although the defendant’s right of ventilation may includeJhe right to project pure air into the passageway.</p>

Coffey as administrator of the estate of Bridget Coffey. At the hearing before Morton, J. the following facts appeared: Bridget Coffey died on July 10,1902, intestate, leaving as her heirs at law James J. Coffey, the administrator, and minor children of another son, John H. Coffey, brother of the administrator, who died in September, 1898.

<p> Will. Evidence. </p> <p>At the trial of a probate appeal, upon the issue whether the instrument offered as a will was procured by the undue influence of the son of the testator, the contestants called the son as a witness and examined him at length as to his relations with the testator. During his cross-examination, after several objections to questions propounded by counsel, the presiding justice put the following question: “ Now, in reference to the subject of influencing your father, or those things which might naturally tend to influence your father about the making of the will, did you say or do anything with a view to such influence 1 ” The witness answered, “No, sir.” The contestants excepted to the question. Held, that the intent of the witness was relevant and competent, and that the question was a proper one.</p>

<p>Deed, Delivery. Equity Jurisdiction, To remove cloud on title.</p> <p>If the owner of land executes an absolute deed of it without consideration, in order that the grantee may execute a mortgage of the land to secure money lent to the grantor, and has the deed recorded but retains possession of it, and the grantee at the request of the grantor executes the desired mortgage, the making of the mortgage constitutes an acceptance of the deed and the title passes to the grantee without any manual delivery of the instrument.</p> <p>If the owner of land conveys it by an absolute deed to his brother in law without consideration, in order that the grantee may execute a mortgage of the land to secure money lent to the grantor, and has the deed recorded, and the grantee at the request of the grantor executes the desired mortgage, and afterwards refuses to reconvey the land to the grantor, the grantor cannot maintain a suit in equity against the grantee to have the deed cancelled as a cloud upon the plaintiff’s title and to have it declared void except as against the mortgagee and those "claiming under him.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on January 3,1906, under R. L. c. 25, § 100, by ten taxable inhabitants of the city of Haverhill, against “ the city of Haverhill, represented by Roswell L. Wood as mayor, and its boards of common council and aldermen by non-registered vote, and Arthur T. Jacobs as treasurer, the Commonwealth of Massachusetts, represented by Joseph N. Peterson, Josiah Prickett and George Howland Cox as armory commissioners, and Arthur B. Chapin as treasurer and receiver general, and John M. Roche armory contractor,” praying that the statutes relating to the construction of armories shall be declared unconstitutional, that the defendants representing the Commonwealth be required to reimburse the city of Haverhill for all money expended on account of a State armory constructed in that city, for which the city council designated the sum of $40,000 as the amount necessary for acquiring the land and erecting the building, for which amount the Commonwealth issued bonds under the statutes alleged to be unconstitutional, and that the defendants representing the city of Haverhill be required to convey the title of the armory land to the Commonwealth.</p> <p>The case was heard by Braley, J., who made a decree that the bill be dismissed. The plaintiff Hodgdon appealed.</p>

<p>Practice, Civil, Docket entries, Appeal, New trial.</p> <p>The docket entries in a case until extended constitute the record of the proceedings.</p> <p>Under R. L. c. 173, § 96, an appeal from a judgment of the Superior Court raises such questions of law as are disclose'd by the record.</p> <p>On a motion for a new trial by a plaintiff after a verdict for the defendant, the presiding judge has no power to make an order granting the motion unless on or before a certain date the defendant consents to the entry of judgment in favor of the plaintiff for a sum named.</p> <p>Where, on a motion by a plaintiff for a new trial after a verdict for the defendant, the presiding judge made an order granting the motion unless on or before a certain date the defendant consented to the entry-of judgment in favor of the plaintiff for a sum named, and the defendant so consented if the judge had power to make the order, and the order was vacated as beyond the power of the judge, it was ordered that the motion for a new trial should stand for a further hearing.</p>

<p> Negligence. Telephone Company. Electricity. </p> <p>A woman, who is employed by a telephone company as a toll operator at its telephone exchange in a city, assumes the ordinary risks of nervous annoyance and irritation reasonably connected with the performance of her duties, but does not assume the risk of a shock from an electric current which produces bodily prostration.</p> <p>In an action by a telephone operator against her employer for personal injuries from a severe shock of electricity, if the plaintiff introduces evidence of a defect in the apparatus of which the defendant knew or in the exercise of due diligence ought to have known, so that it might be found that the shock was caused either by a want of repair or a lack of proper adjustment of the different parts, the question of the defendant’s negligence is for the jury.</p> <p>In an action at common law by a telephone operator against her employer for personal injuries from a severe shock of electricity, there was evidence that the plaintiff was employed as a toll operator at the defendant’s telephone exchange in a city, that on the night before and during the morning of the day of the accident the plaintiff had reported to the chief operator that while at work at a certain switchboard she had received at times sensations not before noticed, although she previously had used this switchboard a part of every day for at least a week, and that these sensations, while not producing a shock, caused a “jarring and a grinding or rumbling in the ear” which at times caused her head to ache, that at the time of the accident she was sitting in front of this switchboard attending to calls, that, upon receiving a call in which she heard the subscriber state the place with which he wished to be connected, there followed a sensation of “ shocking and grinding ” and then her head began to ache, her side hurt her, her arms “ kind of tightening,” and she partly lost consciousness. There also was evidence that for some time before the accident there had been complaints from the plaintiff and other employees to the persons in charge that this switchboard, or the system controlling the electric current, was not working properly, and that the persons in charge had made attempts to find out and remedy the difficulty. Held, that the jury could have found that the accident was of such a nature that it could not have occurred unless the defendant had permitted the apparatus to become defective, and that the question of the defendant’s negligence was for the jury; also, that the question, whether the plaintiff by continuing to use the switchboard, after she had reason to apprehend that something was wrong in the mechanism and had reported the previous disturbances to those who had been placed in charge by the defendant, assumed the risk of any subsequent injury, was for the jury.</p>

<p>Contract, for the alleged breach of an agreement in writing printed below. Writ dated June 13, 1905.</p> <p>The defendant demurred to the declaration. The Superior Court overruled the demurrer as to the first and second counts, and the plaintiff discontinued as to the other .counts of his declaration. The breaches of contract alleged respectively in the first and second counts are stated in the next to the last paragraph of the opinion.</p> <p>The contract declared upon was as follows:</p> <p>“ Agreement made this'12th day of May, A. D. 1905, between John P. Iiehoe and Annie Iiehoe of Revere, County of Suffolk and Commonwealth of Massachusetts, of the first part, and Frank E. Hawkes of Boston, County of Suffolk and said Commonwealth of the second part.</p> <p>“ The party of the first part hereby agrees to sell, and the party of the second part to purchase, a certain estate situated in Revere, County of Suffolk and said Commonwealth, and bounded as follows: A certain parcel of land containing 5964 square feet, more or less, and the buildings thereon, situated on the boulevard, and known and numbered as No. 241 Boulevard, and running through to Ocean avenue. Being the same premises adjoining the Johnstown Flood building.</p> <p>“ Said premises are to be conveyed on or before June 12,1905, by a good and sufficient deed of the party of the first part, conveying a good and clear title to the same, free from all incumbrances except leases and taxes for the current year, and in consideration for such deed and conveyance, the party of the second part agrees to convey by a good and sufficient deed to the party of the first part a certain estate situated in Dorchester, County of Suffolk and Commonwealth of Massachusetts, bounded as follows: A certain parcel of land containing 21,192 square feet, more or less, of which 16,448 square feet, more or less, are situated on Fowler street, and the balance, 4744 square feet, more or less, are situated on Greenwood street, free and clear from all incumbrances except restrictions of record, if any, and taxes for the current year. And the said party of the second part agrees to pay in cash, in addition to said conveyance, upon the delivery of said deed by the said party of the first part, the sum of twelve thousand dollars.</p> <p>“ Full possession of all said premises, subject to occupancy of present tenants, is to be delivered to the respective parties at the time of the delivery of the said deeds, the said premises to be then in the same condition in which they now are, reasonable use and wear of the buildings thereon alone excepted, leases and rents, water insurance to be adjusted to date of transfer. All leases and rents start the first of May.</p> <p>“ The deeds are to be delivered and the consideration paid at the Registry of Deeds.</p> <p>“ In witness whereof the .said parties hereto, and to another instrument of like tenor, set their hands and seals on the day and year first above written.</p> <p>“ John P. Kehoe [seal].</p> <p>“ In presence of Annie Kehoe [seal].</p> <p>Frank E. Hawkes ” [seal].</p> <p>F. C. N. Wilcox.</p> <p>The case was referred to an auditor who filed a report. He found that the plaintiff had no personal interest in the transaction, but acted merely at the request and for the benefit of A. Wilbert Starratt and William A. Woodman, both of Boston. The lots in Dorchester were owned of record by Woodman, who held title thereto for the benefit of himself and Starratt in equal shares, and these lots of land were at the time of the making of the contract, and on June 12, 1905, of a fair market value of $3,100. The Revere property was owned by the defendant Annie Kehoe, and at the time of the making of the agreement consisted of fifty-nine hundred and sixty-four square feet of land on the Boulevard, so called, at Revere, bounded on the rear by a street known as Ocean Avenue, upon which land there was in the front a frame building with two stores on the first floor and four tenements above. On the rear of the land was a frame building known as the Nickel Palace, designed for theatre and other amusement purposes.</p> <p>The auditor found that at the time of the making of the agreement and on June 12, 1905, the land was of a fair market value of $10,000, and that at the time of the making of the agreement the buildings thereon were of a fair market value of $9,000. On the night of June 3, 1905, these buildings on the premises of the defendant Annie Kehoe at Revere were wholly destroyed by an accidental fire and were not rebuilt.</p> <p>The facts as to demand and refusal of performance are described sufficiently in the opinion.</p> <p>The case was heard upon the auditor’s report by Aiken, 0. J. He admitted against the objection of the defendants the evidence of Starratt as to his interest in the contract for exchange and in the Dorchester land. He found as a fact that the defendants before the fire never knew of any one being interested in the agreement other than the plaintiff Hawkes.</p> <p>The defendants asked for eleven rulings, of which the sixth and seventh, relating to insurance money, were given by the Chief Justice. The other rulings requested, which were refused by him, were as follows:</p> <p>1. Upon all the evidence the plaintiff cannot recover in this action on either the first or the second count.</p> <p>2. That the plaintiff was never ready or able to carry out or • perform his part of the agreement declared on, and cannot recover in this action.</p> <p>3. That the fact that one Starratt assumed to act for the plaintiff without the defendants’ knowledge or consent and without any transfer of the agreement on the part of the plaintiff does not enable the plaintiff to maintain this action by any acts of Starratt.</p> <p>4. The plaintiff being wholly irresponsible financially and unable to carry out his part of the agreement declared on cannot maintain this action, if made use of as an irresponsible man to sign the agreement by other parties who knew his irresponsibility, and never informed the defendants thereof.</p> <p>5. If this action could be maintained by the plaintiff by reason of any acts of Starratt shown in the evidence the inability of Starratt on June 12, 1905, to pay the money agreed upon except upon a mortgage of the defendant’s property at that time tentatively made, prevents the plaintiff from recovering in this action.</p> <p>8. There is nothing in the agreement whereby the plaintiff can recover from the defendant by reason of the building upon the premises of the defendants being accidentally destroyed by fire before the termination of the agreement.</p> <p>9. The accidental destruction by fire of the building on the defendants’ land excused both the defendants and the plaintiff from the performance of the written agreement declared on.</p> <p>10. The written agreement declared on was made by the plaintiff and the defendants upon the implied condition that the buildings upon the defendants’ land should be in existence at the time of performance, and their accidental destruction by-fire before even any attempt at performance of the agreement on the part of the plaintiff renders the defendants not liable in this action.</p> <p>11. The plaintiff upon all the evidence cannot recover on the second count.</p> <p>The Chief Justice found that the plaintiff was entitled to damages from the defendants for failure to convey the premises in the condition in which they were at the date of the signing of the agreement, reasonable use and wear thereon excepted, and that they were not excused from performance thereof by reason of the fire; and found that the plaintiff was entitled to recover of the defendants the sum of S3,900. He found for the plaintiff in that amount with interest; and the defendants alleged exceptions.</p>

