Volume 195 — Massachusetts Reports

<p>Mortgage, Of real estate. Interest. Building Loan.</p> <p>If one owning land subject to mortgages sells it to one who wishes to build on it, and the purchaser makes a first mortgage of the land for $5,000 to be advanced from time to time for the purposes of paying off the prior mortgages and applying the surplus to the erection of a building upon the land and also to the payment of $247 in another transaction, which without the knowledge of the seller of the land he orally agrees with the lender of the money to pay, and at the same time with the knowledge of the first mortgagee gives to the seller of the land a second mortgage for $500 to pay him for his equity, and if subsequently the purchaser goes into bankruptcy and the holder of the first mortgage for $5,000 forecloses it under a power of sale in that mortgage, in a suit by the seller of the land against the first mortgagee to compel him to account for the surplus of the proceeds of the foreclosure sale, in order that it may be applied toward the payment of the plaintiff’s second mortgage for $500, the defendant is entitled to charge the payment of $247 which by the oral agreement was to be made by the mortgagor in the outside transaction as a payment properly covered by the mortgage, the defendant’s knowledge of the second mortgage to the plaintiff to secure the purchase money for the land having put him under no obligation to the plaintiff to see that the money advanced under the first mortgage was applied, after paying off the prior incumbrances, to increasing the value of the property by the erection of the contemplated building.</p> <p>If one lends upon a mortgage of certain land $5,000, which, after the discharge of certain prior incumbrances, is to be advanced in instalments from time to time as a building to'be erected by the mortgagor reaches certain stages of completion, and by the terms of the mortgage and the mortgage noté the mortgagor agrees to pay $5,000 in four months with interest thereon monthly at the rate of one and one quarter per cent per month, and if after a part of the advances have been made the mortgagor goes into bankruptcy and the mortgagee forecloses the mortgage under a power of sale contained in it, in accounting to the holder of a second mortgage on the same property for the surplus that should be in his hands from the proceeds of the foreclosure sale, he is entitled to charge interest on the full amount of $5,000 only during the time that he was required to keep that amount in readiness, and from the time the mortgagor went into bankruptcy, when the obligation of the mortgagee to make further advances ceased, he can charge interest only on the amount actually advanced.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on February 5, 1904, under R. L. c. 159, § 3, cl. 7, to reach and apply to the payment of a debt owed by the defendant Ray to the plaintiff the interest of Ray in a partnership called the George W. McPherson Store Company and in shares of stock held by Ray in a corporation called the Coe-Ray-Creelman Company.</p> <p>On February 6, 1904, a temporary injunction was ordered, and a writ of injunction issued, restraining the defendants from the sale, withdrawal or other disposition of any portion of the defendant Ray’s share or interest as a copartner in the property of the partnership of the George W. McPherson Store Company until further order of the court or of some justice thereof. The writ of injunction was served upon each of the defendants upon the same day.</p> <p>The case was heard by Lathrop, J., who on June 27,1904, made a decree establishing the debt in the sum of $5,484.76, which the defendant Ray was ordered to pay, and ordering that upon its non-payment the interest of the defendant Ray in the partnership be reached and applied as prayed for in the bill.</p> <p>The defendant appealed, and this court in a decision reported in 189 Mass. 112 ordered that the decree be confirmed. On September 19, 1905, a final decree was entered in accordance with the rescript. On December 22, 1905, upon motion of the plaintiff a receiver of the property of the partnership was appointed, who took possession of the property and thereafter held it. On January 11, 1906, an involuntary petition in bankruptcy was filed against the partnership, the partnership was adjudged bankrupt and Frank M. Hill was appointed trustee in bankruptcy of the partnership. Thereafter Hill, as such trustee, filed an intervening petition in the suit, praying that the receiver be ordered to deliver the property to him. This petition and the answer of the plaintiff thereto were referred to Winfield S. Slocum, Esquire, as master, to hear the parties and their evidence, to find the facts and to report them to the court. The master filed a report concluding as follows:</p> <p>“ The plaintiff contended that by virtue of the temporary injunction of February 6, and the final decree entered June 27, 1904 (each more than four months before the proceedings in bankruptcy), he was entitled to have the assets held and applied to the satisfaction of his debt as against the trustee in bankruptcy.</p> <p>“ I admitted evidence as to the value of the property of the firm upon each of the dates of February 6 and June 27, to determine whether there , was any valuable interest therein of the defendant Ray which could be applied in satisfaction of the debt.</p> <p>“ This evidence was admitted against the objection of thé petitioner, the trustee in bankruptcy.</p> <p>“ The business was dealing in furnishing goods, hats, caps and like property in a store at the corner of Hanover Street and Elm Street in Boston, and had been for a long time established there. It was purchased by the defendants in April, 1902, and has continued to the present time, the receiver conducting it since his appointment.</p> <p>“ On February 15, 1904, the manager of the store made a financial statement as follows:</p> <p>“ ‘ Cash on hand..........$601.66</p> <p>Stock of goods. •......... 12,808.54</p> <p>Fixtures ........... 1,783.00</p> <p>Making a total of.....$14,693.20</p> <p>Liabilities:</p> <p>Merchandise, payable.....$6,925.22</p> <p>Notes............ . 1,700.00</p> <p>Total .........$8,625.22’</p> <p>“ This statement shows a balance of assets over liabilities to the amount of $6,067.98.</p> <p>“ The financial condition of the store was substantially the same upon February 6, 1904, when the temporary injunction issued and was served.</p> <p>“ This financial statement appears to have been somewhat inflated for the purpose of making a good showing to obtain credit.</p> <p>“ The firm had a lease of its place of business for the term of five years from May 1,1902, at a yearly rental of $5,300. This lease, by reason of the high rent, was not of any salable value.</p> <p>“ The business was an old established one, and its good will was of some value.</p> <p>“ Upon June 27, 1904, the stock of goods in the store was somewhat larger than upon February 6, but the value of the business did not vary greatly from the former statement, and, if anything, the stock would be somewhat larger.</p> <p>“ I find if the business had been closed out and its property disposed of at a forced sale upon either of said dates it would probably not bring more than the liabilities, but as a going concern it was of value, and probably at said dates would be worth more than the above liabilities.</p> <p>“ The debts named in the financial statement have since been paid, but other liabilities have been incurred.</p> <p>“ The plaintiff offered evidence in support of the allegations contained in the seventh, eighth, ninth, tenth and eleventh paragraphs of his answer, but I deemed these allegations not to be material to the questions raised upon the matters referred to me, and I excluded such evidence.</p> <p>“ The plaintiff also offered evidence that subsequent to July 1, 1904, the defendants, copartners, opened and conducted a retail store similar to the Boston store at Pawtucket, Rhode Island, this store being known as ‘ The George Oliver Store,’ but I excluded such evidence.”</p> <p>The trustee in bankruptcy took the following exceptions to the master’s report:</p> <p>1. As to the value of the property of the firm upon each of the dates of February 6 and June 27, 1904.</p> <p>2. As to the payment of the debts named in the financial statement.</p> <p>The plaintiff took the following exceptions to the master’s report:</p> <p>First. To the ruling of the master as matter of law that evidence offered in support of the allegations contained in the seventh paragraph of the plaintiff’s answer was immaterial.</p> <p>[The paragraph referred to alleged that when the decree after the rescript was entered on September 9,1905, the George W. McPherson Store was solvent, and there remained, over and above all outstanding liabilities, assets the property of Ray as partner, which were seized by the entering of that decree.]</p> <p>Second. To the ruling of the master as matter of law that evidence offered in support of the allegations contained in the eighth paragraph of the plaintiff’s answer was immaterial.</p> <p>[The paragraph referred to alleged that when the decree was entered appointing the receiver, and the receiver was qualified and took possession on December 2, 1905, the George W. McPherson Store was solvent, and there remained, over and above all outstanding liabilities, assets the property of Ray as partner, which were seized by the entering of that decree.] Third. To the ruling of the master as matter of law that evidence offered in support of the allegations contained in the ninth paragraph of the plaintiff’s answer was immaterial.</p> <p>[The paragraph referred to alleged that all creditors of the George W. McPherson Store outstanding on February 6, 1904, had been satisfied and paid; and that the plaintiff’s interest in one half of the assets of the George W. McPherson Store was superior to all claims of creditors of that store since the date of the injunction, February 6, 1904.]</p> <p>Fourth. To the ruling of the master as matter of law that evidence offered in support of the allegations contained in the tenth paragraph of the plaintiff’s answer was immaterial.</p> <p>[The paragraph referred to alleged that Ray and Creelman, in spite of the injunction, and after its service, each withdrew from the assets of the George W. McPherson Store about $2,200 in cash, and also upwards of $2,400 in cash and merchandise on account of another business known as “ The George Oliver Store ” owned and managed by Ray and Creelman as copartners at Pawtucket in the State of Rhode Island ; that all such withdrawals were contrary to the injunction of this court, and had worked an injury to the rights of the various parties in the premises; but that any injury thereby accruing must be in the first instance borne by the creditors of Ray and Creelman as co-partners, whose claims accrued after the filing of this bill and the service of the injunction, rather than by the plaintiff.]</p> <p>Fifth. To the ruling of the master as a matter of law that evidence offered in support of the allegations contained in the eleventh paragraph of the plaintiff’s answer was immaterial.</p> <p>[The paragraph referred to alleged that Ray was president and manager and the controlling power, and Oliver E. Creelman was secretary, of the Coe-Ray-Creelman Company, a corporation doing business in Boston, which corporation claimed to be the principal creditor of the George W. McPherson Store; that the Coe-Ray-Creelman Company was a party to and received the benefits of the violations of the injunction of this court, and in its dealings with Ray and Creelman as copartners was to be charged with full knowledge of this proceeding and the rights of Gay therein; that said corporation was also the principal creditor of- Ray and Creelman as copartners in the George Oliver Store and was chargeable and had full knowledge of all transactions conducted between the George W. McPherson Store, the George Oliver Store, said corporation, and the several creditors of those stores, and that said corporation and Ray and Creelman were all and severally parties to a scheme of fraud, the purpose of which was to deprive the plaintiff of his rights in the premises by reason of his bill of complaint in this suit and the several proceedings thereunder.]</p> <p>Sixth. To the refusal of the master to admit evidence “ that subsequent to July first, 1904, the defendants, co-partners, opened and conducted a retail store similar to the Boston store at Pawtucket, Rhode Island, said store being known as ‘The George Oliver Store,’ as bearing upon the issue raised by the pleadings and particularly bearing upon the allegations contained in the thirteenth paragraph of the plaintiff’s answer.” [The paragraph referred to alleged that the plaintiff’s interest in the property of Ray and Creelman was solely in the partnership property of Ray and Creelman, doing business as the George W. McPherson Store, and that no separate determination of this interest could be had in the United States District Court sitting in bankruptcy.]</p> <p>The case came on to be heard before Morton, J., on the application of Frank M. Hill, trustee in bankruptcy, upon the master’s report and the exceptions thereto. The justice overruled the exceptions, and, at the request of the parties, reserved and reported the case for determination by the full court, such order or decree to be entered as law and equity might require.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on November 1, 1906, by the trustee under certain indentures described in the opinion, for instructions whether the trust created by those indentures had been terminated, and, if it had been terminated, who were the persons to whom he should pay over the trust fund.</p> <p>The case came on to be heard before Morton, J., who at the request of the parties reserved it upon the bill and answers for determination by the full court, such disposition to be made of it as to the full court should seem meet.</p> <p>A portion of the indenture of January 14, 1905, mentioned in the opinion, was as follows:</p> <p>“ The said trust shall determine . . .</p> <p>“ (C) Upon the death of said James A. Garland leaving the said Marie T. Garland him surviving, if in and by his last will and testament the said James A. Garland shall, in pursuance of the power of appointment in that behalf vested in him by the Fourth Article of the. last will and testament of his father, the late James A. Garland, direct that so much of the trust fund, therein referred to, as may be sufficient to secure the payment to the said Marie T. Garland of an income of Ten thousand •dollars ($10,000.) per annum during the term of her natural life, shall be held in trust for and the income thereof paid to her during her life; or</p> <p>“(D) Upon the death of the said James A. Garland leaving the said Marie T. Garland him surviving, if in and by his last will and testament the said James A. Garland shall otherwise than as above provided in clause (C) provide for her an income of Ten thousand dollars ($10,000.) or more per annum and she shall elect in writing, within one month after the probate of his will, to accept such last mentioned testamentary provision.</p> <p>“ Upon any determination of said trust the principal of the trust fund shall be forthwith paid over to the said James A. Garland, if living, and if not, then to such persons as shall be appointed by his last will and testament to receive the same, and in default of such appointment then share and share .alike unto the children of the said James A. Garland and Marie T. Garland and their issue per stirpes and not per capita</p> <p>James A. Garland died on September 13, 1906. He left a will dated July 19, 1906, which was admitted to probate by the Probate Court in the town of Portsmouth in the State of Rhode Island on October 8,1906. A portion of the will was as follows:</p> <p>“Ninth. — Whereas my father James A. Garland, late of the City of New York deceased, under and by sub-division First of Article Fourth of his will, did bequeath the sum of five hundred thousand dollars upon certain trusts in favor of me during my life and after my decease upon trusts for my children and his grandchildren as in said will declared, and did further provide ‘ The directions given above for the disposition of the said separate fund upon the death of said James A. Garland, junior, are subject to the proviso that he may, by will, direct that so much of said fund not accruing under Article First or subdivision Third of Article Fourth of this will, as may be sufficient to secure the payment to his widow of an income not more than ten thousand dollars per annum during the term of her natural life, shall be held in trust for and the income thereof paid to, his widow during her life, and that such direction shall be carried into effect by my said executors and trustees.’ Now in exercise of the foregoing power I hereby direct that the executors and trustees under the will of my father shall pay to my said wife from the income of said fund the sum of ten thousand dollars per annum during the term of her natural life so'long as she shall remain my widow; provided, however, and said annuity is hereby given to my said wife upon the express condition that in the event that she accepts said annuity she shall release and discharge in such form • as may be satisfactory to my executors all right, title and interest in and to a certain trust fund created for her benefit at the time of her re-marriage with me; and that said trust fund shall thereupon revert to and become a part of my estate and be discharged from all trusts in favor of my said wife; and in case my said wife shall elect not to relinquish her right in said trust fund, then the gift of the annuity aforesaid shall become null and void.</p> <p>“ Tenth. — All the rest, residue and remainder of my estate, real and personal, of every kind and nature and wheresoever the same may be situated, of which I shall be seised and possessed or to which I shall be entitled at the time of my decease, I give, devise and bequeath unto my wife, Marie Tudor Garland, Davis R. Vail and Henry D. Tudor of the City of Boston, as joint tenants in trust for the uses, intents and purposes and with and subject to the powers and limitations hereinafter expressed and declared of and concerning the same, that is to say.</p> <p>“ In trust, that they and the survivors and survivor of them and other the trustees or trustee under these trusts for any time being, all and each hereinafter referred to as ‘ my said trustees,’ shall stand seised and possessed of said rest, residue and remainder hereinafter called or referred to as £my said trust estate,’ upon trust, to permit my said wife to have the full and unrestricted' use, possession and enjoyment during her life so long as she shall remain my widow of my homestead estate and all the lands connected therewith situate on said Prudence Island, together with all fixtures and appurtenances of the same free from rent and from all liability for waste so long as she shall see fit to occupy said estate as a place of residence.</p> <p>“ Upon further trust, that my said trustees shall hold the said trust estate,-subject and without prejudice to the rights of my said wife to the use and occupation of said homestead estate, in trust, to lay out and invest the same in the name of my said trustees and to continue so long as my said trustees may think best any part or parts of my said trust estate in the form of investments in which the same may happen to be at the time of my decease even if hazardous or doubtful.</p> <p>“ And I further authorize and direct my said trustees to collect and receive the rents, income, dividends and profits arising from my said trust estate howsoever invested, and to pay therefrom all taxes and other expenses attending the care and management of the trust estate including a reasonable compensation for services in the trusteeship, and to pay the balance of said rents, income, dividends and profits quarter-yearly to my said wife for her own use during her natural life so long as she shall remain my widow.</p> <p>££ And I further will and declare that upon the decease of my said wife, or upon her re-marriage, if she shall re-marry, my said trustees shall stand seised and possessed of my said trust estate upon trust for the benefit of my sons James A. Garland, junior, Charles Garland and Hamilton Garland and their issue in the manner following, ...</p> <p>“ Eleventh. — I declare that I intentionally omit to make any provision in my will for my son Tudor Garland and my daughter Hope Garland as ample provision is made for them in and by the will of my father James A. Garland.</p> <p>“ Twelfth. — I declare that the provisions herein contained in favor of my wife are in lieu of her dower and all other rights in my estate.</p> <p>“ Thirteenth. — I appoint my wife Marie Tudor Garland, Davis R. Yail and Henry D. Tudor executors of this my will, and I direct that they and each of them shall be exempt from giving a surety or sureties on their official bond.”</p>

