Volume 194 — Massachusetts Reports

<p>Insurance, Accident. Contract, Validity, Construction. Arbitrament and Award. Fraternal Beneficiary Corporation. Evidence, Circumstantial. Practice, Civil, Exceptions.</p> <p>A policy of accident insurance, called a certificate, contained an express promise to pay a certain sum of money to the estate of the insured in case of his death from one of the causes named, and also contained an express promise to pay to the insured in case of injury certain sums varying with the extent of his injury. These promises were made subject to the by-laws of the company and the conditions attached to the policy which were numerous, and neither the by-laws nor the conditions contained any provision for arbitration. At the end of the policy, immediately before the attesting clause, was the following provision : “ In the event that this company and the certificate holder or beneficiary disagree as to the liability of this company under this certificate, it is agreed, and this certificate is issued upon the express condition, that such liability and the amount thereof shall be determined by arbitration.” Then followed a provision as to the persons of whom the board of arbitrators should consist. Held, that the provision quoted was an agreement to refer to arbitration questions of liability arising under other provisions of the contract, and was void as an attempt to oust the courts of their jurisdiction.</p> <p>In construing doubtful provisions of a policy or certificate of insurance the insured is to be given the benefit of the doubt, and this rule is particularly applicable where the contract of insurance incorporates numerous and complicated conditions.</p> <p>A policy or certificate of accident insurance was stated to cover drowning as well as bodily injuries produced by external, violent and accidental means, of which many were enumerated. There was also a provision that “ In the event of any accidental bodily injury, fatal or non-fatal, contributed to or caused by ” a large number of enumerated events, the limit of liability in case of death should be only one twentieth of the death benefit provided for in the policy. The event producing this reduction of liability in case of drowning was described as follows : “ drowning or shooting when the facts and circumstances of the accident and injury are not established by the testimony of an actual eye witness; and also when in an alleged drowning (shipwrecks at sea excepted) the body is not recovered and identified; ” followed, immediately after the semicolon, by the clause “ and in case of injuries whether fatal or disabling of which there is no visible mark on the exterior of the body visible to the eye (the body itself in case of death not to be deemed such mark).” Held, that the last quoted provision, referring to external marks of contusions and wounds, applied only to the more violent causes of injury and hot to the case of death by drowning; also, that the provision in regard to the testimony of an actual eye witness did not require that such eye witness should have seen the drowned person go under water, but that convincing circumstantial evidence of the drowning proved by eye witnesses of the circumstances was sufficient to comply with the requirement. Whether, such a requirement is void as an attempt to impose a rule of evidence upon the courts, was not.considered.</p> <p>The rule, that under the statutes relating to fraternal beneficiary corporations a certificate in such a corporation cannot be made payable to the estate of the insured and thus subject a death benefit to the payment of his debts, does not apply to a policy or certificate made payable to the estate of the insured “ in trust however for and to be paid over forthwith to his legal heirs,” as the real beneficiaries are the heirs at law and the money when recovered goes to them.</p> <p>A requirement of a policy of accident insurance that in case of the death of the insured by accidental drowning, in order to recover the full amount of the policy, the facts and circumstances of the accident must be established by the testimony of an actual eye witness, is satisfied by evidence from eye witnesses that shortly before the accident the insured, who was a good boatman, was seen on a river with a young woman in a “ cranky ” canoe, which was likely to overturn at any moment unless unusual care was exercised both by the insured and his companion, and that in less than five minutes from the time at which they last were seen alive the canoe was overturned and their bodies were under water.</p> <p>The admission of immaterial evidence which could not have harmed the excepting party will not support an exception.</p>

<p>Six complaints for violation of the so called hackney-carriage ordinance of the city of Fitchburg which is quoted in the opinion.</p> <p>In the Superior Court the cases were submitted to Wait, J. upon an agreed statement of facts. The defendants requested the judge to rule that upon the agreed facts, the substance of which is stated in the opinion, they could not be convicted. The judge refused to make this ruling, and thereupon the defendants severally pleaded guilty to ■ the complaints against them, and alleged exceptions to the refusal of the judge to rule as requested.</p> <p>The case was submitted on briefs,</p>

<p>Indictment, found and returned in the Superior Court for the county of Essex on January 13, 1906, in two counts, charging the defendant with buying, receiving and aiding in the concealment of certain property of the W. C. Lewis Shoe Company, knowing it to have been stolen, the property which the defendant was charged in the first count with receiving consisting of thirty-six cases of soles of the value of $5.40 stolen on June 23, 1905, and the property which the defendant was charged in the second count with receiving consisting of sixty other cases of soles of the value of $6, stolen on June 24, 1905.</p> <p>At the trial in the Superior Court before Harris, J. the jury .returned a verdict of guilty; and the defendant alleged exceptions, raising the questions which are stated in the opinion.</p>

<p>Libel, filed November 16, 1904, for divorce on the ground of adultery alleged to have been committed with one Dodge.</p> <p>The answer contained a general denial, and alleged condonation and connivance.</p> <p>In the Superior Court the case was heard by Q-asMll, J. The judge, without hearing the libellee or any of her witnesses, found that adultery, if committed before November 5, had been condoned, and that the libellant arranged “as stated in his testimony as hereinbefore recited ” with one Dow that an opportunity should be afforded the libellee by permitting her and the corespondent to pass the evening of November 5 alone in Dow’s house without interference and without interruption by other persons, although such permission theretofore, on the morning of November 4, had been refused the libellee by Mrs. Dow, and ruled as matter of law that the facts so found were connivance on the part of the libellant. There was no evidence that the libellee had any knowledge of the arrangements between the libellant and the detectives and the libellant and either Mr. or Mrs. Dow.</p> <p>By agreement of the parties the following statement was allowed by the judge to be added to the bill of exceptions:</p> <p>“ The libellant introduced testimony tending to show that on said evening of November 5th, the libellee and the co-respondent went to Dow’s house shortly after dark unlocked the door entered the house down stairs and remained there until nine o’clock that evening; that shortly before they entered the house three men in the employ of the libellant also went to this house, found the door locked and no one there, unlocked the door, went inside and upstairs and remained there until shortly after nine o’clock when they came down stairs and found the libellee and the co-respondent in a situation which, if their testimony is to be believed, would warrant a finding that adultery had been committed.</p> <p>“ There was evidence that no person other than the libellee, the co-respondent and these men was in the house during the evening.”</p> <p>The judge ordered that the libel be dismissed. To this order and to the ruling stated above the libellant alleged exceptions.</p>

<p>Poor Debtor. Recognizance. *</p> <p>Under R. L. c. 168, § 66, a surety on the. recognizance of a poor debtor in order to surrender his principal and exonerate himself from further liability must secure the attendance of an officer qualified to serve legal process in the case to whom the principal may be committed, as is required by R. L. c. 169, § 19, in case of a surrender by bail.</p> <p>It is not a performance by a poor debtor of the condition of his recognizance that within thirty days from the date of his arrest he delivered himself up for examination before a court of record, unless he gave notice thereof to the judgment creditor, and the refusal of the court to issue the notice does not excuse its absence.</p> <p>A court to which a poor debtor has delivered himself up for examination without giving any notice to the judgment creditor has no power to discharge the debtor.</p>

<p> Negligence. </p> <p>If a man driving in a buggy in a city street sees ahead of him the structure of an elevated railway under which he will have to pass and, knowing that his horse is likely to be excited by the passage of trains upon the elevated structure and when so excited is likely to quicken his pace, proceeds to drive under the structure in an ordinary way with a loose rein when a train suddenly appears overhead and, the horse becoming nervous and making a bolt forward, he draws back the reins until his hands are at his shoulders but owing to the looseness of the reins is unable to get proper control of the horse, and the horse knocks down and injures a woman crossing the street, this is evidence of his negligence in an action brought against him by the woman for her injuries.</p>

<p>Contract against the city of Boston for a sewer assessment paid under protest. Writ dated October 25,1904.</p> <p>In the Superior Court the case was tried before Bell, J., without a jury, on certain agreed facts and evidence offered by the defendant. The assessment was for a sewer in Blue Hill Avenue and was made under the same order which was before this court in the case of Harwood v. Donovan, 188 Mass. 487, although upon a different lot.</p> <p>The facts agreed were as follows:</p> <p>On June 29,1895, and December 27,1895, the board of street commissioners of the city of Boston passed certain orders, declared to be under St. 1891, c. 323, and acts in amendment or addition thereto, ordering the construction of a portion of Blue Hill Avenue and of a sewer therein. The work was completed by the superintendent of streets of that city on August 18,1898, and on that date the superintendent of streets made an order of assessment which assessed upon the land of the plaintiff’s predecessor in title, one Grant, the sums of $526.31 and $91.47.</p> <p>The board of aldermen of the city of Boston never ordered the construction of the sewer referred to in the above order. The land so purporting to be assessed came by mesne conveyance to the plaintiff, who received a deed thereof on May 5, 1904.</p> <p>On October 15, 1904, the plaintiff paid to the city of Boston under written protest the sums of $389.47 and $67.15, being the unpaid balance of the assessments upon his land. ' The plaintiff personally has never, nor have any of his predecessors in title to the lot, or any part of it, made any entry into or use of the sewer. One McDevitt, being the owner of a lot fronting on Blue Hill Avenue under a deed from the plaintiff, on November 21,1904, applied for a permit to enter, and did enter, a drain from his lot into the sewer.</p> <p>In doing the work in the construction of the sewer the superintendent of streets made contracts to the number of sixteen, under which the amount paid the' contractors was $58,585.52. The total cost of the sewer was $90,379.64. The excess over the amount paid the contractors was expended by the city without contract, except that the materials furnished by the city therefor were bought by contract in large quantities after advertisement and furnished to and charged to the work at contract prices.</p> <p>The plaintiff’s predecessor in title had, by deed dated May 24, 1893, conveyed to the city of Boston so much of the parcels of land then owned by him as lay within the limits of Blue Hill Avenue as laid out under the orders for a public highway, which deed contains the following condition: “ The condition upon which this release and conveyance is made and accepted is that any betterments on account of relocating, establishing the grade of, and constructing said street as aforesaid assessed upon any estate owned by the undersigned shall be assumed by the city of Boston, and the undersigned saved harmless therefrom.”</p> <p>The defendant offered evidence tending to show.that the benefit from the construction of the sewer to the petitioner’s land was greater than the assessment. This was all the evidence offered by either party besides the agreed facts.</p> <p>At the close of the evidence the defendant asked the judge to rule that on all the evidence the plaintiff was not entitled to recover. The judge refused so to rule, and found for the plaintiff in the sum of $484.02; and the defendant alleged exceptions.</p>

<p>Tort for the loss of the plaintiff’s horse and for personal injuries alleged to have been caused by the negligence of the servants of the defendant. Writ dated July 2, 1903.</p> <p>In .the. Superior Court the case was tried before Richardson, J., who at the close of the plaintiff’s evidence ordered a verdict for the defendant, and reported the case for determination by this court. If the ruling was correct the verdict was to stand; otherwise, judgment was to be entered for the plaintiff for $200 damages and costs.</p> <p>From the report it appeared that the accident happened on April 7, 1903, at South Sudbury. The plaintiff had come out from Boston on the train reaching South Sudbury at half past twelve o’clock and his wife was there to meet him with the horse and a Concord top buggy. The plaintiff described the accident as follows:</p> <p>“I had some freight in the station in bags.. I went into the passenger station to pay the freight and asked my wife to drive around to the freight station which she did. After paying the freight I went over to the freight house and took the truck and carried one bag. out to the platform and went in for the other. I think I had just got the other bag on the truck, or was putting it on, when I heard this train coming, and it sounded as if it was coming very fast, and I knew my wife was out at the side of the track, and I rushed out immediately and took hold of the horse’s bit. The noise I heard sounded like a rapidly approaching train, and if my horse had been farther away from the track possibly I shouldn’t have thought of getting hold of him so quick, but I knew he was close to the track and I went to lead him away. When I first heard the noise I was inside of the door, perhaps twenty feet from the horse, and just as I got hold of him or about that time — it all happened very suddenly— the train struck the junction, and the engineer whistled and I really didn’t have time to turn the horse, get him pointed away from the train: he was then pointed south, the same direction the train was going so that the train came up partially behind him. The train was going very rapidly and made a very loud noise, and the horse began to get more frightened every moment; I exerted all my strength to hold him and he kept dragging me closer to the train and finally when I was very close to it I didn’t dare to hold him any longer, and let go and he reared up and went into the train. The train struck him and broke his leg and his jaw. I think that day there were two or three piles of sleepers which had been taken out of the track and when I jumped back I fell over them in some way and sprained my ankle very badly. My wife was in the carriage all this time.”</p> <p>The train that frightened the plaintiff’s horse as above described was a freight train. The plaintiff further testified :</p> <p>“ It could have been but a very few seconds from the time I first heard the noise of the on-coming train until I reached the horse. The train as I remember it seemed to be a very long train, and even going at the rate of speed it was it took quite a while to get by, or so it seemed to me at the time. I didn’t count the cars but it was a very long train.”</p>

<p>Libel foe diyoece, by Jennie E. Cushman against Lewis N. Cushman, filed June 21, 1904, charging the libellee with adultery committed at Hubbardston on or about June 15, 1904.</p> <p>There was a previous libel by Lewis N. Cushman v. Jennie E. Cushman, dated February 8,1904, alleging desertion on or about January 3,1901.</p> <p>In the Superior Court the cases were heard by Aiken, C. J. He found that Lewis N. Cushman committed adultery at Hubbardston on June 15, 1904, with the person named in his wife’s libel, and by reason of that misconduct ordered that his libel be dismissed. Upon the wife’s libel, after stating the facts, the Chief Justice concluded as follows:</p> <p>“ While I do not find her conduct amounted to desertion, I do find that there was on her part such unmindfulness of marital obligations as to preclude the granting of her libel and I order the same dismissed.”</p> <p>To this order the libellant alleged exceptions, raising only the question whether on the facts found the libel as matter of law could be dismissed.</p>

<p> Devise and Legacy. Will. Child. Land Court. Superior Court. Jurisdiction. Statute. Practice, Civil. </p> <p>Under R. L. c. 135, § 19, the question whether the omission of a testator to provide for his children in his will was intentional is a question of fact.</p> <p>On a petition to the Land Court to establish a title to land devised to the petitioner to the exclusion of the testator's children, for whom no provision was made in his will, that court has jurisdiction to decide the question of fact whether the omission of the testator to provide for his children was intentional.</p> <p>Upon an appeal to the Superior Court from the Land Court on the issue whether the omission of the testator, under whose will the petitioner claims title to the land which he seeks to have registered, to provide in his will for his children was intentional under R. L. c. 135, § 19, the Superior Court has jurisdiction to decide this question of fact.</p> <p>St. 1905, c. 288, providing that on an appeal from the Land Court to the Superior Court the judge who rendered the decision appealed from shall file in the Superior Court a full report of his decision, which shall be prima facie evidence as to the matters therein contained, relates only to procedure as to evidence, and is applicable to the trial of an issue in an appeal to the Superior Court in a case which was begun by a petition filed in the Land Court before the passage of the statute but in which the decision appealed from was not given until after the statute took effect.</p> <p>St. 1905, c. 288, provides that on an appeal from the Land Court to the Superior Court the judge who rendered the decision appealed from shall file in the Superior Court “ a full report of his decision and of the facts found by him so far as they relate to or bear upon any questions involved in the.appeal.” On such an appeal the only question in controversy was whether the omission of the testator under whom the petitioner claimed to provide in his will for his children was intentional, and the report of the judge after stating the issue was in these words : “ At the trial before me the only testimony in the case was to the effect that such omission was intentional, and I so found." Held, that the report was sufficiently full for the purposes for which it was made, and was in substantial compliance with the requirements of the statute.</p>

<p> Tax. Partnership. Executor and Administrator. Estoppel. </p> <p>Where articles of copartnership provide that on the death of one of the partners his share of the capital shall remain in the business for two years, the surviving partner paying interest thereon to the estate of the deceased partner, and, upon the death of one of the partners, the surviving partner agrees with the executor of the will of the deceased partner as to the balance due from the partnership to the testator which still is used under the agreement as part of the capital of the firm, the debt to the estate can be taxed in the hands of the executor as personal property, although this results in double taxation.</p> <p>Where the executors of a will, who also are trustees thereunder, as executors pay under protest a tax on personal property consisting of a debt acknowledged by an instrument under seal made to them as executors, and represent to the assessors that their relation to the property is wholly as executors, on a petition for an abatement of the tax it is not open to them to contend that the tax is invalid because assessed to them as executors rather than as trustees.</p>

<p> Bankruptcy. </p> <p>By the express provisions of the bankruptcy law of 1898 the debt created by a judgment in an action of tort for obtaining property by false representations is not barred by a discharge in bankruptcy.</p>

<p>Superior Court. Municipal Corporations. Practice, Civil, Exceptions. Words, “Appeal,” “Civilcause.”</p> <p>In the provisions of R. L. c'. 100, § 4, that a member of a licensing board of a city, if removed by the mayor, may apply to the Superior Court for a review of the charges, of the evidence submitted thereunder and of the findings thereon by the mayor, that “ the court, after a hearing, shall affirm or revoke the order of the mayor removing such commissioner, and there shall be no appeal from his decision,” the word “appeal” is used in a general sense which includes all proceedings for a revision by a higher court, and there is no right of exception to the rulings of the judge, whose decision is final.</p> <p>Whether a proceeding against a public officer for his removal from office on charges of misconduct is a “ civil cause ” within the meaning of R. L. c. 173, § 106, giving a right to take exceptions, quaere.</p>

<p>Municipal Corporations. Board of Health, Municipal.</p> <p>In the cities and towns of this Commonwealth there is no power to remove public officers except that which is given by the statutes.</p> <p>Public officers, even when elected by the voters of a town to perform statutory duties which involve the expenditure of money properly raised by local taxation, are not the agents of the town.</p> <p>The members of the board of health of a town cannot be removed by a vote of the inhabitants of the town.</p>

<p>Contract upon two policies of insurance for $250 each issued upon the same application on the life of Arthur Paquette and made payable to one Romeo Paquette, which after the death of the insured were assigned to the plaintiff, Leon Langdeau. Writ dated June 19, 1905.</p> <p>In the Superior Court the case was tried before Croshg, J. At the trial, the plaintiff put in evidence the policies' of insurance, the proof of the death of the insured, proof of payment of all premiums due up to the date of the death of the insured, proof that Romeo Paquette was the beneficiary under the terms of the policies and that Romeo Paquette made an assignment of his right, title and interest under the policies to the plaintiff, after the death of the insured. This evidence was not controverted by the defendant.</p> <p>The policies in question were issued upon the basis of certain statements and representations made by the insured in his application in answer to questions asked therein. Among others, there were the following questions and answers: “ No. 12. Q. Do you use ardent spirits, wine or malt liquors ? If so, average quantity each day ? A. No.” — “No. 13. Q. Have you ever used them to excess ? A. No.”</p> <p>The plaintiff requested the defendant to produce the original application upon which .the policies were issued on the life of Arthur Paquette and also the paper or writing in which the name of the person named as beneficiary under the above mentioned policies was set forth. In response to this request the defendant produced in court at the trial a paper which was marked Exhibit J, and was put in evidence by the plaintiff. It was admitted that this paper was signed by the insured on both sides. It did not appear from the evidence that the insured signed and delivered any other paper before the policy in question was delivered. The paper marked Exhibit J was dated December 4, 1904. The policies were dated December 14, 1904.</p> <p>The policy contained the following provisions:</p> <p>“In consideration of the statements and agreements in the application herefor, which are hereby referred to, and as warranties made a part of this contract, and of the premium of 19 cents to be paid at or before noon on Wednesday of each week during the lifetime of Arthur Paquette the insured hereunder, agrees to pay the sum of Two Hundred and Fifty Dollars, subject to the following conditions and provisions and those recited on the back hereof, which are made a part of this contract.</p> <p>“ In the event of the decease of the insured while this Policy is in force, payment of the amount due hereunder will be made within twenty-four hours after satisfactory proof of death, to the beneficiary, if living, last nominated, whether in the proposal herefor or in any written amendment thereof filed with and approved by the Company; but the Company may make payment to the Executor or Administrator of said insured, or to any relative by blood or connection by marriage, or to any other person in the judgment of said Company equitably entitled to the same by reason of having incurred expense in any way on behalf of the insured for burial, or for any other purpose; and the receipt of any such person shall be conclusive evidence that payment has been properly made, and shall discharge the Company from liability under this Policy.”</p> <p>The copy of the application for insurance, which was the portion of Exhibit J printed on the back of the policy, after stating the questions and answers, terminated as follows:</p> <p>“ I declare and warrant that the representations and answers made herein are complete, strictly correct and true; that the several questions were duly asked and that the answers given by me are truly recorded as above; that they shall form the "basis and become part of the contract of insurance; that any false or untrue answer shall render the Policy null and "void; and that said Policy shall not be binding upon the Company unless at noon upon its date I shall be alive and in good and sound health; hereby accepting, for any person who shall have interest in said Policy, the Company’s determination and apportionment of dividends and method of distribution thereof. The right is reserved to the insured to change the beneficiary from time to time by written notice to and subject to the approval of the Company, but payment upon presentation of the Policy and the Premium Receipt Book shall be in full satisfaction of claim.</p> <p>“ Arthur Paquette, Applicant.”</p> <p>“ I hereby certify that the foregoing questions were asked by me and the answers given as recorded, and that I witnessed the applicant’s signature, on Dec. 4,1904.</p> <p>“ J. Gr. Beauchamp, M. D.”</p> <p>The defendant offered evidence to show that the answers of the insured to Questions Nos. 12 and 13, in that portion of Exhibit J which followed “ Application for Insurance in the John Hancock Mutual Life Insurance Company,” were false and made with actual intent to deceive the defendant, or that the matters misrepresented increased the risk of loss. The following question was asked on cross-examination of one of the plaintiff’s witnesses: “ Q. He was the same Arthur Paquette who was arrested and fined for drunkenness in the Chicopee Police Court, wasn’t he?” The plaintiff objected to the evidence on the ground that the defendant had not complied with R. L. c. 118, § 73, in that it had failed to attach a correct copy of the application to the policies issued to the insured. The plaintiff asked the judge to rule that the whole of Exhibit J constituted the application for the policies. The judge refused so to rule, and ruled that the portion of Exhibit J which constituted the application was that portion thereof contained on its second page which followed the words: “ Application for Insurance in the John Hancock Mutual Life Insurance Company” down to and including the words “ Arthur Paquette, Applicant.” It was not disputed that a correct copy of the portion of Exhibit J admitted by the judge was attached to each of the policies in suit. To this ruling and refusal to rule the plaintiff excepted. The judge further stated “ That question may be answered for the purpose only of identifying this insured as the same person whose name appears in some record, with the understanding that the record shall be produced.” Then ensued the following: “ Q. Will you answer that question ? A. I would not say he was drunk. — Q. I didn’t ask you that. A. I know he got arrested. I could not tell what he was arrested for.”</p> <p>The defendant subsequently introduced as a witness the clerk of the Police Court of Chicopee and offered in evidence a record of the conviction of Arthur Paquette before the Police Court of Chicopee on September 5, 1903, showing that he pleaded guilty to the crime of drunkenness and was fined $5, which he paid. This record was admitted by the judge against the exception of the plaintiff.</p> <p>The defendant introduced as a witness one Mathews, who was asked: " Will you state what you know about Mr. Paquette’s habits with reference to the use of intoxicating liquors ? ” He answered, subject to the plaintiff’s exception, “ He was a man, at that time, who was frequently under the influence of liquor on the street, especially Saturday afternoons and through Sundays. That would be his time of leisure.”</p> <p>A record of the city court of Norwich, Connecticut, was introduced by the defendant, without objection by the plaintiff, to the effect that Arthur Paquette was presented before that court on August 12, 1898, complained of for intoxication, pleaded guilty, was found guilty and was ordered to pay a fine of $3 and costs, which he paid. This was followed by the evidence of numerous witnesses introduced by the defendant, without objection by the plaintiff, whose testimony tended to prove habits of intoxication on the part of the insured, and who testified to various instances of his use of intoxicating liquor to excess.</p> <p>The defendant offered in evidence a deposition of one Little-john to prove that the insured had been rejected by another insurance company previous to his application for insurance in the defendant company, in contravention of his stipulation or representation as contained in the question numbered 17 of the alleged copy of the application attached to the policies. The plaintiff objected upon the ground above set forth that a correct copy of the application was not attached to the policies. The judge admitted the evidence and the plaintiff excepted. The evidence did not show that the insured had any written or oral notice of such rejection.</p> <p>The evidence offered in this deposition was substantially as follows: That Edward Littlejohn was an officer in the employ of the Prudential Insurance Company of America on November 9,1904; that his duties included the rejection of applications for insurance in that company; that on or before November 9,1904, an application for additional insurance was made to that company by Arthur Paquette, who at that time was the insured named in two policies previously issued by that company; that this application came before Littlejohn for his rejection or approval; that he was the officer properly authorized to make such rejection and his decision was final. He then was asked by Interrogatory 17, “ If so, what action on it did you take and when did you take that action ? ” Answer to Interrogatory 17, “ I declined his said application on the 9th day of November, 1904.”</p> <p>The insurance issued on the life of Arthur Paquette by the defendant company was special weekly premium insurance of the class known as industrial insurance.</p> <p>The plaintiff asked the judge to make, among others, the following rulings:</p> <p>Number 7. The defendant must prove that the insured had knowledge of his rejection for insurance on his life at the time of making the statements contained in the application for insurance in the John Hancock Mutual Life Insurance Company.</p> <p>Number 8. The question in the application for insurance in the John Hancock Mutual Life Insurance Company, “ Have you ever been rejected or postponed by this or any other company or society ? ” should be construed as referring to rejection or postponement for insurance of the same class and kind as that applied for in said application.</p> <p>The judge refused to make these rulings and the plaintiff excepted.</p> <p>The judge made the following ruling at the request of the defendant:</p> <p>“Number 14. The insured represented in his application to the defendant that he had never been rejected or postponed by that or any other company. The evidence that he had been rejected by the Prudential Company is not controverted by the plaintiff. If you find that this false representation or statement was made with actual intent to deceive the defendant the policies issued on his life were thereby rendered void and the defendant is entitled to a verdict in its favor.” To this ruling the plaintiff excepted.</p> <p>The judge instructed the jury upon the subject as follows:</p> <p>“ Now, gentlemen, there is another question which comes up in this case with reference to the Hancock Company, and that is that these policies are void, by reason of the statement made by this deceased that he had not been rejected for insurance by any other company, and the question was, ‘Have you ever been rejected or passed upon by this or any other company, etc.,’ and the answer was ‘No.’ The evidence shows that he did make a second application in the Prudential Insurance Company on November 9th, 1904, and that that application was rejected. There is not any evidence in this case that I now recall, any direct evidence in the case, that he knew the application was rejected, but it is for you to say, gentlemen, whether or not he did know or whether he had a right to believe and whether it was his duty to believe that in view of all the circumstances he had been rejected, but in considering that question you will determine the date, the time when he made his application for insurance in the Prudential Company, the second application, which was rejected. That application was made on the 9th of November, and the application in the Hancock Company was made on the 4th day of December, a period of about three or four weeks, and I instruct you with reference to that that if he made that answer which he did make with the actual intent to deceive the John Hancock Insurance Company, or if the making of the answer which he did make, the false answer, actually did increase the risk of loss, then the plaintiff is not entitled to recover against the Hancock Insurance Company. The question is, when this answer was made had this deceased such opportunity for knowing that he ought to have understood that he had made an application and that it was rejected or that he believed it to be rejected. The statement which was made was a false statement. There is nó doubt about that, because the undisputed evidence shows that before this application was made that application had been actually rejected. Now, was his statement made with the actual intent to deceive the Hancock Insurance Company, or, if it was not made to deceive the Hancock Insurance Company, did it, as a matter of fact, actually increase the risk of loss? If that is so, then the plaintiff is not entitled to recover against the Hancock Company, and, gentlemen, as bearing upon that,' you take all' the evidence and all the facts and circumstances in the case and weigh them carefully and determine whether or not either one of those things occurred. If they did, " the plaintiff is not entitled to recover. If they did not occur, if it did not increase the risk of loss and was not made with intent to deceive, then that would eliminate one of the grounds of defence in this case.”</p> <p>In answer to a question specially submitted to them by the judge, the jury found that at the date when the insured made the application to the defendant for insurance he was not addicted to the excessive use of intoxicating liquor, but that before that date he had used.ardent spirits, wine or malt liquors to excess. The jury returned a general verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The case was argued at the bar in September, 1906, before Knouiton, C. J., Morton, Hammond, & Braley, JJ., and after-wards was submitted on briefs to all the justices except Bugg, J.</p>