<p>Tort, for personal injuries from being run into by an electric car of the defendant between three and five o’clock in the afternoon of September 2, 1902, on a highway in the town of Salisbury leading from Smithtown in Seabrook, New Hampshire, to Salisbury and Newburyport, when the plaintiff, driving a horse in a democrat wagon, had emerged from a driveway leading from the premises of one Donnell and was crossing the track of the defendant. Writ dated October 10, 1902.</p> <p>In the Superior Court the case was tried before Pierce, J. At the close of the evidence the defendant asked the judge to rule that there was no evidence that would warrant a verdict for the plaintiff, and that upon all the evidence the plaintiff could not recover. The judge refused to rule as requested and submitted the case to the jury. They returned a verdict for the plaintiff in the sum of $738.83 ; and the defendant alleged exceptions.</p>

<p>Tort for personal injuries from a collision of two cars owned and operated by the defendant, on one of which the plaintiff was travelling in the manner described in the opinion between nine and ten o’clock in the evening of October 10, 1904, as the car was proceeding along Washington Street from Mattapan to Canton. Writ dated January 20, 1905.</p> <p>At the trial in the Superior Court before Sherman, J. the jury returned a verdict for the plaintiff in the sum of $9,000; and the defendant alleged exceptions. The material facts and the course of the trial are stated and described in the opinion.</p> <p>The face of the pass on which the plaintiff was travelling at the time of the accident was as follows:</p> <p>“ Blue Hill Street Railway Co. - Pass J. Dugan, motorman (1904), until December 31, 1904, unless otherwise ordered. No. 641.</p> <p>“ J. B. Huntoon, Manager.”</p> <p>On the back of the pass was the following :</p> <p>“ Conditions: The person accepting' this free ticket assumes all the risk of accidents; expressly agrees that the company shall not be liable under any circumstances, whether by negligence by their agents or otherwise, for injuries to the person, or for the loss of or injury to the property of the passenger using this ticket, and he agrees that as for him he will not consider the company as common carriers, or liable as such. If presented by any other person than the individual named thereon, the conductor will take up this ticket and collect fare.”</p>

<p>Practice, Civil, Exceptions.</p> <p>The refusal of a judge, after the filing of a bill of exceptions and more than twenty-days after the verdict, to allow the amendment of the bill by the insertion of an exception to the exclusion of certain questions put to a deponent, is no ground for exception.</p> <p>The admission at a trial of evidence which is admissible for a limited purpose and otherwise is immaterial, if the purpose for which it is admitted is pointed out carefully by the judge in his instructions to the jury, is no - ground for exception.</p>

Tort for personal injuries alleged to have been sustained by the plaintiff on January 6,1904, at about six o’clock in the afternoon while she was alighting from a car of the defendant at or near the corner of Tremont Street and Union Park Street in Boston. Writ dated January 14, 1904.

Tort for personal injuries caused by snow falling upon the plaintiff from a building of the defendant. Writ dated February 9, 1897.

<p>Frauds, Statute of. Words, “Consideration.”</p> <p>In an action for the alleged breach of an oral contract to take from the plaintiff a lease of a certain store and to furnish a guarantor of the rent, if the defendant sets up the statute of frauds and it appears that the plaintiff refused to give a lease to the defendant because the defendant failed to furnish a guarantor of the rent, the plaintiff cannot satisfy the statute by producing a letter signed by the defendant containing all the terms of the alleged oral contract except the agreement to furnish a guarantor.</p> <p>In Hayes v. Jackson, 169 Mass. 461, the majority of the court did not decide that in the provision, now contained in R. L. c. 74, § 2, that a memorandum of a contract under the statute of frauds need not set forth the consideration, the word “consideration” means price, and it is the unanimous opinion of the court that the doctrine of Hayes v. Jackson should not be extended.</p>

<p> Negligence. Railroad. Proximate Cause. </p> <p>Where a passenger in a car of a train of a railroad company is so intoxicated as to be incapable of standing or walking or taking care of himself in any way, semble, that the conductor and brakeman of the train are under no obligation to remove him from the car when the train stops at his destination, but, if they voluntarily undertake to help him from the car, they are bound to use ordinary care not only in the act of his removal but also in selecting the place in which to leave him.</p> <p>One, who suffers injuries while so intoxicated as to be incapable of standing or walking or taking care of himself in any way, may maintain an action against a person whose negligence in view of his manifest condition was the direct and proximate cause of his injuries.</p> <p>If the conductor and brakeman of a local passenger train of a railroad company, on arriving at a station which is the destination of a passenger in one of the cars of the train, who is so intoxicated as to be incapable of standing or walking or caring for himself in any way, knowing this passenger’s condition, take him out of the car and across the platform of the station and finally leave him half way up a flight of ten or twelve steps leading to the station above, and the passenger falls backward, strikes on the back of his head and is injured, in an action by the passenger against the railroad company for his injuries, it can be found that, in view of the plaintiff’s manifest condition, the servants of the defendant were negligent in leaving him without a reasonable regard for his safety in a place where a fall would be likely to do him much harm; and it also can be found that the plaintiff was free from any negligence that was a direct and proximate cause of his injuries.</p>

<p> Negligence. Railroad. Evidence. </p> <p>If a passenger in a combination car on a train of a railroad company leaves the passenger compartment, where there are vacant seats, and goes into the baggage compartment to see a box of fowl and to talk with the baggage master about fowl, and if, while he is standing there with his hand on the side of the car, the train comes in collision with a part of a freight train on the same track, and the passenger is thrown over a low box of fowl, striking his shin on the box before falling, and. is injured by striking his head and side on the floor of the car, he cannot recover from the railroad company for his injuries, which in part were due to his having left the place assigned for passengers and occupying an exposed position.</p> <p>If a passenger in a train of a railroad company was injured in a collision which occurred when he unnecessarily had left his seat in the passenger compartment of a combination car and was standing in tiie baggage compartment with his hand on the side of the car, the fact that the conductor punched his ticket while he was in the baggage compartment does not give him a right to recover from the railroad company, if his injuries were due in part to his exposed position.</p> <p>In an action against a railroad company for personal injuries by a passenger, who was injured in a collision which occurred when lie unnecessarily had left his seat in the passenger compartment of a combination car and was standing in the baggage compartment with his hand against the side of the car, and whose injuries were due in part to his exposed position, it is right for the presiding judge to exclude evidence offered by the plaintiff to show that it was customary for passengers passing between the towns between which the plaintiff was travel-ling to travel in the baggage compartment of the car and to have their tickets punched and taken by the conductor when there.</p>

<p>Bankruptcy. Practice, Civil, Entry of judgment, Default, Continuance. Words, “Ripe for judgment.”</p> <p>The provisions of the bankruptcy act of 1898, c. 641, § 11, in regard to the staying of pending suits against a bankrupt founded on claims to which a discharge would be a release, require the court to grant a continuance in cases within the terms of the act, unlike the corresponding provisions of the insolvency act which leave the granting of a continuance to the discretion of the court.</p> <p>When the last entries in the record of an action are a suggestion by the defendant of his bankruptcy and a motion for a continuance founded thereon, under the bankruptcy act of 1898 the case is not ripe for judgment until the motion is_passed upon by the court.</p> <p>The fact that a defendant has been defaulted does not deprive him of the right to file a motion for a continuance based on a suggestion of his bankruptcy and to have such motion heard.</p>