<p>Bill in equity, filed in the Superior Court on February 5, 1906, to enforce an alleged agreement concerning certain real estate at the corner of Groton Street and Kailroad Street in Haverhill, praying that the defendant be ordered to convey by a sufficient deed to each of the two plaintiffs one third of the equity in the premises held by the defendant under a certain deed of February 10, 1887, that the defendant be ordered to render a full account of all receipts of rentals of the premises so held by him, and that he be restrained from selling, conveying or disposing of the premises described in the deed of February 10, 1887, or any part thereof, until further order of the court, and for other relief.</p> <p>The defendant’s answer admitted some of the allegations of the bill and denied others, and further alleged that the agreement as stated and set forth in the bill was a contract for the sale of lands, tenements or hereditaments or of an interest in or concerning them, and that there was no note or memorandum in writing of the promise, contract or agreement upon which the suit was brought signed by the party to be charged therewith or by any person thereunto by him lawfully authorized.</p> <p>On October 2, 1906, the following decree was entered in the Superior Court. “ This case came on to be heard upon bill and answer. The plaintiffs not appearing it is hereby ordered, adjudged and decreed that the plaintiffs’ bill be dismissed.”</p> <p>On October 5, 1906, the plaintiffs filed a motion “ to revoke the decree in the above entitled action dismissing the bill.”</p> <p>The docket record of the case was as follows:</p> <p>“ 1906. Filed February 5, and temporary injunction ordered and issued; March 26, Subpoena issued for May. Answer. October 2, Final decree — bill dismissed. October 5, Plaintiff’s motion to revoke decree and order issued returnable October 17, at Court House, Boston. October 17, Motion to revoke overruled as matter of law. October 31, Plaintiffs’ appeal. November 3, Plaintiffs’ motion that court report facts. Law.”</p> <p>On October 31, 1906, the plaintiffs filed an appeal from the decree of the Superior Court “dismissing the bill, and overruling the motion of said plaintiffs to revoke said decree.”</p>

<p> School and School Committee. Vaccination. Statute. </p> <p>The provision of R. L. c. 44, § 6, that "a child who has not been vaccinated shall not be admitted to a public school except upon presentation of a certificate signed by a regular practising physician that he is not a fit subject for vaccination,” does not give an unvaccinated child presenting such a certificate an absolute right to attend school at all times, and a regulation made in good faith by the school committee of a town, where smallpox has been prevailing for several weeks and the board of health have given notice that free vaccination will be furnished, “ to exclude from attendance all unvaeeinated children and also all children who do not present a certificate of revaccination as required by the board of health, until such time as this committee may become satisfied that the imminent danger from contagion of smallpox in our town has ceased,” is a reasonable one, under which a child holding such a certificate as described in the statute lawfully may be suspended from attendance at a public school until the crisis has passed.</p>

<p>Assignment, For benefit of creditors.</p> <p>By the terms of a common law assignment for the benefit of creditors, creditors, to be entitled to its benefits, were required to assent to it in writing within thirty days from its date, with a proviso that after that time creditors might become parties to it with the consent of the trustees, expressed in writing, if they should “ see fit to give such consent.” The time for assent by creditors was extended beyond the thirty days, first for a period of one month and then for two other periods of two months each. Before the expiration of the last extension certain creditors, who had failed to assent to the assignment, filed a petition tó have the assignor adjudged a bankrupt, and for more than a year and a half carried on litigation with the view of superseding the assignment by proceedings in bankruptcy, until at the end of that time their petition was dismissed. They then tried to assent to the assignment, but the trustees refused to allow them to do so, except on certain terms to which they would not agree. These creditors then brought a suit in equity to compel the trustees to permit them to become parties to the assignment. The judge who heard the case found that the trustees in withholding their consent acted under the advice of counsel and in the honest belief that they were doing what was right in the performance of their duty as trustees. Held, that there was nothing to show that the defendants had abused their discretion, and that the bill should be dismissed.</p>

<p>Information, filed on June 27,1906, under R. L. c. 19, § 34, by the Attorney General at the relation of the civil service commissioners, to compel one John J. Douglass to show by what warrant he held the office or employment of deputy superintendent in charge of the ferry division of the street department of the city of Boston.</p> <p>In the Superior Court the ease was submitted to Fessenden, J. upon the pleadings and an agreed statement of facts. He found the facts to be as set forth in the agreed statement of facts, and ruled pro forma that on these facts the information should be dismissed. At the request of the parties he reported the case for determination by this court. If the ruling was right, the information was to be dismissed; otherwise, such order was to be made as law and justice required.</p> <p>The rules made by the civil service commissioners for the classification of the service contain the following:</p> <p>44 Rule 6.</p> <p>“ 1. The offices and places to be filled under these rules shall be classified in two divisions: the first to be known as 4 The Official Service ’ of the Commonwealth and the several cities thereof; the second as 4 The Labor Service.’</p> <p>“ First Division.</p> <p>Rule 7.</p> <p>“ 1. There shall be two schedules under the first division, known as Schedule A and Schedule B.”</p> <p>“ Schedule B.</p> <p>“ There shall be the following classes in Schedule B.”</p> <p>Then follows an enumeration of fourteen classes of which the eleventh is as follows:</p> <p>“ Class 11. Superintendents, assistant superintendents, deputies and persons, other than the chief superintendents of departments, performing any of the duties of a superintendent in the service of any city of the Commonwealth.”</p> <p>“ Requisition and Certification.</p> <p>Rule 21.</p> <p>“1. Whenever there is a vacancy to be filled in the classified service, the appointing officer shall make requisition upon the commissioners for the names of eligible persons.”</p> <p>The agreed statement of facts contained the following:</p> <p>Under the authority of St. 1869, c. 155, the city of Boston purchased the ferries between the city proper and East Boston and since 1870 has continued to operate them and collect tolls for the ferriage of vehicles and passengers.</p> <p>From 1870 until 1895 the ferry department was entirely distinct and separate from every other department, sometimes being managed by a board of directors, sometimes by a board of three commissioners, and just before 1895 by an officer called the superintendent of ferries.</p> <p>St, 1895, c. 449, § 25, provides as follows:</p> <p>“The superintendent of streets of said city [Boston] shall hereafter have the care and management of the ferries owned by said city. . . . Said superintendent shall have and exercise all the powers and duties conferred by the ordinances of said city upon the superintendent of ferries of said city. . . . The ferry department and the office of superintendent of ferries of said city are hereby abolished.”</p> <p>This act was approved on June 1,1895. From that date the ferries have been under the charge of a deputy appointed by the superintendent of streets. The superintendent of streets, under the statutes and the ordinances of the city, has charge of the construction and repairing of streets and sidewalks. The deputy superintendent of the ferry division of the street department has no power or authority over streets.</p> <p>A separate appropriation for the ferry department has been made each year by the city government, the tolls and additional sums of money being appropriated every year for the maintenance of the ferries. In years when new boats were bought or ferry houses and slips were enlarged, rebuilt or repaired large sums of money have been raised by loan or taxation for the ferries in addition to the regular appropriations. The appropriation for the ferry division of the street department for the fiscal year 1905-1906 was $243,000.</p> <p>Tbe deputy superintendent of streets in charge of the ferry division never has been appointed from a civil service list. By the city charter of Boston the board of aldermen have the power of confirming certain officers appointed by the mayor, the other portion of the city council known as the common council having no such power.</p> <p>St. 1885, c. 266, § 1, provides as follows:</p> <p>“ The mayor of the city of Boston shall appoint, subject to confirmation by the board of aldermen, all officers and boards now elected by the city council or board of aldermen, or appointed by him subject to confirmation, and all whose offices may hereafter be established by the city council or board of aldermen, for such terms of service respectively, as are or may be fixed by law or ordinance; and he may remove any of said officers or members of such boards for such cause as he shall deem sufficient and shall assign in his order for removal.”</p> <p>On February 21,1906, an ordinance was enacted by the city council of Boston which provided, among other things, that the superintendent of streets, through a deputy superintendent of the ferry division to be appointed by the mayor subject to the confirmation of the board of aldermen, should have the care and management of the ferries. Acting under the power supposed to be conferred upon him by this ordinance the mayor of Boston on April 30,1906, appointed the defendant deputy superintendent of streets in charge of the ferry division, and the board of aider-men confirmed such appointment on May 7,1906. The defendant qualified and entered upon the discharge of the duties of the office on that day, and since that time has continued to perform them.</p> <p>• No requisition was made upon the civil service commissioners and the defendant was not certified by them in' accordance with their rules.</p> <p>The Attorney General contended that the defendant had no legal right or authority to perform the duties of the office or position-. The defendant contended that his office or position was not within any rule of the civil service commission, but was exempt under the provision of R. L. c. 19, § 9.</p>

<p> Nuisance. Landlord and Tenant. </p> <p>In an action for personal injuries from the plaintiff’s leg going down into a coal hole, in the sidewalk of a public highway, maintained in connection with the adjoining premises owned by the defendant, when the plaintiff stepped on the cover in walking along the sidewalk, if it appears that for a period of between seven and eight months before the accident the premises had been let by the defendant to a tenant whose duty it was*to keep them in repair, that during that time the coal hole had been used many times by the tenant for putting in coal and that the cover had been raised by prying it up with shovels and a bar in such a way as to wear and chip the edges of the stone into which it fitted, and if the plaintiff introduces evidence tending to show a dangerous condition of the coal hole at the time of the accident, but offers no evidence of its condition at the time of the letting except what might be inferred from the description of its condition at the time of the accident, and moreover there is evidence that there was an eye on the under side of the cover to which a rope was attached and that the insecurity of the cover was due to the tenant’s neglect to fasten the rope properly, there is no evidence for the jury that the coal hole was in a dangerous condition at the time of the letting, and a verdict should be ordered for the defendant.</p>

<p> Pauper. Insane Person. State Asylum for Insane Criminals. </p> <p>The State Asylum for Insane Criminals at Bridgewater, established by St. 1895, c. 390, is to be regarded as a part of the system adopted by the Commonwealth for taking care of its insane rather than as a part of the system adopted by it for taking care of its criminals, and the general provision of R. L. c. 87, § 79, in regard to the payment by cities and towns of the charges for the support of insane persons having known settlements in this Commonwealth applies to those supported in this asylum.</p> <p>Under R. L. e. 87, § 79, the treasurer and receiver general of the Commonwealth can recover from a city where an insane pauper has a settlement the charges for the support of such pauper in the State Asylum for Insane Criminals at Bridge-water, although such pauper had been convicted of a crime for which he was serving a sentence when he was adjudged insane and was removed to the asylum.</p> <p>The provision of R. L. e. 225, § 111, that the expense of supporting a State prison convict who is committed to a State insane hospital shall be paid by the Commonwealth, does not apply to a claim for the support of a State prison convict in the State Asylum for Insane Criminals at Bridgewater during a period beginning after his sentence at the State prison had expired.</p> <p>The provision of R. L. c. 225, § 111, that “the expense of supporting a prisoner . who is removed from a jail or house of correction to the State farm shall be paid into the treasury of the Commonwealth by the county from which he is ■ removed,” has no application to the expense of supporting a prisoner transferred to the department of the State farm known as the State Asylum for Insane Criminals.</p> <p>In an action by the treasurer and receiver general of the Commonwealth under R. L. c. 87, § 79, to recover from a city where an insane pauper has a settlement the charges for his support in the State Asylum for Insane Criminals at Bridgewater, if any proof of notice to the defendant of the transfer of the pauper to the asylum is necessary, proof that bills for his support in the asylum were rendered quarterly to the defendant beginning from the date of his transfer to the asylum and were received by the defendant without objecting to such support shows that the bills were accepted by the defendant as a sufficient notice and constituted a waiver of any right to a more formal notice.</p>