<p>Libel and Slander. Practice, Civil, Exceptions.</p> <p>In an action for oral slander in charging the plaintiff with a crime the plaintiff may recover without showing special damage.</p> <p>Where the circumstances are such as to make an oral charge of larceny a privileged communication if made in good faith and in a proper manner, although the communication does not become actionable merely because the speaker’s language is intemperate and excessive from excitement, yet intemperance and excess of language beyond such as naturally would be aroused by the circumstances are evidence of express malice, which would make the communication actionable.</p> <p>In an action for oral slander in charging the plaintiff with larceny, where the defence set up is that the charge was a privileged communication made in good faith,'the defendant upon the argument of exceptions after a verdict for the plaintiff cannot raise the point that the definition of express malice given by the presiding judge was wrong if none of the rulings asked for by the defendant contained a definition of express malice and he took no exception to this part of the judge’s charge.</p> <p>In an action for oral slander in charging the plaintiff with larceny, where the defence set up is that the charge was a privileged communication made in good faith after the defendant had been informed that a pocket book in his house had been stolen, and there is evidence that the plaintiff was searched at the suggestion of the defendant, an instruction of the presiding judge is correct to the effect that if the defendant made the accusations of theft to humiliate the plaintiff and not for the purpose of recovering the missing money it would destroy the defence of privilege, and that in passing on that question the jury could consider the search made, and, if they found that it was made against the will of the plaintiff under threats of prosecution, they could consider that fact in determining whether the real motive of the defendant in making the accusations was to humiliate the plaintiff.</p>

<p>Tort, by a girl ten years and four months old when injured, for personal injuries from being struck and knocked down by an electric car of the defendant while attempting to cross Cambridge Street at its junction with Columbia Street and Webster Avenue in Cambridge at five o’clock in the afternoon of May 2, 1900. Writ dated May 17,1900.</p> <p>At the trial in the Superior Court before Eox, J. the facts appeared which are stated in the opinion, and it also appeared that the plaintiff since she was three years old had lived in Cambridge on Columbia Street, a few doors from Cambridge Street, along which electric cars ran every few minutes, and since she was six years old had walked to school and back, two sessions daily, during the school months, from September to the middle of June in each year, and that she was of average intelligence, size and activity at the time of the accident.</p> <p>At the close of the plaintiff’s evidence the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The case was submitted on briefs at the sitting of the court in November, 1906, and afterwards was submitted on briefs to all the justices.</p>

<p>Tax, Collection. Assignment, For benefit of creditors. Words, “ Assignee.”</p> <p>R. L. e. 13, § 33, in regard to the collection of taxes where the person assessed dies or becomes insolvent, which provides that “ the executor, administrator or assignee ” upon the receipt of any money applicable to the payment of the tax shall be liable for such tax after a demand, does not give a remedy against the assignee under a common law assignment for the benefit of creditors even if the assignor is in fact insolvent, the word “ assignee ” referring only to an assignee in insolvency under the statutes of the Commonwealth.</p>

<p> Street Railway. Way. Eminent Domain. Boston and Worcester Street Railway Company. Statute. Constitutional Law. </p> <p>The owner of land abutting on a public way, which is injured by reason of a change of grade of the way made in the construction of the railway of a street railway company in accordance with its grant of location from the selectmen of a town, has no remedy in tort against the street railway company or the contractor employed by it to do the work of construction. Whether, in case the abutting land is cut off by the change of grade from all proper access to the highway so as to be rendered incapable of reasonable improvement, the landowner may not be entitled to relief in a proper form of remedy seasonably sought, quaere.</p> <p>Under St. 1901, c. 455, and the general law relating to street railways, the selectmen of a town on the line of the Boston and Worcester Street Railway Company had power to grant a location to that company authorizing it to cross with its railway a public way substantially at right angles and imposing a condition that the company should carry its tracks under the public way and for this purpose should raise the way not exceeding seven feet at the highest place.</p> <p>The provisions of St. 1901, c. 455, and of the general law relating to street railways giving power to the selectmen of a town on the line of the Boston and Worcester Street Railway Company to grant a location to that company to cross with its railway a public highway substantially at right angles and to impose a condition that the company should carry its tracks under the highway and for this purpose should raise the highway not exceeding seven feet at the highest place, without providing that the railway company should make any compensation to the owners of abutting lands for injuries sustained by them from the construction of the railway in accordance with the grant of location, are constitutional, the original taking of land for the highway for the purposes of public travel, for which compensation is provided, having included the use of the highway for public travel by all reasonable devices.</p>

<p>Contract by the American Malting Company, a corporation organized under the laws of the State of New Jersey and having its usual place of business in the city and State of New York, against the Souther Brewing Company, a corporation organized under the laws of the State of West Virginia and having its usual place of business in Boston, for the price of various cargoes of malt sold and delivered by the plaintiff to the defendant between October 28, 1898, and January 15, 1900. Writ dated January 26, 1900.</p> <p>In the Superior Court the case was heard by Fox, J., without a jury, upon an auditor’s report and additional testimony. The controversy in the case was under the defendant’s plea of payment. There was due to the plaintiff on the date of the writ for malt sold and delivered $30,190.85, unless certain notes of J. K. Souther and Sons given by the defendant were to be allowed as payment pro tanto. If these notes were allowed as payment pro tanto, there was due to the plaintiff the sum of $17,710.65, with interest thereon from November 27, 1905.</p> <p>The judge made the following findings:</p> <p>“ The finding of the auditor to the effect that there was an oral agreement between J. K. Souther and Charles M. Warner that notes should be taken in payment was controlled by the testimony before me, and I find that there was no such agreement affecting the questions here in issue. I find, however, that there was a written agreement that the notes of Souther and Sons should be accepted in payment pro tanto of the plaintiff’s open account with the defendant, and that this written agreement is established by the letter of June 27,1899, and the subsequent correspondence above set forth, read in the light of the situation of the parties as shown by tbe auditor’s report.</p> <p>“ It appears that Souther and Sons had carried on a brewery business for many years and, in 1898 incorporated the Souther Brewing Company, which took over their business. Warner. one of the plaintiff’s principal men and the head of the house which had been absorbed by the plaintiff corporation, had dealt with and given credit to Souther and Sons for years, and there is nothing essentially improbable .in the fact that the plaintiff regarded the credit of Souther and Sons as good as that of the corporation which they had organized.</p> <p>“I am of the opinion that the letter of June 27th is to be deemed a request, not for leave to give additional security but for leave to give substituted security; that the word 6settle’ as used in this and later letters means 6 pay,’ and that the concurrence of the plaintiff in this construction is shown by the fact that in one instance it returned the invoice duly receipted as paid and in another instance promised so to receipt them.</p> <p>“ Respecting the plaintiff’s contention that it has a right to rescind the agreement on the ground of fraud I find as follows : In the letter of June 27bh there are some misstatements made by Souther with the knowledge of the facts. First, the new brewery did not cost more than $150,000; second, one bill for about $11,000 for construction had not been paid. When this letter was written Souther and Sons had given their note for this bill, but the corporation subsequently had to pay it. Third, the Souther Brewing Company was not taking all its malt from the plaintiff. Malt, although not to a very large amount, had been bought of other concerns.</p> <p>• “ These representations might be deemed material if there were any evidence that the plaintiff paid any attention to them. The plaintiff furnished no direct evidence that it relied on these statements. It contended throughout that the notes were not accepted in payment, and in support of this contention introduced evidence that the question of accepting these notes was not made even a matter of discussion among its officers and agents. I cannot infer from the facts before me that the plaintiff relied on these misrepresentations in accepting the notes.</p> <p>' “ It is further contended by the plaintiff that Souther committed a fraud in offering his own notes for the liability of the corporation, because of his insolvency at that time, even though he made no representations as to solvency. The auditor finds in substance that Souther was in fact insolvent, although he believed that be was solvent, and no evidence was offered before me which controls the auditor’s finding on this point.</p> <p>“All the facts material to the determination of the question whether the law of Massachusetts or the law of New York applies are stated by the auditor. Upon these facts I am of the opinion that the Massachusetts law applies.</p> <p>“ I find that the various agents of the corporation by whom the plaintiff’s letters were signed and its invoices receipted were duly authorized.”</p> <p>The letter of June 27,1899, referred to above and the reply to it were as follows :</p> <p>“ C. M. Warner Branch.</p> <p>16 Boston, June 27, 1899.</p> <p>“ American Malting Co.,</p> <p>“ New York.</p> <p>“ Gentlemen:</p> <p>“ Yours of 23d is at hand, calling our attention to the serious fact that in the acc’ts you have mailed us ‘ there is considerable over-due and some long past due.’ This we acknowledge with regret, and we hope in time to be able to correct this abuse of trust. We have, as you know, built and paid for (notone dollar due on it) a new lager Brewery, costing over $200,000 ; then we were obliged to stock it with lager; to do this we had to have malt, and, as you know, we take all our malt of the Am. Malting Co. We will get around to even up matters, only asking a little time. We do not suggest allowing us to take some of our supply elsewhere, but if we did so our acct. with you would not increase so fast. We like your malt, it suits us, and have no desire to divide our trade. And we bear in mind our contract with you.</p> <p>“I find that there is now due the Warner Branch $5223.98; there is also due the Northwood Branch $7151.50, making a total a/c overdue of $12,375.48. The Souther Brewing Co. have never given a note. I would herein enquire if you would not be willing to accept notes of J. K. Souther & Sons, who own a large part of the stock of the Souther Brewing Co., for this overdue acct., adding interest for all time taken on the notes from the day each car became due.</p> <p>“ I would add that our new lager plant is a success, that our sales for June will be exceeding 6000 bbls., that we expect and believe we shall, before the summer is over, sell 10,000 bbls. a month.</p> <p>“ We would like to send notes as written above to settle everything due to the present moment, if acceptable; if not, we shall have to meet your call, if you will kindly inform us by mail. Meantime we remain,</p> <p>“ Respectfully yours,</p> <p>“ J. K. Souther & Sons,</p> <p>“ J. K. Souther.”</p> <p>“ New York, June 28, 1899.</p> <p>“ Messrs. J. K. Souther & Sons,</p> <p>“ Boston, Mass.</p> <p>“ Dear Sirs:</p> <p>“ Replying to your esteemed favor of the 27th inst. would say that we would be pleased to receive notes from you, with interest, for the overdue amounts of our Warner and North wood Branches, and if you wish would be pleased to accept your notes for everything shipped you so far, having same run on stipulated time of contract.</p> <p>“We are much pleased to read that you are doing so well with your lager beer brewery and hope your expectation to sell 10,000 barrels per month will be realized. We of course wish to furnish you with the malt used for both breweries, as we interpret the contract with you is to cover your entire needs.</p> <p>“ Hoping this is satisfactory, we are,</p> <p>“ Very truly yours,</p> <p>“ American Malting Company,</p> <p>“ per C. E. Hansen.”</p> <p>The plaintiff presented many requests for rulings and findings. Some of these were granted by the judge, and others were refused by him, raising the questions which are considered in the opinion, where the material facts found by the auditor sufficiently appear.</p> <p>The judge found that the notes of Souther and Sons should be applied in payment pro tanto, and that the plaintiff was entitled to recover the sum of $17,710.65 with interest from November 27, 1905, that being the amount due it after such application. At the plaintiff’s request the judge reported the case for determination by this court.</p>

<p>Tort, with two counts for malicious prosecution and two for abuse of criminal process. Writ dated April 4, 1898.</p> <p>In the Superior Court the case first was tried before Blodgett, J., who ordered a verdict for the defendant, and exceptions alIeged by the plaintiff were sustained by this court in a decision reported in 181 Mass. 339. There was a new trial before Bell, J., at which the plaintiff, before the introduction of evidence, elected to rely upon his fourth count and went to trial upon that count. The fourth count was as follows:</p> <p>“ Fourth Count: The plaintiff says that he was at the time of the occurrence of the events hereinafter stated, and always has been, a man of good repute in the community, and free from crime or the suspicion thereof ; that on the second day of March, 1898, he was in the occupation of a certain dwelling house in Hudson, Mass., belonging to one L. D. Apsley, president of the defendant, and in possession of the furniture of the said house, including a certain stove the property of the defendant; and on that day the defendant made a complaint under oath to one Ralph E. Joslin, trial justice in and for said Commonwealth in said Hudson, charging the plaintiff with maliciously and wilfully injuring certain property of the defendant, to wit, by concealing the covers of said stove, to the value of two dollars, and upon such complaint obtained a warrant, and thereupon caused the plaintiff to be arrested on said warrant by a police officer of said Hudson, and while the plaintiff was in the custody of said police officer, the defendant taking advantage of the situation in which the plaintiff was then placed by reason of said arrest, by the abuse of said process, compelled the plaintiff to deliver up to it the possession of the said house and the furniture therein, including the said stove and said stove covers; and to this end, instead of permitting the plaintiff to be taken before a court where he might be heard upon said complaint, caused said police officer to falsely imprison the plaintiff, take him to said dwelling house, and there by the abuse of said process to compel him to deliver up said premises and said furniture, including said stove and said covers, and then to conduct the plaintiff with his family away from said dwelling house and through the streets of said Hudson for a distance of half a mile or more in the middle of the day, and exposed to the observation of all persons who were there, and then to be released by the said police officer, and said warrant to be retained by him and never returned into court; all to the great damage of the plaintiff.”</p> <p>The substance of the evidence is described in the opinion. At the close of the evidence the defendant asked the judge to make certain rulings, concluding with a request for a ruling that upon all the evidence the plaintiff was not entitled to recover. The judge refused to make the rulings requested, and submitted the case to the jury with other instructions. The jury returned a verdict for the plaintiff in the sum of $1,058.57; and the defendant alleged exceptions, raising the questions which are considered in the opinion.</p>

<p>Sale. Good Will. Partnership. Equity Jurisdiction, To enforce negative contract, Accounting. Equity Pleading and Practice, Appeal, Amendment.</p> <p>In this Commonwealth when a man voluntarily sells the good will of his business he thereby agrees not to set up a competing business which will derogate from the good will that he has sold, and the question whether a new business set up by him is in derogation of his sale is one of fact relating to the character of the business sold and of that set up.</p> <p>If a partner in a firm engaged.in a long established book trade, with a department for the sale of books used in and in connection with the Episcopal church, which is under his immediate personal control and direction, sells and assigns to his only partner all his interest in the business and its assets including all his interest in the good will of the business, and thereafter organizes a corporation bearing his name, which in the same city not far from the old place of business carries on a book selling business established principally to sell church books to persons of the Episcopal church, the partner who purchased the good will, or his assignee, may maintain a suit in equity against the partner who sold it and tlie corporation he has organized, to restrain the individual defendant from working for or holding stock in or being connected with the corporation and for an accounting for the damages which the plaintiff has suffered from that defendant’s breach of his contract, and to enjoin the corporation from employing the individual defendant in its business or recognizing him as a stockholder except to permit him to sell his shares of stock or to receive what is due upon them on the winding up of the corporation.</p> <p>On an appeal from a decree in equity where the whole case is before this court on a report of all the evidence without special findings of fact, the case is to be disposed of as it should have been disposed of by the judge who heard the evidence, except so far as the general finding of the judge after seeing the witnesses affects the case, and it is competent for the parties to put forward in this court contentions justified by the evidence which were not presented below. Moreover tliis court in the exercise of its discretion may order any amendments to be made in the pleadings which are necessary to meet the case presented on the evidence.</p>

<p>Bill in equity, substituted by amendment on March 8,1906, as of December 14, 1904, by the assignee by mesne conveyances from Alfred A. Marcus to establish an equitable mortgage upon certain real estate on Harvard Place in Boston, praying for an account and for a redemption.</p> <p>The bill alleged in substance that Marcus, having negotiated with one Millis for the purchase of the real estate named, arranged with the defendant to furnish the consideration and to take the title in his own name by a deed absolute in form but in fact as security for the amount of his advances upon terms which were more fully set forth in an agreement in writing alleged to have been entered into between Marcus and the defendant. The answer alleged in substance that the defendant purchased the property in question in July, 1887, on his own account, and has since held it free from all trust and obligations to Marcus, and set up the statute of frauds, the statute of limitations and loches.</p> <p>It was not controverted that on June 13, 1887, Millis, acting for himself and others, the owners of the Harvard Place estate, agreed in writing to convey to Alfred A. Marcus or order the estate in question for $55,000 above a mortgage of $25,000, of which $5,000 was to be paid upon delivery of the agreement and the balance within twenty days from the date thereof. Upon this agreement was indorsed the following :</p> <p>“The foregoing agreement is hereby assigned, transferred, and set over for value received to Daniel L. Demmon, to whose order the deed shall be made and who shall hold this agreement and the deed under it as security for any money he may advance to secure the deed, and all such payments shall be endorsed thereon.</p> <p>“ Eec’d on above $5000.</p> <p>“ “ “ $5000.</p> <p>“ June 20, 1887.</p> <p>“ Alfred A. Marcus.”</p> <p>On June 28 this agreement was extended until July 20, 1887. This agreement passed into the custody of Demmon at the time of its assignment to him, and was kept by him after that time.</p> <p>Under date of July 19, 1887, Millis and others, the owners of the property in question, conveyed it to Marcus, who, by deed dated July 20, 1887, conveyed it to the defendant. In the making of these instruments and in the search of the title to the' estate, one Baxter E. Perry, an attorney at law, acted as counsel for both the defendant and Marcus. Demmon had no part in the transactions resulting in the sale from Millis to Marcus other than to pay the money. The consideration for the conveyance was paid by the defendant by three checks dated respectively June 20, 1887, June 28, 1887, and July 20, 1887, all to the order of Perry and for the amounts respectively of $5,000, $5,000, and $45,000, which Perry turned over to Millis for the owners of the estate. Marcus died before the filing of the bill.</p> <p>In the Superior Court the case was heard upon documentary evidence and oral testimony. The documentary evidence consisted of the agreement of June 13, 1887, and the assignment thereof to Demmon, various deeds affecting the title to the estate, including those from Millis to Marcus and Marcus to the defendant under date of July 19 and July 20, 1887, respectively, the checks of Demmon to Perry and a schedule of assets made by Marcus in insolvency proceedings in December, 1894, in which was this item, “ Estate on Harvard Place, half interest, held by Daniel L. Demmon as collateral,’’ and the deposition of Baxter E. Perry, who at the time it was taken was seventy-eight years old and had been for several years in feeble health. He deposed in substance that he knew about the transaction in question, and that at the time he drafted an agreement in writing between Demmon and Marcus, which provided that the defendant was to advance about $65,000 for the purchase of the property, was to take the title as security for the advances and interest thereon at six per cent, and the sum of $1,500 as bonus, all in the nature of a mortgage which could be redeemed on payment of these sums within six months, and that, if Marcus did not redeem within that time, the defendant should hold the title as absolute and free and could sell at any time for any price he chose, but that the excess of price received over the amount due to Demmon and the further sum of $10,000 should be divided equally between Marcus and Demmon, and that the income over the carrying charges of the estate should be held by Demmon in equal shai’es for himself and Marcus, and that he collected the rents for the benefit of Marcus until the expiration of the time limited for redemption; that this agreement was executed in duplicate, one taken by "the defendant and the other retained by the deponent for Marcus; that he missed the agreement within four or six months after its execution, although before its loss Marcus examined it several times, and that since then he had made diligent search for it many times and had been unable to find it.</p> <p>Several witnesses testified orally that at different times Marcus had described to them the contents of the lost agreement between him and Demmon, one relating the substance of it to be that upon a sale of the property after the expiration of six months, Demmon and Marcus were to divide in equal shares the net profits arising from the land, and saying nothing about any bonus to Demmon; another testifying that if the sale was made within the six months Demmon was to get a bonus of $1,500 or $2,000, and that after the expiration of six months Demmon might take the property and sell it, and that when he did sell it there was to be an accounting in which all rents were to be credited after deducting expenses and interest on any money advanced by Demmon, together with a bonus of $10,000 to him, and the balance was to go to Marcus.</p> <p>The defendant testified that he took the assignment of the option as security for the two payments of $5,000 each, which he advanced to Marcus, and that when July 20, 1887, came, Marcus owned up that he could not pay for the property, not having advanced a penny toward its purchase, and that thereupon the defendant paid the remaining $45,000 of the purchase price through Perry, thereby closing the transaction and acquiring for himself the absolute and unqualified title to the property, free from all obligation to Marcus.</p> <p>The defendant’s testimony, although not clear upon this point, appeared to assert that he began the collection of rents as soon as he received the deed of the property, and there was some corroboration of this from other sources. There was testimony showing that the reputation of Marcus for truth and veracity was bad.</p> <p>The Superior Court on December 14, 1904, made an order appointing a commissioner to report the evidence to this court, and on January 1,1906, after a hearing, made a final decree that the bill be dismissed without costs. The plaintiff appealed.</p>

<p>Husband and Wife. Estoppel. Equity Jurisdiction, Equitable replevin. Equity Pleading and Practice, Master’s report.</p> <p>A" wife by placing personal chattels belonging to her in the possession of her husband who pledges them to one advancing money on them in good faith is not estopped to assert her title to the chattels, and can maintain a suit of equitable replevin against the pledgee to recover possession of them.</p> <p>In a suit of equitable replevin by a wife to recover possession of certain chattels pledged to the defendant by the plaintiff’s husband and alleged to belong to the plaintiff, a master ruled that the plaintiff could maintain her bill and was entitled to recover possession of the chattels, and found that the plaintiff had no actual knowledge at the time of her husband’s pledging the chattels to the defendant, that she never expressly authorized her husband to pledge them, and never expressly assented to or ratified the pledge after it had been made. He added “ But if such knowledge, assent and ratification can be implied in law from the agency of her husband and her- own acts as herein reported, then I find that she cannot maintain her bill.” Facts were stated in the master’s report which would have warranted a finding that the plaintiff in fact knew of the pledge of her property by her husband and either consented to it originally or afterwards ratified it. Held, that the meaning of the sentence quoted from the master’s report was that the bill could not be maintained if the plaintiff’s knowledge was to be implied as matter of law, and that it did not mean that she could not maintain her bill if her knowledge as matter of law could be implied in fact, and a decree for the plaintiff made by the Superior Court upon the master’s report was affirmed by this court.</p>

<p>Petition, filed in the Probate Court for the county of Suffolk on October 30, 1905, by Gertrude S. Cleaveland of San Francisco in the State of California and Mary A. Yore of Chicago in the State of Illinois, praying for a decree of distribution of the estate of Sarah A. Ellis, late of Boston.</p> <p>In the Probate Court Grant, J. made the following decree :</p> <p>“ At a probate court holden at Boston in and for the said county of Suffolk on the fourth day of April in the year of our Lord one thousand nine hundred and six:</p> <p>“ On the petition of Gertrude S. Cleaveland of San Francisco in the State of California, and Mary. A. Yore of Chicago in the State of Illinois, praying for a decree of distribution of the estate of Sarah A. Ellis, late of said Boston, deceased, all persons interested having had due notice of said petition according to the order of said court: now, after hearing the parties, it appears to the court that Charles M. Draper was appointed public administrator of the estate of said Sarah A. Ellis, June 6, 1901; that on February 27,1904, a decree of distribution was entered by said court, after notice as ordered by the court, ordering the said public administrator to pay over the balance of seventeen hundred fifty-nine and 75/100 dollars in his hands to Frank H. Skinner, as the only person entitled thereto; that said public administrator paid over said balance to said Frank H. Skinner in pursuance of said order; that on March 1,1905, said court, after said payment by said public administrator, revoked said order of distribution for the purpose of correcting a mistake of fact. It further appears that at the time of the death of said Sarah A. Ellis there were three grandchildren surviving her, being the petitioners and Joseph French Ellis, children of a deceased son, George W. Ellis, the said George W. Ellis having died prior to the death of said Sarah A. Ellis. It further appears that the said Joseph French Ellis died on April 1, 1902, intestate, leaving the petitioners as his only heirs at law. Now it appearing that the decree of February 27,1904, finding Frank H. Skinner to be the only heir at law, and ordering the administrator to pay the balance of the estate to him, was made under misapprehension of fact, and that said Frank H. Skinner was not the person entitled to said balance; and it further appearing that the said petitioners, Gertrude S. Oleaveland and Mary A. Vore, and the legal representative of the estate of the said Joseph French Ellis are the persons entitled to said balance in equal shares, it is decreed that said decree of February 27, 1904, be reaffirmed except so far as it finds Frank H. Skinner to be the only person entitled to the balance of said estate; and it is further decreed that said Gertrude S. Oleaveland and Mary A. Vore and the legal representative of the estate of Joseph French Ellis are the persons entitled to said balance, one third part to each. But it appearing that all of said balance has been paid to said Frank H. Skinner by the administrator in good faith under the authority and direction of said decree and order of February 27, 1904, this decree shall not require the administrator to take further action, nor impose upon him any liability, but it shall take effect only to correct the error of said former decree and order, and to establish the rights of the petitioners and the estate of said Joseph French Ellis to their distributive shares of said estate of Sarah A. Ellis, as against the said Frank H. Skinner, to whom payment has been made, and to give to them and to the administrator such rights as against said Frank H. Skinner as arise from the correction of the error of the decree of February 27,1904.”</p> <p>The petitioners appealed, and the case came on to be heard by Sheldon, J., who reserved it upon the pleadings and an agreed statement of facts for determination by the full court.</p>

<p>Bill in equity, filed April 28,1903, by the owner of certain real estate on Washington Street in Boston, comprising a building formerly occupied as a part of a hotel called the Hotel Reynolds, a covered or arched way called Gibbons Court and a building known as the Park Theatre, to enjoin the defendant, who was the assignee of the lease of the plaintiff’s hotel property from claiming an exclusive right in Gibbons Court or the right to use it for mercantile purposes and to compel him to leave the gate at the entrance of that court unlocked and open.</p> <p>The case came on to be heard before Braley, J., who at the request of the parties reported it for determination by the full court, such decree to be entered as justice and equity might require.</p>

<p>Petition, filed in the Supreme Judicial Court on May 31, 1906, by the collector of taxes of the city of Boston against a corporation organized under the laws of the State of New Jersey and doing business in Boston, under St. 1902, c. 349, to restrain the defendant from doing business in this Commonwealth until a tax for the year 1905 of $320 assessed upon the personal property of the defendant, which the defendant had refused and omitted to pay for a period of more than sixty days after demand for its payment, should have been paid.</p> <p>The respondent appeared specially, and in its answer denied that the tax mentioned in the petition ever was due or payable, and alleged that the assessors of Boston had no jurisdiction over the defendant by reason of its non-residence, that the assessment was void as in violation of art. 12 of the Declaration of Rights and of art. 5 of the Amendments to the Constitution of the United States, that there had been no legal service of process, and that the court had no jurisdiction.</p> <p>The case was heard by Hammond, J. upon agreed facts which are stated in the opinion. The justice made a decree ordering that an injunction issue as prayed for in the petition; and the respondent appealed.</p> <p>The case was submitted on briefs.</p>

<p>Bill oe intebpleadeb filed in the Supreme Judicial Court on January 23,1905, by a stockbroker, who was a member of the Boston Stock Exchange, doing business under the name of Joseph E. Doucette and Company, to determine the ownership of a fund of $8,817.51, and of two hundred shares of stock of the Hidden Fortune Mining Company, and one hundred shares of the Oro Hondo Mining Company, which from time to time had been deposited in the hands of the plaintiff by Jacob Berry and Company, New York stockbrokers, as margins for an account carried by the plaintiff for Berry and Company.</p> <p>The case first was heard by Morton, J., who made a memorandum of findings, and at a later stage was heard by Braley, J., who made the final decree. The facts were as follows :</p> <p>Berry and Company were members of the New York Consolidated Stock Exchange, and had offices in New York, Boston and elsewhere for the transaction of their business as brokers and bankers. In their Boston office customers gave them orders to buy and carry on margin for their respective accounts various stocks which were dealt in only on the Boston Stock Exchange. Berry and Company then gave orders to Doucette to buy the Boston stocks on margin for their account. Berry and Company called for margins from such customers, and received six per cent interest on the unpaid balances for carrying the stocks. As Doucette executed the orders for Berry and Company the stocks were charged in their account, which stood in the name of H. L. Bennett, one of the partners of Berry and Company, into which from time to time various amounts were paid by check of Berry and Company. They were charged five and one half per cent interest on any balance, and the stocks were retained by Doucette as security. Specific amounts were not paid by Berry and Company to Doucette against each order to purchase stock corresponding with an amount paid to Berry and Company by their customer, but on the contrary there was a general running account so that specific purchases were made against their general balance. Doucette did not know, and he never was informed, for whom, if any one, Berry and Company were acting in making the various purchases and sales charged in the Bennett account, and knew only Berry and Company in these transactions, and looked only to them and their credit in their dealings. Berry and Company’s customers were not informed by them of any of the relations between that firm and Doucette, although there was some evidence that two of the claimants in the course of their dealings with Berry and Company learned that Berry and Company were buying Boston stocks of Doucette.</p> <p>On December 1, 1904, Berry and Company were petitioned into bankruptcy, and Doucette closed out the Bennett account with the result that there remained in his hands the fund and stocks which are the subject of the present bill. The trustees in bankruptcy of Berry and Company claimed the whole fund and stocks as successors in title to the bankrupts. Dwight Baldwin and John Collins,-two customers of Berry and Company, who had margin accounts with that firm, claimed $3,773.98 and $3,541.15 respectively as the proceeds of that part of their accounts with Berry and Company which covered Boston stocks, on the theory that they were the undisclosed principals for whom Berry and Company had acted in dealing with Doucette. It appearing that there were at least seven other customers who were similarly situated, the court issued an order of notice to them to present their claims by a given date or be barred. Mrs. Frances A. Conant and Albert E. Fowler made such claims. The court found against Fowler, and allowed the claims of Mrs. Conant, Baldwin and Collins for $190.10, $3,773.98 and $3,541.15, respectively. A decree was entered accordingly; and the trustees in bankruptcy of Berry and Company appealed.</p>