<p>Contract for a balance of $370.96 and interest, for lumber sold and delivered by the plaintiff to the defendants. Writ in the Municipal Court of the City of Boston dated August 30, 1900.</p> <p>On appeal to the Superior Court the case was tried before Bond, J. The declaration was upon an account annexed and covered fifty-five items, showing charges of $1,726.67 and credits of $1,355.71, leaving the balance claimed-to be due as stated above. The charges covered the period from August 13, 1897, to April 23, 1898, inclusive. The plaintiff was a wholesale and retail dealer in lumber and a manufacturer of boxes and box sliooks, with his mills and offices in the city of Philadelphia. The defendants were wholesale and retail lumber dealers, with their usual place of business in Boston. After the bringing of this action the defendants tendered payment for items amounting to $107.97 included in the account annexed, and at the trial they admitted liability for those items. This left as the only matter in dispute items nine to nineteen inclusive, all embraced in one transaction of March 12 and 14, 1898, amounting to $262.99. The defendants had no direct dealings with the plaintiff, but all of the items charged in the account, for which payment was made or tendered, had been purchased in Philadelphia by one J. Stewart Knight, who, the plaintiff alleged, was the regular and duly authorized agent of the defendants. The defendants disputed the charges of March 12 and 14, 1898, and asserted that Knight was not authorized to buy this particular lot of lumber in their behalf, and did not, as a matter of fact, make the purchase, but only inquired the price. The evidence for the plaintiff was entirely by depositions, except that Charles L. James, one of the defendants, was called to the stand by the plaintiff and examined, and produced copies of all the correspondence between the plaintiff and the defendants relating to the account, together with two letters from Knight to the defendants.</p> <p>At the close of the evidence the plaintiff asked the judge to give the following instructions :</p> <p>“ 1. If J. Stewart Knight claimed to the plaintiff to be the agent of the defendants, and bought goods in their behalf from the plaintiff prior to March 12,1898, for which goods the defendants have made or tendered payment to the plaintiff, then it makes no difference what limits the defendants may have placed upon J. Stewart Knight’s authority to buy in their behalf unless they notified the plaintiff of those limitations prior to the sale of March 12, 1898.</p> <p>“ 2. If the plaintiff was justified in believing J. Stewart Knight to be the agent of the defendants and authorized to buy goods in their behalf on March 12,1898, then you will find for the plaintiff in the sum of $370.96 with interest at the rate of six per cent, from August 31, 1898.</p> <p>“ 3. There is no evidence that the defendants ever notified the plaintiff prior to March 12, 1898, of any limitation of J. Stewart Knight’s authority to purchase lumber from the plaintiff in their behalf.”</p> <p>The judge refused to give any of these instructions. The jury found for the plaintiff in the sum of $131.34; and the plaintiff alleged exceptions relating to the exclusion of certain evidence offered by him, to the refusal of the foregoing instructions and to a portion of the judge’s charge. The questions raised by the exceptions are described in the opinion.</p>

<p>Pleading, Criminal, Indictment. Evidence, Competency, Admissions by conduct.</p> <p>An indictment under R, L. c. 212, § 16, as amended by St. 1905, c. 316, charging the defendant with knowingly distributing and circulating a printed paper conveying notice of a place where directions, information and knowledge might be obtained for the purpose of causing and procuring the miscarriage of women pregnant with child, is sufficient under R. L. c. 218, §§ 17 and 29, if the crime is set forth in the words used in the statutes with a general averment that the defendant committed the act, and no further averment of a guilty knowledge of the contents of the paper is necessary.</p> <p>At the trial of an indictment under R. L. c. 212, § 16, as amended by St. 1905, c. 316, for knowingly distributing and circulating a card conveying notice of a place where directions and information might be obtained for the purpose of causing or procuring the miscarriage of women pregnant with child, where it appears that the card described in the indictment was given by the defendant to a police officer in disguise in response to an inquiry by him as to treatment for a proposed patient, evidence is admissible describing the rooms where the inquiry was made and the card was given, of the presence there of envelopes addressed to physicians containing similar cards, and of statements made by the defendant to a sergeant of police who entered while the interview was in progress, that the officer to whom she had given the card was a friend of hers, giving a name and address as his, and that she got acquainted with him at a social party two months previous.</p> <p>At the trial of an indictment under R. L. c. 212, § 16, as amended by St. 1905, c. 316, for knowingly distributing and circulating a card conveying notice of a place where directions and information might he obtained for the purpose of causing or procuring the miscarriage of a woman pregnant with child, where it appears that the card described in the indictment was given by the defendant to a witness for the Commonwealth, who was a police officer in disguise, in response to an inquiry by him as to treatment for a proposed patient, the evidence of the delivery of the card is none the less admissible because it was procured by lying and deceit on the part of the witness, and it is a question for tiie jury whether the card was delivered voluntarily with a criminal purpose.</p>

<p>Petition, filed November 11,1902, under St. 1902, c. 543, § 2, alleging that the petitioner was on June 15, 1900, and at the time of the filing of the petition the owner of a tract of land with the buildings thereon at the corner of Beacon Street and Bowdoin Street in Boston known as number 25 Beacon Street, that this property is damaged by the laying out and grading of Bowdoin Street and the limitation of the height of buildings on the land “ more than it is benefited by the improvement of the State House, consisting of the limitation of the height of buildings on said land, the laying out and grading of said streets, the removal of buildings between Hancock Street and Bowdoin Street, the reconstruction and extension of the State House and the construction of the park between Bowdoin Street and the State House,” and praying that the damages which it has sustained may be assessed by a jury of the Superior Court as provided in the acts referred to in the petition.</p> <p>In the Superior Court the case was referred to Patrick H. Cooney, Esquire, as auditor. After the filing of his report, the case was heard by Richardson, J., without a jury. The petitioner put in evidence the auditor’s report, and the respondent offered no evidence. An agreed statement of additional facts was filed by the parties. The judge found the facts, and the damages in the several alternatives, to be as set forth in the auditor’s report and the agreed facts, and ruled pro forma that the petitioner was entitled to judgment in the sum of $11,570.46 with interest thereon from January 1, 1902, subject to the opinion of this court upon the questions raised in paragraphs 8, 9 and 10 of the auditor’s report.</p> <p>At the request of the parties, he reported the case for determination by this court upon the auditor’s report, the agreed facts and exhibits, and the judge’s finding of the facts and pro forma ruling on the law, such judgment to be entered as law and justice might require for such one of the sums stated in the alternatives found in the auditor’s report as this court might determine that the petitioner was entitled to recover.</p> <p>The paragraphs of the auditor’s report mentioned in the report of the judge were as follows:</p> <p>“ 8. At the trial the petitioner contended and requested the auditor to find and rule:</p> <p>. “I. That the only benefit to be considered in estimating the excess of damage over benefit is that arising from the change of grade and widening of Bowdoin Street and from the limitation of the height of buildings on other property under St. 1902, c. 543, § 1, on the ground that such benefit alone is in law special and peculiar to the petitioner’s estate.</p> <p>“ The auditor declined to so find or rule, and found and ruled otherwise.</p> <p>“If, however, the court shall be of opinion that the petitioner’s contention is correct in law and that the ruling requested should have been made either in form or substance, then the auditor finds that the petitioner’s said property was damaged more than it was benefited by the improvements in the additional sum of $12,000, and in that event the auditor finds and reports that the petitioner is entitled to recover the sum of $23,575.46 with interest thereon since January 1, 1902, instead of $11,570.46 as first stated.</p> <p>“ 9. The petitioner further contended and requested the auditor to find and rule:</p> <p>“ II. That, in estimating the excess of damage over benefit, the auditor is to consider only the benefit accruing under Sts. 1901, c. 525, and 1902, c. 543, which caused the damage, — that is, that he is under St. 1902, c. 543, § 2, to consider only the benefit from the limitation of the height of buildings on other estates by § 1, the laying out and grading of said streets, especially Bowdoin Street, under St. 1901, c. 525, § 1, as amended by St. 1902, c. 543, § 3, the removal of the buildings between Mount Vernon and Bowdoin Streets and the construction of the park between Bowdoin Street and the State House so far as it lies between Beacon Street and Beacon Hill Place under St. 1900, c. 382, §§ 1,2, as amended by St. 1901, c. 525, § 1, and St. 1902, c. 543, § 3, and is not to consider the benefit from the removal of buildings between Hancock and Bowdoin Streets under Sts. 1888, c. 349, and 1892, c. 404, the reconstruction and extension of the State House under Sts. 1888, c. 349, and 1889, c. 394, and the construction of the park between Bowdoin Street and the State House so far as it lies between Beacon Hill Place and Derne Street under Sts. 1892, c. 404,' and 1893, cc. 129,450.</p> <p>“ The auditor declined to so find or rule, and found and ruled otherwise.</p> <p>“ But if the court shall be of the opinion that the first ruling requested was rightly refused and that the petitioner’s second contention is correct in law and that the second ruling requested should have been made either in form or substance, then the auditor finds that the petitioner’s said property was damaged more than it was benefited by the improvements to be considered in the additional sum of $6,000 j and, in that event, the auditor finds and reports that the petitioner is entitled to recover the sum of $17,570.46 with interest thereon since January 1, 1902, instead of either of the other sums hereinbefore stated.</p> <p>“ 10. The petitioner also requested the auditor to rule:</p> <p>“ III. That, if the benefit accruing to its said property from all the improvements mentioned in St. 1902, c. 543, § 2, as a whole is to be considered in estimating the excess of damage over benefit, interest is to be added to said excess from the date of the beginning of said improvements by the extension of the State House under St. 1888, c. 349, § 1, and that the petitioner is therefore entitled to recover the sum of $11,570.46 with interest thereon from November 15, 1888, the date of the taking under said act.</p> <p>“ The auditor declined so to rule and ruled that the petitioner was entitled to interest only from January 1, 1902, as above found and reported.”</p> <p>The agreed facts were as follows:</p> <p>1. The land from Hancock to Temple Street was taken on November 15, 1888, under St. 1888, c. 349, § 1, entry made thereon immediately thereafter to remove the buildings, and the State House reconstruction and extension thereon was built between 1888 and 1894.</p> <p>2. The land from Temple Street to Bowdoin Street north of Beacon Hill Place to Derne Street was taken on June 16, 1892, under the act of 1892, c. 404, and the buildings thereon were removed and the park laid out under said act and the act of 1893, c. 129, between those dates and 1895.</p> <p>3. The land between Mount Vernon Street and Bowdoin Street south of the Way estate to Beacon Street was taken on July 17,1894, under St. 1894, c. 532, and the buildings thereon, and upon the Way estate, — which had been taken on May 26, 1883, under St. 1882, c. 262, — from Beacon Hill Place to Beacon Street were removed under St. 1900, c. 382, in the autumn and winter of 1900-1. •-</p> <p>4. The petitioner never applied for, received or was awarded any damages under any of the acts above mentioned, and was not in fact damaged thereby or by anything done thereunder.</p> <p>5. Bowdoin Street was widened on the westerly side to a width of forty feet and its grade lowered, and the park south of Beacon Hill Place was laid out, between August, 1901, and the autumn of 1902.</p> <p>6. A diagram of the territory as it was before the removal of the buildings south of Beacon Hill Place is appended hereto marked Exhibit A, — the land affected by the limitation of the height of buildings under St. 1902, c. 543, § 1, being indicated by shading, and the westerly line of Bowdoin Street as widened being indicated by a dotted line.</p> <p> </p>