<p>Equity Pleading and Practice, Decree, Appeal, Exceptions. Evidence, Extrinsic affecting writings. Equity Jurisdiction, To redeem from mortgage, Fraud. Fraud.</p> <p>Where in a suit in equity exceptions to the refusal of the judge who heard the case to make certain rulings have been taken under R. L. c. 173, § 106, which after-wards are allowed by the judge, the court in which the case was heard has no power to enter a final decree while the exceptions are pending, and if under such circumstances a decree purporting to be a final decree is entered and an appeal from it is taken, the attempted decree has only the effect of an order for a decree, and the attempted appeal has no effect at all.</p> <p>Where in a suit in equity exceptions to a master’s report and the action of the court thereon present the questions of law involved in the case in a proper manner to be carried directly to the full court by an appeal, the better practice is to take such aD appeal instead of encumbering the record unnecessarily by asking for rulings and taking exceptions to their refusal as permitted by R. L. c. 173, §106.</p> <p>One, who has given a mortgage note for $2,250 and a mortgage of real estate securing it, in a suit in equity to redeem the real estate from the mortgage cannot be allowed to show an oral agreement, made when the mortgage was given, that the mortgage was to be discharged upon his paying $250 in cash and discharging a mortgage on other property for $2,000.</p> <p>One who voluntarily makes and delivers a promissory note cannot be allowed to show an oral agreement that the note shall be paid in any way other than that which is stated in the note itself.</p> <p>In a suit in equity to redeem certain real estate from a mortgage for $2,250, the plaintiff may be allowed to show, if he can, that the defendant falsely represented the purpose for which he desired to have the plaintiff give the mortgage and promised to discharge it upon the payment by the plaintiff of $250 and the discharge by him of a certain mortgage on other property, “ intending all the time not to keep that promise,” but this is not shown by evidence warranting merely a finding that the defendant’s promises were made “ without the intention of performing those promises ” and a further finding that the defendant “ did falsely represent the purpose for which he desired the plaintiff to give the mortgage of $2,250 on the ” property in question; and by such evidence the plaintiff shows no right to redeem the property except by the payment of the full amount due on the mortgage.</p> <p>An affirmative' intention not to keep a promise which may give a remedy for fraud at law or in equity is not shown by proving the mere absence of an intention to perform.</p>

<p>Contract to recover from the owners of a building money alleged to have been embezzled from the plaintiff by her agent, and to have been applied by him as agent of the defendants to the payment of taxes on the building. Writ dated October 20, 1905.</p> <p>The several defendants demurred to the declaration, and the case was heard in the Superior Court upon the demurrers by Fessenden, J. He overruled the demurrers, and by agreement of the parties reported the case for determination by this court. It was stated in the report that if the demurrers were sustained final judgment was to be entered for the defendants; that otherwise answers were to be filed and the case was to be tried. The declaration was as follows:</p> <p>“ And the plaintiff says that on-or about November 24, 1903, the defendants Grace L. Lambert, Kate L. H. Motley, Charles M, Haley and Marion L. Haley as heirs at law and devisees under the will of Charles L. Haley, late of Boston, the said Lambert claiming also as testamentary appointee of Mary A. Haley, deceased, together with one Charles F. Berry as trustee under said will, and the defendant Elizabeth W. Robins claiming by virtue of a deed to her, were the owners in common of a parcel of land with a building thereon numbered 83, 85 and 87 Summer Street, Boston, bounded and described as follows: [Here followed a description of the land.]</p> <p>“ The undivided interests in said premises vested in the above named persons were as follows:</p> <p>Grace L. Lambert.........18/144</p> <p>Kate L. H. Motley, for life.......8/144</p> <p>, Challes M. Haley..........11/144</p> <p>Marion L. Haley..........11/144</p> <p>Charles F. Berry, trustee.......24/144</p> <p>Elizabeth W. Robins........72/144</p> <p>“ Said Charles F. Berry had the entire and exclusive management of said premises not only in respect to the interest then vested in him as trustee as aforesaid, but also in behalf and at the request of each and all of the other defendants, as their agent in respect to the interests owned by them. And, as incident to such management, he had the power and it was within the scope of his employment to pay the- taxes upon said real estate.</p> <p>“Said Berry was on said date,—November 24, 1903,—and had long been acting as the plaintiff’s general agent and attorney under a power of attorney given him by her; and on or shortly before said date the plaintiff placed in his possession and entrusted to him as her attorney for investment money belonging to her amounting to $6,450, and on said date said sum together with other moneys belonging to the plaintiff were in said Berry’s possession and subject to his control.</p> <p>“ On or about said date there was due to the city of Boston for taxes upon said Summer Street premises, interest thereon and sundry charges due by law, the sum of $4,620.42, and said Berry acting as trustee under the will of said Charles L. Haley and as agent for the other defendants as aforesaid, without the consent or knowledge of the plaintiff embezzled out of the said moneys then in his custody as her attorney the sum of $4,620.42 and used the same to pay said -taxes on said Summer Street premises.</p> <p>“ By decrees of the Probate Court for Suffolk County entered ota April 6,1905, said Berry was removed from the office of trustee under the -will of Charles L. Haley and the defendant Cotting was appointed to fill the vacancy caused by his removal, and is-now trustee of said fund. And as such trustee the defendant Cotting is now the owner of twenty-four undivided one hundred and forty-fourths (24/144) in said premises; and the undivided interests which were vested in the defendants, Lambert, Motley, Charles M. and Marion Haley, and Robins on November 24, 1903, as aforesaid, have ever since remained and still remain vested in said defendants.</p> <p>“ By reason of the application of the plaintiff’s money to the payment of the taxes on the Summer Street premises belonging to the defendants as herein related, the defendants and each of them were greatly benefited; but the plaintiff received no consideration for the money so taken from her either then or subsequently, nor have the defendants or any of them ever repaid the same or any part thereof to her, though often requested to do so; and accordingly the plaintiff has been greatly damaged.</p> <p>“ Wherefore the plaintiff prays that damages may be awarded to her in the amount taken from her and used in payment of the taxes on the Summer Street premises as aforesaid, together with interest thereon from the date of said payment, to be paid by the several defendants in proportion to their interests in said premises.”</p> <p>The defendants Kate L. H. Motley, Charles M. Haley and Marion L. Haley demurred to the declaration and as causes of demurrer assigned the following:</p> <p>1. That it does not appear in and by said declaration that the money of the plaintiff alleged to have been applied to the payment of taxes upon the property belonging to the defendants therein named was so applied or paid at the request of these defendants or any of them.</p> <p>2. That it does not appear in and by said declaration that, after the alleged application of the plaintiff’s money to the payment of taxes upon property of the defendants therein named, these defendants or any of them ratified or confirmed such application or payment or otherwise promised to pay the plaintiff the amount so applied or paid.</p> <p>3. That it does not appear in and by said declaration that these defendants or any of them in any way authorized or requested the said Charles F. Berry to apply the money of the plaintiff to the payment of taxes on property belonging to the defendants.</p> <p>4. That it appears in and by said declaration that the said Charles F. Berry acting without authority from and without the knowledge or consent of these defendants or any of them, and not in the scope of his employment as agent of the defendants, wrongfully embezzled money in his custody as agent of the plaintiff, and applied such money to the payment of taxes upon the property of the defendants.</p> <p>The defendant Elizabeth W. Robins demurred to the declaration on the first three grounds set forth in the demurrer of the defendants Kate L. H. Motley, Charles M. Haley and Marion L. Haley, and on the further grounds that it does not appear from the declaration that any money of the plaintiff ever came into the possession of the defendants, or that any money was stolen or embezzled by said Charles F. Berry from the plaintiff with the knowledge or collusion of the defendants, or that any money of the plaintiff was used or applied by said Berry in the manner alleged in said declaration with the knowledge and consent of this defendant or of any other of the defendants in this cause; and that it does not appear from said declaration that the defendants ever received any money or property of the plaintiff, or that they received pecuniary benefit from the acts therein alleged to have been performed by said Berry to the amount of the sum alleged to have been embezzled by said Berry from the plaintiff or of any part of said sum.</p> <p>The defendant Grace L. Lambert demurred to the declaration on the first three grounds set forth in the demurrer of the defendants Kate L. H. Motley, Charles M. Haley and Marion L. Haley, and on the further grounds set forth in the demurrer of the defendant Elizabeth W. Robbins. The defendant Charles E. Cotting, trustee, also demurred, following in his demurrer the language in that of the defendant Grace L. Lambert.</p>

<p>Damages, From change of grade. Landlord and Tenant.</p> <p>On a petition under R. L. c. 51, § 16, by the lessees of certain real estate under a lease in writing for the assessment by a jury of damages caused by a change of grade in a highway, which in accordance with the practice under R. L. c. 48, §§ 20, 22, is consolidated with a petition of the owners of the real estate and is tried with it as one proceeding, if it appears that the owners suffered no damage permanent or temporary, their property being benefited by tire change of grade, this does not prevent the lessees from recovering damages for being deprived of proper access to their places of business during the progress of the work.</p>

<p>Toet for personal injuries from falling into an elevator well in a building owned by tbe defendant numbered 52 and 54 on Pearl Street in Boston between nine and ten o’clock in the forenoon of January 8, 1900. Writ dated May 28,1900.</p> <p>At the trial in the Superior Court Bond, J. ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Petition, filed May 1,1906, by Herbert W. Damon, one of tbe selectmen of the town of Framingham, for a writ of mandamus to compel the selectmen of that town to call a meeting of its members for the purpose of appointing a committee of fifteen, in compliance with a vote of the town passed on March 11, 1902; also to require the respondents, John H. Temple and others, appointed by a majority of the board of selectmen at a meeting held on March 31, 1906, as a committee under the requirements of the vote of March 11, 1902, to abstain from the performance of the duties of such committee.</p> <p>At the hearing of the case before Sheldon, J. the following facts appeared:</p> <p>On March 11, 1902, at an annual meeting regularly called, the voters of Framingham passed the following vote:</p> <p>“ That the Selectmen appoint in each year, before the first day of April, a committee of three from each precinct, whose term of office shall be for one year from the first day of May following the date of appointment, no one of whom shall be a selectman, overseer of poor, member of the school committee, fire engineer or highway surveyor, at the time of such appointment, whose duties shall be to examine into all appropriations proposed for action at any town meeting within their term of service, and to report the facts relating to such appropriations with their recommendations to the town meeting taking action thereon, and such committee shall have the power to fill vacancies in their number by a two-thirds vote of the remaining members at any of its meetings, such vacancies to be filled so that each precinct shall be represented by three members.”</p> <p>At the annual town meeting of Framingham held on March 5, 1906, William H. Walsh, John L. Young, and Herbert W. Damon, the plaintiff, were elected selectmen of the town for the ensuing year, and William H. Walsh was elected chairman of the board. On or about noon of March 31, 1906, the attention of Walsh was called to the vote of the town of March 11, 1902, which required the appointment of a committee of fifteen, for the purposes named in the vote, before the first day of April of each year. Soon after one o’clock Walsh called up Young; who was a member of the board, and said to him that he thought it would be necessary to have a meeting of the selectmen that night to appoint this committee. Young, in reply, expressed doubt as to the necessity of holding the meeting that day, but agreed to meet Walsh at three o’clock at the selectmen’s room. There was evidence that Walsh at once telephoned to the petitioner’s house, he being a member of the board, and learned from his mother that her son was in Boston, but that she would endeavor to notify him. Walsh and Young met at the selectmen’s room soon after three o’clock, where they examined the vote of the town with reference to the appointment of a committee and reached the conclusion tha,t it was necessary that a meeting of the board should be held during the day and the committee appointed.</p> <p>Walsh testified that about four o’clock he again telephoned to the petitioner’s house, and about seven o’clock telephoned to the house again, and also telephoned to the armory and to another house, with a view to reaching Damon, but failed to reach him. Walsh and Young then decided to.hold a meeting at eight o’clock that evening, which they did, and appointed a committee of fifteen, who were named as respondents in the petition. Both Walsh and Young at the time of calling the meeting, and also at the time of appointing the committee, acted in good faith, and believed it legally necessary that the meeting should be held on March 31, so that the committee should be appointed before April 1. From and after the time that it was decided to hold the meeting, every reasonable effort was made by Walsh and Young, as the respondents contended, to give actual notice to Damon, but they failed to do so, and Damon had no knowledge of the meeting being held until the following day. It appeared from the evidence that Damon was employed with the United Shoe Machinery Company at its office in Boston; that March 31 fell upon Saturday, and that he usually left his place of business on Saturdays from a quarter past to half past one P. M., but that neither Walsh nor Young thought Damon was in the habit of leaving his place of business at that hour; that on the day in question he was at his place of business until a quarter past one, after which he was attending a theatre in Boston, and his whereabouts during the afternoon were not known to his mother, who was at his home in Framingham; that he returned to Framingham soon after the meeting was held, and learned on the day following that his associates on the board of selectmen attempted to secure his attendance at the meeting of the night before. It appeared from the testimony of the town clerk of Framingham that the records of the town showed that no vote of the town ever had been passed prescribing the method of calling meetings of the board of selectmen; that’ the board of selectmen of the year 1906 had passed a vote providing that regular meetings should be held on every Thursday night, but there was no vote making provision as to the manner in which any meeting, either regular or special, should be called, or requiring any notice of any meeting of the selectmen. No question was raised at the trial but that the men appointed by a majority of the board were suitable and proper persons to serve on the committee, a majority of whom had served the previous year. At the close of the testimony, the counsel for the respondents requested the justice to rule that, upon the law and the evidence, the petitioner was not entitled to the writ of mandamus as prayed for. The justice refused so to rule. He filed a finding of facts, and ruled thereon that the petitioner might be allowed to have the writ of mandamus issue as prayed for.</p> <p>The memorandum and the order filed by the justice were as follows:</p> <p>“ The meeting of the selectmen, at which the appointment of Temple and others purported to have been made, was held on Saturday, March 31, at about eight o’clock in the evening. No meeting had been appointed for this time on any previous day, either by adjournment or otherwise. All three of the selectmen, until the forenoon of this Saturday, erroneously supposed that, under the terms of the vote of the town mentioned in the fourth paragraph of the petition, the appointment of the committee therein provided for was to be made before the first day of May; but on that forenoon the respondent Walsh learned the contents of that vote. Thinking that the appointment must be made, and a special meeting of the selectmen held to make it on that day, he, at about noon, notified the respondent Young, by telephone, that there would he a special meeting of the selectmen that evening at seven o’clock. About two o’clock of the afternoon he communicated with the petitioner’s mother at her house in Framingham, by telephone, and asked her to notify the petitioner of the special meeting. He again communicated, by telephone, with the petitioner’s mother, at about six o’clock in the evening, to the same effect. The petitioner was th'en in Boston; she did not know where he was and could not reach him, and so informed Walsh over the telephone; he did not return from Boston, and did not learn of the special meeting until after it had been held, the appointments in question had been made by the other two selectmen, and a final adjournment had. If Walsh had sent his telephone message to the petitioner’s mother at the same time that he notified Young, it would have reached her at a time when she could have communicated with the petitioner, and he would have learned of the special meeting in time to attend it. There was no attempt or intention on the part of Walsh and Young, or either of them, to prevent the petitioner from attending the meeting or having notice of it; but he had no actual notice of it, and no attempt was made to give him such notice except as above stated. The appointment of the committee in question might have been made after April 1 as well as before ; but the vote is as stated in the petition.</p> <p>“ I rule that the meeting in the evening of March 31 was not a legal meeting of the selectmen, and the appointment of the other respondents was not valid. Writ of mandamus to issue as prayed for.”</p> <p>The respondents alleged exceptions to the ruling of the justice.</p>