Bill in equity, filed in the Superior Court on March 12, 1904, by Daniel W. Cox, of Harrisburg in the State of Pennsylvania, doing business under the name of D. W. Cox and Company, against Christian P. Andersen, doing business in Boston, and the Andersen Coal Mining Company, a corporation organized under the laws of the State of New Jersey and having a usual place of business in Boston, to reach and apply the interest of the defendant Andersen in the defendant corporation to…

<p>Bill in equity, filed in the Superior Court on September 14, 1904, to compel the specific performance of a contract to convey to the plaintiff a narrow strip of land in the town of Natick with an easement in adjoining land.</p> <p>The plaintiff was allowed to amend its bill by adding the words quoted below. In allowing the amendment the judge imposed the condition, that, if it should be determined that the bill was not maintainable without the amendment, the plaintiff was to take no costs to the date of the amendment and was to pay the defendant’s costs to that date.</p> <p>Annexed to the bill was a copy of a contract in writing under seal marked Exhibit A which was the contract sought to be enforced. Annexed to the answer was a copy of another instrument in writing which was marked Exhibit 1, signed in behalf of the plaintiff and by the wife of the defendant, which was alleged to be a part of the contract between the parties.</p> <p>The seventh paragraph of the bill originally was as follows: “ 7. The plaintiff is ready and willing and hereby offers to pay to the defendant said sum of $500 and to comply with any and all other terms of said agreement on its part to be performed.”</p> <p>The amendment to the bill above referred to was by adding to the seventh paragraph the words “ and any and all terms of the paper, a copy whereof is annexed to the defendant’s answer, marked Exhibit 1, to such extent and in such manner as the court may require.”</p> <p>Exhibit Á. was as follows:</p> <p>“ Know all men by these presents, That I, Henry H. Rose of Natick in the County of Middlesex and Commonwealth of Massachusetts, in consideration of one dollar and other valuable considerations to me paid by the Boston and Worcester Street Railway Company, a corporation organized under the' laws of said Commonwealth, the receipt whereof is hereby acknowledged, do hereby, for myself and my heirs, executors and administrators agree with said Boston and Worcester Street Railway Company to sell and convey to said Boston and W orcester Street Railway Company the property hereinafter described upon the following consideration: The payment of five hundred dollars, the erection and maintenance of cement tank and pipes and outlet for the restoration of spring, the erection and maintenance of Page woven wire fence on westerly boundary, the erection and maintenance of stopping point as designated by grantor.</p> <p>“ This option may be accepted in writing by said corporation within ninety (90) days from this date and within thirty (30) days after such acceptance, said conveyance shall be made by warranty deed with full covenants and dower release, if necessary, conveying a clear title free from all encumbrances, whenever and wherever said corporation shall tender said agreement after seven (7) days’ notice by it of the time and place of tender.</p> <p>“ The property to be conveyed consists of a parcel of land situated on the south side of Worcester Street in said Natick shown on plan of Edwin H. Rogers, dated June 25,1903, revised March 24,1904, entitled ‘ Boston & Worcester Street Railway Company, Natick, Mass., Proposed Location of Natick Branch Line across Land of the Waban Rose Conservatories,’ and bounded and described as follows: . . . [Description.]</p> <p>“ Containing about one and fifteen one-hundredths (1.15) acres.</p> <p>“ Together with the right to slope and bank the cut and fill on my land adjoining the granted premises to such extent as may be necessary or convenient for the construction and operation of a street railway on the granted premises and the right forever to maintain said cut and fill as so sloped and banked.</p> <p>“ In case of failure to make conveyance as above agreed said Boston and Worcester Street Railway Company may enforce this agreement or recover damages for its breach.</p> <p>“ In witness whereof I, said Henry H. Rose, hereto set my hand and seal this twenty-sixth day of April," 1904.</p> <p>“ Henry H. Rose. (Seal.)</p> <p>“ Witness.</p> <p>“ Bertram D. Sumner.”</p> <p>“ Accepted this twenty-fifth day of July, 1904.</p> <p>“ Boston and Worcester Street Ry. Co.</p> <p>“By William M. Butler, President.”</p> <p>Exhibit 1 was as follows:</p> <p>“ Natick, April 30, 1904.</p> <p>“ Know all men by these presents, that I, Henry H. Rose of Natick, County of Middlesex and Commonwealth of Massachusetts, in consideration of five hundred dollars and other valuable considerations to be paid by the Boston and Worcester Street Railway Company, a corporation organized under the laws of said Commonwealth, the receipt whereof is hereby acknowledged do hereby for myself and my heirs, executors and administrators agree with said Boston and Worcester Street Railway Company to sell and convey to said Boston and Worcester Railway Company the property hereinafter described, upon the following considerations:</p> <p>“ Namely that a cement tank or such as I shall specify be constructed on my land at the nearest suitable place from the spring, and the water conveyed from the spring to it in pipes and an outlet pipe, if necessary, to carry the water from it; the pipes on street railway land, to be maintained forever, all water flowing from said spring to belong to me.</p> <p>“ That a temporary fence be built oh the east side of my pasture and maintained during the construction of said road, sufficient to keep my cows in pasture.</p> <p>“ That on the completion of said road a Page woven wire fence shall be built on my land as near the said road as practical to be maintained forever.</p> <p>“ That the gravel pit that was used to take out gravel during the construction of the main line, shall be filled in and levelled off and loam that was taken from it be spread on top and sown down with grass seed to my satisfaction, during the coming summer.</p> <p>“ That a white post be maintained at Walnut Street and cars stop to let off and take on passengers same as now.</p> <p>“ That there shall be a stopping place to take on and let off passengers on the Branch Road opposite my land at such place as I shall specify.</p> <p>“ That culverts be built over brook where said Road crosses it, satisfactory to me.</p> <p>“ That the trees necessary to be cut to build said road, be cut in such lengths as I shall specify and placed on my land to be used by me.</p> <p>“ The above named specifications are hereby agreed to, on the condition that said Rose delivers to the Boston and Worcester Street Railway Company a proper warranty deed of land as described.</p> <p>“ Natick, April 30th, 1904.</p> <p>“ Boston and Worcester St. Ry. Co.</p> <p>“ By Bertram D. Sumner, Agent.</p> <p>“ Lydia A. Rose.”</p> <p>The case was referred to S. K. Hamilton, Esquire, as master. His report contained the following findings:</p> <p>“ I find that the two papers, one dated April 26, 1904, and the other dated April 30,1904, were delivered at the same time and together constitute the option which the defendant gave the plaintiff, and which entitled the plaintiff to a proper warranty deed of the property described therein upon the performance of the conditions therein named, or in some form by which the rights of the defendant should be protected.</p> <p>“ I find that this option was accepted on the 25th day of July, A. D. 1904, and became operative as a contract at that time. The option further provided that a conveyance of said premises should be made within thirty days after such acceptance by warranty deed, with full covenants and dower release, if necessary, conveying a clear title free from all incumbrances whenever and wherever said corporation should tender the consideration named in said option after seven days’ notice by it of the time and place for tender.</p> <p>“I find that the plaintiff did not tender said consideration nor give the defendant any notice of the time and place for tender within the thirty days named.</p> <p>“ I find that on the 29th day of August, A. D., 1904, the plaintiff tendered the defendant the sum of five hundred dollars ($500.00), together with a deed for his signature. This the defendant declined to sign, it not being in accordance with the option. Thereafter, on August 29, 1904, the plaintiff notified the defendant that it would be ready to receive the conveyance of the land described in said option and to tender the consideration therefor at the registry of deeds in Cambridge, on Tuesday, September 6, 1904, at ten o’clock A. M. The parties met in accordance with said appointment and the plaintiff again tendered to defendant the sum of five hundred dollars ($500.00) and a deed similar to the one tendered August 29th. This tender was declined in writing at the time of the tender.</p> <p>“ I find that it was the duty of the plaintiff to give the defendant seven days’ notice of the time and place within the said thirty days when and where it would tender the defendant the consideration set forth in said option, and that it was the duty of the defendant to prepare and execute a deed in accordance with said option ready for delivery upon the proper tender. Neither did what was incumbent upon him. The defendant contends and asks me to find that time was of the essence of the contract. I do not consider it necessary in making my findings to determine that question, but I do find that both parties have so conducted themselves that they have waived the performance of the contract within the thirty days named.</p> <p>“ I find that the consideration named in the option was such that it could not be performed in full until the plaintiff had obtained at least a conditional title to the premises described in the option. I find that on the 6th day of September, A. D. 1904, at the registry of deeds in Cambridge, upon service of a notice therefor, the parties met and then and there the plaintiff tendered to the defendant such portion of the consideration as it was possible for it t,o tender at that time, to wit, five hundred dollars ($500.00), and that the defendant did not tender a deed such as was set out in the option, or one which would under the circumstances protect his interests. I find that the said five hundred (500) dollars was enclosed in an envelope and remained in the hands of the plaintiff corporation ready for payment until the beginning of this suit, when the same was deposited in the International Trust Company to the credit of the plaintiff corporation.</p> <p>“ I find that the plaintiff is entitled to have a conveyance of the premises described in the option in such form as the court may determine will protect the defendant’s interests and secure the performance of the remainder of the consideration set forth in said option upon the payment to the defendant of five hundred (500) dollars.”</p> <p>In the Superior Court the case was heard by Lawton, J. upon the master’s report and the defendant’s exceptions thereto. The judge made a final decree overruling the exceptions to the master’s report and ordering a specific performance of the contract in the manner and upon the conditions set forth in the decree. The defendant appealed. The plaintiff also appealed.</p>

<p> Lord's Day. Words, “ Open.” </p> <p>It is no defence to a complaint under R. L. c. 98, § 2, for keeping open a workhouse on the Lord’s Day, that the defendant conscientiously believes that the seventh day of the week ought to be observed as the Sabbath, and actually refrains from secular business and labor on that day.</p> <p>One is guilty of keeping open his workhouse on the Lord’s Day within the meaning of R. L. c. 98, § 2, if on that day his workhouse is opened to admit workmen who enter and work during the day and is opened again at the close of their work to allow them to leave, although the public are excluded and between the times of opening the doors are kept locked.</p>

<p>Evidence, Admissions and confessions, Corroboration. Practice, Criminal. Bribery.</p> <p>Semble, that in this Commonwealth a person may be convicted of a crime upon his extra-judicial confession freely and voluntarily made, without corroborative evidence, and that such a case should be submitted to the jury for them to determine from all the circumstances, including the nature of the offence, how much if any weight shall be given to the confession.</p> <p>In the trial of an indictment for having accepted a bribe from a certain person while serving on a jury in a will case, the evidence principally relied on by the Commonwealth was of confessions made by the defendant, the fair import of which could have been found to be that a bribe was given to the defendant for the purpose of inducing him to vote for rendering a verdict against the validity of the will. There was independent evidence tending to show that the defendant was a juror in the will case, that the person from whom the defendant confessed that he received the bribe had been employed in the case on behalf of the contestants to look up witnesses and jurors and to assist otherwise in the preparation of the case, and that the verdict was in favor of the contestants so that the defendant must have voted as he confessed to having been bribed to vote. Held, that there was corroborative evidence in support of the confessions of the defendant, which, although in itself wholly insufficient to support a conviction, tended to confirm the truth of what the defendant had said.</p>

<p>Appeal by Lizzie A. Hayes, named as executrix, from a decree of the Probate Court for the county of Worcester refusing to allow for probate an instrument purporting to be the last will of Susan H. West.</p> <p>A single justice of this court sent the case to the Superior Court for trial upon the following issues:</p> <p>1. Was the instrument purporting to be the last will of Susan H. West duly executed according to law?</p> <p>2. Was Susan H. West of sound and disposing mind and memory at the time of the execution of the alleged will?</p> <p>3. Was the alleged will procured to be made through the fraud or undue influence of Lizzie A. Hayes ?</p> <p>The issues were tried before Aiken, C. J. By the alleged will all the property of the testatrix was left to Lizzie A. Hayes, who also was made sole executrix.</p> <p>It appeared that at the time of the execution of the alleged will, which occurred on June 28, 1904, Susan H. West was seventy-seven years of age and was then in the last stages of chronic Bright’s disease, from which she died within a month thereafter, on July 26, 1904. She was the widow of Henry D. West, who died in 1899, and who had been for many years a practising physician in Southbridge. They had had three children, two of whom died in infancy and the third died in 1882, at the age of thirteen years.</p> <p>Since the death of her husband, Mrs. West had lived alone on the premises which she and her husband had occupied for many years. She was the last of a family of ten children, of whom eight left children surviving her, some of whom resided near her and most of whom lived within this Commonwealth. She was on good terms with her nephews and nieces, with possibly one exception, a nephew of whom it did not appear that she had heard for several years. She always was interested in seeing or hearing from them and corresponded with several of them more or less regularly down to the time of her last sickness in May, 1904, and she was well aware that most of them were in very ordinary and some of them in poor financial circumstances.</p> <p>Some time before her husband’s decease she and her husband had made mutual wills, and several witnesses, who testified for the respondents, said that after her husband’s death Mrs. West had stated repeatedly to several of her neighbors and friends, down to within a few months of her last sickness, that she never should make another will; that she had no favorites among her nephews and nieces; that she would not leave all her property to any one of her relatives and that she thought all of them should share in it. Her estate consisted of the property which she took under the will of her husband, comprising the dwelling house and lot which they had occupied, unincumbered, and valued at about $8,000, and cash on deposit in various savings banks, amounting at the time of her death to about $3,000, making the total value of her real and personal estate between eleven and twelve thousand dollars.</p> <p>During the progress of the disease from which she finally died, she gradually failed and during the last two years of her life she complained at various times of headache, dizziness and pains on her left side, and on at least two occasions during these dizzy terms she had fallen wherever she happened to be. About the middle of May, 1904, she had a severe attack in the form of a stomach trouble, and she was so far unable to get about or care for herself that some of her neighbors brought in a part of her meals and urged upon her the necessity of having some one with her to care for her. For a while she had a young girl to take care of her, and then sent for her niece Lizzie A. Hayes.</p> <p>Mrs. Hayes, in her own behalf, testified, that she was fifty-seven years old; that she lived with Mr. and Mrs. West for about five years from the time she was twelve years old; that her aunt was a peculiar woman; that she could not have lived with her and have been very happy; and that she never saw anybody that went there that got along very well with her. She further testified that she was a milliner by trade and had conducted her business very successfully for twelve or fourteen years before her marriage with her present husband, who was a retired business man, and that they both were very comfortably situated financially, which facts were well known to Mrs. West.</p> <p>There was evidence introduced by the respondents that Mrs. West had on one or more occasions previous to her last sickness said that Lizzie, meaning Mrs. Hayes, did not need any of her, Mrs. West’s, property, as she was well off, and that she, Mrs. West, did not like the way Mrs. Hayes had treated her father about; the property which he had put into Mrs. Hayes’s hands in not returning it to him when he wanted it.</p> <p>Mrs. Hayes testified that within half an hour after her arrival in South bridge, on June 14, Mrs. West said to her, “I don’t know how this,” meaning her sickness, “ may turn with me. I have sent for you to have you fix up my business. I haven’t done anything about making a will.” To which Mrs. Hayes replied, “ All right, I am ready at any time to assist you.” The second conversation they had with reference to the matter was three or four days afterwards, when Mrs. West said to her, “I can’t quite decide. I have thought I would give something to the dumb animal society and I have also thought of giving some to an old ladies’ home. What would you do if it was you ? ” To which Mrs. Hayes testified that she replied: “ If I was situated as you are, with no children and no husband, I should divide it up equally between my nieces and nephews that I thought the most of.” To which she testified Mrs. West replied, “ That is just what I don’t want to do; I don’t want to have the property sold.” Their third conversation regarding the matter occurred on June 27, the day before the alleged will was signed. Mrs. Hayes testified that Mrs. West then said, “Well, time is flying and I must do something and straighten out this business. I must decide how to do it. I don’t know how to do it. I would like to give this property to some one who would keep it. I don’t want to have it sold ”; that she, Mrs. Hayes, waited a few minutes and then said to Mrs. West, “ Well, Aunt, if you wish me to have this, I will keep it just as it is and rent it.” About an hour afterwards, Mrs. West said, “I am in favor of giving this property to you.” To which Mrs. Hayes testified she replied, “All right, I am ready at any time to fix it up as you wish.” Mrs. West then said, “ Well, I would like to have you go and get Uncle Henry’s will,” that is, the will of her husband. Mrs. Hayes testified that when she found the will and read it to Mrs. West, the latter said, “I would like to have you make a will just like that, with the exception, I would like to have you mention to each of the nieces and nephews a dollar,”</p> <p>Mrs. Hayes testified that she had known for some time that her aunt had some funds on deposit, but the exact amount she did not know, and that she had other personal property and effects besides the real estate, and she also testified that she understood her aunt to mean only the real estate when she used the words “ this property,” in speaking of what she intended to give her. Mrs. Hayes further testified that she went directly into an adjoining room and drafted a will for Mrs. West, making it an exact copy of her uncle Henry’s, Henry D. West’s, will, except as to the names and the bequest of a dollar to each of the nephews and nieces, as above mentioned, as requested by her aunt. She testified that she then took it and read it to her aunt, who said, “ Now, I would like to have it taken to Mr. Hyde and if it is all right, I would like to have it typewritten.”</p> <p>Mrs. Hayes further testified that at none of these interviews with her aunt with reference to the will or the disposition of her property was any other person present, that although she knew that her aunt was at first inclined to give some of her property to the dumb animal society or the old ladies’ home, and did not wish to have the real estate sold, she, Mrs. Hayes, never suggested to her aunt the propriety or advisability of having any independent or disinterested advice as to how her aunt’s desires in these respects might be carried out, and she testified that the reason why she had drawn a will in her own favor, including all of Mrs. West’s property, both real and personal, when Mrs. West had simply meant to give her this property, meaning real estate, was because her uncle’s will, which she said Mrs. West wanted her to copy, as above stated, expressed it that way.</p> <p>It further appeared that on the following morning, June'28, Mrs. Hayes took the draft of Mrs. West’s will, which she herself had written, to the office of Mr. Hyde, who was not a lawyer but in the real estate and probate business, and she testified that she told Mr. Hyde that Mrs. West desired to make her will and handed him the draft she had made, telling him, if it was lawful and right, to draw it that way. • Upon this point Mr. Hyde, who was called as a witness for,the petitioner, testified that what Mrs. Hayes said to him was, that her aunt, Mrs. West, desired him to write the will for her and that she, Mrs. Hayes, gave him a written memorandum, indicating what' was desired for this will. He further testified that the draft which Mrs. Hayes presented to him was in form and effect a will unexecuted, excepting the in testimonium clause, which he thought was omitted, and that the wording of the will written out by him which Mrs. West signed was identical with the draft presented to him by Mrs. Hayes, excepting the clause beginning “ in making the foregoing disposal of my estate, I am not forgetting,” etc., which he, substituted in place of the bequest to the various heirs by name and that he added an in testimonium clause. He further‘testified that in all other respects, so far as he could recall, there was no difference in the wording of the two. Mrs. Hayes testified that Mr. Hyde returned to her the draft she gave him and that she t subsequently, destroyed it.</p> <p>There was much other evidence on both sides.</p> <p>At the close of the evidence the respondents made twenty-seven requests for rulings. Thirteen of these requests were granted by the judge, and the rulings requested were given by him as instructions to the jury. Nine other of the requests are held by this court to have been refused properly because they either assumed the truth of facts which were in dispute or attempted to put arguments for the respondents into the mouth of the judge, or did both of these things. •</p> <p>The other requests for rulings which were refused by the judge were as follows:</p> <p>“ 11. A will which is different from the previously expressed purpose of the testatrix and which is different from what it would have been if she had been in full possession of her faculties and had acted under independent advice, should be set aside.</p> <p>“ 12. The question of undue influence and mental incapacity cannot be separated where the testatrix was of advanced age and suffering from a disease affecting her brain and vital powers.”</p> <p>“ 18. If it is shown that at the time of the execution of the will the testatrix’ mind was enfeebled by age and disease, even though not to the extent producing mental unsoundness, and the testatrix acted without independent and disinterested advice, and in the presence of the beneficiary under her will, and such gift was of the whole or a large portion of the testatrix’ estate, and operated wholly or substantially to deprive those having a natural claim upon her bounty of all benefit in her estate, these circumstances authorize the jury to find the will void through undue influence without proof of specific acts and conduct on the part of the party charged with exerting undue influence.”</p> <p>“ 21. The fact that all the evidence of Mrs. West’s statements and acts regarding the making of a will and the disposition of her property comes from Mrs. Hayes, who is the sole beneficiary under the alleged will, renders her testimony open to the closest scrutiny and gravest doubt, and unless the provisions of the will can be otherwise satisfactorily explained, it cannot be allowed to stand.”</p> <p>“ 26. The fact that Mrs. Hayes stood in a relation of trust and confidence to Mrs. West, who asked her advice, which Mrs. Hayes gave to her own advantage and to the injury of all other relatives would warrant the jury in disallowing the will.”</p> <p>The jury sustained the will, answering the first and second issues in the affirmative and the third issue in the negative ; and the respondents alleged exceptions to the refusals of the judge to make the rulings requested by them.</p> <p>The case was submitted on briefs.</p>

<p>Contract, Building contract. Set-off. Damages, Recoupment. Pleading, Civil, Answer. Architect. Arbitrament and Award.</p> <p>Where a contract for the" erection of a building provides that if the contractor fails to perform his part of the contract the owner may terminate the employment of the contractor and finish the work himself and if the unpaid balance of the amount to be paid under the contract shall exceed the expense incurred by the owner in finishing the work, such excess shall be paid by the owner to the contractor, but if such expense shall exceed such unpaid balance, the contractor shall pay the difference to the owner, and where a subsequent clause of the pontract fixing the contract price provides “ that the sum to be paid by the owner to the contractor for said work and materials shall be” the amount named, “ subject to additions and deductions as hereinbefore provided,” the contractor in suing on this contract, after he has failed to complete his work and the building has been finished by the owner, in order to recover must show affirmatively that the balance due him exceeds the amount of the expense properly incurred by the owner in finishing the work, and for this purpose expenses properly incurred by the defendant must be deducted although their amounts were determined after the commencement of the action and for that reason they could not be included by the defendant in a declaration in set-off. Such expenses are not deducted by way of recoupment and may be shown by the defendant under a general denial.</p> <p>Where a building contract provides that the expenses incurred by the owner of a building in finishing it after the contractor lias failed to do so " shall be audited . and certified by the architects, whose certificate thereof shall be conclusive upon the parties,” in the trial of an action upon the contract, if it appears that the architects’ certificates of such expenses, which are put in evidence by the defendant, were made properly and seasonably and there is no evidence of bad faith in their issue, they are conclusive as to all matters within the authority of the architects.</p>

<p>Negligence. Maxims. Pleading, Civil, Variance. Practice, Civil, Conduct of trial. Words, “Delivery.”</p> <p>In an action against a contractor engaged in constructing a building by a teamster for personal injuries from being thrown from his team owing to the defective condition of an inclined temporary roadway down which he was driving in delivering stone in the cellar of the building in process of construction, there was evidence that the plaintiff was driving two horses attached to a stone gear, that in using the same roadway on four previous days and twice on the morning of the accident the plaintiff had found it safe, that on the occasion of the accident he was carrying a load of three stones weighing five or six tons, that he stopped his team on the opposite side of the street, waiting for orders, until a man whom he had seen giving directions on the lot during the three or four days preceding the accident told him to “ come on,” as he had been told to do on all the previous occasions when he delivered stone on the lot, that he drove across the sidewalk and saw that a piece had been cut off the end of the roadway, making a hole which went down like a flight of steps, that his horses were walking but he did not stop them because they could not hold the load, that he was standing on his team as he drove in and when he reached the cut his forward wheels went down, and he was injured. Held, that there was evidence for the jury of due care on the part of the plaintiff; also,, that it could not be said that the plaintiff assumed the risk of the accident and the maxim volenti non Jit injuria had no application.</p> <p>In an action against a contractor engaged in constructing a building by a teamster for personal injuries from being thrown from his team owing to the defective condition of an inclined temporary roadway down which he was driving in delivering stone in the cellar of the building in process of construction, there was evidence that since the last time that the plaintiff had driven over the temporary roadway a cut had been made in it so as to make it dangerous to drive a heavily loaded team over it, that in using the same roadway on four previous days and twice on the morning of the accident the plaintiff had found it safe, that on the occasion of the accident he stopped his team on the opposite side of the street, waiting for orders, until a man whom he had seen giving directions on the lot during the three or four days preceding the accident told him to “ come on,” as he had been told to do on all the previous occasions when he delivered stone on the lot, that thereupon he drove down the roadway and the accident occurred. The plaintiff was unable to identify the man who told him to come on. It appeared that the defendant employed a foreman and a sub-foreman, both of whom were upon or about the premises at the time of the accident. Both of these men testified that they did not call to the plaintiff to come on. It did not appear that any workman other than those of the defendant were in or about the cellar. Held, that there was evidence for the jury of negligence on the part of some one for whose acts the defendant was responsible in inviting the plaintiff to drive down the roadway without informing him that its condition had been changed for the worse since the last time he used it.</p> <p>In an action against a contractor engaged in constructing a building by a teamster for personal injuries from being thrown from his team owing to the defective condition of an inclined temporary roadway down which he was driving in delivering stone in the cellar of the building in process of construction, the declaration alleged that the plaintiff was in the employ of one R. who had contracted with the defendant to deliver to him certain quantities of stone for building purposes on certain premises within the control of the defendant, and “that it was the duty of the defendant to provide for R. and his servants a safe and suitable way for the delivery ” of the stone upon the premises within his control, which the defendant negligently failed to do. It appeared that when the accident occurred the plaintiff was employed by R. to carry stone from a railroad station to the lot upon which the building was being constructed by the defendant, but there was no evidence of a contract between the defendant and R. Held, that the word “ delivery ” when read in connection with the other language of the declaration should not be confined to a delivery under a contract with the defendant, but included any transfer of possession of the stone from R. through the agency of the plaintiff to the defendant with the defendant’s consent, and that a person engaged in such delivery was rightfully on the premises in control of the defendant and was entitled to a reasonably safe place in which to make the delivery or to have a reasonable opportunity to'determine whether to make it or not, so that it was not necessary for the plaintiff to prove a contract between the defendant and R. and without evidence of such a contract, upon proof of due care on the part of the plaintiff and of negligence on the part of the defendant, a verdict for the plaintiff could be supported on the declaration. A trial judge cannot be required to make a ruling based on a particular view of a portion of the evidence.</p>

Tort, under the employers’ liability act, by a section hand for personal injuries sustained while working on one of four parallel tracks of the defendant about three hundred and eighty yards from the station of the defendant called Boylston Street. Writ dated May 12,1903. In the Superior Court Holmes, J. at the close of the plaintiff’s evidence ordered a verdict for the defendant; and the plaintiff alleged exceptions.