<p>Practice, Civil, Costs. Trustee Process. Scire Facias.</p> <p>In an action of scire facias against one who, having been summoned as trustee in an action begun by trustee process, has been defaulted and has been charged as trustee, the plaintiff under R. L. c. 189, § 76, can recover the costs of the action of scire facias, but under § 72 of the same chapter he cannot recover costs for his travel and term fees included in the judgment in the original action in which the trustee was defaulted, if in the action of scire facias the plaintiff lias recovered enough property of the original defendant to pay such term fees and travel although not enough to pay the amount of the damages included in his judgment.</p>

<p>Contract, Implied: common counts, Performance and breach. Words, “Tender.”</p> <p>In an action to recover an instalment of the purchase price and sums of money expended for improvements upon land which the defendant agreed to convey to the plaintiff under an oral contract, which afterwards the defendant repudiated and refused to perform, the plaintiff in order to recover must show that he was ready and willing and offered to perform his part of the contract.</p> <p>In an action on an executory contract requiring the payment of purchase money on the part of the plaintiff, if the judge in charging the jury makes use of the word “tender” in a popular sense as meaning a readiness, willingness and ability to perform providing the other party performs his part, and the plaintiff does not ask the judge to explain the sense in which the word is used, it will be assumed that the word was used and understood in such popular sense, and the plaintiff afterwards cannot complain because the use of the word in its technical sense would have been inaccurate.</p>

<p>Land Court. Practice, 'Civil, Appeal.</p> <p>Under St. 1902, c. 458, § 1, St. 1904, e. 448, § 8, and St. 1905, c. 288, on an appeal from the Court of Land Begistration or the Land Court to the Superior Court, the issues for the jury must be framed in the court from which the appeal is taken, and such a framing of-issues is necessary to complete the appeal.</p>

<p>Three actions oe contract against the city of Boston for awards made by the street commissioners of that city for damages from the laying out of Queensberry Street and Jersey Street. Writs dated December 28, 1905.</p> <p>In each of the cases the answer, among other matters, set up the statute of limitations.</p> <p>In the Superior Court the cases came on to be heard together before Fessenden, J. In the first case, in which the plaintiffs, as trustees, claimed damages from the laying out of Queensberry Street, he ruled pro forma that the plaintiffs were entitled to judgment for the sum of $8,829 with interest from September 22, 1898, and accordingly ordered judgment for the plaintiffs in the sum of $12,890.30. In the second case, in which another plaintiff, as administratrix, claimed damages from the laying out of Queensberry Street, he ruled pro forma that the plaintiff was entitled to judgment for the sum of $14,251 with interest from September 23, 1898, and accordingly ordered judgment for the plaintiff in the sum of $21,661.52. In the third case, in which the same plaintiff as in the second case claimed damages from the laying out of Jersey Street, he ruled pro forma that the plaintiff was entitled to judgment for the sum of $14,451.50 with interest from September 22,1.898, and accordingly ordered judgment in the sum of $21,099.19. At the request of the parties he reported each of the three cases for determination by this court. In each case, if the ruling and order for judgment were right, the judgment was to stand ; otherwise, such judgment was to be entered therein as law and justice might require.</p> <p>The cases were submitted upon agreed facts, which in the first and second cases, both relating to Queensberry Street, were the same, and were as follows:</p> <p>1. On February 10, 1897, an agreement, dated August 17, 1896, a copy of which is hereto appended marked Exhibit C, executed by the plaintiffs Hartley Averill and Edwin B. Ginn, trustees, and by all other abutters upon a proposed street in Boston afterwards named Queensberry Street, was delivered to the board of street commissioners of Boston.</p> <p>2. On July 15, 1897, the board of street commissioners after due notice of their intention so to do, and hearing thereon, duly laid out and ordered constructed a certain highway named Queensberry Street by an order, a copy of which was appended, and took therefor certain land belonging to the plaintiffs as shown upon the Humbert Plan referred to in the order of laying out, and awarded to them as damages to their property by the laying out and construction of that street the sum of $8,829, in accordance with the terms of the agreement marked Exhibit G and with the prices of land therein stipulated to be paid them therefor.</p> <p>3. On September 22, 1898, the city of Boston entered upon the lands taken by the order and began the filling of Queens-berry Street for the purpose of constructing the street, and a reasonable and practicable timé for completing and surfacing Queensberry Street in accordance with the order would have been until January 1, 1900. It was not then completed, the sewer called for by the order was not completed until November 5,1903, and the street has not been completed or surfaced in accordance with the provisions of the order of the board of street commissioners. The street has never been posted as a private way but has been left open and unobstructed since January 1, 1899, and no betterment assessment has been laid for the street by the board of street commissioners.</p> <p>4. The filling of Queensberry Street was begun on September 23,1898, and was finished on January 28, 1899, using 58,222 cubic yards of filling at a cost of $29,693.22 for the filling and $3,638.85 for teaming, labor, material, and incidentals.</p> <p>5. The construction of the sewer in Queensberry Street was begun on July 3, 1902, and was finished on November 2, 1903, at a cost of $50,194.98.</p> <p>6. The laying of water pipes in Queensberry Street was begun on October 31,1898, and was finished on November 24, 1898.</p> <p>7. The gas pipes in Queensberry Street were laid in October, 1899.</p> <p>8. The estimated cost of finishing Queensberry Street in accordance with the order of the street commissioners is $20,000.</p> <p>9. Any further facts which appear in the suits of Aspinwall v. Boston, or Tappan v. Boston, [191 Mass. 441,] may be referred to and treated as facts in this case so far as material.</p> <p>10. A writ of mandamus has been issued from the Supreme Judicial Court on May 22, 1906, commanding the completion of Queensberry Street on or before December 1,1906, upon a petition filed by the plaintiff and others on October 5, 1905.</p> <p>Exhibit 0.</p> <p>“ We, the undersigned owners of land within the lines of a proposed street south of and parallel with Boylston Street extension in the City of Boston, and five hundred and ninety-seven (597) feet distant southerly and from the southerly line of said Boylston Street extension, and running at a width of fifty feet from Boylston Road in the Fens southerly to Audubon Road in said Fens shown on a plan marked ‘Back Bay Lands, Pierre Humbert, Jr., City Surveyor, April 10, 1894,’ on file in the Office of the City Engineer of said City, in consideration of the immediate laying out and construction of said proposed street at a width of fifty feet under the provisions of chapter 323, of the acts of the year 1891, and acts in amendment or addition thereto, and of any assessments which may be laid upon our several estates for the cost of said laying out and construction being delayed until the damages caused to us severally by the taking ' of said land and the cost of the construction of said street shall be determined and of said damages being offset against the proportionate part of said cost which may be levied upon our respective estates, agree that the payment of said damages shall be delayed until the balance due from us severally after making said offset has been determined.</p> <p>“-And we severally agree that we will accept as payment for so much of our said land to be taken for said street as lies within one hundred and twenty-five (125) feet of said Audubon Road or said Boylston Road the sum of three ($3.00) dollars per square foot and for so much of our said land as lies more than one hundred and twenty-five (125) feet from said roads the sum of one dollar ($1.00) per square foot.</p> <p>“ It being stipulated that the execution of this paper by any owner upon this agreement shall be tantamount to the execution of this original agreement.</p> <p>“ Witness our hands and seals this seventeenth day of August, A. D. 1896.”</p> <p>Here followed the signatures of different landowners, including in the first case those of the plaintiffs as trustees and in the second case that of the plaintiff’s intestate. There was no signature in behalf of the city of Boston. In the printed reports of the cases there was no designation of seals after the signatures, but in the defendant’s answer in each of the three cases the instrument marked Exhibit C was alleged to have been executed by the plaintiffs and other landowners “ under their hands and seals.” See also Aspinwall v. Boston, 191 Mass. 441 at page 444.</p> <p>In the third case the agreed facts differed from those in the second case in relating to Jersey Street instead of to Queens-berry Street. In the third case the instrument marked Exhibit C was dated March 25,1897. The material provisions were the same as in the corresponding exhibits in the first and second cases.</p> <p>The filling of Jersey Street was begun on September 22,1898, and was finished on December 17,1898, using 45,000 cubic yards of filling, at a cost of $18,817.47 for the filling, and the further sums of $914.70 for labor, teaming, and materials, and $41.06 for labor and advertising.</p> <p>The construction of the sewer in Jersey Street was begun by the city on August 29, 1899, and was finished on December 17, 1908, at a cost of $98,249.91.</p> <p>The laying of the water pipes in Jersey Street was begun on August 29,1899, and was completed on October 2, 1899.</p> <p>In June, 1903, nine hundred and seven feet of gas pipe were laid in Jersey Street, from Boylston Street to Audubon Road, and on June 10,1904, five hundred and forty-eight feet of gas pipe were laid in Jersey Street from Boylston Street to Brookline Avenue.</p> <p>The estimated cost of finishing Jersey Street, in accordance with the order of the street commissioners, was $21,000.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action against a street railway company by a workman, who was employed by the defendant as one of a gang of laborers to work under one P. in unloading a coal schooner at a power station wharf of the defendant, for injuries from falling into the hold of the vessel owing to the giving way and breaking of a ladder about twenty feet long which the plaintiff with one or more of the other men was ascending when they had been ordered to stop work for the day, it appeared that the ladder was put in position and was lashed by P., and there was evidence warranting a finding that the giving way of the ladder was caused by his negligence in selecting an improper piece of rope with which to lash the top of the ladder to a ring bolt in the deck. There also was evidence that P. was paid more than the other men employed in unloading the schooner, that he did manual work only when he felt like it, that it was his duty to report how many men he wanted and to report them if they did not work properly, and it also was his duty to tell the men where to shovel the coal, to whistle and tell the engineer when to hoist and when to lower the coal scoop, and to tell the men when to stop work, and that there was no other person in immediate charge of the work. Held, that this evidence warranted a finding that P. was a superintendent within the meaning of the employers’ liability act, and that the setting up of the ladder, including the lashing of it, was a part of the work to be done under his superintendence.</p>