<p>Petition, filed in tbe Court of Land Registration, now tbe Land Court, on February 8, 1902, for tbe registration of tbe title to certain land on tbe seashore at Bay View in Gloucester, having an unimproved beach.</p> <p>In tbe Land Court tbe case was beard by Davis, J., who found tbe following facts:</p> <p>Tbe premises include a vacant, unimproved, sandy beach not exceeding one hundred rods in width, and tbe petitioners own to low water mark. Tbe ownership of certain adjoining tracts belonging to other persons also extends to low water mark, so that access may be had to the petitioners’ beach between high and low water from the immediately adjacent shore of other owners without trespassing upon the upland. The adjoining estate to the west has been cut up into summer cottage lots, and the numerous owners thereof have rights of access to the shore adjoining the petitioners’ beach. The owners of these and other adjoining estates claim the right of bathing on the petitioners’ beach, and also of passing over the shore between high and low water marks for purposes of navigation, in pleasure boats as well as otherwise, fishing, fowling and for general purposes, as public rights; all these rights also are asserted on behalf of the general public by the Attorney General.</p> <p>The petitioners requested the following rulings:</p> <p>1. The rights of the public in the beach between high and low water as limited by the colonial ordinance of 1641-47, comprised only the rights of navigation and fishing.</p> <p>2. The rights of the public in the beach between high and low water as limited by the colonial ordinance do not include the right of bathing.</p> <p>8. The rights of the public in the beach between high and low water mark as limited by the colonial ordinance do not include the right to go upon such beach when the tide is out, for the purpose of fowling.</p> <p>4. The rights of the public in the beach between high and low water mark as limited by the colonial ordinance do not carry with them a right to go over or across the land above high water mark to reach such beach.</p> <p>5. The rights of the public in the beach between high and low water mark as limited by the colonial ordinance do not include the right to walk over such beach for purposes other than navigation and fishing.</p> <p>The Attorney General requested the following ruling:</p> <p>Over so much of the shore between high and low water mark as is bare and unimproved, the public have the right of navigation, in pleasure boats as well as otherwise, of fishing (including the taking of shellfish), of fowling, both from boats and by walking over the flats for the purpose, of bathing, and also of passage for general purposes when the tide is out.</p> <p>The petitioners further requested that if the judge in registering their title declared it to be subject to such rights as the public might have in the beach between high and low water marks, such rights should be clearly defined, and their nature and limitations be set forth in the decree, and the Attorney General requested that the decree should prescribe whether the public rights extend to extreme high water mark or only to mean high water mark.</p> <p>To the requests contained in the paragraph last foregoing the judge assented, but all of the rulings requested he refused, and instead thereof, ruled as follows:</p> <p>1. So much of the locus as lies below mean high water mark is subject to the public rights in regard to navigation, and to the right in the general public, at any state of the tide, of fishing and fowling thereon.</p> <p>2. These rights do not carry with them any right to cross the locus above mean high water mark.</p> <p>3. There is no public right of bathing on the locus.</p> <p>4. There is no public right to cross the beach or shore for any purpose other than navigation, fishing or fowling.</p> <p>The judge ordered a decree for the petitioners in accordance with the rulings given.</p> <p>To the refusal to rule as requested by him, and to all of the rulings given, the Attorney General excepted, and the petitioners excepted to the refusal to give the third ruling requested by them.</p> <p>At the request of the parties the judge reported the case for determination by this court. If the rulings and refusals to rule were right a final decree was to issue as ordered ; otherwise such final decree was to be made as this court might direct.</p> <p>The case was submitted on briefs at the .consultation of the court in February, 1906, and afterwards was submitted on briefs to all the justices.</p>

<p>Practice, Civil, Auditor’s report. Contract, Construction. Evidence, Extrinsic affecting writings. Corporation. Agency.</p> <p>vA finding of an auditor as to the proper construction of an instrument in writing, which is drawn inartificially and requires the admission of extrinsic evidence for its interpretation in its application to the facts and circumstances disclosed by the testimony before the auditor which he does not report, where the interprétation adopted gives the natural meaning to the words used, cannot be held to be erroneous.</p> <p>In a tripartite contract of settlement, in writing, between one who had acted as the agent for a corporation in a designated territory to sell its bonds for an agreed commission, another whom for a time he had taken as his partner in aeting'as sucli agent and the corporation itself, an agreement by the agent that he “ relinquishes all claims to any territory in which he has heretofore worked for the ” corporation properly may be found by an auditor, in the light of facts and circumstances disclosed by testimony before him which he does not report, to have the natural meaning that the agent has no further right to work in the territory, and not to mean that he relinquishes all claims for commissions which he theretofore has earned in that territory.</p> <p>In an action against a corporation for commissions for selling bonds of the defendant as its agent in a designated territory, including an item for expenses, a finding of an auditor that a certain person, who was the president of the defendant managing its business and who employed the plaintiff as its agent, agreed to pay the expenses named in this item himself or to take care of them, accompanied by evidence warranting a finding that the president was acting only as agent for the defendant, may be treated as a finding that the remark was uttered as such agent.</p> <p>One, who had acted as the agent of a corporation in a designated territory to sell its bonds for an agreed commission, made an agreement of settlement with the corporation by which his agency was terminated and under which there was due to him a considerable sum of money for commissions previously earned. Shortly thereafter a new contract was made between this same person and the same corporation by which he was employed to go to a certain city and establish an agency for the sale of the bonds of the corporation in a new territory as well as to make preparations for the sale of the bonds of a new company of which he was to be the manager. A memorandum in writing of the agreement provided that the agent was to assume charge of the new territory described and to devote his entire time to it, and in consideration of such services the corporation agreed to advance to him the sum of $300 per month “to be charged against his commission account,” and the further sum of $50 per week to cover necessary and proper travelling and other incidental expenses incident to the opening up of the territory, and that the agent was to receive in full compensation for his services fifteen per centum on the gross sales resulting from his individual effort and the difference in per cent between the gross rate and the amount agreed upon with such sub-agents as he might appoint. The memorandum continued as follows: “ Both parties to this agreement understand that the expenses incidental to opening up so large a territory in the latter half of the proposition would hardly be warranted unless the territory could be utilized for further promotions, and it is the understanding between the parties to this agreement that in the event that the territory becomes profitable that” the president of the corporation “ will execute in the future an agreement in behalf of one or more subsidiary companies to be hereafter organized, and that the said” agent “shall have charge of the territory as above enumerated, and to receive as full compensation therefor a commission of five (5) per centum on the gross amount of business done. This agreement shall not in any way bind the said ” corporation or its president “ to the execution of any agreement provided in one or in both of their judgments the territory be unprofitable. It is rather the purpose of this agreement to serve as a memorandum in order that the said” agent “may understand exactly the amount of funds which he may draw and have charged against any future commissions which he may earn.” The commissions earned under the new contract were less in amount than the advances, and the corporation claimed the right to set off the balance of the advances against the commissions earned by the agent under his former contract. Held, that the advances were to be paid only out of future commissions earned by the agent and not otherwise, and that any expense of the venture beyond the amount of ih'e commissions earned by the agent under the new contract was to be borne by the corporation, and could not be set off against the commissions earned by the agent under his former contract.</p>

<p>Evidence, Of probable duration of life. Damages.</p> <p>In an action, by a man seventy-nine or eighty years of age when injured, for personal injuries from being knocked down and rendered unconscious by an automobile driven by the defendant, where the plaintiff has introduced evidence tending to show permanent injuries physical and mental resulting from the accident, the defendant on the question of damages may show the probable duration of the plaintiff’s life had the accident not occurred, and for this purpose standard mortality or life expectancy tables are admissible.</p> <p>In an action, by a man seventy-nine or eighty years of age when injured, for personal injuries from being knocked down and rendered unconscious by an automobile driven by the defendant, where the plaintiff had introduced evidence tending to show permanent injuries physical and mental resulting from the accident, and the defendant on the question of damages desired to show the probable duration of the plaintiff’s life if unaffected by the accident, a medical witness for the defendant had before him a “ book bn life insurance ” and turned to a" table showing the expectancy of life” for each age from fifteen years to eighty-five years “according to the actuaries’ combined experience.” He testified that such tables were compiled “by the actuaries of these companies ” indicating the expectancy of life at each particular age, but on further inquiry it appeared that he had no information in regard to the authenticity of the table other than that contained in the book and that he was stating merely what the table purported to be. It did not appear that the table offered in evidence was a standard table or that it was a well established or recognized authority, or even that it was in general use by life insurance companies. The presiding judge excluded the table. Held, that the judge well might have concluded upon the evidence before him that the table was not authenticated sufficiently, that this court could not say that such a conclusion was not warranted, and if warranted the exclusion was right.</p>

<p>Indictment, found and returned in the county of Suffolk on March 8, 1906, charging that the defendant “ on the fourth day of February, in the year of our Lord one thousand nine hundred and six, at Boston, aforesaid, with intent to procure the miscarriage of one Annie M. Russell, did unlawfully use a certain instrument upon the body of said Russell, and in consequence thereof said Russell died.”</p> <p>Originally the indictment had consisted of two counts. At the first trial the Commonwealth with the consent of the defendant said that it would not prosecute further the first count of the indictment, and it was nol grossed. At that trial the jury •disagreed.</p> <p>Another jury was empanelled to try the case, but on motion of the defendant the issue of the defendant’s guilt was withdrawn from the jury. The defendant renewed a motion for a bill of particulars and a motion to quash the indictment, both of which had been denied at his first trial, the defendant excepting. These motions again were denied, and the defendant again excepted to the orders denying the motions.</p> <p>Another jury was empanelled and the defendant was tried before Bond, J. on the second count of the indictment, which is quoted above. The jury returned a verdict of guilty ; and the defendant alleged exceptions. The judge after sentence filed a certificate that in his opinion there was reasonable doubt whether the judgment should stand, and ordered that the execution of the sentence be stayed until further order of the court, and that the defendant recognize to the Commonwealth for his appearance to answer further to the indictment and to abide the final decree or order of the court.</p> <p>• The evidence admitted by the judge against the exceptions of the defendant, which is referred to in the opinion, was as follows:</p> <p>The witnesses Leen, Lyons and Packard, mentioned in the opinion, were qualified as medical experts, and testified to their attendance upon and examination of Annie M. Russell after the alleged operation and before her death. The substance of their testimony was that Russell died from blood poisoning, the beginning of which resulted from an instrument having been introduced into her womb, and the character of such an instrument as would have produced the condition testified to was described.</p> <p>In regard to the declarations of Russell, Leen testified: “ She said that on February 4th she was operated on ; that on February 6th a mass came away from her front passage; that every i day since .then she had a chill; that she was sick to her stomach every day since February 6th, and vomited the day before. That was on February 10th.” Lyons testified: “ Miss Russell told me she had been pregnant about four months ; that she had had an operation done to get rid of the pregnancy; that was done on the week previous, the 4th of February, and she miscarried later, and the following Tuesday she had chills, and had them every day after that.”</p> <p>The testimony of Mrs. Phillips referred to in the opinion was as follows: “ Dr. Sinclair said he had a patient at the relief station who was very ill; that if anything happened it would be twenty years for him.” She also testified that the defendant met her one day after the death of Russell and said, “ Mrs. Phillips, can you loan me $2 ; I want to go to Lynn.”</p> <p>The witness Merchant was a newspaper reporter, and testified that after the death of Russell he visited the office of the defendant, where the defendant was; that he found there on a desk a book with the name “Annie Russell” written in it, and asked the defendant “How does this name come in this book ? ” To which the defendant answered “ I can’t tell you ; I probably cast her horoscope at some time.” The witness testified that he asked the defendant “ Do you remember Annie Russell?” and the defendant replied “that he didn’t; he had so many of them come to his place of business that he couldn’t remember them.”</p> <p>The mother of Russell testified that, in a small handbag which her daughter carried when going away before and returning after the alleged time of the operation, she found after her daughter’s death a slip of paper on which was written the defendant’s name. The defendant in testifying admitted that the words “Doctor Sinclair” on this slip of paper were in his own handwriting.</p> <p>A witness testified that the account book referred to in the opinion was kept by the defendant and contained the daily accounts of his office with names. The witness testified that the entries in the book were in the defendant’s handwriting and that he saw the name of Annie Russell written in the book in the defendant’s handwriting. The book was not produced and no notice to produce it was given. The defendant denied that he had such a book.</p> <p>Among the rulings requested by the defendant which were refused by the judge were the following:</p> <p>“ 2. It is a presumption of law that the defendant is innocent. This presumption is with the defendant at the outset of the trial and continues with him through all its stages until such evidence is introduced as to prove beyond all reasonable doubt that the defendant is guilty. This presumption is to be considered by the jury as a matter of evidence in the defendant’s favor, to the benefit of which he is of right entitled.”</p> <p>“ 7. The jury must not consider the testimony of the witnesses Dr. Leen and Dr. Lyons as to certain statements made to them by the deceased Annie Russell, to the effect that she had had an operation, and a subsequent miscarriage, as tending to show that an instrument had been used upon her by the defendant with intent to procure her miscarriage.</p> <p>“ 8. Statements made by the deceased Annie M. Russell to Drs. Leen and Lyons are not evidence of the facts stated by her to them.</p> <p>“ 9. If the jury find that the opinions testified to by the witnesses Dr. Leen, Dr. Lyons and Dr. Packard, or either of them, were founded wholly or in part upon the belief that there was a tear or- laceration of the cervix, or neck of the womb, of the deceased Annie M. Russell, and that such tear or laceration did not in fact exist, it is their duty to exclude such opinions from their consideration in weighing the evidence in this case.”</p> <p>“ 20. If a reasonable doubt of the defendant’s guilt is entertained by one juror, then the defendant cannot be convicted.</p> <p>“ 21. A reasonable doubt is none the less a reasonable doubt because it does not arise in the minds of all the jurors.”</p>

<p>Tort for personal injuries sustained while the plaintiff was travelling between New York and Boston as a passenger in a train of the defendant, near the city of New Haven in Connecticut at about five o’clock in the afternoon of May 29, 1903. Writ dated January 5, 1904.</p> <p>At the trial in the Superior Court Aiken, G. J. ordered a verdict for the defendant, and reported the case for determination by this court. He instructed the jury to assess the damages which the plaintiff should recover if entitled to go to the jury. The jury assessed the damages at $6,000, of which the plaintiff on the requirement of the Chief Justice remitted all in excess of $4,000. The evidence which is held by this court sufficient to have entitled the plaintiff to go to the jury is described in the opinion.</p>

<p>Tort for personal injuries alleged to have been caused by a defect in the sidewalk of Chelsea Street in that part of Boston called East Boston while the plaintiff was travelling thereon on or about December 9, 1902. Writ dated December 80, 1902.</p> <p>In the Superior Court Sherman, J. by agreement of counsel ordered a verdict for the defendant, and reported the case for determination by this court, with the agreement that if there was no evidence that should have been submitted to the jury judgment should be entered on the verdict as ordered; otherwise, that judgment should be entered for the plaintiff in the sum of $1,500.</p> <p>The case was submitted on briefs.</p>

Complaint, received and sworn to in the District Court of Northern Norfolk on August 21,1906, under R. L. c. 214, § 17, charging that the defendant on August 20, 1906, at Dedham, in a certain room in a building known as the Grand Stand of the Readville Trotting Park engaged, in the business and employment of selling pools and registering bets upon the result of certain trials and contests of speed between contesting horses.