<p>Evidence, Photographs.</p> <p>In an action for personal injuries photographs of the injured portion of the plaintiff's person may be admitted in evidence without calling the photographer as a witness, if they are found by the presiding judge to be verified by the testimony of a medical expert who testifies that the photographs were taken in his presence and under his direction.</p> <p>In an action for personal injuries photographs of the injured portion of the plaintiff’s person, properly verified and admitted in evidence, which were taken in the presence and under the direction of the physician who attended the plaintiff and are used by the physician in describing as a witness the nature and extent of the plaintiff’s injuries, must be considered as forming a part of the physician’s testimony.</p> <p>The preliminary finding of a trial judge as to the sufficiency of the verification of a photograph for the purpose of admitting it in evidence is final.</p>

<p> Railroad. Negligence. </p> <p>By an express provision of R. L. c. Ill, § 267, a railroad corporation is not liable for causing the death of a person while walking or being upon its road contrary to law or to the reasonable rules and regulations of the corporation. Even without such an express provision, there could be no liability to such a trespasser unless there was wilful or reckless misconduct on the part of the railroad corporation or its servants.</p>

<p>Two ACTIONS OF TORT under R. L. c. 51, .§§ 17, 18, R. L. c. Ill, § 267, and R. L. c. 171, § 2, by the administratrix of the estate of Robert H. MacFarlane respectively against the Boston Elevated Railway Company and the city of Cambridge, for personal injuries to and the death of the plaintiff’s intestate, and for injuries to his property caused by being thrown from a bicycle while riding on Massachusetts Avenue in Cambridge at a point opposite its intersection with Windsor Street, on August 16, 1904. Writs dated November 16, 1904.</p> <p>In the Superior Court the cases were tried together before Hardy, J., who at the close of the plaintiff’s evidence ordered verdicts for the defendants. The plaintiff alleged exceptions.</p>

<p>Contract, Consideration, Performance and breach, Rescission.</p> <p>Where a contract is modified by agreement of the parties by adding a provision not before contained in it the additional obligation requires no new consideration to support it, the modified contract taking effect by way of substitution.</p> <p>At the trial of an action for the price of bottles sold under a contract in writing, in which the defendant did not deny the amount pf the plaintiff’s claim but alleged in recoupment a breach of contract by the plaintiff from which the defendant had sustained damages to an amount greater than that claimed by the plaintiff, it appeared that after a part of the bottles had been delivered the contract was modified by adding a provision that “ bottles called for on this contract are to be made by union workmen or this contract cancelled,” that after repeated demands by the defendant for union made bottles the plaintiff informed the defendant that he could not furnish such bottles and suggested that the contract be cancelled, that the defendant declined to terminate the contract and demanded its performance, claiming damages for the plaintiff’s failure to deliver the bottles called for, and also transferred his moulds which had been in the possession of the plaintiff to another manufacturer. The trial judge ruled that the defendant could recoup damages to the extent of the plaintiff’s claim, and, as the damages suffered by the defendant exceeded the claim of the plaintiff, found for the defendant. Held, that when the plaintiff refused to perform his part of the contract the defendant not only became entitled to recover such damages as had been caused by the breach but also was excused from further performance on his part, and that the transferring of the moulds was no breach of the contract on the part of the defendant as it was done after the refusal of performance by the plaintiff; that the option of the right of cancellation, which was given by the contract in case of a failure by the plaintiff to furnish bottles made by union workmen, was for the sole benefit of the defendant and did not deprive him of his right to demand and recover damages for the plaintiff’s breach of contract; therefore that the defendant was entitled to judgment.</p>

<p>Evidence, Extrinsic affecting writings. Words, “Water.”</p> <p>In an action to recover the contract price for drilling an artesian well under a contract in writing to procure “ twenty-five gallons of water per minute/’ the defendant may show by oral evidence that the word “water” meant fresh water suitable for drinking and for other purposes for which salt water could not be used.</p> <p>In an action on an agreement in writing to recover the contract price for drilling an artesian well for a corporation engaged in the manufacture of pianos, it appeared that by the contract the plaintiff undertook “ to procure water in the earth above the bed rock ” on the defendant’s premises by driving in the boiler room of the factory a pipe two and one half inches in diameter, but if a sufficient amount was not obtained then to “ drill a well not less than six inches in diameter in the bed rock . . . until twenty-five gallons of water per minute is obtained.” The plaintiff drilled a well which finally produced this volume of water but the water was very salt and unsuitable for use in the defendant’s business. The plaintiff contended' that he had performed his contract. The defendant offered to show by oral evidence that during the preliminary negotiations which resulted in the contract the plaintiff was informed by the defendant that its object in driving the well was to obtain a supply of water to be drunk by its workmen and to be used for other purposes in the defendant’s factory for which salt water could not be used, that the defendant also informed the plaintiff that it could not use salt water for anything, and that if salt water was wanted it could be obtained within a few feet of the surface by an ordinary duplex pump, that the plaintiff agreed to furnish water as good as the water produced by a well dug by the plaintiff for a certain brewing company which the defendant had tested and knew to be good. The evidence was excluded by the judge against the exception of the defendant, and a verdict was returned for the plaintiff. Held, that the exclusion of the evidence was wrong, and that the defendant was entitled to a new trial, the evidence being admissible to show the meaning of the word “ water ” as used in the contract in writing.</p>

<p>Contract for alleged breach of a bond dated March 15,1900, as modified by a subsequent oral agreement between the parties. Writ dated April 1, 1902.</p> <p>The bond was as follows :</p> <p>“Know all men by these presents that I, Asa P. Morse of Cambridge in the County of Middlesex, and Commonwealth of Massachusetts, am holden and stand firmly bound unto John F. Mead of said Cambridge in the sum of thirty-five thousand two hundred and fifty ($35250) dollars, to the payment of which to the said obligee, or his executors, administrators, or assigns, I hereby bind myself, my heirs, executors, and administrators.</p> <p>“The condition of this obligation is such that whereas the said obligor has agreed to sell and convey unto the said obligee a certain parcel of real estate with the buildings thereon situated in said Cambridge, and bounded and described as follows, namely: [Description.]</p> <p>“ The same to be conveyed by a quitclaim deed of the said obligor, free from all incumbrances made or suffered by the obligor.</p> <p>“ And whereas for such deed and conveyance it is agreed that the said obligee shall pay the sum of thirty-five thousand two hundred and fifty dollars, of which one dollar has been paid this day, and the remainder is to be paid by the note of the said obligee, dated March 15, 1900, bearing interest at five per cent, per annum, payable quarterly, and secured by a power of sale mortgage, in the usual form, upon the said premises, such note to be payable three years after the date thereof; and whereas it is agreed that until default in the performance of the terms of this obligation, the obligee may hold and enjoy the said premises and receive the rents and profits thereof; and that, upon the aforesaid sum, that is to say thirty-five thousand two hundred and fifty dollars, the obligee shall pay interest from the date of this obligation at the rate of five per cent, per annum payable quarterly, the first payment to be made in three months from the date of this obligation and that until default in the performance of the terms of this obligation, the obligee shall pay all taxes and assessments, to whomsoever laid or assessed, on the aforesaid premises or on account of any interest thereon, and shall keep the buildings on said premises insured against fire in a sum not less than §15,000.00 for the benefit of the obligor, and his executors, administrators, and assigns, in such form and in such companies as they shall approve; and shall not commit or suffer any strip or waste of the premises; and shall save the obligor harmless from loss on account of injury or damage to person or property through said estate or the condition or management thereof:</p> <p>“Now therefore, if the said obligor shall, upon the tender by the said obligee of the aforesaid note and mortgage at any time within one month after the dissolution of the attachments at present subsisting upon said premises, and upon due performance by the obligee of the aforesaid conditions in regard to the payment of interest, taxes, and assessments, and in regard to insurance, waste, and liability, deliver unto the said obligee a good and sufficient deed as aforesaid, then this obligation shall be void, otherwise shall be and remain in full force and virtue.</p> <p>“ And it is expressly provided and agreed that upon failure by the obligee to perform the aforesaid conditions in regard to the payment of interest, taxes, and assessments, and in regard to insurance, waste and liability, the obligor may take possession of the premises and collect for his own use the rents and profits thereof, and this obligation shall be absolutely void. And it is agreed that all existing contracts relating to said estate are hereby cancelled.</p> <p>“ In witness whereof I hereunto set my hand and seal this 15th day of March A. D. 1900.</p> <p>“ Asa P. Morse (Seal)</p> <p>“ Witness Edw. E. Clark.”</p> <p>The subsequent oral agreement is stated in the opinion.</p> <p>At the trial in the Superior Court before Bond, J. the jury returned a verdict for the plaintiff in the sum of $17,133.69 ; and the defendant alleged exceptions, raising the questions considered in the opinion where the material evidence and the course of the trial are described.</p> <p>The case was submitted on briefs.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on February 23, and amended on February 28 and March 3, 1906, by a corporation, organized under the laws of the State of Maine and having its usual place of business in Boston, against the business agent, the president, the vice-president, the secretary and the treasurer of the Carpenters District Council of Boston and Vicinity, a voluntary association, and against the same persons individually and as members of that association, and against the members of a committee of that association, against certain other persons individually and as officers of another voluntary association known as the Building Trades Council, against the Christian Science Board of Directors, “ a corporation duly organized according to law, of said Boston,” and against the secretary and two other members of that corporation individually and as agents of the corporation, to enjoin the defendants other than the defendant corporation from inducing that defendant to break its contract with the plaintiff under which the plaintiff had agreed to construct and to complete by March 12, 1906, a concrete floor in the auditorium and corridors of a structure known as the First Church of Christ, Scientist, on Falmouth Street in Boston, to enjoin the defendant corporation from breaking such contract, and. to enjoin all the defendants from interfering by threats, intimidation or coercion with any of the persons employed by the plaintiff and from combining and conspiring to compel the plaintiff in the prosecution of its business to employ only members of the Carpenters District Council or of any other union and to discharge any persons in its employ who were not members of such union or of any other labor union, praying for a temporary and a permanent injunction and for an assessment of damages.</p> <p>The case was referred to Wade Keyes, Esquire, as master. He filed a report in which he found for the plaintiff. Later the case was heard upon the master’s report and the defendants’ exceptions thereto by Sheldon, J., who overruled all the exceptions except one, which is described below, and reported the case for determination by the full court as follows :</p> <p>“ This case came on for hearing upon the filing of the master’s report and the exceptions of the defendants thereto. I overruled all the exceptions except the second exception of the defendant Christian Science Board of Directors.</p> <p>“ The plaintiff contended that the defendant Christian Science Board of Directors became a co-conspirator with the other defendants from the time when they first sought to induce the plaintiff to discharge the workman Stark. Against the plaintiff’s objection I ruled that the Christian Science Board of Directors became co-conspirators only on its overt act in breaking its contract with the plaintiff on Wednesday, February 21, 1906, and therefore sustained the second exception so far as the same applies to the item of $15.12, cost of reinstating work destroyed, and $8.13, cost of advertising in the public press, said items of damage having accrued before said breach of contract. Thus modified I ordered the master’s report to be confirmed.</p> <p>“ The plaintiff asked for a permanent injunction in the following form:</p> <p>“ ‘ That the following respondents named in said bill, to wit, the Carpenters District Council of Boston and Vicinity, and each and every member thereof, C. W. Cameron, W. D. McIntosh, S. F. McArthur, H. M. Taylor, J. E. Potts, J. F. Medland, John McLeod, and Patrick Slow, individually and as officers and agents of said Carpenters District Council, and the Christian Science Board of Directors, and the servants, agents, confederates and attorneys of each of the foregoing persons, associations and corporations, and all others who may act in concert with them or by their direction, be, and they hereby are, perpetually restrained and enjoined from combining and conspiring to compel said complainant in the prosecution of its business to employ members of said Carpenters District Council or of any other labor organization so called, and to refrain from employing any person or persons who may be non-union men so called; and said respondents, their servants, agents, confederates and attorneys are further enjoined and restrained, for the purpose of compelling the complainant to employ exclusively in the transaction of its work and business members of said Carpenters District Council or of any other labor union, from breaking or combining or conspiring to break, or causing to be broken, any contract or contracts which the complainant may now or hereafter have, either with any of the defendants herein or with any other person or corporation whatsoever; and for said purpose from directly or indirectly calling or combining or conspiring to call or cause a strike of workmen or a cessation of work by workmen now employed or hereafter to be employed by the complainant in the transaction of its business, and for such purpose from interfering by threats, intimidation, or coercion, or any other obstructive action, with any of the persons now employed or whom said complainant may hereafter seek to employ in the transaction of its business, and for said purpose from combining and conspiring to interfere with the said complainant in the practice and prosecution of its occupation and business, and to prevent or obstruct it from obtaining further contracts therefor and employment therein, or from securing the services of workmen to carry out such contracts.’</p> <p>“ The defendants other than the Christian Science Board of Directors objected to any injunction which should apply to any part of the plaintiff’s business except the particular work being done by the plaintiff under contract with the defendant Christian Science Board of Directors, which work was completed on March 12, 1906. Against the plaintiff’s objection I ruled that the injunction-should apply only to said work, and not to other work.</p> <p>“ No question is made that the bill as to the defendants William B. Johnson, Charles Brigham, Charles C. Coveney, John Doe and Richard Roe, and the Building Trades Council should be dismissed without costs.</p> <p>“ All questions of pleading are waived.</p> <p>“ At the request of the plaintiff I report the case to the full court, such decrees to be entered as, on the master’s report, law and justice require.”</p>

<p>Bill in equity, filed in the Probate Court for the county of Middlesex on March 20,1906, by the administrator de bonis non with the will annexed of the estate of Sarah Baldwin, late of Billerica, for instructions.</p> <p>The bill prayed for the construction of the will upon the following questions:</p> <p>1. Whether or not the personal estate was absolutely bequeathed to Elizabeth C. Baldwin therein mentioned, or whether she took only a life interest therein with power of disposition.</p> <p>2. Whether or not the devise of the real estate to Elizabeth C. Baldwin was in fee, or whether she was given a life estate with power of disposition thereof.</p> <p>3. Whether or not the real and personal estate of Sarah Baldwin, remaining at the decease of Elizabeth C. Baldwin, was the property and estate of Sarah Bald win and should be administered by the plaintiff and accounted for by him as administrator of her estate with the will annexed.</p> <p>In the Probate Court Melntire, J. made a decree that by the terms of the will Elizabeth C. Baldwin took only a life estate in the real and personal property bequeathed to her, with the privilege of disposing of any of all of the real estate during her life, that whatever of the real estate remained at her decease was the absolute property of those persons to whom it was devised by the will, and that the personal estate should be distributed among the same persons in the proportions named in the will.</p> <p>Clara B. Reed, one of the defendants, appealed.</p> <p>The case came on to be heard on appeal before Sheldon, J., who at the request of the defendant Clara B. Reed reserved it upon the bill and answer for determination by the full court.</p> <p>The case was submitted upon a brief by</p>

<p>Tort, by the administratrix of the estate of Roch Chaput, to recover for his death and conscious suffering, with three counts, the first and second under R. L. c. 171, § 2, and c. Ill, § 267, for causing the death of the plaintiff’s intestate, and the third at common law for his personal injuries and conscious suffering caused by the alleged negligence of the defendant’s servants. Writ dated October 25, 1901.</p> <p>At the trial in the Superior Court Gaslcill, J. refused to order a verdict for the defendant, and submitted the ease to the jury. The jury found for the defendant on the first and second counts, and returned a verdict for the plaintiff on the third count in the sum of $2,000. The defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p> Negligence. </p> <p>An experienced workman in a shoe factory employed to run a machine for shaving or trimming heels assumes the risk of an injury caused by the “ veneering” put in between the sole of a shoe and the upper being harder than usual, the degree of hardness depending on the amount of water absorbed by the veneering when “ tempered,” this being an obvious risk incident to his employment, and he none the less assumes this risk if three or four days before suffering an injury from this cause he complained to the foreman of his employer that the veneering used was not of proper stock and the foreman explained that this was because the regular stock had run out and that the trouble would be over as soon as the temporary stock was exhausted, and the temporary stock had been exhausted and “ the shoes came all right ” until the accident happened.</p>

<p>Tout for personal injuries from being knocked down by a runaway horse belonging to the defendant, at about five o’clock in the afternoon of November 21, 1902, while the plaintiff was lighting a lantern at the corner of Washington Street and Bow Street in that part of Boston called Charlestown to warn travéllers of obstructions incident to the erection of a building which the plaintiff was superintending as a carpenter. Writ dated January 12, 1903.</p> <p>In the Superior Court the case was tried before Bishop, J. The following is a reduced copy of a plan annexed to the record.</p> <p> </p> <p>The defendant was a truckman or teamster maintaining a stable on Front Street at the corner of Jenner Street at the point marked 2 on the plan. He ran four or five teams that year, and his business consisted in part of delivering merchandise to the Western Division of the Boston and Maine Railroad at its freight depot on Rutherford Avenue, a street shown on the plan. One Current was a driver of a team in the employ of the defendant, and on the day in question he had been directed by the defendant, or the foreman, to go to the market and get some eases of eggs and deliver them at the freight station. Current got the eggs and delivered them at the point marked</p> <p>3 on the plan. This was his last work for the day, except to return to the stable. Instead of turning to the right and going to the stable in that direction through Rutherford Avenue, Current drove the team to the left on Rutherford Avenue to Mill Street, followed Mill Street to Main Street and went down Main Street to the corner of Main and Devens Streets, where he stopped the team at Melvin and Shaw’s pool room at the point marked</p> <p>4 on the plan, got off his team, and, leaving the horse unattended, went into the pool room and asked the proprietor for a piece of tobacco, and received it. While he was in the pool room the horse ran down Devens Street to the corner of Bow Street and Washington Street, and the accident occurred at the point marked 1 on the plan. These facts were not disputed.</p> <p>Current testified that Rutherford Avenue was the shortest route in length, but that night it was not the shortest route “ on account of so many teams coming up there it was all blocked, and the other streets were clear.” He also testified that when he stopped at the pool room the horse was headed in the general direction of the stable.</p> <p>There was evidence, not controverted, that the plaintiff was in the exercise of due care.</p> <p>The defendant contended that Current at the time of the accident was engaged in an affair of his own, namely, getting tobacco for himself in the pool room. The plaintiff contended that Current was acting within the scope of his employment by the defendant, and also contended that the defendant was liable because he had entrusted a horse to Current which he knew or should have known was vicious and likely to run away.</p> <p>At the close of the evidence, the judge ruled that the proximate cause of the accident was the fact that the horse was left unattended in a place to which Current had gone; that he had left the horse to go upon an errand of his own not connected with the business of the defendant; and that upon the authority of MoQarihy v. Timmins, 178 Mass. 378, the driver of the team was not acting within the scope of his employment when he went to and into the pool room, leaving the horse unattended; arid further ruled that if the defendant knew that his men previously had gone off on errands of their own without censure, such knowledge would not give authority to Current to repeat the act as a part of his duty to the master, or bring it within the scope of his employment, and that the evidence introduced to show that the horse was of a vicious character would not affect this conclusion.</p> <p>The judge ordered a verdict for the defendant, and reported the case for determination by this court. If the rulings of the judge upon the whole evidence were right the verdict was to stand, unless the evidence offered and excluded should have been admitted and might affect the result. If the rulings upon the whole evidence were wrong, or if the judge erred in excluding the evidence of a habit of drivers to leave their horses for their own purposes with the knowledge of the defendant, the verdict was to be set aside and the case was to stand for trial.</p>

<p>Municipal Corporations. Street Railway. Contract, Validity. Pleading, Civil, Answer. Corporation, Ultra vires.</p> <p>Since the enactment of St. 1898, c. 578, the board of aldermen of a city or the selectmen of a town in granting a location to a street railway company cannot impose a condition that the company shall at all times maintain the pavement between its rails and tracks and for a space of eighteen inches outside thereof in good order and repair.</p> <p>Whether under St. 1898, c. 578, § 13 (R L. c. 112, § 7), the board of aldermen of a city in granting a location to a street railway company may not impose a condition that if in the construction of the tracks of its railway it shall become necessary in the judgment of the city engineer to widen the wrought part of, change the grade of or make general or specific repairs upon the whole or any portion of the streets where the tracks are,laid, such work as the city engineer may direct shall be done at the expense of the railway company, quaere.</p> <p>In July, 1901, the board of aldermen of a city in granting a location to a street railway company imposed a condition that the company should at its own. expense and cost pave with block paving between the rails and tracks, and for a space eighteen inches outside thereof, and should maintain such pavements at all times in good order and repair. The street commissioner and the mayor in behalf of the city made an agreement with the street railway company that on a certain street to which the requirement applied it would be better for every one concerned to have macadam used instead of block paving outside the rails, that the city should do the work of macadamizing and that the railway company should pay for it a stipulated price. The city did the work in accordance with the agreement and brought an action of contract against the railway company for the stipulated price. Held, that, irrespective of the validity of the condition imposed by the grant of location, the contract was a valid one which the parties had a right to make, and, even if the authority of the street commissioner and the mayor to represent the city had been disputed, which it was not, the bringing of the action was a ratification equivalent to an original authority.</p> <p>Whether in an action on a contract the defence that the contract is invalid is open under an answer containing only a general denial, here was not considered because the contract sued upon was held to be valid.</p> <p>Whether one who owes money to a corporation under the terms of a contract whicli the corporation fully has performed, when sued upon the contract, can set up the defence that it was ultra vires, here was not considered because the contract was held to be within the corporate powers of the plaintiff.</p>

<p>Two ACTIONS OF toet by the same plaintiff respectively against two physicians, each declaration containing the counts - described in the first paragraph of the opinion. Writs dated December 21, 1904.</p> <p>In the Superior Court the cases were tried together before Sherman, J. The trial took the course described in the opinion, resulting in verdicts for the defendants on every count except the fifth in each declaration on which the jury in each case returned a verdict for the plaintiff in the sum of $1.</p> <p>The plaintiff moved for a new trial and at the hearing upon this motion asked the judge, among other requests, to rule that the verdicts were inconsistent, and that as matter of law they must be set aside. The judge refused to rule as requested and denied the motion for a new trial. The plaintiff alleged exceptions in both cases.</p>

<p>Bills and Notes. Evidence, Presumptions and burden of proof.</p> <p>In an action against the indorser of a promissory note, although the production of a note in the ordinary form is prima facie evidence of a consideration, the burden of proof always .is on the plaintiff to show that there was a consideration if this is denied by the defendant.</p>

<p> Corporation. Mandamus. </p> <p>Under the common law of this Commonwealth the stockholders of a corporation when acting in good faith for the purpose of advancing the interests of the corporation and protecting their rights as owners should be permitted to examine the corporate property including the books and accounts.</p> <p>The common law right of a stockholder of a corporation to examine its books and accounts is not an absolute one, and will not be enforced by a writ of mandamus for purposes of mere curiosity or of speculation or vexation. Upon an application for the writ the court will consider whether the petitioner’s desire for an examination is reasonable in reference to the interests of the corporation and those of the petitioner as a member of it.</p> <p>On a petition by a stockholder of a corporation for a writ of mandamus to obtain an examination of its books of account, if it appears that the petitioner is the owner of eighty out of three hundred and fifty shares constituting the capital stock, that the corporation three or four months before the filing of the petition lost several thousand dollars, although its officers testify that at the time of the hearing the corporation is in a prosperous condition, that the petitioner believes that the corporation is being mismanaged and desires in good faith to examine its books and records for the purpose of ascertaining its condition and the value of its stock, and if it also appears that an examination can be conducted without interfering unduly with the business of the corporation, although it is not proved that there is any mismanagement in fact or any incapacity on the part of the managing officers, the petitioner should be permitted to examine the books in accordance with his request, and such an examination includes the right to have the assistance of an expert, or other person, if he desires to make transcripts from the books for subsequent use.</p> <p>St. 1903, c. 437, § 30, giving to a stockholder in a corporation the right to inspect - its records and its stock and transfer books, has no application to the corporation’s books of account and deposit.</p>

<p>Tort for personal injuries from being run down by an electric car of the defendant at about half past eleven o’clock on the evening of September 16,1903, on Columbus Avenue in Boston, while the plaintiff was crossing a track of the defendant for the purpose of taking a car on the parallel track beyond it. Writ dated October 17, 1903.</p> <p>In the Superior Court Sherman, J. ordered a verdict for the defendant, and at the request of the plaintiff reported the case for determination by this court. If the order was correct the verdict was to stand; otherwise, there was to be a new trial.</p>

<p>Limitations, Statute of. Judgment. Words, “Actions upon contracts.”</p> <p>In this Commonwealth there is no statute of limitations which applies to an action on a judgment which is shown to be unpaid.</p> <p>The provision of R. L. c. 202, § 19, that a judgment of record “ shall be presumed to be paid and satisfied at the expiration of twenty years after it was rendered ” relates only to judgments in regard to which there is no proof that they remain unpaid.</p> <p>The provision of R. L. c. 202, § 1, cl. 4, that “ actions upon contracts which are not limited by the provisions of the following section or by any other provision of law ” shall be commenced only within twenty years next after the cause of action accrues, does not apply to an action on a judgment of record, because such actions are limited by another provision of law contained in § 19 of the same chapter, and semble also because a judgment is not a contract within the meaning of the words “ actions upon contracts ” as used in the clause quoted above.</p>

<p>Judgment. Res Judicata. Sale, Warranty. Damages, Recoupment.</p> <p>A judgment for the plaintiff in an action for the price of radiators furnished for houses of the defendant under a contract in writing warranting the radiators .to be capable of warming all rooms in which they were placed to seventy degrees in zero weather, in which the defendant claimed in recoupment damages for a breach of this warranty and the plaintiff recovered the full amount claimed in his declaration, is a bar to a subsequent action by the purchaser against the seller for the breach of warranty. If at the trial of such subsequent action it appears that there was no zero weather before the trial of thefirst action, this is immaterial.</p>

<p>Evidence, Remoteness. Practice, Civil, View, New trial. Way.</p> <p>In an action against a city for injury to property of the plaintiff from an alleged defect in the grading of a highway of the defendant by reason of which the furniture wagon which the plaintiff was driving toppled over, the presiding judge in his discretion properly may exclude evidence that a witness had seen at the same place bales of hay fall off a team loaded with hay, barrels fall off teams loaded with barrels and wood fall off wood teams, and if the judge thinks that such evidence would lead to issues which would be likely to distract if not to confuse the jury, to take the defendant by surprise or to prolong the trial unduly, it is his duty to exclude the evidence.</p> <p>Under R. L. c. 176, § 35, a view in a civil case can be ordered only upon the motion of one of the parties, but where the jury ask for a view and one of the parties objects to the view and the other party does not object and expresses a desire to have it, this may be treated by the presiding judge as a motion for the view and he may grant it accordingly.</p> <p>If, after a case has been argued and the judge has given his charge to the jury and the jury have retired to the jury room for deliberation and have remained there for two hours, the jury return to the court room and ask the judge to permit them to take a view, and one of the parties makes a motion to that effect, it is not too late for the judge to grant the view and he may reopen the case for that 'purpose.</p> <p>If in the trial of a civil case the judge on the motion of one of the parties allows the jury to take a view, and the view is taken, followed by a verdict for the party who made the motion, but this party has not advanced the money necessary to defray the expenses of the view as required by R. L. c. 176, § 35, this is no reason for giving the other party a new trial.</p>

Contract or tort, for the sum of $132.92, with counts for money had and received and for the conversion of two checks. Writ in the Municipal Court of the City of Boston dated December 28, 1903. Copies of two checks were annexed to the declaration, one dated April 26, 1901, for $82.92 and the other dated April 29, 1901, for $50.

<p>1Evidence, Extrinsic affecting writings. Deed. Covenant.</p> <p>A grantor of land, who has covenanted in the deed that the premises are free from incumbrances made or suffered by him and has warranted against such incumbrances, cannot maintain an action on an oral promise of the grantee to pay as a part of the consideration a tax assessed to the grantor as of the first day of May preceding the conveyance. Dictum in Preble v. Baldwin, 6 Cush. 549; disapproved and a part of the doctrine of that case declared to have been modified by later cases.</p>

Tort by the administrator of the estate of John F. Curtin, a conductor in the employ of the defendant, to recover for his death and conscious suffering from being crushed between two cars of the defendant on April 10, 1901, with counts under the employers’ liability act and at common law. Writ dated October 21, 1901.

Tort for personal injuries incurred on October 30, 1901, while the plaintiff was operating a car of the defendant as a motorman by reason of a collision of that car with another car of the defendant in the manner described in the opinion, with a count at common law alleging a failure of the defendant to furnish the plaintiff with safe appliances, machinery and instrumentalities, and a second count under the employers’ liability act alleging a defect in the ways, works or…

Contract, with four counts which are described in the opinion, on page 272. Writ dated June 15, 1905.