<p>Petition, filed June 8, 1906, for a writ of certiorari to quash an assessment for benefits from the construction of a sewer in Queensberry Street in Boston.</p> <p>The case came on to be heard before Hammond, J., who at the request of the parties reserved it upon the petition, exhibits, answer and agreed facts for determination by this court, such decree to be entered therein as law and justice might require.</p>

<p> Frauds, Statute of. Sale. </p> <p>A memorandum of a contract for the sale of goods which does not name the price is not sufficient to satisfy the statute of frauds.</p> <p>Under an oral contract for the sale of goods by sample, a delivery of the goods by the seller upon a railroad car sent by the buyer to receive the goods for transportation to him, although it is a delivery to the buyer, does not constitute also an acceptance sufficient to satisfy the statute of frauds.</p> <p>Under an oral contract for the sale of goods by sample the receipt and examination of the goods by the buyer merely for the purpose of ascertaining whether they correspond with the sample do not constitute an act of acceptance.</p> <p>Where there is an oral contract for the sale by sample of goods for the price of $50 or more, and the buyer receives and examines the goods merely for the purpose of ascertaining whether they correspond with the sample, without accepting them as those that he purchased, and arbitrarily and unreasonably refuses to accept them, if the seller sues for damages for the breach of the contract and the defendant sets up the statute of frauds, and there is no memorandum in writing of the bargain sufficient to satisfy the statute and no part payment, the plaintiS cannot recover on showing that the goods delivered by him were in accordance with the sample and that the defendant ought to have accepted them.</p>

<p> Negligence. Street Railway. Carrier. </p> <p>In an action for personal injuries by a passenger against a street railway company operating cars on a road equipped by it with trolley poles, it is evidence of negligence on the part of the defendant that one of the poles is maintained upon a curve of its track at such an inclination toward the track that a passenger on the running board of an open car passing around the curve is in danger of coming in collision with it.</p> <p>A passenger being transported by a common carrier has a right to assume that the carrier has adopted and maintains a reasonably safe mode of transportation.</p> <p>In an action against a street railway company for personal injuries from coming in contact with a trolley pole alleged to have been placed and maintained negligently by the defendant so near its track as to endanger passengers travelling upon its cars, the fact that the plaintiff before the accident was familiar with the place and knew the location of the poles, although important evidence on the question of his due care, is not conclusive upon the question whether he was negligent in leaving the back platform of an open car and stepping upon the running board in order to go to a seat, and thus coming in collision with a pole inclining too much toward the track.</p> <p>In an action against a street railway company for personal injuries from coming in contact with a trolley pole alleged to have been placed and maintained negligently by the defendant so near its track as to endanger passengers travelling upon its cars, if there is evidence that the plaintiff, who was familiar with the locality, upon boarding an open car of the defendant, and seeing no vacant seat, took a position on the rear platform, when an acquaintance, who was seated, told him that room had been made for him, and he started to pass along the running board for the purpose of reaching the seat and was struck by the pole, the question whether the plaintiff was in the exercise of due care is for the jury.</p>

<p>Tort for personal injuries from being thrown from the seat of a heavy covered wagon by a collision with a car of the defendant after dark on the afternoon of January 19,1903, at about twenty minutes past five o’clock, as the plaintiff was driving across a single track railway of the defendant on Main Street in that part of Haverhill called Bradford. Writ dated April 29, 1908.</p> <p>In the Superior Court the case was tried before Fox, J. At the close of the evidence the defendant asked the judge to instruct the jury as follows:</p> <p>1. Upon all the evidence the plaintiff is not entitled to . recover.</p> <p>2. That the plaintiff driving along outside the outer rail of • the street railway would not be in the exercise of due care if, without taking reasonable precaution to find out whether the car was coming, he drove across the car tracks.</p> <p>The judge “ refused to give these instructions and the defendant duly excepted to each refusal.”</p> <p>The judge “submitted the case to the jury under instructions which were not otherwise objected to except as above stated.” The jury returned a verdict for the plaintiff in the sum of $745; and the defendant alleged excéptions.</p>

<p>Practice, Civil, Conduct of trial, Exceptions. Sale.</p> <p>Where by an order of court an action by a buyer of goods against the seller for the non-delivery of and delay in delivering the goods is tried together with an action by the same plaintiff against the railroad company by which the goods were transported, and the seller testifies as a witness in his own behalf, after he has been cross-examined by the plaintiff, the presiding judge in his discretion, against the objection of the witness, may allow the railroad company to cross-examine him in its own interest; and to such exercise of discretion no exception lies, especially where the testimony elicited is not reported and the excepting party fails to show that he has been injured by the ruling.</p> <p>In an action by a buyer of goods in transit, which the seller undertook to transfer by the indorsement and delivery of the bills of lading, against the seller for nondelivery of the goods, where the plaintiff contends that the defendant, either undertook to deliver the goods absolutely, or, if he merely agreed to transfer the bills of lading properly and to give the necessary orders to the carrier, he had failed to give such necessary orders, the presiding judge properly may refuse to give instructions to the jury as to the duties of a common carrier of freight in regard to delivery which, however correct they may be as abstract propositions of law, are inapplicable to the case.</p>

<p> Tax. Pledge. Broker. </p> <p>Where a broker buys shares of stocks upon orders in writing from his separate customers with a specific agreement with each customer that the ownership shall be in the customer subject to a lien of the broker for any indebtedness to him, each order directing the broker to buy a certain number of shares of specified stocks for the account and risk of the purchaser, and the broker makes the purchases as directed and notifies each customer of the purchase and the price paid, and the customers make part payments to the broker, usually of about forty per cent of the price, and the certificates for the purchased shares with blank transfers signed by the former owners named therein are left with the broker as security for the balance of the price due from each customer to the broker, the broker being expressly authorized by the customer to pledge the shares for loans to himself, and the broker does this as his convenience demands, but the certificates of stock bought for and belonging to each customer áre kept apart in a separate envelope, whether pledged or not, the broker holds the shares .as a pledgee with the right to repledge them to others, and they are not taxable to him but are taxable to the customers who are the owners and pledgors.</p> <p>St. 1903, c. 423, § 1, relating to the transfer of shares in corporations by delivery of the certificates signed in blank, now contained in St. 1903, c. 437, § 28, does not operate to make the pledgee of such shares the absolute owner, and where certificates thus signed in blank are delivered as security under a contract of pledge the shares are taxable to the pledgor.</p> <p>R. L. c. 12, § 26, providing that “ personal property mortgaged or pledged shall for the purpose of taxation be deemed the property of the party in possession thereof on the first day of May," refers only to tangible property, and does not apply to a pledge of shares of stock in a corporation.</p> <p>Under R. L. c. 12, § 46, if a taxpayer has brought in a sworn list of assessable property in accordance with the requirements of the preceding sections of that statute and has not refused to answer on oath any necessary inquiries of the assessors as to the nature and amount of his property, the assessors must receive the list as true, and' lawfully cannot refuse to abate a tax on the ground that the list should have contained property not included in it.</p>

<p>Practice, Civil, Abatement, Appeal. Statute. Bastardy. Superior Court. Jurisdiction.</p> <p>While the exception to the right of appeal from a judgment of the Superior Court to this court contained in R. L. c. 173, § 96, which was repealed by St. 1906, c. 342, § 2, was in force, a judgment on an answer in abatement was final although the defence set up in it was one of substance relating to the jurisdiction of the court.</p> <p>Under the exception to the right of appeal from a judgment of the Superior Court to this court contained in R. L. c. 173, § 96, which was repealed by St. 1906, c. 342, § 2, where a defendant in answer to a complaint in bastardy process under R. L. c. 82, pleaded, in a so called plea of abatement, to the jurisdiction of the court, and moved that the complaint be abated because it did not allege that he either lived or had his usual place of business within the judicial district of the court or in the county in which the complaint was made, it was held, that, even assuming that the plea in abatement, although so entitled, could be treated as a motion to dismiss, yet as such a motion it should be denied, as in cases under R. L. c. 82 it is the Superior Court which has jurisdiction, and the proceedings in the police, district or municipal court are merely initiatory, so that it is sufficient if the process is brought to a hearing in the county or judicial district in which either the complainant or the defendant resides.</p> <p>A complaint in bastardy process under R. L. c. 82 may be brought in the county where either of the parties lives.</p>

<p>Practice, Civil, Exceptions, Amendment. Superior Court. Jurisdiction. Damages.</p> <p>Although, where a judge of the Superior Court has authority to allow an amendment, no exception lies to the exercise of his discretion, an exception lies to the allowance of an amendment beyond the jurisdiction of the court.</p> <p>The Superior Court has no power to allow an amendment to a petition for damages under a statute adding a separate claim which is barred by the limitation of the statute.</p> <p>The Superior Court has no power to allow an amendment to a petition under Pub. Sts. c. 52, §§ 15,16, for damages from a change of grade in a highway, which undertakes to add as a petitioner the wife of the original petitioner, asserting a claim for damages to one of the lots of land described in the original petition belonging to the wife of the petitioner in her own right for which she failed to file a petition within one year from the completion of the work, as required by § 15, or to file within a period of five or six years any petition to the Superior Court under § 16 to have her damages ascertained by a jury.</p>