<p>Tort for personal injuries received on June 5, 1905, tlirougli the alleged negligence of the defendant in permitting the end of a board to extend from a fence adjoining the Siegel Building on Washington Street in Boston over a temporary plank sidewalk on which the plaintiff was walking. Writ in the Municipal Court of the city of Boston dated December 5,1905.</p> <p>On appeal to the Superior Court the case was tried before 'Aiken, C. J., together with another action for the same injuries against the members of the firm of Jones and Meehan, who were contractors engaged in constructing a section of the tunnel, for the subway under Washington Street at the point in question.</p> <p>The evidence bearing upon the due care of the plaintiff is described in the opinion. It appeared that the fence from which the board protruded and the temporary plank sidewalk which it adjoined were built under a permit from the street department of the city of Boston, described in the opinion, which was admitted in evidence subject to the defendant’s exceptions; that afterwards the firm of Jones and Meehan agreed with the defendant that they would take care of the fence and sidewalk and would be responsible for their condition. The defendant made no use of the sidewalk and did nothing to the fence after the first week in May, 1905.</p> <p>Against the objection and subject to the exception of the defendant, . the plaintiff put in evidence an agreement signed by Jones and Meehan. It did not appear by whom it was prepared. This agreement was as follows:</p> <p>“ Whereas, the George A. Fuller Company in prosecution of its work of constructing the new building for Henry Siegel Company on Washington Street, obtained a permit to occupy the sidewalk on Washington Street, and thereafter erected a temporary plank walk and fence beyond the line of the sidewalk;</p> <p>“ And Whereas, the said George A. Fuller Company has now so far completed its work on said building it is desirous of taking down and removing said plank walk and fence and restoring the sidewalk to its former condition ;</p> <p>“ And Whereas, J. Edwin Jones and Michael Meehan, co-partners, doing business under the name and style of Jones & Meehan have a contract to build a section of the Washington Street subway in front of said Siegel Building, and in the prosecuting of their work under their contract are desirous of using said plank walk, and fence in their present position;</p> <p>“ How Therefore, in consideration that said George A. Fuller Company forbears to remove said fence and plank walk, and agrees to permit said Jones & Meehan free use thereof, said Jones •& Meehan hereby covenant and agree to keep said plank walk and fence in safe and proper condition, and to hold said George A. Fuller Company, Henry Siegel Company and Welch & Cotting, Trustees, harmless on account of any loss or expense in any way growing out of any claim or suit for personal injury or damage to property, on account of any accident happening on or near said plank walk or fence or in any manner caused by the forbearance of the George A. Fuller Company to remove said plank walk and fence and restore the sidewalk to its former condition.</p> <p>“ For the consideration aforesaid, it is hereby agreed that this agreement may be retroactive, and take effect from June 1st, 1905.</p> <p>“ In Testimony Whereof, the said J. Edwin Jones and Michael Meehan hereunto affix their hands and seals this 18th day of June, 1905.</p> <p>“ Jones & Meehan.</p> <p>“ Witnesses: ”</p> <p>Michael Meehan, one of the members of the firm of Jones and Meehan, on cross-examination testified that his firm had sole and exclusive control and use of the fence after the first week in May, 1905, that after that date the Fuller Company made no use of the sidewalk for storage and made no repairs on the fence; that none of the defendant’s employees or agents worked about or used the sidewalk included by the fence or did anything at all to the fence or to the boards of which it was composed after the first week in May, 1905; that in the first week in May when his firm took over the control of the fence he examined it and found it in good condition and that there were no boards loose; that at the point where the accident was alleged to have occurred the boards of the fence were nailed to a post, were not projecting, and were entirely secure at the time his firm assumed the control of it in the first week in May, 1905; that from time to time it became necessary in his use of the sidewalk to take down the fence at the point where the accident was alleged to have occurred, and that on various occasions between the first week in May, 1905, and the date of the accident the fence at that point had been taken down and replaced in unloading materials upon the sidewalk; that nearly every' day materials were placed upon the sidewalk at that point, either by sliding them over the fence or by taking down the rails of the fence, putting the materials through and replacing the rails; that his firm repaired the fence and the board walk from time to time between May 1, 1905, and the date of the accident; that under his direction during that period lanterns were hung out on the fence at night and his firm had sole charge and control of the fence during that period of the time; that under his contract with the Boston transit commission his firm had the right to use the sidewalk along the line of operation for storage purposes and in the exercise of that right they occupied the sidewalk in front of the Siegel Building with the knowledge and consent of the transit commission; that it was necessary in his use of the sidewalk for storage to maintain the fence and board walk in the way in which it was maintained; that at all times since December, 1904, the sidewalk was covered over with planking and that at all times a walk was kept open for travel in front of the Siegel Building.</p> <p>At the close of the evidence, the defendant requested, among others, the following instructions:</p> <p>“ First. That on all evidence the plaintiff cannot recover from the George A. Fuller Company.</p> <p>“ Second. The issuance of a permit to the George A. Fuller Company by the street department of the city of Boston is no evidence that the defendant company was negligent in maintaining the fence in front of the Siegel Building on Washington Street.”</p> <p>“ Sixth. If the jury find that on June 5, 1905, Jones and Meehan had entire charge and control of the fence in front of the Siegel Building on Washington Street, the plaintiff cannot recover against the George A. Fuller Company.</p> <p>“ Seventh. If the jury finds that on June 5, 1905, the defendant George A. Fuller Company did not have charge and control of the fence in front of the Siegel Building, and that the said fence was maintained for the use and benefit of Jones and Meehan, the plaintiff cannot recover against the George A. Fuller Company.”</p> <p>The Chief Justice refused to give these instructions. The jury returned a verdict for the plaintiff in the sum of $200, and also returned a verdict for the plaintiff in the same sum in the action against Jones and Meehan. The defendant alleged exceptions to the refusal of the judge to give the instructions requested by it, and also to the admission in evidence of the permit and of the agreement signed by Jones and Meehan which is printed above.</p>

<p>Mortgage, Of real estate. Estoppel. Deed, Delivery. Husband and Wife. Contract, Validity. Equity Jurisdiction, To enforce contract between husband aud wife, To compel reconveyance of land. Equity Pleading and Practice, Parties.</p> <p>A person who, after a foreclosure sale of real estate under a power of sale in a mortgage, in compliance with the directory provision of R. L. c. 187, § 15, as amended by St. 1906, c. 219, § 2, has made and caused to be recorded an affidavit stating his acts, which the statute provides shall be admitted as evidence that the power of sale was duly executed, is not estopped by the statements contained in the affidavit from showing the true condition of the title to the real estate which was the subject of the sale.</p> <p>Where the acts of the grantee named in a deed of land show an acceptance of the conveyance and the purpose of the grantor to treat the deed as delivered also is shown, a manual delivery of the instrument is not necessary to pass the title to the land.</p> <p>If a trustee, who holds a mortgage of land as part of the trust fund, forecloses the mortgage under a power of sale therein and has the land purchased by a third person for the benefit of his wife, and the third person, having no beneficial interest, conveys the land to the wife, the husband as trustee cannot enforce in equity against his wife her promise to pay for the land, as such an executory contract between husband and wife is void, no question being raised as to the statute of frauds or as to the good faith of therfrustee toward his cestuis que trust and toward the mortgagor.</p> <p>If a husband, who has foreclosed under a power of sale a mortgage of land held by him as trustee, causes the land to be sold and conveyed to his wife on her promise to pay the purchase money, the whole transaction being in good faith and fair to all parties, and afterwards the wife repudiates her contract to pay for the land, which cannot be enforced against her because it is void as made between husband and wife, the husband as trustee may maintain a bill in equity against his wife to compel her to reconvey the land to him as trustee upon being reimbursed for all payments made by her on account of the purchase money and for taxes on the land.</p> <p>A plaintiff seeking in equity a decree ordering the reconveyance to him of land, which the defendant has retained after repudiating a promise to pay for it which cannot be enforced, must do equity by restoring the defendant as nearly as may be to the position in which he stood before the transaction, and as a condition of a decree for a reconveyance the plaintiff must reimburse the defendant for any payments made by him on account of the purchase money and for taxes on the land.</p> <p>In a suit in equity by a trustee against his wife to compel her to reconvey to him as trustee land which, under a power of sale in a mortgage held by him as trustee, he sold and caused to be conveyed to a third person for the benefit of his wife, to whom the third person, having no beneficial interest, conveyed it, the wife afterwards having repudiated her promise to her husband to pay for the land which could not be enforced against her, if the debt of the mortgagor has been satisfied in full and the time for redemption has expired, and the mortgagor is not a party to the suit, there is no reason for setting aside the foreclosure proceedings.</p> <p>In a suit in equity by a trustee against his wife to compel her to reconvey to him as trustee land which, under a power of sale in a mortgage held by him as trustee, he sold and caused to be conveyed to a third person for the benefit of his wife, to whom the third person conveyed it, the wife afterwards having repudiated her promise to her husband to pay for the land which could not be enforced against her, if the third person through whom the title passed never was connected with or became bound by the contract or acquired any independent title to the land, such person is not a necessary party to the suit, or, if he has died intestate, neither the administrator of his estate nor his heirs at law are necessary parties.</p>

<p> Probate Court. Executor and Administrator. Jurisdiction. </p> <p>The Probate Court for a county in this Commonwealth, in which a will has been proved and a trustee thereunder having a usual place of business in that county has been appointed, has jurisdiction under R. L. c. 137, § 1, c. 162, § 3, to appoint an administrator of the estate of an intestate, whose domicil at the time of Ids death was outside the Commonwealth, who was one of the beneficiaries of the trust created by the will so proved and at the time of his death was entitled to receive his share, he being a person who died “out of this Commonwealth leaving estate to be administered within the county.”</p>

<p>Bill in equity, filed in the Superior Court on April 14, 1904, by a corporation doing business as a licensed pawnbroker against Nathan Sallinger, a dealer on the instalment plan in jewelry, watches and diamonds, and Peter F. Cormier, a former salesman and collector of Sallinger, for an accounting as to the proceeds of articles belonging to Sallinger and wrongfully pledged by Cormier to the plaintiff, asserting also a lien on such articles.</p> <p>In the Superior Court the ease, with other cases against the same defendants, was referred to Arthur Dehon Hill, Esquire, as master. He filed a report, portions of which are quoted in the opinion.</p> <p>The principal facts were as follows: In February, 1902, the defendant Sallinger was engaged in the business of selling clothing, diamonds, jewelry and watches at retail, for cash and on the instalment plan. He employed the defendant Cormier as a salesman to solicit orders. Cormier was entrusted with a grip, in which were various articles of cheap jewelry which he had the authority to sell to such persons as he thought proper upon instalments, taking from them a so called lease or conditional contract of sale executed by the purchaser, in which the purchaser agreed to pay a certain sum of money down and a certain sum per week or per month until a sum agreed upon should have been paid, at which time the article would become the property of the purchaser. Cormier also was instructed that if he could make sales of more valuable articles than those carried by him in his grip, he could report to his employer the name of the proposed customer with such information as to his financial standing as Cormier might gain, and thereupon, if Sallinger was satisfied to make the sale, he would deliv.er to Cormier an article of the kind desired, for the purpose of having him deliver it to the proposed customer.</p> <p>From the day of his employment, Cormier purported to sell principally goods obtained from Sallinger and which were not in Cormier’s grip. He would represent to Sallinger that a certain person named by him, and whom he would represent as well connected, desired an article of a certain kind and of a certain value, to be paid for in a certain manner. Relying upon these representations, Sallinger would procure or cause to be given to Cormier an article of the kind desired, to be delivered to the proposed customer. Cormier would take the article, represent to Sallinger that delivery had been made, account to Sallinger for the article by delivering to Sallinger what purported to be a lease or contract of conditional sale executed by the proposed customer, and would pay to Sallinger what purported to be the initial payment of the customer, in accordance with the terms of the lease. All the leases so given to Sallinger by Cormier were either fictitious or forged, and the pretended sales wére purely fictitious. Immediately upon receiving the articles, Cormier pledged them with various pawnbrokers throughout the city of Boston,'of whom the plaintiff was one, and the money received by him was used by him for his own purposes.</p> <p>In June, 1903, Sallinger discovered that Cormier had been defrauding him, and Cormier on being accused confessed and delivered to Sallinger pawn tickets, representing some of the articles which he thus had obtained fraudulently from Sallinger. Sallinger then demanded and received the articles from the various pawnbrokers, and thereupon four of the pawnbrokers, including the plaintiff, brought suits in equity, of which this was one.</p> <p>During the time that Cormier was in the employ of Sallinger, he from time to time made payments of money to Sallinger, pretending that they were payments made to Cormier by the various persons purporting to have signed the fictitious leases. In connection with his duties as salesman, Cormier also was employed to collect from his various customers the instalments which they agreed to pay to Sallinger in accordance with' the terms of the leases, and the payments thus made to Sallinger by Cormier were represented by him to have been collected in the usual course of his employment.</p> <p>Other material facts are stated in the opinion.</p> <p>The Superior Court made an interlocutory decree overruling the plaintiff’s exceptions to the master’s report and ordering that it be confirmed, and later made a final decree refusing the relief prayed for against the defendant Sallinger. The plaintiff appealed from both decrees.</p>

Bill in equity, filed in the Superior Court on July 19,1905, under R. L. c. 159, § 8, cl. 1, to establish the plaintiff’s title to and to recover possession of a race horse known as Darius, against one Bowser, alleged to be the pretended owner of Darius, and one Whitney, claiming under an alleged pretended mortgage from Bowser of a one half interest in Darius. In the Superior Court a temporary injunction was granted and a custodian of the horse Darius was appointed.