<p>Land Court. Practice, Civil, Appeal. Constitutional Law, Right to trial by jury.</p> <p>On an appeal from the Land Court to the Superior Court under St. 1904, c. 448, § 8, no matters can be tried in the Superior Court except those specified in the appeal, and if an appeal contains no such specification it must be dismissed.</p> <p>On an appeal from the Land Court to the Superior Court under St. 1904, c. 448, § 8, the matters whereby the appealing party is aggrieved may be specified by means of the issues which he desires to have framed as a part of his appeal, although a direct statement of them in the appeal would be more satisfactory. The fact that such matters are stated in the form of questions is immaterial.</p> <p>A party may be aggrieved by a decree of the Land Court so as to have the right of appeal to the Superior Court under St. 1904, c. 448, § 8, in respect to a matter concerning which he has introduced no evidence, or after he has been defaulted or nonsuited.</p> <p>A party to a writ of entry brought in the Land Court is not deprived of his constitutional right to a trial by jury by the provision of St. 1904, c. 448, § 8, limiting the matters to be tried by jury on an appeal to the Superior Court to those which are specified in the appeal, this being a reasonable regulation of the manner in which the right may be exercised.</p>

<p> Charity. Corporation. Will. Worcester Art Museum,. </p> <p>Under R. L. e. 125, § 8, by the terms of which a corporation organized for a charitable purpose “may hold real and personal estate to an amount not exceeding one million five hundred thousand dollars,” a gift made by will to such a corporation in excess of that amount is good against every one but the Commonwealth, and if, after the will is proved, the Legislature passes a special statute authorizing the corporation to hold real and personal property to an amount exceeding that of its property when increased by the gift, this operates as a waiver of the right of the Commonwealth to terminate the holding, and as a legislative declaration of the validity of the gift.</p> <p>The Worcester Art Museum was organized under Pub. Sts. c. 115, “for the purpose of founding an institution for the promotion of art and art education in said Worcester; erecting and maintaining buildings for the preservation and exhibition of works and objects of art; making and exhibiting collections of such works, and providing instruction in the industrial, liberal and fine arts; for holding real and personal estate in the furtherance of this purpose; and for the holding and administering funds acquired by the corporation for these and kindred objects in accordance with the will of the donors. All of said property and funds of the corporation, however, are to be held solely in trust for the benefit of all the people of the city of Worcester.” A gift was made by will to this corporation exceeding the amount of $1,600,000 which it was allowed to hold under R. L. c. 125, § 8. After the will was proved St. 1906, c. 312, was enacted authorizing the corporation to hold real and personal property to an amount not exceeding $5,000,000, which was more than the amount of its property as it would be when increased by the gift. The heirs of the testator brought a petition under R. L. c. 192, § 6, for leave to file an information in the nature of a quo warranta against the corporation to set'aside the gift. Held, that, assuming that the remedy sought was the proper one if the right claimed existed, which was not passed upon, and assuming also that St. 1906, c. 312, did not make the corporation’s title good against all the world, which the court held that it did, the gift was one to a public charity and would not be allowed to fail through the incapacity of the donee to hold the property, and, if such incapacity existed, the court by applying the doctrine of cy pres would appoint a trustee to carry out the charitable intent of the testator, so that in any view of the case the petitioners had no “ private right or interest ” which had been injured by the corporation to bring them within the provisions of R. L. c. 192, § 6.</p>

<p>Jurisdiction. Practice, Civil, Verdict, New trial, Writ of review. Bastardy.</p> <p>An objection of substance to the jurisdiction of the court before which a case is being tried can be taken at any stage of the proceedings.</p> <p>If a judge sets aside a verdict and grants a new trial when he has no jurisdiction to do so, and the person in whose favor the verdict was rendered does not take any exception to the allowance of the motion for a new trial or to the order granting it, this does not preclude him from raising at the new trial the question of the court’s jurisdiction to set aside the verdict.</p> <p>Prosecutions under R. L. c. 82, known as the bastardy act, are in the nature of civil proceedings.</p> <p>In a prosecution under R. L. c. 82, known as the bastardy act, the Superior Court has the power to set aside a verdict of not guilty and order a new trial.</p> <p>The provision in § 15 of R. L. c. 82, known as the bastardy act, after providing that upon the trial of the complaint the issue to the jury shall be whether the defendant is guilty or not guilty, that “ If the jury find him not guilty, the court shall order him to be discharged,” and that “ the verdict in either case shall be final,” first was enacted in St. 1785, c. 66, § 2, when under a statute long since repealed the parties in civil actions and the defendant in criminal cases had a right to a second trial upon the facts if they were dissatisfied with the verdict, and never wás intended to take away the power of the presiding judge to set aside a verdict and grant a new trial in bastardy proceedings. Whether the statutory provisions in regard to petitions for writs of review apply to such proceedings, quaere.</p>

<p>Tort for personal injuries sustained while in the employ of the defendant on October 13, 1904, in the manner described in the opinion. Writ dated November 18, 1904.</p> <p>In the Superior Court Hitchcock, J. ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Contract for an alleged breach of warranty in a deed given by the defendant to the plaintiffs as trustees, dated October 30, 1897, conveying certain land on Ashford Street in that part of Boston called Brighton. Writ dated November 15, 1900.

<p> Railroad. Negligence. Watercourse. </p> <p>The proprietor of an ice pond cannot maintain an action of tort at common law against a railroad company for injury to his crop of ice during one season from particles of fine clay, which were washed down from the filling of an embankment made by the defendant in the construction of its road a mile and a half above the plaintiff’s pond, being held in suspension in the waters of a brook that fed the pond, where it appears that the embankment was built under authority of law and was of a proper slope for its height and width, and that the kind of clay used for filling, while not so good as pure gravel, was in common use for railroad embankments and made a good solid embankment, and that there is likely to be more or less wash from such embankments during the first season, and where it does not appear that the attention of the agents or servants of the defendant ever was called to the fact that a mile and a half below the embankment the water of the brook was used for the cultivation of ice, there being nothing in the foregoing facts to show that the defendant had done any act not reasonably necessary and proper in the construction of its road under authority of law, so that the plaintiff’s remedy, if any, was statutory. The question whether the railroad company as an upper riparian proprietor had not the right to make such a reasonable use of its own land, although unavoidably causing temporary injury to the lower proprietor, and therefore was not answerable in any form of action, was not passed upon!</p>

Tort for personal injuries received on October 3, 1902, while the plaintiff in the employ of the defendant was operating a machine known as a heading machine used in the manufacture of wooden boxes. Writ dated December 9, 1902. In the Superior Court the case was tried before Lawton, J. The plaintiff at the time of the accident was about nineteen years of age and previous to his employment by the defendant had worked for the General Electric Company.

<p>Tort, by the administrator of the estate of George H. Hayes, for causing the death and conscious suffering of the plaintiff’s intestate while in the employ of the defendant as a teamster, with three counts, the first alleging a defect in the ways, works or machinery of the defendant, the second alleging negligence of a superintendent, and the third at common law alleging a failure to furnish and keep in repair suitable machinery and appliances for the work in which the intestate was employed. Writ dated December 15,1902.</p> <p>In the Superior Court the case was tried before Bond, J. At the close of the plaintiff’s evidence the defendant asked the judge to rule that upon all the evidence the plaintiff was not entitled to recover. The judge ruled as requested, stating that it might be assumed that the plaintiff’s intestate was in the exercise of due care, there being no controversy about it, and concluding his instructions to the jury as follows: “ Where a workman is injured by the act of a fellow workman the master is never liable, and in this case if there was any one whose negligence resulted in this accident caused by the picking out of this chain, it was a fellow servant. So you may return a verdict for the defendant and the matter may go to another court and it can be determined whether my ruling is right about it.”</p> <p>The jury returned a verdict for the defendant as directed; and the plaintiff alleged exceptions.</p>

Tort for personal injuries sustained while in the employ of the defendants on November 24, 1901. Writ dated January 23, 1902. In the Superior Court the case was tried before Schofield, J. The plaintiff between one and two o’clock in the afternoon of Sunday, November 24, 1901, being at the time twenty-seven years of age, was injured by the collapse of a structure on St. Alphonsus Street in that part of Boston called Roxbury.

<p>Tort for unlawfully entering the plaintiff’s lunch room in a store numbered 374 on Hanover Street in Boston, seizing and taking possession of that place of business of the plaintiff and preventing the plaintiff from conducting business there for about eighteen hours, with a second count for the conversion of certain goods of the plaintiff. Writ in the Municipal Court of the City of Boston dated J une 8, 1903.</p> <p>On appeal to the Superior Court the case was tried before Wait, J. It appeared that the defendant was a constable in the city of Boston, and that on May 22,1903, he attached one of the stores of the plaintiff on Hanover Street in Boston, in which she was conducting a lunch room, “ run night and day,” on a writ issuing from the Municipal Court of the City of Boston in favor of one Cornelius Mahoney, and put a keeper in possession thereof for about eighteen hours, when the plaintiff gave a bond to dissolve the attachment, and the defendant and the keeper withdrew.</p> <p>It further appeared that the defendant while in possession took cash from customers who had purchased food, and also at the time of the attachment removed part of the money from the cash register, ordered the husband of the plaintiff and her employees out of the store in the evening, and put a lock and staple on the door leaving the keeper therein during the night.</p> <p>The plaintiff contended that the writ under which the attachment was made was returned to court on June 4,1903, although returnable on May 30, 1903. The defendant testified that he returned the writ to the court on May 29, 1903; the writ, however, never was entered in the court, but was placed among the non-entries.</p> <p>The plaintiff asked the judge to make the following rulings:</p> <p>1. The writ in Mahoney v. Walsh not having been entered in court, the writ is no justification for any acts done in consequence of that writ.</p> <p>2. That as the writ in Mahoney v. Walsh was not returned to court on the return day mentioned therein, or on the Monday following, nothing done under it justifies the acts of the defendant in the premises of the plaintiff.</p> <p>3. The defendant, although having in his possession a writ, which might justify his acts in attaching the goods and chattels of the plaintiff, by putting on a lock and driving a staple in the door, and denying the plaintiff possession, exceeded his authority, therefore the writ is no justification.</p> <p>4. The acts of the defendant in interfering, ejecting and preventing the customers of the plaintiff from entering the premises made the defendant a trespasser therein.</p> <p>The judge ordered a verdict for the defendant, stating that he did so in order that the questions of law involved might be presented to this court. The plaintiff alleged exceptions.</p>

<p>Bill in equity, filed in the Superior Court on September 8, 1903, ag&inst the executor under the will of Mary H. Gale, late of Newburyport, alleging that Mary Green Gale, late of Manchester in the State of New Hampshire, died at Manchester in or about January, 1876 ; that shortly before her death she made her last will, disposing of a large estate, in which, among numerous other legacies, the sum of $2,000 was bequeathed to Stephen Madison Gale, of Newburyport, who was her brother in law and the grandfather of the plaintiffs; that this bequest was intended to be written and made in trust for the benefit of the plaintiffs, who were then infants of tender years, to be paid over to them when they should become of age, but by inadvertence and mistake of the person, writing the will the bequest was not so expressed to be in trust; that after this will had been executed, Mary Green Gale discovered the inadvertence and mistake and requested the members of her household to inform Stephen Madison Gale thereof, and that the sum was intended to be given him in trust, as aforesaid, and that it was her will that he should so hold the same in trust, and further requested that he be requested to hold the same on the trust aforesaid; that Mary Green Gale died a few days after.the execution of the will and before her requests and intentions as to the bequest could be communicated to Stephen Madison Gale; that soon afterwards such members of her household made known to Stephen Madison Gale the inadvertence and mistake, and that the $2,000 was intended by the testatrix to be given to him in trust as aforesaid, and the request of the testatrix that he so ho.ld the sum, and he thereupon and afterwards at divers times, both before and after the probate of the will, declared that he so would hold the $2,000 in trust for the plaintiffs, according to the intention and request of the testatrix, and so informed such members and the parents of the plaintiffs, and promised the parents to pay over the trust fund to the plaintiffs when they should become of age, according to the intention of the testatrix; that the will of Mary .Green Gale was probated and the $2,000 was paid over to Stephen Madison Gale, who afterwards declared that he held, and informed the parents of the plaintiffs that he held, the $2,000 in trust, as aforesaid, and would pay over the same to the plaintiffs, as aforesaid, when they should become of age; that after he had received this sum Stephen Madison Gale informed the father of the plaintiffs that he had invested the $2,000 in bonds of the United States of America, and held the same upon the trust aforesaid; that Stephen Madison Gale invested the $2,000 in bonds of the United States and held the same at the time of his decease, and that they were the only bonds of the United States held by him; that Stephen Madison Gale died in January, 1882, at Newburyport, intestate, long before the plaintiffs, or either of them, became of age; that Mary H. Gale, his widow, was appointed and was the administratrix of his goods and estate, and the bonds came into her hands and possession as such; that she as administratrix distributed the residue of the estate of Stephen Madison Gale, after the payment of debts and charges of administration, to herself, to George How Gale, son, and Anna Bartlett Boynton, daughter, of Stephen Madison Gale, who were the only distributees of his estate; and that the share of Mary H. Gale was much more than the amount of the trust fund; that after the decease of Stephen Madison Gale, Mary H. Gale, who was the grandmother of the plaintiffs, both before and after her appointment as administratrix, declared that she would fulfil the trust obligation, but neglected and failed so to do; that Mary H. Gale has deceased, testate, and that George How Gale is the executor of her will; that the estate of said Mary H. Gale is amply sufficient to pay all obligations that there are or may be against it, including such as are on account of this trust fund; that no part of the trust fund or any income thereof ever has been paid over to the plaintiffs or either of them; that the plaintiffs are now of age, and have but recently learned of the trust and of their rights under it; that the defendant, though requested to fulfil the terms of the trust, and pay over the trust fund to the plaintiffs, has neglected and refused and still neglects and refuses so to do ; praying that the defendant may be adjudged and declared to be trustee for the plaintiffs of the trust fund; that an account be taken of the amount of the trust fund; that the defendant be directed and required to pay over to the plaintiffs such amounts as are justly and equitably due to the plaintiffs; and for further relief.</p> <p>The defendant demurred to the bill. In the Superior Court Stevens, J. sustained the demurrer and made a final decree that the bill be dismissed with costs to the defendant. The plaintiffs appealed.</p> <p>The case was submitted on briefs.</p>

<p> Negligence. Street Railway. Carrier. </p> <p>The reasonable care which a common carrier of passengers must exercise toward a passenger is the highest degree of care which is consistent with the proper transaction of its business.</p> <p>At the trial of an action by a woman against a street railway company for injuries caused by the sudden starting of a crowded open car of the defendant on a very dark night while the plaintiff was on the running board picking up a bundle from the floor of the car before alighting, it is error for the presiding judge to instruct the jury that the highest degree of care required from the defendant as a carrier of passengers made it the duty of the conductor before starting his car to move even to the extent of getting off the car to see whether the plaintiff had got off. The true rule is that in such a case a conductor before starting his car is bound to know, if by the exercise of due care, caution and diligence in the discharge of his duties he can know, whether any person is getting on or off the car.</p> <p>The fact that a conductor of a street car has waited a reasonable time for a passenger to get on or off the car does not give him the right to start the car until he has exercised the highest degree of care consistent with the performance of his other duties to see that the passenger is on or off the car as the case may be:</p>

<p>Petition of Mabel E. Wallace, a minor, by her mother and next friend, Josie Wallace, filed in the Superior Court for the county of Middlesex on June 17, 1904, to amend the record in the case of Wallace v. Boston Elevated Railway, No. 6078, on the docket of that court, and praying that an alleged agreement for judgment be put off the files and destroyed and that the case be brought forward on the docket to stand for trial.</p> <p>At the hearing upon the petition in the Superior Court before Lawton, J. the following facts appeared in evidence:</p> <p>The docket record in the case numbered 6078 was as follows :</p> <p>“ Henry C. Long 6078 Mabel E. Wallace p. p. a. v. Boston Elev. R’l’y Co. R. A. Sears.</p> <p>“1903. Dec. Decl. Jury claim by plff. Ans.</p> <p>“ 1903. December 31 Judgt. for plff. for $1. without costs, & (1903) Judgt. satisfied, by agt on file.”</p> <p>The “ agreement ” referred to- on the docket and filed among the papers of the case, was as follows:</p> <p>“ Commonwealth of Massachusetts.</p> <p>“ Middlesex, ss. Boston, 21 Dec. 1903</p> <p>“ Mabel E. Wallacep. p. a. vs. Boston Elevated Railway Company.</p> <p>“Agreement.</p> <p>“ The above case having been settled, it is agreed that judgment may be entered therein for the plaintiff for one dollar without costs, and that entry may be made of judgment satisfied.</p> <p>“James A. Murray James H. Wallace, Father and next</p> <p>“ Witness to sig- friend of Mabel E. Wallace</p> <p>nature. Attorney for</p> <p>“Attorney for</p> <p>Defendant.”</p> <p>The action, No. 6078, was brought by the present petitioner, by her father, James H. Wallace, as her next friend, to recover damages for the loss of the lower part of one of her legs which was injured by a car of the defendant. The plaintiff appeared by Henry C. Long, Esquire, an attorney at law, whose appearance is recorded upon the docket record above given. The defendant .did not regard itself as liable in the action and never had made any attempt to settle the case or made any offer of settlement.</p> <p>On December 21, 1903, the father went to the office of the defendant and requested the attorney of the defendant to settle the case with him, saying that he wanted to buy his girl a cork leg, which would amount to $175, for a Christmas present, and wanted the defendant to settle for that sum. The attorney for the defendant told him that the plaintiff had counsel and he, the defendant’s attorney, would not talk with him, the father. The father said he was going to discharge the counsel. The attorney again told him to go and see his counsel, but on the father’s insisting upon talking about the case the attorney for the defendant called up on the telephone the counsel for the plaintiff and told him that the father was there and wanted to settle the case and that he, the defendant’s attorney, had refused to settle the case with him and had told him to go to his counsel, and that the father had said he was going to discharge the counsel, arid that the father had said lie would not have Long for counsel anyway. The judge found that this was tantamount to a discharge of the attorney Long.</p> <p>The attorney for the defendant said to the'plaintiff’s attorney that the plaintiff had no case, but that the injury was so great that the defendant would be willing to pay enough to purchase the child a cork leg. Mr. Long said, “ Well, go ahead and settle with him but save me out my bill of $150.” The attorney for the defendant said he would not pay so much, that that was more than the case was worth and that it was a case where the road was not at fault. The attorney for the defendant told Mr. Long he was going to pay the plaintiff $175 in settlement of the action, and would pay the plaintiff’s attorney his bill.</p> <p>The attorney for the defendant paid the father $175 in settlement of the action and told him that he would pay the attorney’s fees so that the sum would be clear for the plaintiff, and he paid the plaintiff’s attorney $50 in settlement of his bill. Two releases were executed, one by the father as father and next friend of the child, and one by the father personally. The $175, except $2 of it, was paid by the father to the mother, the next friend in this petition. The appointment of -the father as next friend never was revoked. The appearance of the counsel for the plaintiff never was withdrawn.</p> <p>It was at the time of this settlement that the agreement printed above was signed by the father and by the witness to his signature. The agreement was filed by the defendant in the case, No. 6078, without any signature in behalf of the defendant. Thereupon, without any special order of the court, the clerk made the entry of judgment to be found in the above copy of the docket record under the date of 1903, December 31. See R. L. c. 177, § 1; Rule 23 of the Superior Court.</p> <p>The petitioner asked the judge to make the following rulings:</p> <p>2. Under the evidence and record in this case the plaintiff is entitled to have the entry dated December 31, 1903, stricken from the record.</p> <p>3. Inasmuch as the entry was unauthorized by special or general order of the court or by rule, no judgment has been given in the case.</p> <p>4. Inasmuch as the agreement was not signed by the defendant the case was not ripe for judgment within the meaning of the rule and therefore the entry was unauthorized and should he stricken off.</p> <p>5. The agreement having been signed by the next friend only and not by the counsel of record in the case, it was made without sufficient authority to render the case ripe for judgment and therefore the entry should be stricken off.</p> <p>6. As a result of the evidence it appears that the agreement was not such a one as in equity and good conscience ought to bind the plaintiff. The court, therefore, will not sustain it and the entry based upon it should be stricken off.</p> <p>7. A minor party to a suit in court is represented in court by his attorney of record, and no judgment by consent should be entered against such a party without the consent of his attorney of record.</p> <p>8. The written agreement not being signed by the defendant or its attorney remains an agreement made by the next friend in pais and is therefore not binding upon the plaintiff under the decision of Tripp v. Gfifford, 155 Mass. 108.</p> <p>9. Upon all the evidence in this case the petitioner is entitled to have the record amended according to the prayer in the petition.</p> <p>10. Upon the evidence in this case the court legally in the exercise of its discretion may amend the record according to the prayer of the petition.</p> <p>The judge refused to make any of these rulings. He gave as the ground for refusing to make the rulings numbered 2 and 3, that they were not in accordance with the facts, and as the ground for refusing to make the ruling numbered 10, that it was not applicable to the facts found.</p> <p>The judge found that the allegation that the father at the time he signed the agreement and received the money was intoxicated and mentally incapable was untrue, found that the settlement was such a one as the court would have approved had the matter been brought to the court’s attention at the time of the filing of the agreement, and ruled that the court had the power to grant the relief prayed for (against the defendant’s contention and objection), but also ruled that there had been a valid settlement of the case, and for that reason dismissed the petition. The petitioner alleged exceptions.</p>

<p>Tort for personal injuries from being struck by the heavy door of a refrigerator when suddenly pushed open by an employee of the defendant at its place of business at 109 Clinton Street in Boston. Writ dated September 23,1901.</p> <p>At the trial in the Superior Court before Richardson, J. it appeared that the accident happened on July 24, 1901; that the defendant was a corporation engaged in the business of selling fresh meats; that the plaintiff had been in the provision business for himself and others in Boston for about thirty-two years; that at the time of the accident he was going to start in business for himself, and was buying goods for the new firm, and also for one Cann; that he went to the defendant’s salesroom to buy lambs for Cann; that he had been going to the defendant’s salesroom for three or four years; that he bought the lambs on the day in question, and they were run out on a track; that he saw them weighed, when the salesman said, “ Here is your weight slip, Mr. Paine,” and held it up over his shoulder; that the plaintiff stepped up to get it, and was knocked senseless by the door of the refrigerator; that the refrigerator was at the back of the room, the partition extending across the full width ; that the track for carrying the meat came out through the door; that the scales showing the weight of the meat upon the track were against the partition, which was between the salesroom and the refrigerator upon the salesroom side; that directly under the scales was a desk where they made out the weight slips; that both the scales and the desk were just at the left of a person entering the refrigerator door; that the door was a very heavy one four or five inches thick; and that no warning whatever was given that the door was going to be opened.</p> <p>On cross-examination the plaintiff testified, among other things, that the lambs were kept in the refrigerator; that he had been into the refrigerator to buy the lambs and then came out; that he had been in and out of this door a good many times; that the lambs were cut inside and brought out on the hooks on the track through the door, when the weighing was done at the scales; that after receiving the weight slip, which it was the practice to hand to the customer, the customer either would pay for the goods or would have them charged ; that the clerk of whom he bought the lambs stood by the desk, and the plaintiff stood farther out in the room; that the clerk, standing at the desk, holding up the weight' slip over his shoulder, said, “ Here is your weight slip, Mr. Paine ”; that he stepped up to get the slip, and as he did so the door came open; that he had been standing back while the weighing was being done, and stepped up to get the slip; that the door struck him on the right side and he landed on his back.</p> <p>One Curtis, who at the time of the accident was in the employ of the defendant, was called as a witness by the plaintiff, and testified that it was he who pushed the door open when it struck the plaintiff; that he had been inside the refrigerator and was in the act of coming out; “ that he used ordinary force to push the door open; it did not go open very easily; that there was a difference between the way this door opened and the doors of other refrigerators, because it bound at the bottom; it was difficult to open the door at times; that as the door swung around the floor was raised so it obstructed the door coming open free on its own axis, the outer edge of- the door coming in contact with the floor; that the floor was worn away from the constant opening of the door; that this condition had existed when he came into Armour and Company’s employ in June, 1900; that there was no change during this time ; that the door afterwards was taken off and fixed and the floor hewn away; that later the building was raised up; that between the time he went there and the time of the accident the binding of the door upon the floor kept growing worse as the building settled; that considerable more exertion was required to open the door on the day of the accident than would be required in opening an ordinary refrigerator door.”</p> <p>At the close of the evidence the judge refused to rule that upon the evidence the plaintiff was not entitled to recover, and submitted the case to the jury. The jury returned a verdict for the plaintiff in the sum of S3,750, and the judge reported the case for determination by this court, with an agreement of the parties that if upon the evidence the plaintiff was entitled to go to the jury judgment should be entered on the verdict, but if the plaintiff was not entitled to go to the jury judgment should be entered for the defendant.</p>

Two ACTIONS OF tort for personal injuries respectively sustained by the plaintiffs when passengers on a car of the defendant on Dorchester Avenue in that part of Boston called South Boston from being thrown to the ground in the manner described in the opinion. Writs dated respectively August 12 and May 13, 1902.

<p>Tort by a workman in a factory for personal injuries caused by the bursting of a defective emery wheel manufactured and sold in the open market by the defendant and purchased by the plaintiff’s employer. Writ dated May 9,1905.</p> <p>The declaration as amended was as follows:</p> <p>“ And the plaintiff says that the defendant is a corporation conducting the business of manufacturing and selling emery wheels; that on or about Thursday, February 24, 1905, the plaintiff, while working for the Merrimack Manufacturing Company, at Lowell, Massachusetts, and being entirely in the exercise of due care in the premises, was severely injured through the bursting or breaking of an emery wheel, bought in the open market by said Merrimack Manufacturing Company, which emery wheel had been manufactured and sold by the said defendant, and sent into the open market, to be used for the purpose for which, and in the manner in which, said emery wheel was being used at the time of said injury; that said emery wheel broke or burst, owing to a defect of structure or condition due to the negligence of the defendant, its servants or agents, which defect rendered it an article dangerous to use; that the condition of said article was known to the defendant, or could by reasonable diligence have been discovered by the defendant; that it was the duty of the defendant to so construct or manufacture the emery wheels which it sold or sent forth to be placed upon the open market, that no injuries due to such a defect therein might be suffered by the users thereof; that said accident was due to the fact that the defendant was wholly regardless of said duty, and negligent in placing such an article on the open market; that the plaintiff received severe and permanent bodily injuries and mental impairment, and suffered great pain and anguish of body and mind; that he has been put to great expense for medical attendance and nursing, and has been for a long time incapable of attending to any work or business; that he has been rendered incapable of earning his living, all to his great damage.”</p> <p>The defendant demurred to the declaration as amended. The Superior Court sustained the demurrer and gave judgment for the defendant. The plaintiff appealed.</p>

<p>Executor and Administrator. Words, “ May become.”</p> <p>On a petition to the Probate Court under Pub. Sts. c. 136, § 13 (now R. L. e. 141, § 13) to require the administrator of an estate to retain in his hands sufficient assets to satisfy a claim of the petitioner which “ is or may become justly due ” from the estate, the petitioner comes within the terms of the statute if he proves that he furnished the money for a joint venture of himself and the intestate on which there has been a loss, under an agreement by which the intestate was bound to pay the petitioner one half of the loss when ascertained, and that he is prosecuting a claim against a third person, whose liability is established, which when its amount is determined will diminish the amount of the deficiency, but probably will not extinguish it.</p>

<p>Witness, Cross-examination, Contradiction. Will.</p> <p>At the trial of an issue as to the sanity of a testator who executed the alleged will in a ward of a hospital when three persons were present besides the attesting witnesses, one of these persons testified that when the instrument was presented to the alleged testator he was told “ This is your will giving all your property to G.” (the person "to whom it was given by the alleged will) and was asked whether he wanted to sign it, and that the alleged testator nodded his head and reached for a pen. He also testified that on or about the day that the will was executed he saw the alleged testator take a teacup in his hand and drink from it, and that on various occasions he had asked the alleged testator how he was, and he had answered “ Pretty well.” -On cross-examination he was asked whether he had not said to the orderly at the hospital on the day the will was executed “That it was a shame to make that man make a will._ They might as well have a dead man.” The judge excluded the question. On an exception to this ruling it was held, that, as the witness was not qualified to express an opinion upon the sanity of the alleged testator, the only question was whether an affirmative answer to the question was admissible to contradict the previous statements of the witness and thus weaken his credibility, and that the witness’s alleged statement to the orderly properly might be interpreted as a statement concerning the mental .capacity of the alleged testator, which the jury erroneously might regard as affirmative evidence on that issue, and so properly could be excluded by the judge as not strictly in contradiction of the statements of the witness as. to simple physical acts of the alleged testator; also, that the judge properly might have excluded the evidence on the ground that the alleged statement was so vague and indefinite as not to have any tendency to contradict the witness.</p>

<p>Tort against the Boston Elevated Railway Company for personal injuries from being struck by a car of the defendant on Blue Hill Avenue in Boston on September 25, 1905, while the plaintiff was in the employ of the New England Telephone and Telegraph Company and was working as a lineman on a pole of the last named company. Writ dated November 18, 1905.</p> <p>At the trial in the Superior Court before Bell, J. the jury returned a verdict for the plaintiff in the sum of $1,033.33 ; and the defendant alleged exceptions to the refusal of the judge to rule that upon all the evidence the plaintiff was not entitled to recover and to the admission of certain evidence which is described in the opinion.</p>

<p>Practice, Civil, Conduct of trial, Judge’s charge. Infant. Partnership.</p> <p>It is no ground of exception to the charge of a presiding judge that he suggested in his charge to the jury a possible view of the evidence which had not been contended for by either of the parties and up to that time had not been mentioned in the case, if the possible conclusion of fact suggested by the judge is warranted by the evidence.</p> <p>If an infant, under an agreement by which he is to enter a partnership with two other persons when he has contributed a certain amount of money, deposits with one of these persons a sum of money less than the' amount required, to be held by this person as a depositary until the full amount is paid, and if the infant never pays the full amount, the contract is executory and the infant may avoid it and recover the money he has deposited.</p>