<p>Contract, Validity. Sale. Evidence.</p> <p>In an action for goods sold and delivered, it appeared that the defendant ordered the goods upon a printed blank of the plaintiff, which he signed after having had an ample opportunity to read and understand it. In this instrument it was stated that the signer had “ no agreement or understanding with salesman except as printed or written on this order ” and that separate verbal or written agreements with salesmen were not binding upon the plaintiff, also that all conditions of sale must be shown on the order, “ this sale being made under inducements and representations herein éxpressed and no others.” The defendant offered evidence that he bought the goods upon certain oral representations made by a salesman of the plaintiff and that he shipped back the goods to the plaintiff when he found that the representations were false. The trial judge ruled that the defence that the defendant was induced to enter into the contract by false representations of the plaintiff’s agent was not open to the defendant, and that the" evidence to that effect offered by the defendant was immaterial. Held, that the ruling was right; that the contract was valid and binding, and that by it the defendant expressly had agreed that no salesman of the plaintiff had authority to change the terms of the contract in writing by any inducements or representations.</p>

<p>Veteran. Civil Service. Mandamus. Election. Practice, Civil, Election oí Remedy.</p> <p>A veteran employed by a city as a laborer under R. L. c. 19, §§ 23, 24, and the rules made by the civil service commissioners under the last named section, who wrongfully is discharged and refused employment by the city while there is work to be done of the kind for which he was employed and he is competent to perform it, may compel his reinstatement by a writ of mandamus addressed to the mayor of the city and the head of the department in which he was employed although he has brought an action of contract against the city, which still is pending, to recover the wages which he lost during the time that he was excluded from employment.</p>

<p>Contract for $1,300 and interest for services as an attorney at law. Writ dated June 2, 1904.</p> <p>The case was before this court at a previous stage on exceptions which were sustained by a decision reported in 191 Mass. 333.</p> <p>The auditor having filed a supplemental report, as mentioned below in the opinion, the following agreement was made by the parties;</p> <p>“ In the above entitled action, it is hereby agreed that the reports of the auditor filed in said action, so far as any facts therein stated are concerned, be taken as a statement of agreed facts, and that, if the court is of the opinion that such agreed facts warrant the conclusion reached by the auditor in his last report, the judgment shall follow the auditor’s finding in said last report; otherwise such finding shall be reduced by the sum of four hundred dollars.”</p> <p>By the facts as thus agreed it appeared that the plaintiff was retained by the defendant to render the services mentioned in his declaration; that he received the three retainers mentioned in the first three counts, amounting in all to $800; that they were asked for and paid as retainers, and “ agreed upon by the parties ” as such; that the plaintiff rendered services which reasonably were worth $1,350, of which he received $250 on account and no more, leaving a balance of $1,100; that a demand was made on February 5, 1904, upon the defendant for payment of $750 of the amount then due, and that no payment on account of the balance ever was made.</p> <p>In his last report the auditor found that the plaintiff was entitled to recover a balance of $1,100, with / interest on $750 thereof from February 5, 1904, and interest on the remaining $350 from the date of the writ.</p> <p>In the Superior Court Bond, J. on the agreed facts ordered judgment for the plaintiff in the sum of $1,251.02; and the defendant appealed.</p>

<p>Two ACTIONS OF TORT, the first by a boy, a little less than eight years and five months of age when injured, for personal injuries incurred on May 29, 1902, alleged to have been caused by the wanton and reckless conduct of the defendant toward the plaintiff while he was upon certain of its cars in a freight yard of the defendant near the Gold Street bridge in that part of Boston called South Boston, when the defendant knew or ought to have known that he was there, and the second by the father of the plaintiff in the first case for the loss of his services by reason of his injuries. Writs dated September 15, 1902.</p> <p>In the Superior Court White, J. ordered verdicts for the defendant; and the plaintiffs alleged exceptions.</p>

<p>Contract for the amount of a tax of $665 paid under protest assessed for the year 1899 upon the capital used by the plaintiff in his business as a stockbroker in the city of Boston, which was valued upon the first day of May, 1899, at $50,000. Writ dated September 9, 1904.</p> <p>In the Superior Court Wait, J. refused to rule that the plaintiff could not recover, and ruled that the undisputed facts in the case would not warrant the jury in finding that the plaintiff had a wharf, shop or store in the city of Boston within the meaning of Pub. Sts. c. 11, § 20. He submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $934.15; and the defendant alleged exceptions.</p>

<p>Petition, filed on May 14 and amended on May 22, 1906, for a writ of mandamus addressed to Charles H. Cole, Jr., Harry F. Adams and W. H. H. Emmons, the board of police commissioners for the city of Boston, to compel the reinstatement of the petitioner as the janitor of police station No. 5 in Boston, from which employment he was removed on April 15, 1904, the petitioner by his amendment being alleged to be a veteran of the civil war within the meaning of R. L. c. 19, § 20.</p> <p>The respondents alleged in answer to the petitioner’s amendment that the petitioner before July 1, 1905, was not registered in the office of the civil service commissioners as a veteran, and that those commissioners had not before July 1, 1905, included in the list of positions to be filled by their certification that of janitors of police stations in the city of Boston.</p> <p>By an amendment, filed and allowed by consent on J une 6, 1906, Stephen O’Meara, the police commissioner for the city of Boston, was substituted as respondent for the respondents originally named.</p> <p>The case came on to be heard by Sheldon, J. upon the pleadings and an agreed statement of facts. The justice reserved the case for determination by the full court, a writ of mandamus to reinstate the petitioner, with payment of back wages or salary, to issue if the petitioner was wrongfully discharged, or such other order to be made as justice might require.</p> <p>The agreed statement of facts was as follows:</p> <p>1. That, the petitioner was lawfully employed to do the usual work of a janitor at police station No. 5 in Boston from 1884, and so worked until April 14, 1904, and received as compensation $12.70 per week.</p> <p>2. That on or about April 15, 1904, by an oral order or direction of commissioner Harry F. Adams, the petitioner was told by Captain O’Lalor that he was to be discharged, another man was put in his place, and the petitioner has been trying to be reinstated ever since.</p> <p>3. That no written order of discharge or removal with the causes therein assigned ever was given to the petitioner or recorded in the records of the board of police, or any hearing given to the petitioner.</p> <p>4. That previous to his discharge the petitioner had been informed that his work as janitor at police station No. 5 was unsatisfactory.</p> <p>5. That the petitioner is a veteran of the civil war, having served in the army of the United States during the war of the rebellion and having been honorably discharged therefrom.</p> <p>6. That the board of civil service commissioners had not, before July 1, 1905, included in its lists of positions to be filled by its certification that of janitors of police stations in the city of Boston, and that the petitioner had never at any time before his discharge been registered in the office of that board as a veteran, nor certified by it for appointment, but has been duly registered since July 1, 1905, as janitor.</p> <p>7. That the rules of the board of civil service commissioners, if competent, may be referred to.</p>

<p> Charity. Trust. Religious Society. </p> <p>A fund of which the income is to be devoted to religious uses in connection with a particular church is a public charity. Following Osgood v. Rogers, 186 Mass. 238, and declaring that anything to the contrary in Parker v. May, 6 Cush. 336, and Old South Society v. Crocker, 119 Mass. 1, has been overruled by the later decisions.</p> <p>A fund was established by the contributions of persons connected with a particular church and religious society, the income of which was to be used to provide for the widow and minor children of a deceased bishop and rector of that church, then to be used for the support of the widow or orphan children of any rector of the same church, and, if by accumulations the fund should yield an income of more than $1,000, then funds were to be created for the widows and minor children of the assistant minister of the same church, and next for the support of the dignity of the bishop of Massachusetts when such bishop should be the rector of the same church, and then for the use and benefit of the bishop, rector, assistant minister or such other object connected with the same church as the wardens and vestry thereof for the time being might deem advisable. Held, that the fund constituted a public charity, and that on a proper case being made out the court would direct its administration cy pres.</p>

<p>Husband and Wife. Parent .and Child. Alienation of Affection. Evidence, Presumptions and burden of proof.</p> <p>In an action by a husband against the father of his wife for enticing her away, alienating her affections and harboring and secreting iier, it is not enough for the plaintiff to show that the defendant performed the acts charged. The burden is upon him to show that the defendant was prompted by malice in what he said and did, and to overcome the presumption that the defendant acted under the influence of natural affection and for what he believed to be the good of his child.</p> <p>In an action by a husband against the father of his wife for enticing her away, alienating her affections and harboring and secreting her, if there is evidence that the defendant, while his daughter was in his care, at first denied to the plaintiff that he had any knowledge of her whereabouts, and then refused to give the plaintiff any information, saying “ I don’t care anything about your wishes I am running this thing now,” that the defendant told one witness that he “ came near kicking her out of the cellar ” when he learned that she had married the plaintiff, and said that the plaintiff “couldn’t see her, and that he had no right to see her,” and told another witness that he was going to have his own way about this, that the plaintiff could not live with his girl, and that he would spend the last cent he had before he would consent to this man’s having his daughter, that the defendant told the plaintiff’s mother, when she said to him that she could not agree to the annulment of the marriage and wished there might be some reconciliation, “ I don’t care whether you agree to it or not, it is going as I say. You have had your way all the way through and now I want you to understand I shall have mine,” and that when the plaintiff’s mother said that she feared for his daughter’s health he answered “Well, I don’t,” although the defendant introduces evidence tending strongly to show that ' he was actuated wholly by a desire to protect his daughter from the evils that might follow a hasty and ill considered marriage and that his object was to secure her welfare, the question whether the defendant in what he did was actuated by malice toward the plaintiff is for the jury.</p>

<p> Negligence. Street Railway. </p> <p>In an action at common law by an executrix against a street railway company for suffering of the plaintiff’s testator alleged to have been caused by injuries received while a passenger on a car of the defendant, there was evidence that the plaintiff’s testator was an old man and feeble on his legs, that two days before his death he boarded a car of the defendant which “ started suddenly and threw him his length and he put his hand in a woman’s bandbox up to his elbow,” that the next day he went to his work and the day after, which was Sunday, went to church, and that when he went to bed on Sunday night he had a paralytic shock from which he died. There was medical testimony to show that the shock might have been caused by such an accident. No further explanation of the accident appeared. Held, that there was no evidence for the jury that the plaintiff’s testator was in the exercise of due care or that the defendant was negligent, the manner in which the accident happened being left to conjecture.</p>