<p>Tort by a common laborer against his employer, a building contractor, for personal injuries from being struck on the foot by a piece of iron called a “ spreader ” which fell upon him while he and other employees of the defendant were engaged in turning over an I-beam which had been set upside down in putting up the iron work of a building in process of construction. Writ dated June 6, 1905.</p> <p>In the Superior Court the case was tried before Hitchcock, J. At tbe close of the evidence, which is described in the opinion, the defendant asked the judge to rule that on all the evidence the plaintiff was not entitled to recover; that there was no evidence of negligence on the part of the defendant and that therefore the plaintiff could not recover; that there was no evidence of negligence of a person in the service of the defendant who was entrusted with and exercising superintendence and whose sole or principal duty was that of superintendence, and that the plaintiff could not recover on that ground; that there was no evidence of negligence of a person acting as superintendent in the absence of a superintendent with authority or the consent of the defendant and that the plaintiff could not recover on that ground; and asked the judge to order a verdict for the defendant.</p> <p>The judge refused to rule as requested, and submitted the case to the jury on the third and fifth counts of the plaintiff’s declaration, which were as follows:</p> <p>“ Count 3. And the plaintiff says that on or about May 6th, 1905, he was in the employ of the defendant doing general laboring work; that it was the duty of the defendant to give him proper and sufficient warning and instructions regarding the dangers attending his said work, of which the plaintiff did not know, and which the defendant well knew or in the exercise of reasonable care ought to have known, that by reason of this failure on the part of the defendant, the plaintiff, while in said employ, and in the discharge of his duties in said employ, being at the time in the exercise of due care, was hurt and injured and suffered pain of body and anguish of mind.”</p> <p>“ Count 5. And the plaintiff says that on or about May 6th, 1905, he was in the employ of the defendant doing general laboring work; that by reason of the negligence of some person in the service of the defendant entrusted with and exercising , superintendence, whose sole or principal duty was that of superintendence, the plaintiff, while in said employ, and in the discharge of his duties in said employ, being at the time in the exercise of 'due care, was hurt and injured and suffered pain of body and anguish of mind. That due notice of the time, place and cause of said injury was given to the defendant.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $1,500; and the defendant alleged exceptions.</p>

<p>Tort under R. L. c. 51, § 18, for personal injuries alleged to have been suffered by reason of a defect in a highway of the defendant called Broadway when the plaintiff was travelling thereon on a bicycle at about five or ten minutes after five o’clock in the afternoon of June 13, 1903. Writ dated July 14, 1903.</p> <p>At the trial in the Superior Court before Hardy, J. the facts appeared which are stated in substance in the opinion.</p> <p>At the close of the evidence the defendant asked the judge to give, among others, the following instructions:</p> <p>2. If the jury find the fact to be that the plaintiff was riding upon a bicycle at the time of his alleged injury, and that the fact that he was so riding contributed in any way whatsoever, as a cause of such injury, they must find a verdict for the defendant.</p> <p>4. The jury is not allowed to determine or inquire what might have happened if the plaintiff had been walking, riding on horseback or riding in a carriage at the time of the alleged injury.</p> <p>5. If the jury find that at the time of the accident the plaintiff was riding a bicycle, such fact will warrant the jury in finding that the plaintiff was not in the exercise of due care.</p> <p>6. If a moving carriage under the control of some person other than the defendant caused or contributed to the cause of the alleged injury, then the jury should find for the defendant.</p> <p>7. On all the evidence in the case the verdict should be for the defendant.</p> <p>The judge refused to make these rulings and submitted the case to the jury with other instructions.</p> <p>After the judge had charged the jury, the defendant excepted to the following instruction:</p> <p>44 Some suggestion has been made by the defendant’s counsel, — if you are satisfied that this accident was caused by the fact that some third person interfered with his travel, — if that contributed to his harm or to the accident, that that would preclude him from recovery against the town. I hardly know why that request is made in this case; I don’t know whether any evidence tending to show that the person driving this team was committing any fault, or guilty of any negligence. The mere fact that that team was there, and because he attempted to pass it, and he may have struck the team instead of striking the curbstone of the sidewalk, does not necessarily enter into this case as an issue showing that a third party — that is, the party in charge of the team — was in fault. He had the right, to be in the street. It is a question of due care on the part of the plaintiff as to whether he was passing this team properly; and if you should find that the hubs of that team were perhaps nearer the sidewalk than some other man might have driven the team, that does not entitle you to say that the party driving the team was at fault, as he had a right to be in any part of the street he saw fit. It was the duty of the person behind him to pass him without a collision. But if there is any evidence there was fault on the part of a third person, and that act contributed to the injury, the town would be absolved from liability, because you must be satisfied that the town was solely responsible for the injury that occurred in the case.”</p> <p>The jury returned a verdict for the plaintiff in the sum of |1,000 ; and the defendant alleged exceptions.</p>

<p>Contract under R. L. c. 149, § 20, on a bond, without sureties, given by the defendant as the executrix of the will of her late husband, Isaac W. Parker of Natick, for the benefit of one Charles P. Hanscomb of Natick who had recovered a judgment against the defendant as such executrix in the sum of $230.78, which it was alleged that the defendant had refused and neglected to satisfy.</p> <p>The answer of the defendant, besides a general denial, alleged that Isaac W. Parker died leaving no estate of any kind upon which to administer; that no estate of the decedent ever had come into her hands or possession, that she knew of none that could be collected or received by her as executrix, and that she was possessed of no estate of the testator wherewith to satisfy the plaintiff’s claim; and denied that there had been any breach of her bond.</p> <p>At the trial in the Superior Court before Bishop, J., without a jury, it appeared that the judgment in favor of Hanscomb had been obtained and remained unsatisfied as alleged in the declaration. The defendant testified, and her evidence was uncontradicted, that Isaac W. Parker, the testator, at his decease was possessed of no property or estate, and that no property of the said Isaac since had come to her knowledge or possession. The judge ruled that this evidence constituted no defence to the action. He found that there had been a breach of the condition of the bond, and ordered that judgment be entered for the plaintiff in the penal sum of $1,000 and that execution issue against the defendant for the sum of $276.27. The defendant alleged exceptions.</p>

<p>Contract for alleged breach of an agreement in a bill of lading to transport twenty cases of oiled clothing from New York to Galveston, Texas, by a steamship of the defendant. Writ dated December 7, 1900.</p> <p>At the first trial in the Superior Court Maynard, J. ordered a verdict for the defendant, and exceptions alleged by the plaintiff were sustained by this court in a decision reported in 184 Mass. 472.</p> <p>At the new trial of the case before Bond, J. it appeared, as it had at the first trial, that the plaintiff’s goods were lost in a storm by reason of being carried on deck, and the defence was that they properly were stowed on deck at the owner’s risk because they were “ inflammable goods ” within the meaning of a clause providing for this in the bill of lading.</p> <p>The second instruction requested by the plaintiff and refused by the judge, which is referred to in the opinion, was as follows: “ 2. There is not sufficient evidence of a well-defined, uniform, universal practice among carriers by sea to stow oiled clothing on deck to warrant a finding that there was a custom of which the plaintiff had knowledge and by which it was bound.”</p> <p>The evidence offered by the plaintiff and excluded by the. judge is described in the opinion.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions in these two matters, as well as other exceptions which the court did not consider because they were not argued.</p>

<p>Negligence, Res ipsa loquitur. Street Railway. Evidence, Presumptions and burden of proof.</p> <p>In an action against a corporation operating a street railway for personal injuries from coming in contact with a wagon while on the running board of an open car of the defendant by reason of the rear truck of the car being derailed in passing a switch, if there is evidence on which it could be found that when the plaintiff boarded the car it was so crowded that passengers were standing on the rear platform and the running board, it is a question for the jury whether the plaintiff in placing himself on the running board was in the exercise of due care.</p> <p>In an action against a corporation operating a street railway for personal injuries from coming in contact with a wagon while on the running board of a crowded open car of the defendant by reason of the rear truck of the car being derailed in passing a switch, if the plaintiff proves the derailment, and the defendant rests its case, leaving the accident unexplained, there is evidence of negligence on the part of the defendant to go to the jury, who in the light of common experience and in the absence of explanation by the defendant, which had control of the track and equipment, have the right to infer that unless either the track or the car had been defective the car would not have been derailed.</p>

<p> Negligence. </p> <p>In an action against a contractor by a civil engineer, employed by the Commonwealth to give measurements for the concrete used in a sewer which the defendant was constructing under a contract with the metropolitan sewer commissioners, for personal injuries from being struck by an excavating bucket which was returning empty on an overhead cable after having dumped the earth contained in it, if there is evidence that the plaintiff was standing on a sill that crossed the top of the open trench for the sewer and was letting down a “ plumb bob ” into the trench where an assistant was taking the measurements, when he was struck and thrown into the trench by the passing bucket, that the plaintiff was familiar with the operation of the cable and had observed that the bucket, when filled and raised, ordinarily travelled at a height of nine or ten feet above the ground level and, when empty, at a height of about twelve feet above that level, if a witness in the same general service testifies to the usual height of the bucket above the ground being twelve feet, and another witness says “ On that job I never saw a bucket pass low enough to hit a man,” and if it further appears that measurements to determine the thickness of tiie concrete had to be taken at least daily and that the usual way of taking them was for the taker to stand on the sills or timbers where he generally would be in sight of the engineer and the signalman, the question whether the plaintiff at the time of the accident was in the exercise of due care is for the jury, although there also is evidence that the plaintiff could have stood on one of the braces of the trench some three feet below the level of the sill and thus could have avoided the danger, had he had any reason to anticipate it.</p>

Bill in equity, filed in the Supreme Judicial Court on December 14, 1906, by the trustee under an indenture of trust dated June 8, 1867, between John L. Gardner and his daughter Eliza B. Gardner, afterwards Eliza B. Skinner, as settlors and the plaintiff as trustee, for instructions. The terms of the trust and the prayers of the bill are stated in the opinion, as also are the material facts.

<p>Tort by the administratrix of- the estate of Edward V. Doe under R. L. e. 106, § 71, cl. 2, § 72, for injuries resulting in the death after conscious suffering of the plaintiff’s intestate while a motorman in the employ of the defendant, caused by the collision of the car operated by the plaintiff’s intestate with another car of the defendant due to the alleged negligence of a person in the service of the defendant entrusted with and exercising superintendence. Writ dated January 10, 1905.</p> <p>In the Superior Court the case was tried before Lawtón, J., who refused to order a verdict for the defendant or to give certain instructions requested by the defendant, and submitted the case to the jury. The jury returned a verdict for the plaintiff in the sum of $4,500, of which they apportioned $8,500 for the death and $1,000 for conscious suffering. The defendant alleged exceptions, of which those that were argued by the defendant raised the questions stated in the opinion.</p>

Petition, filed February 9,1907, by Cooper Gaw and Manuel V. Sylvia, appointed by the mayor of New Bedford under R. L. c. 75, § 9, members of the board of health of that city for a writ of mandamus ordering the mayor to restore them to their offices as members of that board from which they alleged that he had removed them without cause. The case came on to be heard before Rugg, J. upon the petition and answer and an agreed statement of facts.

<p>Contract for the price of goods sold and delivered. Writ in the Municipal Court of the City of Boston dated May 24, 1902.</p> <p>On appeal to the Superior Court the case was tried before Stevens, J. The jury returned a verdict for the plaintiff in the sum of $271.30; and the defendants alleged exceptions to the refusal of the judge to give the instructions requested by them, presenting the question which is stated in the opinion.</p> <p>The case was submitted on briefs.</p>

<p>Tort by a workman in the employ of George F. Hadley, a contractor, against the Boston and Maine Railroad for personal injuries incurred in the manner described in the opinion on January 14,1905, by being struck by a car of the defendant while the plaintiff was working upon a staging with one Ogden, a fellow workman, in hanging a door that was out of repair on a manure shed which was part of a building built by D. Whiting and Sons on land leased by them from the defendant and adjoining a freight yard of the defendant in that .part of Boston called Charlestown, the staging having been placed by the plaintiff and Ogden on land of the defendant not leased to D. Whiting and Sons. Writ dated March 18, 1905.</p> <p>In the Superior Court the case was tried before Sherman, J. The important facts are stated in the opinion. The plaintiff testified, among other things, that he did not think it was possible to have built the staging and to have done the work without having the staging so near the track as to be hit by a train ; that it was necessary that there should be a staging; that the foreman of Hadley did not give any direction as to how to do the work, but left it entirely to the plaintiff and Ogden; that they were to make any arrangement that they saw fit in order to make the staging or to do the work; that their work was to get at the door and to fix up the door. Ogden testified, among other things, that the yard in the vicinity of the building was used for a general freight business in connection with the milk business; that the track near the building was used by cars, from which pedlers got their milk; that this track was used, as well as other tracks, to deliver freight to the teams. Another witness for the plaintiff testified that he had worked for D. Whiting and Sons for three years, and that he had observed both milk and freight cars backing on to this track.</p> <p>The judge refused to order a verdict for the defendant, and submitted the case to the jury, leaving it for them to say whether under the circumstances shown by the evidence there was an implied invitation from the defendant to the plaintiff and Ogden to construct the temporary staging on which they were working upon the defendant’s land not leased to D. Whiting and Sons, instructing them that if they did not find such an invitation their verdict must be for the defendant.</p> <p>The jury returned a verdict for the plaintiff in the sum of 15,000; and the defendant alleged exceptions. It was agreed that if the judge should have ordered a verdict for the defendant judgment should be entered for the defendant. If the exceptions were overruled judgment was to be entered for the plaintiff on the verdict.</p>