<p>Negligence, Employer’s liability.</p> <p>If a coal trimmer while going down a ladder in the hatchway of a vessel is injured by a barrow of coal being dumped upon him through the negligence of a fellow workman, who has been selected by the superintendent in charge to see that each man is safely down before any coal is dumped into the hatch, he cannot recover from their common employer.</p> <p>At the trial of an action by a coal trimmer against his employer, a stevedore engaged in loading a certain vessel with coal, for injuries from a barrow of coal being dumped upon him as he was going down a ladder in the fore hatchway of the vessel, it appeared that the plaintiff was one of a gang of twenty or twenty-two men employed by the defendant under the' charge of a superintendent, and that the vessel was being loaded at both the forward and the after hatch which were about forty feet apart. The plaintiff contended that the superintendent ordered .the wheelman who dumped the coal on him to dump . it when he did. The plaintiff testified that before he started to go down the ladder from the hurricane deck this wheelman spoke to him and that at that time the superintendent was near the after hatch where he could see and be seen by this wheelman but that the plaintiff “ was not in plain sight” of him. The wheelman testified that before he emptied the barrow one of the boys (not the superintendent for he knew the superintendent’s voice and the voice was not his) called out “ Come on with the coal.” The plaintiff called another wheel-man, who was at the after hatch, a trimmer who was waiting to follow the plaintiff down the ladder of the fore hatch, another workman at the fore hatch and still another who was at the after hatch, and each of them testified that he did not give this order. No witness testified that the superintendent gave it. The plaintiff did not call all the' men who appeared by the evidence to have been on the hurricane deck at the time. Held, that, assuming that the words were an order and that the order was given to the wheelman at the fore hatch and not to the wheelman at the after hatch, the evidence did not warrant a finding that the superintendent gave it.</p>

<p>Tout for personal injuries alleged to have been caused by the negligence of one Redding, a servant of the defendants, in starting a freight elevator without notice to the plaintiff who was upon it, whereby the plaintiff’s foot was caught and crushed. Writ dated July 15, 1903.</p> <p>In the Superior Court the case was tried before Aiken, C. J. The accident occurred in the middle of the afternoon of April 11, 1903, on the freight elevator in the building at the corner of Congress Street and' High Street in Boston. The building was leased to the George E. Gilchrist Company, a dealer in plumbers’ supplies, which occupied the first and second floors and also some other floors of the building, and sublet some of the upper floors to other concerns. The plaintiff was in the employ of the Gilchrist Company. The defendants were copartners engaged in the wholesale and retail shoe business, and occupied the fifth floor or loft of the building as subtenants at will of the Gilchrist Company. They had an agreement with the Gilchrist Company by which they and their employees were to use this freight elevator in common with other tenants in the building. The defendants used the loft in question as a storage loft, the main office of the firm being in another building on Congress Street.</p> <p>One Baxter was called by the plaintiff, and testified that at the time of the accident he was a clerk in the employ of the Gilchrist Company. “As to the rights of the various occupants of the building to the use of the elevator he said that when the employees of one tenant were using the elevator they had the right to the exclusive use thereof until they were through, and that if the employees of any other tenant rode thereon it was by the courtesy of the party using it.”</p> <p>One Pentleton, also called by the plaintiff, who was another clerk employed by the Gilchrist Company, testified that “ when one of the tenants of the building or his employees were using the elevator the one using it had the exclusive use thereof until he was through with it.”</p> <p>The plaintiff testified that just before the accident the elevator was stationary, on a level with Congress Street, and the Congress Street door was open; that he desired to take up to one of the upper floors of the building two large crates about five and one half feet by three and one half feet and weighing about seven hundred pounds each, which were on the sidewalk and belonged to the Gilchrist Company; that he got a two wheeled hand truck, loaded one of the crates upon it and wheeled it across the sidewalk of Congress Street, walking backward and dragging the truck after him; that proceeding in this way he entered the elevator which was entirely empty and had no one on it, Redding being at the time on the sidewalk.</p> <p>He then described the accident as follows: “ So I pulled the crate after me right on to the elevator, and I had another one to ■ put on, so I had to pull it back as far as I could, this way, and I was in the act of ending-up the crate — it took all my strength; it probably weighed seven hundred pounds — and this heel (his right) stuck out a little over the floor of the elevator, and this man, Mr. Redding, come on to the elevator and started the cable and caught my foot between the elevator and the other floor.”</p> <p>On cross-examination he said that Redding walked into the elevator from Congress Street, and standing by the cable facing inward, pulled the rope and started the. elevator; that according to his understanding Redding had as much right on the elevator as he did, but that Redding had no right to operate the elevator at that time while the plaintiff had possession of it.</p> <p>Redding was called as a witness by the defendants, and, as to what occurred at the time of the accident, said that he had prepared for shipment a number of cases of rubbers; that he had loaded them on the elevator from the floor occupied by his employers, and had taken them down to the street; that he there unloaded them, aided by one Bagley, a teamster’s helper, who took the cases from the witness at the elevator door and carried them across the sidewalk to pile them either on a wagon or at the edge of the sidewalk ; that the cases which they were handling varied in size, the largest being two or three or three and one half feet in length by eighteen inches or two feet across, the smallest being about ten inches by eight inches.</p> <p>He then testified as follows: “ I got them all off with the exception of about three cases that were so badly broken I con•cluded I would take them upstairs, and I placed them on one side of the elevator; they were rather small cases; I placed them on one side of the elevator. . . . Well, I started—after I had discharged my load with the exception. of them three cases I started to return. I pulled the elevator down — that is, the rope down — to start it up, and the elevator had risen perhaps a matter of an inch or two when Mr. McManus jumped upon it as it was moving. He says, ‘ Wait, stop,’ which I did. He then requested me to return to the street. I remonstrated with him, telling him I was very busy and I couldn’t very well take the time necessary to return to the street. — He said — he says, ‘ I wish — I want to take this crate up.’ I then at his request returned — shifted the elevator back — it had risen up perhaps a matter of three or four inches — back to a level with the sidewalk, and I stood there, with my right hand upon the rope, facing the street, and I watched him as he came into the elevator with this crate on the truck.”</p> <p>The witness then said that after he had brought the elevator back to the Congress Street level McManus stepped up into the first floor store, occupied by the Gilchrist Company, and there got a hand truck; that he came back across the elevator with the truck and went out to the Congress Street sidewalk. “ He put the crate on the truck and backed back of it with his two hands holding each handle, with the truck; backed back of it as far on to the elevator as he could conveniently go. He paused for a moment when he got there. I spoke to him; I says, ‘ All right?’ and he says, ‘ Yes.’ And I pulled the rope to go up. The next I heard, he cried out, 6 Stop, I am caught,’ and I stopped the elevator as quickly as possible. I turned at about the same time and I see that his feet — both feet—were caught underneath the studding — a piece of studding or joisting that runs underneath the floor and — between this joisting and the lip of the elevator or the flooring of the elevator.”</p> <p>At the close of the evidence the defendants asked for certain rulings among which were the following:</p> <p>Ninth. If the plaintiff was a trespasser or a bare licensee, the defendants and their agents and servants owed him no duty except to refrain from wantonly, wilfully or recklessly exposing him to injury.</p> <p>Tenth. If the plaintiff was a trespasser or a bare licensee, he cannot recover in this action and the verdict must be for the defendants.</p> <p>Eleventh. There is no evidence in the case which would warrant the jury in finding that Redding wilfully or recklessly or wantonly caused the injury alleged to have been sustained by the plaintiff, and if the jury shall find that the plaintiff was upon the elevator as a trespasser or as a bare licensee, he cannot recover and the verdict must be for the defendants.</p> <p>Twelfth. If the jury shall find that the plaintiff was upon the elevator as a trespasser or as a bare licensee, he cannot recover unless the jury shall find that the injury to the plaintiff was caused by the wanton and reckless conduct of the defendant’s servant done while acting within the course of his employment.</p> <p>Thirteenth. The defendants and their servants and agents did not owe the plaintiff any duty to warn him that the elevator was about to start.</p> <p>The Chief Justice refused to make any of these rulings, and submitted the case to the jury with other instructions, the substance of which is stated in the opinion. The jury returned a verdict for the plaintiff in the sum of $1,450 ; and the defendants alleged exceptions.</p>

<p> Assignment. Attachment. </p> <p>If an assignment for the benefit of creditors is executed by the assignee, who also is one of the creditors, the signature of the assignee operates as an acceptance of the provisions of the instrument by him as a creditor, and his title as assignee, at least to the extent of his claim, becomes good against a subsequent attachment of property of the assignor by another creditor, although no creditor except the assignee has executed the assignment.</p>

<p>Cross actions of contract upon an agreement in writing as described in the opinion. Both writs dated January 8, 1896.</p> <p>The contract sued upon was as follows:</p> <p>“ $450.</p> <p>“ This agreement made this 26th day of August, A. D. 1895, between E. M. Richardson, of Waltham, and James G. Morrison, of Somerville, all in the County of Middlesex and Commonwealth of Massachusetts.</p> <p>“ Witnesseth that said Richardson agrees to furnish the follow-’ ing material for the sum of $450.00 to James G. Morrison, for his building corner Pearl and Walnut streets, in said Somerville, all to be of the best of its respective kinds or to be made so promptly at said Richardson’s expense, and all to be subject to the approval of J. F. Cobb, Architect. All to be according to plans and specifications for the building, namely: all doors, windows, sash and blinds necessary to complete the said building as per schedules of even date signed by the said J. F. Cobb, Architect ; the same to be furnished within the following time:</p> <p>4 Pine Doors within 2 days</p> <p>5 Oak 66 “ 1 “ (including store doors)</p> <p>80 Cypress “ “ 8 “</p> <p>4 set & 3 prs. Blinds within 3 “</p> <p>10 Windows and 22 Sash “ 4 “ (including store sash)</p> <p>Balance of schedule of Doors within 20 days. Of windows, sash and blinds within 10 days from date.</p> <p>“ In case of any failure on his part to perform this agreement within the time specified according to the tenor thereof said Richardson agrees to pay said Morrison the sum of Ten Dollars per day until he shall have fully performed said agreement, as damages. And in consideration of the performance of said agreement on the part of said Richardson, said Morrison agrees to pay said Richardson the sum of $450.00 within 1 days from the last delivery.</p> <p>“E. M. Richardson James G. Morrison</p> <p>“ Witness, John T. Foster.”</p> <p>In the Superior Court the cases were tried together before Bond, J. Both cases had been referred to an auditor, who made two original reports and a supplemental report, all of which were introduced in evidence at the trial.</p> <p>It appeared in evidence that the building referred to in the contract contained on one side three stores on the ground floor with two tenements over them, and on the other side three tenements ; that the oak doors called for in the contract were to be used for outer doors and for the stores; that these oak doors were furnished within the time specified in the contract; that two of the stores were let early in October, and the third the first of November; that the cypress doors were to be used in the tenements; that the cypress doors furnished by Richardson and used by Morrison were twenty-eight in number and were used to finish up one tenement, which was let to a tenant early in October, who paid his rent from that time; that in some of the other tenements tenants moved in before the doors were furnished ; that one of these other tenants paid about half the rent for the period before the doors were furnished. There was evidence tending to show that Morrison originally made a contract with a contractor for the construction of the entire building by which the contractor agreed to finish the building by August 1, 1895; that owing to the failure of the contractor the contract was terminated and Morrison undertook to finish the building himself; that for this purpose he employed an architect and carpenters to do the work by the day, and that at the time of the contract with Richardson they were working on the building and the building was ready for the doors, and Morrison was in a great hurry to receive the doors in order that they might be put in at once as they were received; that it was important for purposes of letting that the whole building should be ready for the fall season; that Morrison called Richardson’s attention to all these facts and that thereafter the clause in the contract with reference to $10 a day was inserted and the contract was signed. Richardson introduced evidence to the contrary.</p> <p>The judge submitted the following questions to the jury:</p> <p>1. Did Morrison use some of the cypress doors at the request of Richardson- or his attorney and upon the promise of Richardson or his attorney that Richardson would furnish proper doors in place of those which were not in accordance with the contract?</p> <p>2. Did Morrison delay ordering the sixty doors to replace those claimed to be not in accordance with the contract until December 14, 1895, at the request of Richardson or his attorney for the purpose of allowing Richardson or his attorney to furnish other doors in place of those which Morrison refused to accept?</p> <p>The jury answered both of these questions in the affirmative.</p> <p>Morrison introduced evidence tending to support the affirmative answer to each of these questions and Richardson introduced evidence to the contrary.</p> <p>Morrison asked the judge to rule as follows:</p> <p>1. The sum of $10 per day specified in the contract is to be treated as liquidated damages and not as a penalty.</p> <p>2. The fact that the plaintiff accepted and used some of the articles specified in the contract and obtained the rent from a part of his building does not necessarily limit his right to recover thereafter the sum of $10 per day from the defendant so long as the defendant remained in default as to a substantial and important part of the contract.</p> <p>3. If the defendant was in default as to a substantial and important part of the contract the plaintiff is not prevented from recovering the sum of $10 per day so long as that default continued by the fact that the plaintiff could have procured the goods to be manufactured by others provided that his failure to do so was due to the defendant’s request or to the plaintiff’s reliance upon the defendant performing his contract and furnishing doors in conformity with its provisions and provided that such reliance was reasonably justified by the defendant’s conduct.</p> <p>The judge refused to make any of these rulings and Morrison excepted.</p> <p>At Richardson’s request the judge instructed the jury that upon the facts found by the auditor and upon all the evidence in the case Morrison could not recover as liquidated damages the sum of $10 per day specified in the contract but only the actual damage which he sustained and the jury was directed to assess such actual damage. To this ruling Morrison excepted.</p> <p>In Richardson v. Morrison the jury found for the defendant. In Morrison v. Richardson they found for the plaintiff and assessed the damages at $586.42. Both parties alleged exceptions.</p> <p>The exceptions of Richardson to the refusal of the judge to make certain rulings requested by him in regard to the assessment of damages have been made immaterial by the decision of the court.</p> <p>The colloquy which took place at the close of the charge between the counsel for Richardson and the presiding judge in regard to the effect of the auditor’s report, which is referred to in the opinion, was as follows:</p> <p>“ Mr. Mayberry. — Then, if your honor pleases, I also desire to save an exception to your honor’s instructing the jury that they are to take the auditor’s report unless the other evidence satisfies them that it is wrong, and to ask your honor to rule in place of that that they may take the auditor’s report as prima facie evidence, and consider all that is contained in the auditor’s report, as well as the rest of the evidence, and use their own judgment and experience —</p> <p>“ The judge. — Have n’t I told them that, in substance ?</p> <p>“Mr. Mayberry. — No, your honor, I understood your honor to say that they must follow the auditor’s report unless the other evidence in the case satisfies them that it is wrong.</p> <p>“The judge. — I did tell them that, that they could take the auditor’s report, which was evidence in the case, and which was prima facie evidence in the case, and take all the other evidence that was in the case, and then say what their conclusion was. If they were satisfied that the auditor’s report was right, then they would take that.</p> <p>“ Mr. Mayberry. — But, if upon the whole evidence, with the burden of proof upon the plaintiff, if upon the whole evidence, the auditor’s report and all the facts contained in it and all the other evidence, the plaintiff in the Morrison-Richardson case fails to satisfy them by a fair preponderance of the evidence that he is entitled to those damages, then they are not entitled to recover.</p> <p>“ The judge. — That is true. Yes, sir.”</p> <p>This colloquy took place in the presence and hearing of the jury-</p>

<p>Tort under R. L. c. 108, § 73, by the mother and next of kin of Leonardo Morena, dependent upon his wages for support, for causing his instantaneous death without conscious suffering on May 26,1901, while he was employed in the stone quarry of the defendants at Westford, from a stone falling upon him owing to the breaking of a chain attached to a derrick by which it was being hoisted, with four counts respectively alleging a defect in the condition of the ways, works or machinery of the defendants, the negligence of a superintendent in failing to examine the chain, the failure of the defendants to furnish the deceased with a safe and suitable place to work, and the negligence of a superintendent in failing to warn him that the stone was suspended over his head. Writ dated August 9, 1901.</p> <p>At the trial in the Superior Court before Aiken, C. J., it appeared from evidence offered by the plaintiff that she was the mother of Leonardo Morena; that her husband, the father of Leonardo, had died some six years before Leonardo left Italy to come to this country; that for four years after her husband’s death she had no income whatever and lived without any from any source; that two years before Leonardo left Italy he had worked for fifteen cents a day, which he gave her, and upon which she and her children lived; and that she had no other source of income. She testified that Leonardo came to this country to get money for her support. It appeared that one Capuana sent money to Italy to pay the passage of Leonardo to this country. At the request of Capuana, who then was-employed by the defendants at Fletcher’s quarry, the superintendent, one Blades, employed Leonardo. He worked at the quarry from Wednesday of the week preceding his death to the date of the accident, May 26, 1904, and received as wages $10. This was the only amount which he received as wages in this country and this was due from him to Capuana and was collected by Capuana and retained by him on account of this debt.</p> <p>Capuana, called by the plaintiff, testified that on May 26, 1904, he was working in the quarry of the defendants at West-ford ; that he had worked there for three summers; that Leonardo Morena was his brother in law, who had been in this country a little over two weeks before he was killed, having come from Italy; that Morena was staying at his house in Westford, and was seventeen years and six months old; that the witness had sent money to Italy for his passage, and when Leonardo arrived in this country Capuana asked Blades, the superintendent of the quarry, to give Leonardo a job; that Capuana at that time was running a steam drill at the quarry near the derrick; that the derrick was on a bank about twelve feet higher than where he was, and sixty feet away, and was being used for hoisting stones from the ledge to a place on the other side of the quarry, where they could be worked upon by the stone-cutters; that Blades told him to bring Leonardo the next day and he would put him on with him to help on the drill; that he brought Leonardo the next day, and Blades told him to go to work with Capuana; that he took him down with him to the drill and was with him all of the time; that Leonardo went to work with him in the morning and went back with him at noon, and went back to work in the afternoon and then back home; that his duties were to do what Capuana told him, such as to get water when Capuana told him he needed it; that the stone drill that he was operating had been in the same spot it was when Morena was killed for four or five days before the accident; that Leonardo was there all those days and had been working for the defendants about two weeks, and had worked during all this time with Capuana; that usually there was a shout of “ Heads up ” when a stone was moved over their heads, and when any one said “ Heads up ” they looked around and saw what was going on and got out of the way; that just before Leonardo was killed Capuana was setting up the drill, had the drill in the hole, had the wrench in his hand to tighten it up, and had told Leonardo to get a little water; that he was not far off; that then while he was tightening it up with the wrench he saw the stone drop; that he did not know what Leonardo was doing at the time he was struck; that he had got the water and left it between the legs of the derrick, and was himself between the legs of the derrick watching Capuana to learn the work while he was getting ready to tighten up the wrench; that the first thing Capuana knew the stone came right down and struck a blow to the drill, and one of the legs of the drill struck him softly on the leg; that he heard no warning, and heard no one say anything; that the stone was on top of Leonardo when he looked; that he appeared dead; that they were quarrying stones a short distance away; that he saw the stone; that the stone was from about two and a half to three feet long; that over his head he saw the derrick and a piece of chain hanging on the block of the derrick, and saw the other part of the chain on the stone.</p> <p>The conclusions of fact warranted by the evidence are stated in the opinion.</p> <p>At the close of the evidence the defendants asked the Chief Justice to direct a verdict for the defendants and asked him to make certain rulings. The Chief Justice refused to order a verdict for the defendants or to make the rulings requested, and submitted the case to the jury on the first and second counts under the employers’ liability act.</p> <p>After the counsel for the defendants had objected to certain instructions in the charge, the Chief Justice further charged the jury as follows:</p> <p>“ Gentlemen, the only fault in the case for which there is responsibility in this case is overheating. There is a claim that there was a fracture existing in the chain that is not due to overheating. If you are not satisfied that the overheating was the cause of this accident your verdict is for the defendants. I want to have this plain. The case, as it is left to you by the plaintiff in this case, depends upon the overheating of the chain. You müst be satisfied that the overheating of the chain left the iron in such a condition that the accident occurred. Unless you are satisfied of that your verdict is for the defendants.</p> <p>“ If the fracture, if there was one that existed, arose from any other cause than overheating, there is no right on the part of the plaintiff to recover. In other words, the plaintiff’s case depends upon making out the proposition that the iron was overheated, and that that left the iron in such a condition that the link broke and caused this accident; and unless that is established there is no right in this case to recover.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $2,250; and the defendants alleged exceptions to the refusals to order a verdict for them and to make the rulings requested, and to the instructions given at variance with such requests, and also to the allowance of certain questions put to one Blodgett and to one Fairbairn when called by the plaintiff in rebuttal.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action under B. L. c. 106, § 71, cl. 2, by a teamster against his employer for personal injuries received when assisting in moving a wooden house, alleged to have been caused by the negligence of a superintendent of the defendant, it appeared that a person, who was admitted to be a superintendent within the meaning of the statute, ordered the plaintiff to unhitch his horse from the wagon in order to haul certain heavy timbers up to the house, and ordered another workman to make fast to the timber, which he did, that the plaintiff hitched to the timber and started the horse but the chain slipped, and as the plaintiff was in the act of prying two of the timbers apart, to make it easier for the horse to haul the timber to which the chain was attached, the superintendent took hold of the horse’s head and started him, causing the plaintiff to be caught between two timbers and injured. Held, that there was evidence of due care on the part of the plaintiff and of negligence on the part of the superintendent; and that the act of the superintendent in starting the horse, "although in itself an act of manual labor, could be found to have been done as an act of superintendence for the purpose of assisting in doing what he as superintendent had ordered to be done.</p>

<p>Landlord and Tenant. Words, “ Expiration.”</p> <p>Where there is a covenant in a lease that a sum of money deposited by the lessee as security for the performance of the terms of the lease shall be returned at the expiration of the lease if no default shall have been made, or, if a default shall have been made, the lessor “ may retain so much thereof as will properly compensate him, and the balance, if any, shall, upon the expiration of this lease, be’ paid to said lessee,” a termination of the lease by the lessor by lawfully evicting, the lessee for non-payment of rent is an “ expiration ” of the lease within the meaning of the covenant.</p> <p>A lessor who terminates a lease by entering and expelling the lessee for nonpayment of rent cannot recover from the lessee for the loss of rent sustained by him in consequence of such termination unless the lease contains a covenant giving him that right.</p> <p>Where by the terms of a lease the rent is payable in advance in monthly instalments on the first day of each month during the term, and the lease provides that upon a failure by the lessee to pay any of the monthly instalments when due the lease at once shall become null and void, if, after a default in the payment of rent on the first day of a month, the lessor on the second day of the month terminates the lease in accordance with its terms, he cannot recover from the lessee the rent for that month.</p> <p>In an action to recover the sum of §300 deposited with the defendant as security for the performance of the terms and obligations of a lease to the plaintiff which the 'defendant had terminated, it appeared that by the terms of the lease the rent of §75 a month was payable in advance on the first day of every month during the term, and that upon the failure by the lessee to make any of the montldy payments when due the lease should at once become null and void, the lessor being given the right to enter and expel the lessee. The lessee further agreed to pay the rent during the term, “ and for such further time as [he] may hold the said premises.” On the first day of a month the plaintiff made default and refused to make further payments of rent under the lease. On the second day of the month the defendant terminated the lease and ordered the plaintiff to quit the premises, but the plaintiff continued to occupy the leased premises until the twenty-second of the month when the defendant expelled him and took possession. The lease contained the following provision in regard to the $300 deposited by the plaintiff as security : “ If a default, however, shall have been made, then the [lessor] may retain so much thereof as will properly compensate him, and the balance, if any, shall, upon the expiration of this lease, be paid to said lessee.” Held, that under the provision last quoted the plaintiff was entitled to recover the balance of the deposit after deducting the amount of the rent for the twenty days from the day when the lease rightfully was terminated by the defendant until the day when the plaintiff was expelled, the plaintiff having agreed to pay rent not only during the term but for such further time as he might hold the premises, but that the defendant, having terminated the lease, was entitled to no damages for its termination, in the absence of a covenant to make up any loss of rent sustained in consequence of such a termination, such as was enforced in Edmands v. Rust $• Richardson Drug Oo. 191 Mass. 123,</p>

<p>Tort under It. L. c. 51, § 18, against the city of Boston for personal injuries from being struck by a gate on the Warren Bridge, leading across the Charles River from that part of Boston called Charlestown, under the circumstances stated in the opinion. Writ dated January 14, 1901.</p> <p>In the Superior Court the case was tried before Bell, J., who at the close of the evidence ruled that upon all the evidence the action could not be maintained and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p> Trustee Process. Evidence, Res inter alios. </p> <p>At the trial of an action begun by trustee process, where the defendant and another appear under R. L. c. 189, § 32, as claimants of the fund in the hands of the trustee which they allege to have been their partnership property, and the only issue for the jury is whether the claimants have maintained their claim to the fund, it is error for the presiding judge to exclude the answers of the trustee to interrogatories propounded to him by the plaintiff under c. 189, § 11, containing statements of acts and conduct of the defendant from which it can be argued that he was the only person interested in the alleged partnership.</p> <p>In an action begun by trustee process, where a claimant of the fund in the hands of the trustee has appeared under R. L. c. 189, § 32, which permits him to “allege and prove any facts which have not been stated nor denied by the supposed trustee,” on the trial of the issue between the plaintiff and the claimant, the statements contained in the answers of the trustee to interrogatories propounded to him by the plaintiff under c. 189,'§ 11, are not res inter alios nor to be treated as hearsay, and so far as they are material must be laid before the jury.</p>

<p>Pleading, Civil, Declaration. Contract, Implied: common counts. Equity Jurisdiction, Mistake. Evidence, Extrinsic affecting writings. Practice, Civil, Verdict, Hew trial.</p> <p>Where a declaration contains two counts alleging false representations whereby the plaintiff was induced to make a contract in writing, of which a copy is annexed, and also a third count, alleged to be for the same cause of action, for money had and received, with a bill of particulars annexed containing numerous items made up on the basis of an oral agreement alleged to have been made at a date two days earlier than the date of the agreement in writing referred to in the first and second counts, but not referring to the agreement, the third count is not bad on demurrer, as the allegation that it is for the same cause of action as the other counts does not incorporate the agreement in writing as a part of the third count, and under that count it is open to the plaintiff to prove the oral agreement on which it is based in case the agreement in writing is not proved.</p> <p>One who has purchased a business under a contract in writing for a sum of money named in the contract cannot maintain an action for money had and received against the seller to recover a part of the sum paid on the ground that there was a mistake in the computation of the value of the business by which the price was fixed. If there was such a mistake the purchaser’s only remedy is a suit in equity to reform or set aside the contract.</p> <p>.A party to a contract of sale in writing cannot contradict it as to the price to be paid.</p> <p>Where a declaration contains two counts alleging false representations whereby the plaintiff was induced to make a certain contract in writing, and also a third count, alleged to be for the same cause of action, for money had and received, and at the trial of the action the presiding judge instructs the jury, that if the plaintiff fails on the first and second counts they are to consider the third count, and says “ if we find that you report your verdict on the third count, by your silence on the other counts, we shall infer that your verdict is favorable to the defendant on the first and second counts,” and if the jury return no verdict on the first or the second counts but return a verdict for the plaintiff on the third count, which upon exceptions to the rulings of the presiding judge is set aside by this court, the new trial granted on sustaining the exceptions will not be limited to the third count, as the jury may have rendered no verdict on the first and second counts for the reason that they failed to agree on those counts.</p>

<p>Municipal Corporations, By-laws and ordinances. Evidence, Materiality, Opinion. Negligence. Electricity.</p> <p>The question, whether the violation of a city ordinance in regard to the installation of wires by failing to notify the inspector of wires of an intended extension of electric light wires in a building and to obtain a permit for such extension con- ■ tributed to an accident caused by a shock of electricity from the wire of such extension, if there is evidence on the subject, is a question of fact to leave to a jury.</p> <p>Upon the question whether injuries from a shock of electricity received from an electric light wire in a building were caused by the violation of a city ordinance in failing to notify the inspector of wires before installing the wire or to obtain a permit for doing so, it is not permissible to show that the inspector of wires in such cases allowed the ordinance to be violated by not requiring notice or that when he received such a notice he neglected to perform his duty of inspection.</p> <p>In an action against an electric light corporation for personal injuries from a shock of electricity received from a portable electric light attached to a wire which the plaintiff had installed in his cellar as an extension from the wires in his shop above in violation of a city ordinance which required him to notify the inspector of wires of the intended extension before beginning work on it and to obtain a permit for its installation, both of which he failed to do, it is error for the presiding judge to permit the inspector of wires to testify that in a case like this, where wires already were installed and an extension was to be made, it was not his practice to require an application to be made or a permit to be obtained before the current was turned on, that when he received a notice in such a case, if he thought there was no question about the contractor or about the premises, he did not go to examine the premises but relied on the notice, and that in the present case he knew the contractor employed by the plaintiff and that he stood well in his business; and it is further error for the judge to instruct the jury that in determining whether the plaintiff was negligent in not obtaining a permit they might consider the practice of the inspector not to grant permits, and that in determining whether the plaintiff’s violation of the ordinance contributed to the happening of the accident they might consider whether the inspector if he had received the proper notice would have inspected this wire.</p> <p>The inspector of wires of a city, appointed under an ordinance of the city establishing an inspection of wires department, cannot be allowed to testify to his opinion that it is not the duty of any person other than himself to enforce the provisions of the ordinance, the construction of the ordinance being a question of law.</p>

<p>Negligence, Employer’s liability. Evidence, Materiality. Practice, Civil, Exceptions.</p> <p>A workman entering the employment of another person assumes all the obvious risks of that employment whether he knows of them or not. It is for him to determine whether he will make an- examination of his place of employment before going to work or will take his chances.</p> <p>A circular tank about five feet in diameter was placed in a square hole in the floor of a room forty feet by thirty or thirty-five feet where girls were employed to mend curtains. The bottom of the tank was about four feet below the floor and its top about five feet above the floor. There was an open space of about eighteen inches between one of the corners of the hole and the round surface of the tank. The employees were in the habit of getting water to drink from a pipe which ran into the tank. A girl on the first day of her employment, a little more than four hours after she had been put to work, felt thirsty and, having seen two other girls go to this pipe for water, went with two fellow employees to get a drink there. When she was stepping aside to make it convenient for one of her fellow employees who had taken the first drink to pass her, she fell into the hole and was injured. She did not see the hole because she did not look at the floor, but the hole would have been seen by any one who was looking on the floor. In an action against her employer for the injuries thus caused it was held that she could not recover, the risk being an obvious one which she assumed in going to work at that place.</p> <p>In an action by an employee against his employer for an injury on the first day of the plaintiff’s employment caused by his stepping into a hole in the floor of the room in which he was put to work, it is proper to exclude a question by the plaintiff to the foreman in charge of the defendant’s building, whom he has called as a witness, asking him whether before the day on which the plaintiff was employed the opening was covered in any way.</p> <p>The exclusion of a competent question is no ground for exception if the fact sought to be established by the answer to the question afterwards is proved and is assumed in dealing with the case.</p> <p>In an action by an employee against his employer for an injury from an alleged defect in the ways, works or machinery of the defendant there is no difference, " except in the amount to be recovered, between the liability under R. L. c. 106, § 71, cl. 1, and at common law, so that the exclusion by the presiding judge of evidence offered by the plaintiff of notice under § 75 of the statute can do the plaintiff no harm even if the notice offered was a good one,</p>

Tort for personal injuries incurred while alighting from a car of the defendant on September 20,1904, at Winthrop Square, in Medford. Writ dated March 9, 1905.