<p>Tort by a boy against a street railway company for injuries incurred by reason of the alleged negligence of the servants of the defendant on April 22, 1904, in running down the plaintiff on Cross Street in Somerville, between Oliver Street and the Edgerly School in that city, where the defendant maintained two tracks respectively for outward bound and inward bound cars. Writ dated May 18, 1904.</p> <p>At the trial in the Superior Court before Sherman, J. the following facts appeared in regard to the conduct of the plaintiff: •The plaintiff at the time of the accident was eleven years of age, and the accident happened while he was on the way from his home to his school. He was standing upon the sidewalk nearer the inward track of the defendant on Cross Street at a point opposite the end of the sidewalk of Everett Avenue, which enters Cross Street on the other side from that on which the plaintiff was standing. This point he testified also was opposite a stopping place for the defendant’s inward bound cars. The plaintiff before leaving the sidewalk looked up and down Cross Street. In the direction from which the outward bound cars came he saw nothing down the street. Looking the other way he saw a team standing in the street. He saw an inward, bound car on the track nearer him, and about opposite him. The plaintiff waited for this inward bound car to pass and then trotted across the street behind this car. He passed the rear end of the inward bound car and when he reached the nearer rail of the track for outward bound cars saw for the first time an outward bound car approaching him about twelve feet away coming, in his estimation, at the rate of twelve or thirteen miles per hour, which was faster than permitted by the city ordinances of Somerville. The plaintiff endeavored to draw back, but before he could escape he was struck, the lower half of his body being thrown under the fender of the car, in which position, he was pushed a distance of five or six feet.</p> <p>On cross-examination the plaintiff testified that at the time of the accident he had been attending this same school since the previous September, and that he used to go over this same route four times a day, and was obliged to cross the street at some point or another between Oliver Street and the school, but could cross at one place as well as another; that he was well acquainted with this street all along, arid knew that cars ran frequently in both directions, and had seen them many times ; that upon the day of the accident, it was sunshiny weather, and that the street was straight and level, so that he could see way down to Broadway from the point where he crossed over; that he saw a car coming in town and was running alongside of it on the sidewalk. He then testified as follows: “ When I was running ahead I was at the head platform, nearly, and then when I got down there I stopped to let it go by, and then I looked both ways. Q. But you didn’t look both ways until you stopped to let it go by? A. No, sir. — Q. And at that time the car was between you and the car that was coming the other way ? A. Yes, sir. — Q. And then you turned and attempted to cross over ? A. Yes, sir. — Q. And you were running then, when you went across the street; after you had looked and started to go across, you were running? A. I wasn’t running fast; I was trotting.”</p> <p>At the close of the plaintiff’s evidence the. judge ordered a verdict for the defendant “ on account of the plaintiff’s lack of due care at the time of the injury.” The plaintiff alleged exceptions to the ruling of the judge, and also to his exclusion of certain evidence upon the question of the defendant’s negligence.</p>

<p>Insurance, Fire. Agency. Broker. Words, “Dwellinghouse.”</p> <p>There can he no recovery on a policy against fire insuring a building as a “ dwelling house ” if the building was used in part as a dwelling house and in part as a store.</p> <p>In an action against a fire insurance company on a policy insuring a building as a dwelling house, which fails because the building was not a dwelling house for the purpose of insurance, having a shoe store in the basement and a dry goods store on the street floor, the facts that the insurance was procured for the plaintiff by an insurance broker, who was an agent of the defendant, and that this broker had maps in his office showing the character of the building, are immaterial, although the plaintiff may have a cause of action against the broker for negligence in failing to obtain for the plaintiff a valid policy when he had an opportunity of knowing the facts.</p>

<p>Petition, filed December 5, 1905, for a writ of mandamus addressed to the mayor and the superintendent of the printing department of the city of Boston commanding them to recognize the petitioner as the messenger of such printing department and to place his name upon the pay roll of the city as such messenger.</p> <p>The case was heard by Braley, J., who reported it for determination by the full court as follows:</p> <p>In this case, upon the evidence I find that on March 21,1900, the petitioner, as a veteran of the civil war, was enrolled in the classified list of the public service of the Commonwealth under the provisions of R. L. c. 19, §§ 20—25. On December 21,1901, one Monahan, then superintendent of printing for the city of Boston, made a requisition upon the civil service commissioners for the Commonwealth, requesting the certification of the petitioner as a veteran, to fill the office of messenger in the printing department at a salary of $13.50 per week, and on that date the petitioner was appointed a messenger in that department at the salary named, and entered upon the discharge of his duties. No other classification of the nature of the service that the petitioner was to render appeared on the records of the commissioners. During the time that the petitioner performed this service no complaint was made that he was incompetent or unfaithful, or that he was not of good habits. Upon February 17, 1902, in consequence of information which the petitioner had received from the foreman in the department, he saw one Whalen, who, in 1902, had succeeded Monahan as superintendent, when this conversation took place: “ Mr. Casey tells me I am suspended. T am a veteran and cannot be suspended in this way.” Whalen replied, “ I know you are a veteran. Come in and see me day after to-morrow.” At the subsequent interview, the exact date of which did not appear, Whalen said to the petitioner, “ I can do nothing for you ”; to which the petitioner replied, “ It is a finable offence to suspend me in this way,” and Whalen then said, “ Then I will abolish your office.” On February 21, 1902, the petitioner wrote to the mayor of the city, in substance as follows: “ Being a veteran and properly certified from the civil service commissioners I respectfully ask a redress of grievances caused by the action of superintendent Thomas A. Whalen of the printing department in removing my name from the position of messenger on Feb. 17th. . . . Sec. 23, Ch. 19 of the Rev. Laws is the statute that has been violated in this case.” He received a reply from the mayor, dated February 26,1902, acknowledging the letter, and stating that “ the matter will receive my atten-. tion.” On February 27,1902, he was notified in writing by the superintendent, as follows: “ Yon are to be dismissed from the service of the city for the reason that the place and position filled by you is no longer necessary, that it should be abolished, and your services are no longer required. If you are entitled to a hearing under the provisions of Sec. 23, Oh. 19 of Rev. Laws, you will be given such hearing at the Mayor’s Office, Boston, at three o’clock P. M. March 3,1902.” This notice was received at least seventy-two hours before the time fixed for the hearing. At the time appointed the petitioner, accompanied by counsel, and the superintendent attended. I am satisfied that a hearing then took place at which the claim of the petitioner and the facts in connection with his case were presented. Whatever decision was reached by the mayor it was not communicated by him. in any way to the petitioner, but on March 12,1902, the superintendent of printing received from the mayor this communication : “ Your action in abolishing the position of messenger in the printing department is hereby approved,” and on March 13,1902, the petitioner received from Whalen this notice: “ The position of messenger which you are filling in this department has been abolished, and there will be no further need of your services. By calling at the treasurer’s office you can collect your salary up to the close of the business day.” It did not appear that the mayor ever took any other or further action in connection with the matter. I further find that the petitioner, after he was orally notified of his suspension, retained counsel, who since has acted for him, but, owing to poverty, he could not furnish money to prosecute his case after the hearing before the mayor until some time in March,1904, when an action was brought in the Municipal Court of the City of Boston to recover alleged arrears of salary. This action, on appeal to the Superior Court, was terminated by a verdict being ordered in favor of the defendant. Thereupon, under the advice of other counsel, the present petition, filed December 5, 1905, was seasonably brought. As a matter of fact I am satisfied that the petitioner never abandoned his claim that he had been unlawfully removed from office, and after putting his case in the hands of counsel expected him to go forward as soon as money for the meeting of necessary expenses had been received, and that he was advised that the proper remedy was to sue for “ back salary,” and that he understood that such an action could.be brought at any time “ when I got the means ” and this time arrived “ when his son got into a position where he had some money to advance,” and thereupon the action for salary was brought.</p> <p>At the request and by consent of the parties, the case, upon the pleadings and these findings,is reported to the full court. If. the office held by the petitioner was abolished lawfully under B. L. c. 19, § 23, of if the petitioner has been guilty of such unreasonable delay as ought to bar relief by mandamus, the petition is to be dismissed; otherwise, the writ is to issue, with-such further order, if any, as the court may direct.</p>

<p>Frauds, Statute of. Bankruptcy. Contract, Performance and breach.</p> <p>Under R. L. c. 74, § 3, a plaintiff can recover on a new promise to pay a debt barred by a discharge in bankruptcy only by showing a definite and unequivocal promise in writing to pay such debt signed by or in behalf of the defendant. Expressions of a willingness to pay and of an expectation of financial ability to make payments on the debt are not sufficient.</p> <p>The expressions in a letter written and signed by a bankrupt “ I shall be able to make you a voluntary payment of at least $5 per month and I hope after six months time to be able to increase the amount. ... I have so arranged matters with my assignee that there will be nothing to prevent my regular payment of $5 per month on old account,” contain no absolute promise to pay a debt barred by the writer’s discharge in bankruptcy sufficient to satisfy the requirement of R. L. c. 74, § 3.</p> <p>A letter written and signed by a bankrupt in which he writes “ I am sorry to say to you that the payments on your former account I shall not be able to make immediately as I wished to do,” and says at the close “ You are not to regard yourself as in any danger of losing the amount, as long as I hold my present position, because I have promised in time to take care of it, but I must have . time to do it, as it will be done as fast as resources will allow ” contains a dis- - tinct and unqualified promise to pay by instalments a debt barred by the writer’s discharge in bankruptcy sufficient to satisfy the requirement of R. L. c.74, §3.</p> <p>The plaintiff in an action of contract upon a new promise of the defendant to pay by instalments a debt barred by the defendant’s discharge in bankruptcy, if lie proves such a promise in writing signed by the defendant sufficient to satisfy the requirement of It. L. c. 74, § 3, can recover only the instalments of the debt which in accordance with the new promise of the defendant were payable at the date of the writ.</p>