<p>BrLL in equity, filed in the Supreme Judicial Court on April 24, 1905, by Mary C. Richards, the daughter and only child of Mary L. Richards, deceased, against Charles G. Keyes, trustee under the will of Stephen R. Clapp for the benefit of the plaintiff and other persons, and Martha A. Tuttle, to set aside a salé.and conveyance, set forth in the pleadings, from Charles G. Keyes, trustee under the will of Stephen R. Clapp, to Mary L. Richards, and the taking back of a mortgage from Mary L. Richards for the purchase price, the said conveyance and mortgage being dated April 7 and recorded on October 18, 1894; praying for a decree that such mortgage is a cloud upon the title of the premises; that the defendant Tuttle be ordered to discharge a second mortgage held by her upon the same premises made by Mary L. Richards and her husband; that the defendant Keyes be decreed to hold the premises as trustee under the will of Stephen R. Clapp free from all sales and mortgages made after the probate of the will of Stephen R. Clapp; and for further relief.</p> <p>The case was heard by Sheldon, J. It appeared that two petitions to the Probate Court for license to sell the premises were filed'by the defendant Keyes as set forth in the bill and the answer of the defendant Keyes; that the first of these petitions was dismissed by the Probate Court, and that on the second of the petitions no decree was made. It also appeared that the defendant Keyes made the conveyance to Mary L. Richards and received back the mortgage in question without express authority from the Probate Court, and that after both the conveyances had been made he petitioned that court for a decree confirming the sale made by him and the mortgage back, and the petition was granted by the Probate Court; and that the defendant Keyes thereafter executed and received confirmatory conveyances.</p> <p>Before the introduction of any evidence, it was admitted by the plaintiff that she joined in the request for the granting of the petition of Charles G. Keyes filed in the Probate Court on September 25,1897, for a decree confirming the sale made by him, the confirmatory deed being dated December 28, and recorded on December 24, 1897; and also that the plaintiff, with Mary L. Richards, on October 16, 1894, executed under seal the following instrument:</p> <p>“ Know All Men by These Presents that we, Mary L. Richards and Mary C. Richards, beneficiaries under the will of Stephen R. Clapp, deceased, in consideration of the execution and delivery at our request of a deed and mortgage between said Mary L. Richards and Charles G. Keyes, trustee under said will, which deed and mortgage are dated April second, 1894, hereby agree to indemnify and save harmless said trustee against all loss, trouble and expense on account of making said deed and taking back said mortgage; and we also agree not to hold said trustee or claim from him any interest or income from or on account of said mortgage, except so far as said trustee shall actually receive the same from us or either of us; the said Mary L. Richards being entitled to all the interest and income of the estate held by said Keyes as trustee under said will during her life.</p> <p>“ Witness our hands and seals this sixteenth day of October, 1894.</p> <p>“ Mary L. Richards. [Seal.] Mary C. Richards.” [Seal.]</p> <p>The justice, against the objection of the plaintiff, ruled that the plaintiff, after joining in the petition for confirming the sale and mortgage, after the decree of the Probate Court thereon and after the execution by her of the instrument printed above, could not complain of the acts of the trustee in making the sale, giving the deed and taking back the mortgage set forth in her bill. The plaintiff alleged exceptions to this ruling.</p> <p>The case was submitted on briefs.</p>

<p>Evidence, Opinion. Adoption. Parent and Child. Illegitimacy. Slate Board of Charily. Statute, Construction. Infant. Religious Belief. Constitutional Law. Words, “Suffer.”</p> <p>At the hearing of a petition for the adoption of an illegitimate child who is in the custody of the State board of charity, it is proper to exclude a resolution passed by that board declaring the principles to be followed by the board in finding suitable homes for children who owing to poverty or misfortune are in the care and control of the State. -</p> <p>On a petition for the adoption of an illegitimate child who is in the custody of the State board of charity, the consent of that board is not required by R. L. c. 164, §§ 2, 3, and if at the hearing of an appeal from a decree of the Probate Court on such a petition the record shows that in the Probate Court the board appeared by the Attorney General and neither consented nor objected to the adoption, the petition may none the less be granted.</p> <p>Statutes relating to adoption are in alteration of the common law and must be followed strictly in all essential particulars.</p> <p>Under the amendments to R. L. c. 154, § 2, made by St. 1902, c. 644, § 22 j St. 1904, c. 302, the provision that in a petition for the adoption of a child “ Illegitimacy shall in no case be expressly averred upon the record ” does not prohibit such an averment by inference, and a description of the child to be adopted as the child of a single woman is not a violation of the statute.</p> <p>Semble, that if a petition to the Probate Court for the adoption of a child contains an express averment of illegitimacy in violation of the prohibition contained in St. 1904, e. 302, this does not deprive the court of its jurisdiction to entertain further proceedings on requiring the striking out of the prohibited allegation.</p> <p>Upon a petition for the adoption of an illegitimate child in custody of the State board of charity, under R. L. c. 164, § 3, which provides, among other things, that the consent of the mother of the child to the adoption shall not be required if she has suffered such child to be supported for more than two years continuously, prior to the petition, as a pauper by the Commonwealth, if it appears that the child was supported by the Commonwealth for more than six years continuously, including the two years immediately preceding the filing of the petition, that at the beginning of that period the child was taken from the mother by proceedings under R. L. c. 83, § 37, of which she was notified, on a complaint charging the mother with “ neglect, crime, drunkenness or other vice,” that she did not appear to have made any opposition to the adjudication by which the child was taken from her and took no appeal from that judgment, that she never sought to regain the custody of her child by application to the State board of charity under St. 1903, c. 334, § 3, and made only a few cursory inquiries, the latest of which was more than two years before the filing of the petition, a finding that she “ suffered such child to be supported for more than two years continuously, prior to the petition,” by the Commonwealth, is supported by the evidence, even assuming that the word “ suffer ” as used in the statute requires proof of acquiescence.</p> <p>St. 1905, c. 464, § 1, in regard to the protection of minor wards of the Commonwealth in the religious belief of their parents, was enacted for the benefit of such children rather than for that of their parents, whose rights are regulated by the same principles as before its enactment. Under it the mother of an illegitimate child has all the rights of other parents.</p> <p>On a petition for the adoption of an illegitimate child nine years of age in the custody of the State board of charity, if it appears that the petitioners are a husband and wife of good character and education about forty years of age and childless,</p> <p>• that they live in a small town in a comfortable home in a good and healthful neighborhood and reasonably may expect to be able to give the child a suitable support and education, that for over four years the child has been in the family of the petitioners, who are found to be suitable persons to have custody of her and charge of her education, that a strong affection has grown up between them, and that the interests of the child will be promoted greatly by the adoption, and if it appears that the child was taken from her mother by reason of the mother’s misconduct and that the mother acquiesced in a judgment giving the custody of the child to the State board of charity and for several years suffered the child to be supported as a pauper by the Commonwealth, the fact that the mother is of a religious belief different from that of the petitioners, who intend to educate the child in their own religious belief, does not make the granting of the petition unlawful or improper.</p> <p>The provisions of R. L. c. 154 in regard to the adoption of children are constitutional. Parents have no absolute right of property in their minor children of which they cannot be deprived without their consent.</p> <p>The right of property which parents have in their minor children is subject to their correlative duty to care for and protect their children, and the law secures their right only so long as they discharge their obligation.</p> <p>Where a child in the custody of the State board of charity is adopted legally by persons who are found suitable to have custody of him and charge of his education, the child under the provisions of St. 1903, c. 334, § 3, still remains in the custody of the State board of charity until he attains the age of twenty-one years or that board shall discharge him from its custody when the object of his commitment has been accomplished.</p>

<p> Negligence. Railroad. </p> <p>In an action against a railroad company for personal injuries from a collision at a grade crossing of a highway with a locomotive engine of the defendant alleged to have heen caused by a failure of the defendant to give the signals required by law, there was evidence that the plaintiff, who had lost the sight of one eye, was driving in a buggy a horse which was afraid of steam cars although otherwise gentle, that there was a single track of the railroad at the crossing, that from the direction in which the plaintiff was driving the street crossed the railroad at an acute angle, that, as he approached the crossing, his view at some points was obstructed considerably by buildings and trees, that, until he was within one hundred and fifty or two hundred feet of the crossing, he was driving at the rate of about seven miles an hour and looked ahead to see or hear any train, that he then slackened speed, leaned forward to ascertain whether he could see or hear anything of an approaching train and also looked down the road for some sign of the flagman who was stationed there, that, seeing no flagman and hearing and seeing nothing of a train, he proceeded to the crossing and when within fifteen or twenty feet of the track, or a little closer, he saw the flagman, who made an outcry, that at the same time he felt the jar of the approaching train and immediately the accident occurred. Held, that the question whether the plaintiff was in the exercise of due care was one for the jury.</p> <p>In this Commonwealth there is no rule of law requiring a traveller upon a highway before passing over a railroad grade crossing unvaryingly and without exception to stop, look and listen. The rule is that he must exercise the high degree of care which the extreme danger of the place requires from every person of ordinary prudence. Generally he must look and listen in such a way as will enable him to ascertain with reasonable certainty whether a train is approaching.</p> <p>In an action against a railroad company for personal injuries from a collision at a grade crossing of a highway with a locomotive engine of the defendant alleged' to have been caused by a failure of the defendant to give the signals required by law, where the evidence as to whether the statutory signals were given is conflicting, if the plaintiff testifies that he was listening for the signals and did not hear them and there is a slight corroboration of this testimony from another witness, the question whether the signals required by law were given by the defendant is for the jury.</p> <p>In an action against a railroad company for personal inj uries from a collision at a grade crossing of a highway with a locomotive engine of the defendant alleged to have been caused by a failure of the defendant to give the signals required by law, where it appears that the plaintiff was driving in a buggy a horse which was afraid of steam cars although otherwise gentle, the fact that the collision occurred at the side of the locomotive a few feet behind the pilot is consistent with a finding that it was caused by the failure of the defendant to give due warning of the approach of the train, so that the plaintiff' could not control his horse in time to avoid injury.</p>

<p>Unlawful Interference. Equity Jurisdiction, To enjoin unlawful interference with ' contract. Words, “Malice.”</p> <p>The proprietor of a tourist agency who has a contract with a corporation erecting a hotel on certain exposition grounds, appointing him the exclusive agent of the corporation within a designated territory to procure patronage for the hotel, for which he is to receive a certain price a day for each person sent by him to the hotel, may maintain a bill in equity to enjoin a rival ticket and tourist agent from inducing the corporation to break its contract with the plaintiff by employing the defendant as its agent for the same territory and from preventing the plaintiff from acting as the exclusive agent of the corporation for such territory, on showing that the defendant induced the corporation to break its contract with the plaintiff for the purpose of getting for himself the business to which the plaintiff alone was entitled under his contract with the corporation, and showing further that damages will not afford the plaintiff an adequate remedy.</p> <p>It is no defence to a suit in equity to enjoin the defendant from inducing a third person to break his contract with the plaintiff, that the defendant induced the third person to break the contract merely for the purpose of increasing his own business and with no desire to injure the plaintiff.</p> <p>In a suit in equity to enjoin the defendant from inducing a third person to break his contract with the plaintiff, proof that the defendant with knowledge of the contract between the plaintiff and the third person intentionally and without justification induced the third person to break it is proof of malice within the meaning of that word as used in opinions of this and other courts.</p> <p>Whether contracts which equity will enforce specifically stand on a different footing from other contracts in regard to the proof required to support a bill in equity to restrain a defendant from inducing a party to such a contract to break it, here was not considered.</p> <p>The rule that a plaintiff in equity must come into court with clean hands ordinarily is applied only to the plaintiff’s rights against the defendant.</p> <p>In a suit in equity by the proprietor of a tourist agency, who had a contract with a corporation erecting a hotel on certain exposition grounds, appointing him the exclusive agent of the corporation within a designated territory to procure patronage for the hotel, for which he was to receive a certain price per day for each person sent by him to the hotel, against a rival ticket and tourist agent to enjoin him from inducing the corporation to break its contract with the plaintiff by employing the defendant as its agent for the same territory and from preventing the plaintiff from acting as the exclusive agent of the corporation for such territory, the defendant set up the defence that the plaintiff’s contract with the corporation was procured by fraud and that all that the defendant had done was to tell the corporation the truth. The master to whom the ease was referred did not find fraud, and it appeared that the corporation did not elect to rescind its contract with the plaintiff for fraud or for any other reason, and it also appeared that the defendant did not confine himself to telling the corporation the truth about false representations of the plaintiff by which he procured the making of the contract, but went further and urged as an argument for inducing the corporation to break its contract with the plaintiff that it was a mistake to appoint an exclusive agent at all and that the corporation could make more money if its agency was not exclusive, no matter who the agent was. Held, that, assuming without deciding it that the plaintiff could not have maintained a bill for interference with his contractual rights if the contract in question had been procured by his fraud, the defendant had not made out a defence on that ground.</p> <p>Where a plaintiff in equity proves that the defendant unlawfully interferes with or threatens to interfere with his rights under a contract and further proves that damages will not afford him an adequate remedy, he is entitled to an injunction.</p>

<p>Petition to establish exceptions, subscribed and sworn to on January 20, 1906, by Arthur E. Rowse, one of the defendants in an action of replevin brought by Frank N. Lord against the petitioner and James E. Blacker, afterwards deceased, for one hundred and twenty articles of property alleged to belong to the plaintiff, as further described in the opinion.</p> <p>The jury returned a verdict for the plaintiff against the defendant Rowse for forty-three of the disputed articles and assessed damages in the sum of $1. They returned a verdict for the executors of the will of the defendant Blacker, who had been admitted to defend the action. The defendants filed a bill of exceptions, which was disallowed by the judge of the Superior Court before whom the case was tried on the grounds described in the opinion.</p>

<p>Petition, filed on March 13, 1907, by a voter and taxpayer of the town of Plymouth for a writ of mandamus directed to the board of registrars of voters in that town and the town clerk ordering the board not to count a certain defective ballot described in the opinion, and to make and file with the town clerk a new and amended certificate of a recount of votes made by them as described in the opinion, and ordering the town clerk to amend the record of the meeting accordingly.</p> <p>The case was heard by Braley, J., who found the facts which are stated in the opinion. He ordered that a peremptory writ of mandamus issue in accordance with the prayer of the petition, and at the request of the respondents reported the case for determination by the full court. If the order was right it was to be affirmed; otherwise, such order was to be made as law and justice might require.</p> <p>The case was submitted on briefs.</p>