<p> Bills and Notes. </p> <p>Where the drawer, the drawee and the payee of a check are all in the same city . or town, the check should be presented for payment before the close of banking hours on the day after its delivery, and its circulation from hand to hand by indorsement does not extend the time for its presentment.</p> <p>The dictum in Taylor v. Wilson, 11 Met. 44, 52, that a check may “be passed from hand to hand, and a reasonable time is allowed to each party receiving the same to present it for payment,” is to be understood as referring only to the facts of that case where the check was sent to the payee in a city in another State and was forwarded for presentment in the usual course of business.</p> <p>If a check on a bank in a city is drawn and delivered in that city on Saturday and is not presented for payment until the following Friday, when the bank on which it is drawn has failed and closed its doors, the drawer of the check is discharged from liability to the payee to the extent of any loss that he has suffered from the failure to present the check for payment before the close of banking hours on Monday.</p>

<p>Bond. Deed. Specialty. Evidence, Presumptions and burden of proof. Alteration of Instruments. Practice, Civil, Exceptions.</p> <p>Where one has delivered a bond or deed in which a seal stands opposite his signature he equally is bound by the instrument as a specialty whether he affixed the seal before or after signing or adopted a seal which had been affixed by another before he signed or authorized another to affix the seal after he signed.</p> <p>Where the execution and delivery of a bond to dissolve an attachment and its approval by a magistrate constitute but one transaction, it does not matter whether the seals are placed upon the bond before or after its approval by the magistrate.</p> <p>In an action on a bond given to dissolve an attachment, where the defence is set up that the bond was made void by a material alteration consisting of the affixing of seals by unauthorized persons after the bond had been delivered, whether the burden is on the defendant to prove this defence, the burden being on the plaintiff to prove the execution of the instrument on which he has declared by showing that the seals were affixed before delivery, quaere.</p> <p>In a case which is before this court on. exceptions the correctness of a ruling of the trial judge to which no exception was taken is not open for consideration.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action against a city by a laborer employed by it in digging a trench for a sewer, for personal injuries from a stone falling upon him which some fellow workmen on the bank under the direction of a foreman were attempting to pull out of the trench, it appeared that previously the plaintiff had worked for ten years in a stone quarry where stones were hoisted, although his own work was drilling, that the plaintiff at the suggestion of the foreman, assisted by another workman, had fastened the rope around the stone, that the stone was two or three feet long and eighteen or twenty inches thick, weighing between three and four hundred pounds, that it was egg-shaped and its surface was smooth and slimy, that the plaintiff and his fellow workman in the trench were assisting in raising the stone by lifting and pushing, when the rope slipped and the stone fell on the plaintiff, causing the injuries. There was evidence that one of the men on the bank said that the rope was not going to hold, and that the foreman replied to him “You never mind the rope. You pull up the stone.” There was nothing to show that this reply was heard by the plaintiff'. Held, that the danger was an obvious one understood by the plaintiff and that by choosing to place himself underneath the stone, where if it slipped it would fall on him, he failed to exercise due care; also, that the reply of the foreman to the workman on the bank, although it might be evidence of negligence on the part of the defendant, furnished no excuse for the failure of the plaintiff to exercise due care.</p>

<p>Negligence, Employer’s liability. Practice, Civil, Exceptions. Evidence, Materiality. Statute.</p> <p>In an action against a building contractor for causing the death of the plaintiff’s intestate while in the defendant’s employ, it appeared that the foreman of the defendant ordered a carpenter employed by the defendant to move a gin pole or derrick, used for hoisting floor beams, from a building which had been finished to the third floor of another building in process of construction, that the plaintiff’s intestate was one of a gang of six or seven men employed in moving this pole, that after giving the order to the carpenter the foreman went away, and the carpenter proceeded to move the pole and got it substantially in position upon the third floor where it was to he erected, that, when with the assistance of the plaintiff’s intestate the carpenter was moving the foot of the pole a little, the foot slipped and pushed over the plaintiff’s intestate who fell one or two stories, receiving the injuries from which he died. Held, that the jury would be warranted in finding that the carpenter had charge of moving and putting up the pole, not as a workman, but as a superintendent acting as such with the consent of the defendant in the absence of the foreman.</p> <p>In an action against a building contractor for causing the death of the plaintiff’s intestate while in the defendant’s employ, it appeared that the intestate was one of a gang of six or seven men engaged, under the direction of a person who could have been found to be acting as a superintendent, in moving a gin pole or derrick to the third floor of a building in process of construction, that the pole was substantially in position in the place where it was to be erected, that the foot of the pole rested on some planks which had been placed upon the floor beams a short time before, probably by the plaintiff’s intestate and the others, and the top of the pole rested against a roof timber, that the fall had been taken from the pole and fastened to a roof timber to hoist the pole up, and had to be fastened to the top of the pole again, that for this purpose it was necessary to slide out the foot of the pole a little, that the superintendent and the plaintiff’s intestate were trying to do this and the superintendent directed the plaintiff’s intestate “ to steady it, steady the bottom of it so it would not slide,” that, wh.en in accordance with this direction the plaintiff’s intestate started to “ move the bottom out,” the pole “ simply slipped and pushed him out, pushed him over ” and he fell one or two stories, receiving the injuries from which he died. The distance that the pole slipped was only “ a couple of feet at the bottom.” The plaintiff’s intestate was an experienced carpenter and an active, intelligent and careful workman. Held, that, even if the plaintiff’s intestate did not assume the risk of such an accident, there was no evidence that the accident was due to any negligence on the part of the superintendent.</p> <p>The exclusion of a competent question gives no ground for exception if the fact sought to be established by the answer to the question sufficiently appears and this court holds that the evidence warranted a finding for the excepting party-on the issue to which the fact pertained.</p> <p>In an action against a building contractor for causing the death of the plaintiffs intestate while in the defendant’s employ by his being pushed from the third floor of a building in process of construction by the slipping of the foot of a gin pole or derrick which he was adjusting under the direction of a superintendent, if there is nothing to show that the superintendent did not have all the ropes necessary to move the gin pole, general questions by the plaintiff relating to the supply of ropes for hoisting purposes properly may be excluded.</p> <p>A violation of R. L. c. 104, § 44, requiring temporary floorings to be laid during the construction of an iron or steel framed building, is-not evidence of negligence in an action against a contractor constructing such a building for causing the death of an employee by his being pushed from the third floor of such a building by the slipping of the foot of a gin pole or derrick as he was adjusting it and falling to and through the second floor of the building on which no close plank flooring had been laid, as the violation of the statute was not a cause contributing to the accident but only a condition under which it occurred.</p>

<p>Nuisance. Ice and Snow. Easement, By prescription.</p> <p>In an action by a woman for injuries from falling on ridges of ice on a highway caused by the freezing of water accumulated by a retaining wall and grading on land of the defendant alleged to be a nuisance, if it appears that the plaintiff was walking on a cross walk of a public highway at a reasonably slow pace, that she was looking ahead as she walked, that she had no reason to expect one side of the street to be more dangerous than the other and that she wore rubbers, and she testifies that on account of her physical condition at the time she was taking greater care than she otherwise would have done, the fact that she could see ice at the place where she fell as well as on other sidewalks in that vicinity is not conclusive against her, and she is entitled to go to the jury on the question of her due care.</p> <p>A landowner has no right to maintain a retaining wall and a grading of his land which cause surface water to collect and to overflow upon a highway so as to create a nuisance by a dangerous accumulation of ice, and if he does so he is liable to a traveller on the highway who in the exercise of due care is injured by a fall caused by such accumulation.</p> <p>If a landowner maintains a retaining wall and a grading of his land which cause surface water to collect and to overflow upon a sidewalk and a cross walk of a highway creating a dangerous accumulation of ice there, he is none the less liable for an injury caused by such nuisance because when he acquired the land the retaining wall and the grading already were upon it and both the wall and the surface of the ground have remained without change for fifty years.</p> <p>A landowner cannot acquire by prescription a right to maintain a public nuisance.</p>

<p>Appeal from a decree of the Probate Court for the county of Suffolk allowing the account of Peter C. Schell as executor of the will of Peter Schell, late of Boston.</p> <p>Peter Schell died on January 3, 1900. He left a widow and four children, namely, Peter C. Schell, Mrs. Katie Luppold, Mrs. Mary A. Reiss [written “ Rice ” by the testator] and Mrs. Josephine M. Schuler. The will of Peter Schell, omitting the introductory and attesting clauses, was as follows:</p> <p>“ After the payment of my just debts and funeral charges, I bequeath and devise as follows:</p> <p>“ To Peter O. Schell, my-son, all the real estate at 1354 and 1358 Washington St. Boston, together with all the personal property connected therewith, consisting of horses, carriages carts furniture fixtures, the good will in the business all stock in trade — the same now used in part as a bakery and dwelling houses. I also appoint him, said Peter C. my son, executor of this my will, requesting that he be not required to give bond.</p> <p>“ I direct that my said son, Peter C. as soon after my death as may be, pay to Katie Luppold, my daughter, wife of Frank Luppold, now residing in Heidleburg, Germany, five thousand (5000$) dollars out of his, Peter C’s share above stated, which with the amounts that I have heretofore given her I believe is her fair share.</p> <p>“ To Mary Ann Rice, my daughter, wife of Joseph Rice, six thousand dollars (6000$) out my homestead at 1224 & 1226 Washington St. Boston, or if she prefirs and elects to retain said 1224 & 1226 property she shall pay to Josephine M. Schuler, my daughter, wife of Mathew Schuler, six thousand dollars (6000$) as soon after my death as may be. After my death if said property at 1224 & 1226 should bring 18000$ or more or if the same should bring less than that amount and Mr. Rice should decline to keep it and pay 6000$ to Mrs. Schuler, after my death and the death of my wife I direct that said property at 1224 and 1226 Washington St. be sold and the proceeds above- the sum of 6000$ first to be paid to Mrs. Rice, the balance of the amount be devided equally between the said Mrs. Rice and Mrs. Schuler I mention this as Mrs. Schuler has already had six thousand and •Mrs. Rice nothing.</p> <p>“ I direct that so long as my wife lives she shall be provided for out of my said estate as she directs and desires for her comfort and support.”</p> <p>The case was heard on appeal by Loring, J. The principal question was in regard to $5,500 and interest due for damage done by the elevated railway to the estate numbered 1354-1358 Washington Street. The right to compensation for this damage had accrued not only before the testator’s death, but before he made his will. The justice decided that this claim for damages did not pass by the devise of the property numbered 1354-1358 Washington Street to Peter C. Schell and was undisposed of by the will, and, being of opinion that the question whether the claim for damages passed under the will of Peter Schell to Peter 0. Schell, or whether Peter Schell died intestate so far as that property was concerned, so affected the merits of the controversy that the matter ought, before further proceedings, to be determined by the full court, with the consent of the parties reported that question for determination by the full court.</p>

<p>Appeal from a decree' of the Probate Court for the county of Norfolk allowing the accounts of George A. P. Codwise as executor of the will of John W. Shaw, late of Wellesley, namely, the eleventh and eleven previous accounts, including the trustee’s account, so called, except that the executor’s charges for services in all of the accounts were reduced from $7,563.61 to $5,000, and it was ordered that the executor should stand charged with the sum of $2,563.61, the amount claimed by him in all the accounts for services in excess of the amount allowed him in the decree, and that this sum should be added to the balance of $2.98 stated in his eleventh account, making the total amount for which the executor should stand charged $2,566.59.</p> <p>Georgiana S. Livermore and Fanny M. Hildreth, the only residuary legatees under the will of John W. Shaw, appealed from the decree of the Probate Court and filed with their appeal five objections to the decree. The executor also appealed from the decree of the Probate Court, stating in separate paragraphs seventeen reasons for his appeal.</p> <p>The case was heard on appeal by Hammond, J., who admitted an auditor’s report which had been filed in the Probate Court and took it as a part of the evidence in the case. He made a decree that all the accounts be allowed, and ordered that the executor should stand charged with the sum of $2.98, and that the case should be remitted to the Probate Court for further proceedings. The residuary legatees appealed. They also took exceptions, of which they afterwards filed a waiver.</p>

<p> Negligence. Street Railway. </p> <p>In an action against a street railway company for injuries to the plaintiff and to his buggy from being run into by a car of the defendant as the plaintiff was driving over the tracks of the defendant at a street crossing, there was evidence that it was a wet and stormy day with the wind blowing hard, that the car was going “ at a breakneck speed ” from twenty to twenty-five miles an hour, that no bell was rung and no gong was sounded. The plaintiff testified that when he turned upon the track he looked and saw no car, and knew positively “ the car was not right within close proximity,” that he put his head out of the buggy both before he turned to go across the track and after he had turned for the crossing, that he could not say that he looked the moment before his horse stepped on the second track, on which the car was coming, but while he was crossing over he looked through the glass in the top of the buggy, that the glass was wet with rain but did not obstruct his view, that the last time he put his head out his horse and buggy were about in the first track, that he got a view down the track as far as a street which was five hundred and sixty feet distant and saw no car, and that the point from which he looked was about twenty-five feet from the place where he was struck by the car. Held, it being conceded that there was evidence of negligence on the part of the motorman, that the question of the plaintiff’s due care was one for the jury.</p>

<p>Evidence, Opinion, Matters of common knowledge, Materiality. Carrier, Of passengers Negligence. Elevated Railway. Pleading, Civil, Variance.</p> <p>An ordinary observer may testify as to his conclusions of fact at the time of bis observation in regard to a condition of things which can be understood by men in general and which cannot be reproduced before the jury as it appeared to the witness.</p> <p>In an action by a woman passenger against a corporation operating an elevated railway for personal injuries caused by the alleged failure of the defendant to limit or control the crowd of passengers upon a platform of one of its terminal elevated stations, the plaintiff on her cross-examination of a motorman of the defendant may ask him whether, if three cars each unloaded thirty-three passengers upon a certain part of the platform, it would make a fair sized crowd on that platform.</p> <p>In an action by a woman passenger against a corporation operating an elevated railway for personal injuries caused by the alleged failure of the defendant to limit or control the crowd of passengers upon the platform of one of its terminal elevated stations, the plaintiff, on her cross-examination of the chief inspector of the division of the defendant’s railway in which the accident occurred, may ask him whether the size of the crowd on the platform of the station, could be controlled by controlling the number of persons allowed to enter the station through the turnstiles, and by regulating the number of surface cars and the number of elevated trains allowed to go into the station. If the answer to this question is matter of common knowledge the defendant is not harmed by its admission, and, if not such matter, it is admissible.</p> <p>In an action by a woman passenger against a corporation operating an elevated railway for personal injuries caused by the alleged failure of the defendant to limit or control the crowd of passengers upon the platform of one of its terminal stations, by reason of which the plaintiff in attempting to go from a surface car to take an elevated train was pushed off the platform and fell into the pit containing the adjoining surface car track, and was injured, the plaintiff offered to prove that at some time after the accident the defendant had extended its platform so as to cover twenty-five feet in length near the place where the plaintiff fell. The defendant’s counsel had admitted that it was physically possible to increase the platform in this way but refused to concede that it was practically possible. The plaintiff offered the evidence to show that the increase of space was practically possible. The judge admitted the evidence for this limited purpose, instructing the jury that it was not evidence of negligence on the part of the defendant. Held, that the evidence was competent for the limited purpose for which it was admitted. °</p> <p>In an action by a woman passenger against a corporation operating an elevated railway for personal injuries caused by the alleged negligence of the defendant in failing to provide for limiting or controlling the crowd of passengers upon the platform of one of its terminal stations, the presiding judge properly may refuse to allow the defendant to ask its superintendent of the division where the accident occurred whether in determining the plan of operating such a railway it is proper to take into consideration the desire of the travelling public to take their chances in the crowd rather than to be kept back, where sucli desire can be taken into consideration without interfering with safety in the operation of the railway, such inquiry not only being immaterial but tending to distract the attention of the jury from the issue of the defendant’s negligence.</p> <p>In an action by a passenger against a corporation operating an elevated railway for personal injuries from being pushed off an overcrowded platform at a station, it is evidence of negligence on the part of the defendant that it failed to provide a sufficient number of competent servants to guard its passengers from the dangers incident to the platform being overcrowded.</p> <p>In an action by a passenger against a corporation operating an elevated railway for personal injuries from being pushed off an overcrowded platform at a terminal station of the defendant when attempting to go from a surface car to take an elevated train, it is evidence of negligence on the part of the defendant that the portion of the platform where passengers alighted from surface cars was too small to take care of the passengers who were landed on it; and it also is evidence of such negligence that a guard who should have been on this part of the platform to prevent pushing and crowding, if he could, was not there when the plaintiff was injured.</p> <p>In an action by a passenger against a corporation operating an elevated railway for personal injuries from being pushed off an overcrowded platform at a terminal station of the defendant when attempting to go from a surface car to take an elevated train, if there is evidence that the portion of the platform where passengers alighted from surface cars was too small for the purpose and might have been made larger, this is evidence of negligence on the part of the defendant in the construction or maintenance of its platform on which the plaintiff is entitled to go to the jury, although this ground of negligence was not alleged in the declaration, if the objection of the variance was not taken at the trial.</p> <p>If a corporation operating an elevated railway at certain hours of every week day assembles on the platforms of its stations such large crowds of passengers necessarily going in opposite directions, that on one of these occasions a passenger on the outside of the crowd, in spite of all he can do, is pushed off the platform into the adjoining pit in which the tracks are laid, and the accident is due solely to the ordinary crowding which occurs during rush hours, the railway company is liable to the passenger for his injuries thus caused.</p>

<p>landlord and Tenant. Municipal Corporations. Evidence, Presumptions and burden of proof, Of occupation, Self serving acts. Maxims, Omnia rite esse acta praesrnmmtmr.</p> <p>A wharf corporation made a lease to a city of the right to use a part of its dock and flats “for a public float and landing place for boats.” and “ the right to drive, cap and maintain four oak piles, one at each corner of said float, to keep the same in position ; also the right to build a platform ” from one side of the pier “ and a run or other suitable approach from said platform to said float, and to drive such piles as may be necessary in building said platform and approach.” The city did all of these things. The lease contained a covenant by the city binding it to pay rent at the rate stipulated in the lease for such further time as it should hold the premises or any part thereof after the term of the lease or any extension of that term had expired. An extension of the term of the lease expired on December 1, 1901. In November, 1898, the city removed the float for repairs, and it never was brought back, but all the other structures erected by the city remained, as did also a notice purporting to be signed by the superintendent of streets reading “ City of Boston Public Landing. Boats not allowed to tie up here.” No notice of abandonment of the leased premises was given by the city. On August 6,1903, the mayor sent a letter to the wharf company notifying it that at the end of the quarter which should begin next after that date the city would quit and deliver up the premises theretofore used by it for a float and landing place. Later the wharf company brought an action of contract on the covenants of the lease for the rent from March 1,1903, to December 1, 1903. The plaintiff offered in evidence the letter of the mayor mentioned above which was excluded by the judge. The plaintiff also, for the purpose of showing that payments of rent were made by the defendant after the expiration of the extension of the lease up to April, 1903, offered in evidence entries in a book kept by the plaintiff’s deceased wharfinger containing declarations to that effect. This evidence was excluded by the judge on the ground that no authority from the city to make the alleged payments had been shown. The judge also excluded evidence offered by the plaintiff to show that between December 1,1901, and December 1, 1903, it made no charge for landing on the platform constructed by the defendant under the lease, although it made a charge after the last named date and made charges for a similar use of other parts of the wharf. The judge ordered a verdict for the defendant. Held, that the removal of the float for repairs by the defendant in November, 1898, did not constitute an abandonment of the premises'; that the letter of the mayor should have been admitted in evidence as tending to show that the defendant was holding over when the letter was written; that in connection with other evidence it was competent for the plaintiff to show that it had recognized the alleged occupation of the defendant by refraining from making any charge for landing upon the platform ; that the entries in the books of the deceased wharfinger should have been admitted in evidence, as in the absence of evidence to the contrary it would be presumed that the payments stated in the entries were made with authority; and that the liability of the defendant depended on whether it had occupied any part of the leased premises during the period sued for, which was a question of fact for the jury.</p> <p>The.acts of a public official are presumed to have been done rightly until the contrary is shown.</p> <p>On the issue whether a city has surrendered certain leased premises on the termination of a lease or has continued to occupy them so as to be liable on a covenant to pay rent during such occupation, the liability of the city is to be determined as that of any citizen would be.</p>

<p> Negligence. </p> <p>In an action by an employee of a construction company, engaged in doing the mason work for a large coal pocket, against an iron company, engaged at the same time in doing the iron work for the same coal pocket, for personal injuries from an iron beam falling upon him when it was being hoisted by means of a derrick furnished and operated by the plaintiff’s employer, if there is evidence that the defendant’s foreman wished to use the iron beam and fastened it to the chain to be hoisted and that the accident was due to his negligence in selecting a chain which manifestly was unfitted for this work, although proper ropes for holding the beam had been provided by the plaintiff’s employer, and in adopting an improper method of fastening the beam to the chain, and there also is evidence that the defendant’s foreman, in fastening the beam to the chain was acting for the defendant and within the scope of his employment, there being no contention that the plaintiff was not in the exercise of due care, the question of the defendant’s liability is for the jury.</p> <p>In an action by an employee of a construction company, engaged in doing the mason work for a large coal pocket, against an iron company, engaged at the same time in doing the iron work for the same coal pocket, for personal injuries from an iron beam falling upon him when it was being hoisted by means of a derrick furnished and operated by the plaintiff’s employer, there was evidence that the defendant’s foreman, who was in charge of the iron work at the coal pocket and whose duty it was to select the iron beams for hoisting, attached the beam to the derrick by a chain which was an improper one for the purpose, that there were ropes called straps at hand, the purpose of which was to fasten a beam that was too small for the chain as this one was, and that the defendant’s foreman made no use of these ropes. The foreman testified that, being desirous of having this beam hoisted, he told the tag man of the plaintiff’s employer who was in charge of the derrick that he wanted the beam, that the tag man told him he was busy but that if the defendant’s foreman “ would hook on to the beam ” he would hoist it for him, that the foreman then put the chain around the beam, and, while attempting to take two turns with the chain, told the tag man that he did not have chain enough and asked him to give him more, but that the tag man said that there was chain enough, that one turn was enough to put around the beam and refused to give him more chain, that thereupon the foreman took one turn around the beam, fastened the hook and said, “ Go ahead,” whereupon the tag man signalled to the engineer to hoist, that the engineer obeyed the order and the beam slipped from the chain and fell on the plaintiff. The judge, among other instructions, instructed the jury that if they found that the defendant’s foreman asked for more chain and that the tag man of the plaintiff’s employer did not give it to him and said that one turn was enough that would not be an excuse for the defendant’s foreman. Held, that this instruction was correct, as, if the accident was due to the negligence of the defendant’s servant or agent, the concurring negligence of the other contractor, if proved, would constitute no defence to the action.</p>

<p>Tort for personal injuries incurred while in the employ of the defendant, a corporation engaged in doing the mason work of a coal pocket which was being constructed at the State House in Boston. Writ dated October 10, 1902.</p> <p>In the Superior Court the case was tried before Holmes, J. together with an action brought by the same plaintiff against the G. W. and F. Smith Iron Company, which so far as material to the exceptions in that case is described ante, 468. The accident happened about ten o’clock in the forenoon of December 5,1901. The plaintiff, an experienced mason about twenty-six years of age, had been employed by the defendant about six.months and had been working in the coal pocket about three weeks.</p> <p>At the time of the accident the Smith Iron Company was hoisting an iron beam six feet long and weighing about one hundred pounds into position by means of a derrick erected near the centre of the coal pocket, which was at the time an excavation about one hundred feet square and twenty feet deep. One Sears, the foreman of the Smith Iron Company, had fastened the beam to the fall of the derrick by means of an iron chain, and while the beam was being hoisted to its place at the top of the coal pocket it slipped through the chain, fell and struck the plaintiff who was working in the construction of the wall of the coal pocket.</p> <p>The plaintiff testified that at the time of the accident he was laying a stone for the defendant; that he did not see the iron beam which struck him ; that the derrick which hoisted the iron beams was in the centre of the coal pocket; that iron beams were scattered around the bottom of the coal pocket; that Sears was the foreman for the Smith Iron Company; that Sears did all the iron work there and was the foreman over the iron workers; and that he had seen him pick out the iron and tell “ the tag man or whoever it was ” where to go with it. He further testified that he had seen him hitch on iron beams before the accident; that he had seen him hitch on iron beams sometimes three or four times in a half hour and sometimes not for a couple of hours; that Sears had been doing this every day for about a month ; that the iron men took orders from Sears; and that he had never heard any one give orders to Sears; that employees of the defendant had never hitched on iron beams; and that one Olson, the tag man on the derrick, gave the order to the engineer before the accident happened.</p> <p>He further testified that Sears would go down from above, pick out the iron beams, put the chain on and tell them to hoist; that he saw Sears make the hitch on I-beams; that sometimes he would use a strap; that Sears often would make two turns and sometimes one turn around the beams.</p> <p>One Prendergast, called by the plaintiff, testified that he had been an iron worker and rigger for nineteen years; that at the time of the accident he was operating one of the two derricks in the coal pocket; that he was standing about forty feet from the plaintiff; that he saw the beam which struck the plaintiff as it was in the air; that it was fastened with a single hitch; that he saw Sears give orders where to put the iron, where to place it and what beam to hitch on to it; that Sears picked out the iron ; that he had seen him hitch on iron beams; that the iron beam which struck the plaintiff was about six feet long, six inches high and had flanges at the top and bottom about four inches wide; that the beam probably weighed about two hundred pounds; that the iron chain was a large chain capable of raising seven tons ; that its links were about three inches long and seven eighths of an inch in diameter; that there were half a dozen straps on the premises and that the use or purpose of those straps was to hitch on to such a load as that beam, which was too small for a chain; that those straps or ropes were used for small beams; that he had seen Sears make hitches on the iron beams.</p> <p>Olson, called by the plaintiff, testified that at the time of the accident be was a rigger and iron worker for the defendant; that he was a tag man on the derrick which hoisted the iron beam that caused the accident; that he saw Sears make the hitch on the iron beam which hit the plaintiff; that Sears made a single hitch; that no boards were put on the beam before the hitch was made; that there were straps or ropes on the premises at the time of the accident; that these were used for hoisting small iron beams; that the chain on the end of the fall was about fifteen feet long; that after Sears made the hitch he told the witness to go ahead; that no one but Sears had anything to do with making the hitch; that there was icé on the beam. He testified that the Smith Iron Company did all the iron work; that he never made a hitch on the iron beams; that it always was made by the Smith people. He further testified that at the time of the accident there were slings upon the premises; that there were some in the cellar and some in the locker; that these slings had been used on short beams the day before the accident; that he had seen Sears take one turn before the day of the accident; that he could see Sears make the single hitch; that he had been a tag man fifteen or sixteen years. On cross-examination he testified that whenever he hoisted iron beams he acted under the orders of Sears; that he never hoisted iron beams under the direction of the foreman of the defendant; that Sears always gave orders in regard to the iron work; that he had seen all the iron put in and that the defendant had nothing to do with the iron work.</p> <p>At the close of the plaintiff’s evidence the defendant rested its case,.and the G. W. and F. Smith Iron Company proceeded to introduce evidence in defence of the case against that company. At the close of all the evidence the defendant asked the judge to order a verdict for it. This the judge refused to do, and submitted the case to the jury, instructing them that the defendant was not to be affected at all by the evidence put in after if had rested its case. The jury returned a verdict for the plaintiff in the sum of $3,550 ; and the defendant alleged exceptions.</p>