<p> Agency. Broker. Contract. </p> <p>In an action by a real estate broker for a commission on a sale of real estate belonging to the defendant alleged to have been effected by his services, it appeared that the plaintiff had introduced himself to the defendant as a broker who might sell the property for him, that subsequently he saw the son of one L. and thus obtained certain tentative offers for the property which were supposed by the plaintiff to be in behalf of L., who always was referred to by the plaintiff and L.’s son as the son’s client, that the plaintiff himself never met L. and that the highest price thus authorized or named was $176,000, that the plaintiff submitted to the defendant a “ tentative proposition ” of §180,000, which was refused, the defendant naming $185,000 as his price, that the defendant said to the plaintiff “ Bring me an offer in writing, and perhaps we can get together,” that about this time the defendant told the plaintiff that unless his clients hurried and got around within two or three weeks the negotiations would be off, that the plaintiff told the son of L. that his client would have to hurry if he was going to purchase the property, and that if anything was going to be done it would have to be done within two or three weeks, that afterwards L.'s son told the plaintiff that he had submitted the matter to his client and had no definite information, and the plaintiff thought that L. and his son had let the matter drop, that the two or three weeks mentioned by the defendant expired, and that shortly after this L. through a person other than the plaintiff procured an introduction to the defendant and they agreed upon a price of $182,600 for the property, which L. purchased from the defendant for that sum. The defendant never had known that the offers reported by the plaintiff had come in any way from L. Held, that a verdict rightly was ordered for the defendant; that the only contract that could be found on the part of the defendant was to pay the plaintiff a commission if he procured a sale of the property, that the plaintiff failed to do this, and was discharged by the defendant, and that there was no possible question of the defendant’s good faitii in terminating the plaintiff's employment and afterwards selling the property to L., as the defendant .did not know that L. had been the plaintiff’s customer.</p>

Petition, filed February 21, 1906, under R. L. c. 12, § 78, for the abatement of a tax of $315.20 assessed on May 1, 1905, on a parcel of land, in that part of the city of Boston known as South Boston, which at the time of the assessment was a part of the Commonwealth Flats, so called, owned by the Commonwealth, and upon which the petitioner had erected a manufacturing establishment and was carrying on business as a manufacturer, holding the land under a bond for a deed from…

<p>Bills and Notes. Evidence, Presumptions and burden of proof, Proof of foreign laws.</p> <p>There is no presumption that the laws of New York contain statutory provisions similar to those of R. L. c. 73, § 103, in regard to days of grace for negotiable instruments, and, in the absence of evidence on the subject, the law of New York will be presumed to be the same as the common law of this Commonwealth before the enactment of St. 1896, c. 496.</p> <p>Under R. L. c. 175, § 77, providing that “the existence, tenor or effect of all foreign laws may be proved as facts by parol evidence," the plaintiff in an action against the indorser of a promissory note which is governed by the law of New York may prove by his own answers on cross-examination, received without objection, that the note sued upon was presentable and payable on the day of its protest, which was without allowance for days of grace, although otherwise there is no evidence that days of grace had been abolished by statute in New York.</p>

Libel fob divobce on the ground of cruel and abusive treatment. The libel was dated July 22, 1904, and an order of notice thereon was issued on August 19, 1904, personal service thereof being made on August 22,1904. In the Superior Court the case was heard by Harris, J. at the October divorce sitting in 1904, and after a partial hearing was continued to December, 1904, when the hearing was resumed and finished.

<p>Way, Defect in highway. Evidence.</p> <p>In an action under R. L. c. 51, § 18, against a town for personal injuries caused by an alleged defect in a highway consisting of the presence in the road of a large number of loose stones of different sizes over which the plaintiff’s horse stumbled, evidence offered by the defendant, to prove that it had made an appropriation for the repair of streets in the year of the accident sufficient to provide for an expenditure of a certain sum of money per mile for all its streets, properly may be excluded as irrelevant to the question whether it had used reasonable care and diligence to keep the street where the alleged defect existed in good repair.</p> <p>The presence in a street of a town of a large number of loose stones of different sizes over which the horse of a traveller stumbles may be found to be a defect in the highway within the meaning of R. L. c. 51, § 18.</p>

<p>Contract on a quantum meruit by the members of a firm of architects for $800 as compensation for professional services in making preliminary plans for a business building of the defendant in Brockton of the estimated cost of $80,000. Writ dated August 18, 1905.</p> <p>In the Superior Court the case was tried before Fox, J.</p> <p>The testimony introduced by the plaintiffs tended to show that the defendant employed the plaintiffs, a firm of architects having their principal office in Lynn, to prepare sketches and plans for a business block, the building of which in Brockton was being contemplated by the defendant. The plaintiffs introduced no evidence of any written or oral agreement as to compensation.</p> <p>The defendant contended and testified that the plaintiffs were permitted to submit sketches and plans in competition with other architects; that the plaintiffs and several other architects did in fact submit competitive sketches and plans; that it was understood and agreed between himself and the plaintiffs that they should be entitled to and receive no compensation unless their sketches and plans were chosen by him in the competition, and that sketches and plans other than those of the plaintiffs were so chosen. The plaintiffs denied that they had any knowledge of any competition or that they should receive no compensation unless their plans were chosen.</p> <p>Charles L. Betton, one of the plaintiffs, testifying in their behalf, having stated that he told the defendant that an eight story building would cost about $10,000 a story, making a total of about $80,000 for the building, on direct examination was asked “ What was a fair price for doing this work for Mr. Anglim?” and replied “Eight hundred dollars”; to the admission of which question and answer the defendant objected and excepted.</p> <p>Holman K. Wheeler, the other plaintiff, testifying in behalf of the plaintiffs, on direct examination was asked “ Whether or not there is a uniform usage among architects and builders, a universal usage that has continued ever since you have been in business, whereby they charge their customers a certain per cent upon the estimated cost of the building for their services? ” and replied “ Yes, there is ”; and then was asked “ What is that price that architects charge for preliminary plans ? ” and replied, “ One per cent of the estimated cost of the building,” and then was asked, “ What was the value of this work that you did for Mr. Anglim ? ” and replied, “ Eight hundred dollars ”; to the admission of all of which questions and answers the defendant objected and excepted. The last question was objected to on the ground that the witness was not competent to pass on the value.</p> <p>The defendant, having testified concerning, interviews with the plaintiffs regarding competition, in the course of his direct testimony was asked, “ to show the status of the witness’s mind in what he was doing,” “ At the time that they (the plaintiffs) were working upon and submitting to you the sketches for your examination, had you then been in conference with architects in relation to the same job ? ” On the objection of the plaintiffs the question was excluded, and the defendant excepted.</p> <p>The defendant having testified that the plans of one J. William Beal, a Boston architect, had been accepted for the building, and that he had been in consultation with Beal at the time he was consulting and conferring with the plaintiffs, on direct examination was asked, “ And did Mr. Beal submit preliminary sketches upon competition in the same way ? ” On the objection of the plaintiffs the question was excluded, and the defendant excepted.</p> <p>The defendant on re-direct examination was asked “ Did you have correspondence with these other competing architects during the time that you were corresponding as has appeared here with Wheeler and Betton?” and replied “I did”; and then was -asked “And was that correspondence concerning plans which they were making in competition for this lot ? ” To the exclusion of which questions and answer on the plaintiffs’ objection the defendant excepted.</p> <p>The defendant sought to introduce correspondence from the other alleged competing architects, but such correspondence on the objection of the plaintiffs was excluded; to which ruling the defendant excepted.</p> <p>At the close of the evidence the defendant asked the judge to rule that upon all the evidence the plaintiffs were not entitled to recover. The judge refused so to rule, and found for the plaintiffs for the full amount named in their declaration with interest. The defendant alleged exceptions.</p>

<p>A statute restricting the rights of contract of the owners of letters patent from the United States as distinguished from the owners of other property would not be constitutional.</p> <p>The enactment of a statute of general application, including persons entitled to rights under letters patent from the United States with the rest of the community, which has the effect of preventing the holder of a monopoly derived from letters patent from imposing conditions on the sale or lease of the patented article which create other monopolies not granted to him by federal authority, is within the police power of the Legislature. Knowlton, C. J. & Morton, J., differing in opinion from the other justices.</p> <p>It is within the constitutional power of the Legislature to enact a law of general application producing the result that the owner of or a licensee under letters patent of the United States, doing business in this Commonwealth, shall not lease and license the use of machines embodying the patented invention, upon conditions which are, when agreed to by the lessee and licensee, in effect, a prohibition upon the lessee and licensee from obtaining of any person other than the lessor and licensor machines for performing the same operation as that performed by the leased and licensed machine, during the term of such lease and license. Knowlton, C. J. & Morton, J., differing in opinion from the other justices.</p> <p>It is within the constitutional power of the Legislature to enact a law of general application producing the result that the owner of or a licensee under letters patent of the United States, doing business in this Commonwealth, where he has certain patented machines designed to perform two certain successive steps in making an article or product, shall not lease and license the use of one of the machines, which is designed to perform one of the steps, upon conditions which are, when agreed to by the lessee and licensee, in effect a prohibition upon the lessee and licensee from using, in the manufacture of such article or product, the leased and licensed machine, if a machine not obtained from the lessor and licensor is or is to be used to perform the other of the steps, during the term of the lease and license. Knowlton, C. J. & Morton, J., differing in opinion from the other justices.</p> <p>It is within the constitutional power of the Legislature to enact a law of general application producing the result that the owner of or a licensee under letters patent of the United States, doing business in this Commonwealth, shall not lease and license the use of a machine embodying the patented invention, upon the conditions, when agreed to by the lessee and licensee, that the latter, as rental for the machine and as royalty for the use of the patented invention, shall purchase from the lessor exclusively material or merchandise to be used in the machine, during the term of such lease and license. Knowltoh, C. J. & Mokton, J., differing in opinion from the other justices.</p>