<p>Equitable Restrictions. Equity Jurisdiction, To enforce restriction on land.</p> <p>In order that an owner of land should be bound by restrictions, not contained in his deed or in those of his predecessors in title, which were imposed on other lots by a former owner of his land, it is necessary to show that when he bought the land he had notice of the restrictions and also to show that none of his predecessors in title since the restrictions existed bought without notice of them so as to convey a title free from restrictions.</p> <p>Where a landowner, selling lots according to a plan which shows twenty-two lots adjoining and opposite each other on a certain street but contains nothing indicating restrictions, conveys four of the lots by deeds containing certain like restrictions, and gives another deed and a mortgage; and his successor in title gives a deed, containing restrictions which are similar to the former ones but differ in details, these conveyances do not show the adoption of a general scheme for the lots on the street shown on the plan which prevents the conveyance of the remaining lots on any terms which seem desirable to the owner, and it is immaterial whether or not purchasers of the remaining lots who take deeds without restrictions have notice of the restrictions in the deeds previously made.</p>

<p>Pauper. Insane Person. Feeble-minded Person. Statute, Construction. Words, “ Insane person,” “Feeble-minded.”</p> <p>Infant paupers committed to and supported in the School for the Feeble-Minded are not insane persons within the meaning of R. L. c. 87, § 6, for whose support the Commonwealth must pay after January 1,1904, under § 79 of the same chapter, and under § 120 of the same chapter the charges for such support can be recovered by the treasurer and receiver general from the city or town in which such feeble-minded paupers had a settlement.</p> <p>Under R. L. c. 8, § 4, the rules as to the meaning to be given certain words in construing statutes established by § 5 of the same chapter are not to be followed if their observance would involve a "construction inconsistent with the manifest intent of the Legislature, and words and phrases are to be construed according to the common and approved usage of the language except that technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in the law are to be construed according to such meaning.</p>

<p>Tort by a freight brakeman against the railroad company employing him for personal injuries incurred in the course of his employment. Writ dated November 21, 1903.</p> <p>In the Superior Court the case was tried before Wait, J. No notice was given under the provisions of the employers’ liability act, so that the plaintiff could recover, if at all, only at common law. It appeared that the plaintiff was injured on December 5, 1902, while working as a brakeman and a member of the crew on a work train which was being switched to a siding at Harwich; that it was a dark, sleety night, with snow six or seven inches deep; that the plaintiff was attending to the switches so that the train could pass upon the siding; that he had fixed one switch and was walking along the track to the second, from one hundred and fifty to two hundred feet distant, when the train, backing down behind him as he walked, struck him, knocked him down and ran over his arm. There was evidence that the train should not have followed him until he signalled it to do so and that he had not signalled, and that there was no rear brakeman nor any conductor on the train to prevent its running upon him.</p> <p>The judge ordered a verdict for the defendant; and the plaintiff alleged exceptions, raising the questions stated in the opinion as well as others which the decision of the court has made immaterial.</p>

Tort for personal injuries from being struck by an incoming electric car of the defendant on Washington Street in Boston after alighting from an outgoing car. Writ dated November 15, 1901. In the Superior Court the case was tried before Bishop, J. The plaintiff was about sixty years of age.

<p> Mortgage. Pledge. Bankruptcy. </p> <p>An unrecorded bill of sale of personal property intended as security for a loan cannot be effective against third persons either as a mortgage or a pledge unless the property is delivered to and retained by the mortgagee or pledgee.</p> <p>Under R. L. c. 198, § 1, and the bankruptcy act of 1898 the holder of an unrecorded bill of sale of personal property, which was given as security for a loan by one who after its delivery became a bankrupt while still retaining possession of the property, has no title as against the trustee in bankruptcy.</p>

<p> Landlord and Tenant. Damages. </p> <p>Inserted among the covenants of a lease, and before the clause giving the lessor the right of re-entry for breach of covenant, was the following: “ If the lessor or his assigns shall decide at any time to remove the buildings on the leased premises, he or they may terminate this lease by paying to the lessee the sum of $2,500.” During the term of the lease, and when there had been no breach of covenant, the assignee of the lessor gave the assignee of the lessee a notice to quit and about a month later began to tear down the buildings. The assignee of the lessee sued for $2,600 under the clause of the lease above quoted. ■Held, that the clause sued upon was not a covenant to pay $2,600 as liquidated damages in case the lessor terminated the lease, but merely gave to the lessor the right, which he had not exercised, to terminate the lease by paying the lessee $2,500; so that the plaintiff’s remedy, if any, was an action for such damages as he could prove that he had suffered from being evicted.</p>

Tort for personal injuries from falling into an opening in the sidewalk on Bowdoin Square in Boston from which the servants of the defendant had removed the bulkhead for the purpose of delivering beer in the cellar of the Bowdoin Square Hotel numbered 1-6 in that square, owing to the alleged negligence of the defendant’s servants in leaving the opening unguarded. Writ dated April 18, 1908.

Tort for personal injuries incurred on June 15,1904, while in the employ of the defendants, who were contractors engaged in digging a trench for a drain, from being struck on the head by an iron buffer which dropped from a Carson trench- machine while the plaintiff was at work beneath it assisting in shoring up a trench eighteen feet in depth. Writ dated July 16, 1904.

Bill in EQUITY, filed in the Supreme Judicial Court on January 21, 1905, to restrain the defendant from using the names “ Oriental Rug and Carpet Renovating Company ” and “ Oriental Carpet and Rug Renovating Company ” to designate or in connection with the defendant’s business, praying for an injunction and for damages. The case was heard by Sheldon, J., who found the facts which are stated in substance in the opinion.

<p> Guardian ad Litem. Probate Court. Executor and Administrator. </p> <p>It is possible that there may be a case in which it is the duty of a guardian ad litem to raise a question as to the right of his wards to receive certain property, although it is conceded by all the other parties in interest, on the ground that it is for the interest of his wards to have their rights settled rather than to have the property with a liability to refund it; but where the interest of the wards is a future one which may not vest for upwards of fifty years the remote possibility that his wards now unborn and unascertained may have to refund the property after having received it does not justify a guardian ad litem in raising and pressing a doubt as to the validity of a payment made by the administrator of an estate ultimately for the benefit of his wards by opposing the allowance of such payment in the administrator’s account until the matter can be passed upon by the court.</p> <p>Since the enactment of R. L. c. 150, § 19, which was passed for the purpose of giving the Probate Court power to protect an executor or administrator in paying legacies or distributive shares by a decree of distribution, the allowance of the accounts of an executor or administrator stating such payment in the settlement of an estate has the effect of a decree of distribution under the statute.</p>

<p>Equitable Restrictions. Equitable Jurisdiction, To enforce restriction on land. Garage.</p> <p>Where the owner of a tract of land makes deeds of different portions of it each containing the same restriction upon the lot conveyed, which is imposed as part of a general plan for the benefit of the several lots, the grantees are given an equitable right to enforce against each other the restriction made for their common benefit.</p> <p>Where a restriction for the common benefit is imposed upon the grantees of all the lots in a large tract of land, the fact that in some parts of the tract other restrictians also are imposed does not show that the restriction common to all the deeds was not intended to apply alike to all.</p> <p>The erection of a garage designed to accommodate about one hundred and twenty automobiles of the larger type, having under it a steel tank arranged to hold ten barrels of gasoline, and containing a repair shop one hundred feet by thirty feet, with a small portable forge in one corner, where from six to eight cars of the largest type can be repaired simultaneously, the building being intended to be used as a salesroom, repair shop and repository for a company manufacturing automobiles, with demonstrators to run cars for possible purchasers, and also being intended to be used to store and care for automobiles belonging to about seventy-five or one hundred customers whose automobiles would go in and out on an average once each day, can be found to be a violation of a restriction, imposed on the land on which it is being constructed, that no building erected thereon shall “ be used or occupied for a stable, either livery or public or private, for carpenter’s shops, white or blacksmith shops, or for any foundry, mechanical or manufacturing purposes or for any other business which shall.be offensive to the neighborhood for dwelling houses,” especially where there is much evidence tending to show that the business proposed to be carried on would be “offensive to the neighborhood for dwelling houses.”</p> <p>In a suit in equity to enforce a restriction on land imposed for the protection of the surrounding lots for residential purposes it is no reason for refusing to enforce the restriction that in the opinion of the judge who hears the case the land in ten years “ will be wanted for business purposes, and is worth more for such purposes than for residential purposes,” if since the restriction was imposed there has been no material change in the conditions directly affecting the character and use of the property in question.</p>

<p>Equity Pleading and Practice, Memorandum of findings. Corporation. Equity Jurisdiction, To cancel corporate shares wrongfully issued.</p> <p>On an appeal in equity, where the evidence has been taken by a commissioner, a memorandum of findings of fact filed by the justice who heard the case is a part of the record and such findings will not be set aside unless they are plainly wrong.</p> <p>If in a contest for the control of a corporation a majority of the directors of the corporation sell and issue a large number of shares held in the treasury of the company to a person on their side of the controversy, which with the shares already held and controlled by them will give them control of the corporation, and if the issuing of the shares is not reasonably necessary to raise money to be used in the business of the corporation but the majority of the directors issue the shares in pursuance of a secret arrangement between them and the purchaser of the shares for the purpose of ousting the leader of the opposing party who before such issue had acquired with his friends the control of the outstanding stock of the company, and if the price paid for the new shares while fair under ordinary circumstances is less than probably might have been obtained in view of the contest for the control of the corporation, although the majority of the directors believe that it is for the best interests of the corporation that its control should be in their hands, their action in issuing the shares is in excess of their authority and constitutes a breach of trust, and in a suit in equity brought by the opposing stockholders the court will order the cancellation of the certificate for the new shares and the return of the shares to the treasury of the corporation.</p> <p>The directors of a corporation act in a strictly fiduciary capacity and are held to the high standard of duty required of trustees.</p>

<p>Equity Pleading and Practice, Exceptions, Appeal. Rules of Court.</p> <p>The principle of Rule 45 of the Superior Court, formerly Rule 48, providing that, except as there provided, no exception shall he allowed unless alleged and saved at the time when the opinion, ruling, direction, or judgment excepted to is given, should be applied to orders in equity proceedings, especially where the suit in equity is for the purpose of establishing a debt to the plaintiff from the principal defendant and is in substance an action at law.</p> <p>Where in a suit in equity there is a motion for a new trial, which is denied by the judge, and the party who made the motion appeals from the order and after-wards attempts to file an exception, which cannot be allowed because it was not taken at the time when the order was made, and the same party later appeals from a final decree against him, but the record of the appeal does not set out enough of the proceedings to enable this court to say upon what ground the judge denied the motion for a new trial, the appeal from the final decree brings the appeal from the interlocutory decree denying the motion before this court but discloses no reason for sustaining it.</p>

Bill in equity, filed by the Attorney General at the relation of the insurance commissioner, on April 14, 1905, praying for the winding up of the Colonial Life Association, a fraternal beneficiary corporation organized under the laws of this Commonwealth.

<p>Way. Boundary. Deed. Evidence, Extrinsic affecting writings.</p> <p>The owners in common of a tract of land laid out on it for their own convenience a private way twenty-four feet wide and five hundred and twenty-one feet long leading from a highway on which their land abutted. From time to time they made conveyances of land adjacent to this way on each side, in which they gave the respective grantees “ a right to pass and repass at pleasure over any part of said private way of twenty-four feet wide adjoining the premises ” conveyed. Thereafter the original owners of the land who laid out the way executed and caused to be recorded a declaration describing the way by metes and bounds, referring to their having laid it out previously, and declaring that they did “ set apart and appropriate forever the land occupied by said way twenty-four feet wide as a private way for all the present or future abutters thereon according to our original intention.” In a suit in equity by the owner of land on one side of this way against the owner of land on the other side of it, seeking to enjoin the continuous obstruction of the way by carts, sleds and other chattels, it was held, that the plaintiff was entitled to have the way remain at all times unobstructed throughout its entire width so that he might pass freely over any part of it.</p> <p>If two persons, who own in common with another the fee in certain land and in a strip of land twenty-four feet wide adjoining it over which a private way is laid out, convey the principal lot of land to their co-tenant in common by a quitclaim deed which describes the land as bounding upon the private way and grants the right to use such way, reciting that the land is the same intended to be conveyed by a former deed named from one of the grantors to the same grantee, and the description of the land in the deed named plainly does not in-elude any part of the way, and the number of square feet of land stated to be conveyed by each of the deeds is the same, the later deed conveys only the land described in the earlier one referred to, and no part of the fee of the land under the private way passes by it.</p> <p>.A guardian was given by the Probate Court a license to sell a certain parcel of land belonging to his ward containing a number of square feet named “ witli the right in a private way adjoining.” The ward owned such a right in a way twenty-four feet wide adjoining the land described and also owned an undivided share in the fee of the strip of land over which the way was laid out. Under this license the guardian executed a deed describing the land and giving its contents in square feet according to plans referred to in former deeds which excluded the strip of land twenty-four feet wide over which the way was laid out, conveying the right of way as follows: “ with a free right in common with others thereto entitled to use said private way, subject always to a just share of the expense of keeping the same in good condition and repair.” Held, that the deed, especially when taken with the license on which it was founded, did not convey or purport to convey the undivided interest of the ward in the fee of the strip of land twenty-four feet wide.</p> <p>In a suit in equity by one abutter on a private way against' another, to enjoin the defendant from obstructing the way by carts, sleds and other chattels, where the deeds creating and defining the right of way describe it without ambiguity as a private way twenty-four feet wide for the benefit of all present and future abutters thereon with the right to pass and repass at pleasure over any part of it, it is proper to exclude evidence offered by the defendant to show that for a period of nearly forty years a predecessor in title of the defendant used one half of the private way practically continuously for the piling of wood and such other uses as he saw fit to make of it.</p>

<p>Devise and Legacy. Adoption. Perpetuities. Equity Pleading and Practice, Costs, Counsel fees. Words, “Eight heirs.”</p> <p>The rule of construction that the republication of a will by a codicil does not alter the meaning of the words of the will does not apply when the clause of the will to be construed has been changed by the codicil.</p> <p>Where a will provides that after the death of the testator’s widow, the income of a portion of his estate shall be paid to the testator’s son, his only child and heir presumptive, that the income of the remaining portion of the estate shall accumulate during the life of the testator’s son, and that on his death, leaving no issue surviving him, the trustee for the time being shall pay over and distribute all that shall remain of the property to the testator’s “ right heirs at law,” the persons so described are to be ascertained as of the date of the death of the testator’s son.</p> <p>A testator made a will, when he had two sons living, providing that, after the termination of the life interests created by the -will for the benefit of his wife and of his two sons and the payment of certain legacies, the trustee for the time being should pay over and distribute all tiiat should then remain of his property and estate to the issue of his two sous, or failing such issue, to the testator’s “ right heirs at law.” On the death of one of his sons leaving no issue, the testator made a codicil ratifying and confirming his will except so far as changed by that instrument, in which, among other changes, he expressly revoked the provisions for his deceased son and his issue, and gave the remainder of his property and estate to the trustee named in his will “ to be held, managed and disposed of as trustee in said will provided excepting so far as changed and modified by this codicil.” He gave to his surviving son, after the death of the testator’s wife, the income of $20,000 instead of the income of $10,000 given him by the will, provided for additional bequests to be paid after the death of the testator’s wife and changed one of his executors. At the time of making the codicil the testator was an old man and acted on the assumption that his surviving son would be his only child at the time of his death. After the death of the testator’s wife and the payment of legacies to be paid at that time, there was left in the hands of the trustee a fund of about $50,000, and, on a bill for instructions by the trustee, this court held that the income of the estate over and above the income on $20,000 which was given to the testator’s son for life was to be accumulated until the time of his death. On the death of the testator’s son without issue, the trustee brought a bill for further instructions as to who were the testator’s “ right heirs at law ” among whom the fund should be distributed. Held, that the fund should be distributed among those persons who would have been the heirs at law of the testator had he died at the time of the death of his son.</p> <p>Under R. L. c. 154, § 7, the adopted daughter of a deceased brother of a testator cannot share in a bequest to the heirs of the testator.</p> <p>The effect of the word “ right ” in a bequest to a testator’s “ right heirs at law,” which apparently was used to exclude the possibility of a construction including an adopted child, here was not passed upon because the adopted child of a deceased brother of the testator was not an heir at law of the testator in any case.</p> <p>A testator made a bequest to his son of the income of a certain fund for life and " should he die leaving a widow and children ” then during the life of his widow the income was to go in equal parts to the widow and children with a remainder over to the children in fee, “ but if he should die leaving no issue but leaving a widow ’’ then to his widow for life, with a remainder after the payment of certain legacies to the issue of the testator’s son, or, failing such issue, to the testator’s right heirs at law. The son died leaving no widow and no issue. Held, that the gift over to the testator’s heirs was subject only to the life interest of the testator’s son and conditioned on his dying leaving no issue, and was not void for remoteness.</p> <p>In a suit in equity by a trustee under a will for instructions as to the distribution of a fund, where costs as between solicitor and client are allowed to the parties out of the fund, if nephews and nieces of the testator and children of deceased nephews and nieces whose interests are identical choose to be represented by four different counsel, only one set of costs should be allowed to them all.</p>

Two appeals by Henry F. Knight, administrator de bonis non with the will annexed of the estate of Thomas Livermore, late of Watertown, from- two decrees of the Probate Court for the county of Middlesex, one from the allowance of the account of the administration of that estate by Emma L. Magee, executrix of the will of Thomas Livermore, filed after the death of Emma L. Magee, by Anna M. Coolidge, administratrix with the will annexed of her estate, and the other from the…

Bill in equity, filed in the Supreme Judicial Court on September 25, 1903, by the legal heirs by blood of William D. Holmes, late of Braintree, against Ever M. Holmes, the widow of William D. Holmes, and George H. Mellen the trustee under the will of William A. Holmes, the father of William D. Holmes, praying that the defendant Mellen as trustee under the will of William A. Holmes might be ordered to account to the plaintiffs and that both the defendants might be. ordered to…

Contract to recover damages for the alleged breach of a contract in writing in refusing to purchase from the plaintiffs one quarter of the capital stock of the National Cloth Cutter Company. Writ in the Supreme Judicial Court dated January 3, 1905.

Contract by the Boston Water Power Company, a corporation, and Moses Williams and John H. Storer, trustees under certain indentures with that corporation, against the city of Boston for the sum of |35,603 awarded to the corporation as damages from the laying out and construction of Peterborough Street in Boston, with interest from November 16, 1896. Writ dated November 13, 1902.

Tort for personal injuries from being thrown down by a projection of a portion of the track of the defendant as the plaintiff was travelling on a cross walk on P Street at the corner of Fourth Street in that part of Boston called South Boston on August 10, 1902. Writ dated November 25,1902. In the Superior Court the case was tried before Schofield, J., who ordered a verdict for the defendant. The plaintiff alleged exceptions.

Contract by Samuel H. Hellen, claiming under an assignment from James L. Bryne and Company, for an amount due to the plaintiff’s assignors for materials furnished and labor performed under a contract with the defendant for which they recovered a judgment against the defendant after the making of the assignment to the plaintiff, it being alleged that due notice of the assignment was given to the defendant and that it was recorded with the records of assignments of wages.

Tort, originally by Rebecca M. Hopkins, for damages to her land and building numbered 1508 on Washington Street in Boston from the negligent digging by the defendant of a trench on its adjoining land near the party wall, which caused the plaintiff’s building to settle, whereby it was alleged that the building was damaged and depreciated in value, that the plaintiff lost tenants and that the rental value of the building was diminished permanently. Writ dated November 16, 1901.

<p>Mortgage, Of household furniture. Small Loans Act.</p> <p>Under St. 1892, c. 428, § 3, (R. L. c. 102, § 53,) providing that "no mortgage of household furniture on which interest is charged at the rate of eighteen per centum or more per annum, made to secure a loan of less than one thousand dollars, shall be valid unless it state with substantial accuracy the amount of the loan, the time for which the loan is made, the rate of interest to be paid, and the actual expense of making and securing the loan,” in case a mortgage of the kind described by the statute is made without any expense of making and securing the loan this fact must be stated in the mortgage, and an instrument purporting to be such a mortgage which contains no statement on the subject is void.</p>

<p>Practice, Civil, Appeal.</p> <p>An appeal to the full court from a judgment of the Superior Court under R. L. c. 173, § 96, brings before this court only matters of law apparent on the record.</p> <p>On an appeal to the full court from a judgment of the Superior Court under R. L. c. 173, § 96, the stenographer’s report of the evidence in the Superior Court is not a part of the record of that court and is not brought before this court by the appeal.</p>

<p>Street Railway. Corporation, Liability of directors. Equity Jurisdiction. Equity Pleading and Practice.</p> <p>The liability of the directors of a street railway company under R. L. c. 112, § 19, now St. 1906, c. 463, Part III. § 29, to the extent of its capital stock, for all its debts and contracts until the whole amount of its capital stock lias been paid in and a certificate stating the amount fixed and paid in has been filed, can be enforced only in equity.</p> <p>In a suit in equity to enforce the liability of the directors of a street railway company under R. L. c. 112, § 19, now St. 1906, c. 463, Part III. § 29, to the extent of its capital stock, for all its debts and contracts until the whole amount of its capital stock has been paid in and a certificate stating the amount fixed and paid in has been filed, it is not necessary to make the corporation a party.</p> <p>The provision of St. 1903, c. 437, § 36, that a stockholder or officer in a corporation shall not be held liable for its debts or contracts unless it has been adjudicated bankrupt or a judgment has been recovered against it which it has neglected to pay, has no application to a suit in equity to enforce the liability of the directors of a street railway company under R. L. c. 112, § 19, now St. 1906, c. 463, Part III. § 29, to the extent of its capital stock, for all its debts and contracts until the whole amount of its capital stock has been paid in and a certificate stating the amount fixed and paid in lias been filed.</p> <p>Creditors of a street railway company before bringing a suit in equity to enforce the liability of the directors of the company under R. L. c. 112, § 19, now St. 1906, c. 463, Part III. § 29, to the extent of its capital stock, for all its debts and contracts until the whole of its capital stock has been paid in and a certificate stating the amount fixed and paid in has been filed, need not exhaust their remedy against the corporation by taking out execution or otherwise.</p> <p>Under R. L. c. 112, § 19, now St. 1906, c. 463, Part III. § 29, making the directors of a street railway company jointly and severally liable, to the extent of its capital stock, for all its debts and contracts until the whole amount of its capital stock shall have been paid in, and a certificate stating the amount thereof fixed and paid in shall have been signed and sworn to by its president, treasurer, clerk and a majority of the directors, and filed in the office of the secretary of the Commonwealth, if the whole amount of the capital stock never has been paid in, the filing of a,certificate by the directors and officers named in the statute falsely stating that the whole amount of the capital stock lias been paid in does not stop the liability of the directors under the statute, and it is immaterial whether or not the directors acted in good faith in making the certificate.</p> <p>In a bill in equity to enforce the liability of the directors of a street railway company under R. L. c. 112, § 19, now St. 1906, c. 463, Part III. § 29, to the extent of its capital stock, for all its debts and contracts until the whole amount of its capital stock has been paid in and a certificate stating the amount fixed and paid in has been filed, an averment, that the whole amount of the capital stock “ was never actually paid in in cash ” and “ that no valid certificate has been filed by the directors of said street railway company to the effect that said capital stock has been paid in as required ” by the statute, is not bad on demurrer in failing to state that no certificate has been filed, because the filing of a false certificate would not end the defendant’s liability.</p>

<p>Jurisdiction. Equity Jurisdiction. Receiver. Evidence, Judicial notice.</p> <p>In a suit in equity brought by a judgment creditor of a street railway company under R. L. c. 112, § 19, to enforce the liability of the directors of the company, to the extent of its capital stock, for its debts and contracts until the whole amount of its capital stock has been paid in and a certificate stating the amount fixed and paid in has been filed, where the railway company is insolvent, and the company itself and receivers of its property appointed by the Circuit Court of the United States are made defendants, and the receivers appear and file an answer submitting themselves to the jurisdiction of the court, the court of the Commonwealth in which the suit was brought has jurisdiction of it although it does not appear that the suit was authorized by the court which appointed the receivers, the corporation not being a necessary party to the suit, and the liability of the directors sought to be enforced being no property or right of the corporation to which the receivers would be entitled.</p> <p>This court takes judicial notice of special acts of incorporation, which R. L. c. 175, § 72, requires shall be held to be public acts.</p>

<p>Bill in equity, filed in the Superior Court on January 18, 1906, by Patrick T. Maguire, a judgment creditor of Arthur Shay and John R. Murphy, copartners doing business under the name of Arthur Shay and Company, to compel John L. Spaulding, the junior of that name, the' assignee of a mortgage upon certain real estate on Lauriat Avenue in that part of Boston called Dorchester belonging, subject to such mortgage, to Shay or Murphy, to apply to the payment of the plaintiff’s judgment any surplus from the foreclosure sale of the mortgaged real estate remaining in his hands after the satisfaction of the mortgage.</p> <p>A number of persons and corporations, holding the mechanics’ liens referred to in the opinion, filed intervening petitions and were admitted as parties to the suit.</p> <p>After the intervening petitions had been filed, there was a hearing upon them before Fox, J., who filed a memorandum, in which he said that if the petitioners had perfected their lien proceedings by final decree, it was clear that, under the authority of Knowles v. Sullivan, 182 Mass. 318, they would have established an interest in the surplus, and that, in his opinion, they should be permitted to intervene and be given a reasonable opportunity to perfect their liens. He said further that what the future course of proceedings should be need not then be considered, and that it might be that the lien "suits should be allowed to proceed to a termination, and that then the priorities of the lienors and the attaching creditor, the plaintiff, should be determined in this suit; the fund being meanwhile under the protection of the court.</p> <p>The case then was referred to Lewis G. Farmer, Esquire, as master to hear the parties and their evidence and report his findings to the Superior Court.</p> <p>It appeared that the plaintiff, by his diligence in attending the foreclosure sale and preventing a sale of the property for the amount of the mortgage debt, created the surplus out of which he claimed the right to have his judgment paid. The master’s report contained the following conclusion :</p> <p>“ The plaintiff says further that while in the ordinary case of a creditor’s bill the lien attaches at the time when the bill is filed, the lien in this case dates back to November 6, [1905,] the date of the attachment. Granting this to be so, it is nevertheless true that the lien which was then acquired upon the land was subject to all prior conveyances or incumbrances. A judgment creditor upon filing a creditor’s bill for his sole benefit establishes, it is true, a prior lien in his own favor, but only as against parties who do not have liens prior to his own, and as the plaintiff has conceded, and it has been found in the lien suits, that the petitioners, with the exception of Foti, are entitled to have and maintain their liens, the same having related back to the date when the contracts under which the liens were claimed were made, which was long prior to that of the attachment, [although after the making of the mortgage,] I think it must be found that they are entitled to payment out of the surplus unless the plaintiff has a superior claim thereto by reason of his diligence in creating it. While he might have such a claim as against other judgment creditors, I do not think he is entitled to it as against the lien petitioners. The fund is not sufficient to permit of payment to the lienors in full, but I find that they should share in.it pro rata, all of them having contributed to create the value of the property ; I think also that the plaintiff should be allowed his costs and a reasonable attorney’s fee to be deducted from the fund before the distribution is made.”</p> <p>The Superior Court overruled the exceptions to the master’s report, and made a final decree in accordance with the recommendations of the master. The plaintiff appealed.</p>