<p> Trust. Devise and Legacy. </p> <p>A testator, having devised and bequeathed the residue of his estate to trustees, provided as follows: “ It is my will that all my children . . . shall share in the benefits and provisions of this trust, and that the share of any child of mine in the body or income of said trust estate shall not be liable to or for his or her debts, in any manner or form whatsoever, or subject to trustee process, by any creditor on any claim whatsoever.” Held, that this provision expressed a plain desire on the part of the testator that, until the termination of the trust as to any of his children under the terms of the will, the share of such child in the income and body of the fund should be free from any interference by creditors, and that this intent would be upheld and given full effect.</p> <p>A testator devised and bequeathed the residue of his estate to trustees and provided as follows: “It is my will that all my children . . . shall share in the benefits and provisions of this trust, and that the share of any child of mine in the body or income of said trust estate shall not be liable to or for his or her debts, in any manner or form whatsoever, or subject to trustee process, by any creditor on any claim whatsoever.” After giving the trustees a discretionary power to terminate the trust as to any child by paying and conveying to such child his or her share, and providing for the final distribution of the trust estate when the testator’s youngest surviving child should arrive at the age of twenty-five years, the will further provided as follows: “ Should any child of mine decease before arriving at the age of twenty-five years, or prior to the termination of the trust as to the share of such child, he or she leaving issue surviving him or her, then in that event, upon decease of such child as aforesaid I authorize, empower and direct my said trustees to pay over aud distribute in money what would be the proportionate share of such child at the time of his or her decease of the income and body of said trust estate to and among his or her issue in equal shares, and so terminate the interest of said issue in and to said trust estate.” Then came a provision that in the event of the death of any child of the testator without issue before the termination of his or her interest in the trust estate, the share of such child should “lapse into the body of the trust.” One of the sons of the testator who survived him died at the age of twenty-nine years before the termination of the trust as to his share, leaving a daughter as his only issue. During his lifetime this son of the testator had executed and delivered an instrument purporting to be a mortgage and assignment of his interest in his father’s estate. Upon a bill by the trustees declaring their readiness to terminate the trust as to the share of this son of the testator, and praying for instructions, it was held, that this son of the testator took a vested interest in a contingent remainder in the trust estate which was subject to be divested and was divested by his death before the termination of the trust leaving issue, and that upon the termination of the trust his daughter was entitled to the whole of his share in the estate to the exclusion of the alleged mortgagee.</p> <p>Under Chancery Rules 31 and 32 a party who has brought in written objections to a master’s report unless he files with the clerk within fifteen days from the filing of the report exceptions founded on his objections cannot bring his objections before the full court -by appeal, but in the present case the question sought to be raised by the objections was raised by the appeal in determining whether the decree properly could be entered upon the pleadings and the report.</p> <p>In the interpretation of a will which bears evidence throughout of having been drafted carefully, weight can be attached to an arrangement of the paragraphs which would not have the same significance in a testament drawn unskilfully.</p> <p>A testator, having devised and bequeathed the residue of his estate to trustees, provided as follows : “ It is my will that all my children . . . shall share in the benefits and provisions of this trust, and that the share of any child of mine in the body or income of said trust estate shall not be liable to or for his or her debts, in any manner or form whatsoever, or subject to trustee process, by any creditor on any claim whatsoever.” The paragraphs preceding this clause authorized the trustees in their discretion to make advancements out of the income and body of the fund for the benefit of the several beneficiaries, and authorized the accumulation of income. The paragraphs succeeding the clause above quoted provided that if any child of the testator should die before arriving at the age of twenty-five years or before the termination of the trust as to the share of such child, leaving issue surviving, his or her share should go to such issue, and that, upon the death of any child of the testator without issue before the termination of his or her interest in the trust estate, the share of such child should lapse into the body of the trust. When the youngest child of the testator arrived at the age of twenty-five years the trustees were directed to terminate the trust. One of the sons of the testator executed an instrument purporting to be a mortgage and assignment of his interest in his father’s estate. While this son was living the trustees desired to terminate the trust under its terms as to his share, and filed a bill for instructions as to the right of this son as against the mortgagee claiming under him. Held, that this son had a vested interest in a contingent remainder in the trust estate subject to be divested on his death before the termination of the trust as to his share, but, the event upon which his interest was to be divested not having happened, the mortgage assignment became operative, and the trustees were instructed to set aside from the share of this son a sum sufficiently large with its assured accumulation to meet the mortgage note at maturity, paying over the balance to this son.</p>

<p>Equity Pleading and Practice, Master’s report. Assignment, Consideration, Validity. Husband and Wife. Fraud. Real Estate. Estoppel.</p> <p>Under Chancery Rule 81, if exceptions to a master’s report are filed seasonably but have not been preceded by the filing of objections to the draft of the report as required by the rule, although “ requests and suggestions ” were filed with the master, the questions attempted to be raised by the exceptions cannot be brought before this court by an appeal from a decree confirming the master’s report, except so far as they are included in the question whether the decree was warranted upon the pleadings and the report.</p> <p>A promise by a woman to marry immediately a man whom she has promised to marry at some indefinite time when he shall be able to support her is a good consideration for an assignment to her by the man, executed two weeks before their marriage, of all his interest in the estate of his father.</p> <p>An assignment of property made by a man to a woman two weeks before their marriage in consideration of her promise to marry him immediately is not an antenuptial settlement under R. L. c. 153, §§ 26, 27, and the requirements of that statute do not apply to it.</p> <p>An assignment of property made by a man to a woman two weeks before their marriage in consideration of her promise to marry him immediately, if the man at the time was free from debt to everybody except the woman and it is not shown that his real purpose was to hinder or delay his future creditors, is not fraudulent as against such future creditors.</p> <p>Whether an assignment by one of the beneficiaries of a trust fund, created by a testator who had in mind the possession or possible possession of real estate and partly invested in real estate, of all his interest in the fund is a conveyance of an interest in real estate which should be recorded as such, quaere.</p> <p>If a man makes an assignment of property to a woman two weeks before their marriage in consideration of her promise to marry him immediately, and thereafter while this assignment is unrecorded and without the knowledge of his wife fraudulently makes a mortgage of the same property to another person for a valuable consideration, representing that he has made no other conveyance of the property, and if the supposed mortgagee has his mortgage recorded in the office of the city clerk and about six weeks after its execution notifies the wife of the existence of the mortgage in a letter to which she makes no reply, these facts do not estop the wife from asserting her title to the property against the supposed mortgagee, whom she did not induce to change his situation by any speech or conduct.</p>

<p>Corporation, Enforcement of subscriptions for shares. Agency. Contract. England. Companies Act. Conflict of Laws. Evidence, Presumptions and burden of proof. Practice, Civil, Death of party. Executor and Administrator. Statute.</p> <p>In actions by a corporation to enforce subscriptions for its shares, it appeared that the plaintiff corporation was organized by a promoting corporation to purchase and use certain patent rights for the purchase of which the promoting corporation had a contract with their owner, and that the defendants signed underwriting agreements with the promoting corporation in accordance with the terms of a certain prospectus, by which each of the defendants agreed to apply for a certain number of shares of the plaintiff corporation which were to be allotted and paid for only in case the general public should fail to take the whole number of shares offered for public subscription, it being provided that then the applicant was to be allotted his proportion of the deficiency pro rata with the other persons who. were similarly interested in this arrangement. The defendants in pursuance of these agreements severally signed applications for allotments of shares in the plaintiff corporation and handed them to the promoting corporation to be used by it under the terms of the underwriting agreements. Owing to the state of the market for securities, fifteen months elapsed after the making of the underwriting agreements before the shares of the plaintiff corporation were offered to the public, more than a year later than the time contemplated by the prospectus. The public took only about two per cent of the shares offered. Each underwriting agreement was addressed to the agent of the promoting company, and provided as follows: “ In the event of my failing to put in an application when called upon by you, I hereby authorize you to make application on my behalf, and I agree to accept the allotment which may be made to me against such application, subject to the conditions before stated.” The promoting corporation, without calling upon the defendants to apply for their respective proportions of the shares of the plaintiff corporation not taken by the public, delivered to the plaintiff corporation the applications for shares signed to the defendants, and allotments were made to them of their respective proportions of ninety-eight per cent of the shares which had been offered to the public. Between the time of the execution of the underwriting agreements and applications for shares by the defendants and the time that the promoting corporation delivered their applications to the plaintiff, the contract between the promoting corporation and the owner of the patents was changed in regard to the price to be paid for the patents in such a way that the working capital of the plaintiff corporation was reduced, but by an amount less than ten per cent of the sum originally named. The promoting corporation itself had underwritten a certain number of the shares of the plaintiff corporation. By further changes in the contract between the promoting corporation and the owner of the patents the number of shares of the plaintiff corporation to be taken by the owner of the patents was reduced almost one half and the number of shares to be issued was reduced in a similar proportion, the result of which was to make the number of shares applied for by each of the defendants represent a much larger proportion than before of the number of shares offered to and not taken by the public. Each of the defendants had made a cash payment to the promoting corporation under his contract with it. The promoting corporation had kept this money, and the defendants had acquiesced' in its keeping it. One of the questions in the cases was whether the promoting corporation in delivering the defendants’ applications for shares to the plaintiff corporation was acting in behalf of the defendants with their authority. On this question it was held, that whether a reduction of less than ten per cent in the amount of the plaintiff’s working capital was a material change from the statement made in the prospectus on which the defendants’ applications weré founded, it was not necessary to consider; because it appeared that the prospectus and the underwriting agreements left the promoting corporation free to make such changes in its contract for the purchase of the patent rights as it found it for its interest to make, its interest as subscriber for a part of the plaintiff’s shares being assumed to be the same as that of the defendants; that the defence of the lapse of time between the execution of the underwriting agreements and the attempt to place the shares on the market, if this was contrary to the original proposition, probably was not open to the defendants as showing a termination of the authority of the promoting corporation to deliver their applications, as the defendants had acquiesced in the retention by the promoting corporation of the money paid by them to it under their contract with it, but this point was not passed upon; and it was held, that the change by the underwriting corporation of the basis on which the defendants had agreed to underwrite the shares, by the reduction of the number of shares to be taken by the owner of the patents and of the total number of shares to be issued, deprived the promoting corporation of its authority to deliver the applications in behalf of the defendants ; also, that under the terms of the underwriting agreements signed by the defendants, the promoting corporation had no authority to make applications for shares in behalf of the defendants without first calling upon them to apply for their respective proportions of the shares not taken, thus giving them an opportunity to break their contracts with the promoting corporation and incur liability to it for damages by revoking its authority to deliver the applications signed by them.</p> <p>In actions by a corporation against subscribers for its shares to enforce calls for payments thereon, it appeared that the plaintiff was incorporated in England under the companies act, that by the law of England so long as a person suffers himself to remain as a shareholder on the register of such a company he is bound to pay all calls properly made upon him for payment of the capital stock upon shares of which he is the registered holder, and that, if a registered shareholder has a just ground for repudiating the allotment of shares to him, he must repudiate^ without delay or lose his right of repudiation. The defendants were the registered holders of the shares on which the payments were called for by the plaintiff. They remained shareholders without any act of repudiation on their part for two years and eight months, when they refused payment of the calls for-the collection of which the actions were brought. After the bringing of the actions and before the filing of the report of the auditor to whom the cases had been referred a further period of more than ten years elapsed, during which the defendants remained shareholders and never repudiated the allotments of shares to them “ except in so far as their failure to pay upon demand constituted such repudiation.” Held, that a bare refusal to pay calls is not a repudiation of the allotment of the shares on which the calls are made, and therefore that the period of the defendants’ acquiescence continued after the bringing of the actions, but that this was unimportant, because the period which had expired before the actions were brought was enough to bar the defendants from afterwards repudiating their status as registered shareholders.</p> <p>Whether a person is a registered shareholder of a corporation organized in England under the companies act is to be determined by the law of England when proved as a fact, and this necessarily includes the determination of the effect of a failure to repudiate an allotment of shares in such a corporation.</p> <p>Proof that a letter was mailed is ■prima facie evidence that it was received by the person to whom it was addressed. *</p> <p>R. L. c. 171, § 5, which by its language, taken literally,, seems to provide that an executor or administrator can be summoned in to prosecute or defend a personal action which survives only when a sole plaintiff or defendant dies before the entry of the action, was intended to be a re-enactment of Pub. Sts. c. 165, §§ 5-7, corresponding to Rev. Sts. c. 93, §§ 1-3, and, properly interpreted, provides also for the suggestion of death and the voluntary appearance or summoning in of the executor or administrator when the death has occurred after the entry of the action and where the party who has died was not a sole plaintiff or defendant.</p>

<p>Hawkers and Pedlers. Practice, Criminal. Constitutional Law. Words, “ Exposing for sale.”</p> <p>On a complaint under R. L. c. 65, § 13, charging the defendant with being a hawker and pedler and with exposing for sale certain goods without a license, the words “exposing for sale” as used in the statute are satisfied by proof that the pedler had with him in his hand, in the presence of the person whom he solicited to buy, goods which he referred to in his conversation as contained in a receptacle that he was carrying and which he offered to exhibit for the purpose of making a sale, although the offer was refused and the goods remained concealed from view by the receptacle that contained them.</p> <p>When a case involves the punishment of the defendant for a crime, the constitutionality of the statute authorizing the prosecution may be questioned at any stage of the proceedings.</p> <p>The requirement of R. L. c. 65, § 19, that a license as a hawker and pedler shall be granted only to a person who is or has declared his intention to become a citizen of the United States, is constitutional as a reasonable exercise of the police power.</p> <p>In R. L. c. 65, § 19, as amended by St. 1905, c. 204, authorizing the granting of licenses to hawkers and pedlers, the provision that “ a licensee resident in a city or town, in which he pays taxes upon his stock in trade and is qualified to vote, shall pay as a fee to the treasurer of said city or town the amount, if any, by which the said license fee exceeds the amount paid by him to said city or town as taxes on his stock in trade assessed on the first of May previous to the date of said license,” is unconstitutional as discriminating in favor of such residents.</p> <p>The provision of R. L. c. 65, § 21, that a license as a hawker and pedler may be granted “ to any person seventy years of age or upwards without the payment of any fee therefor" is unconstitutional as discriminating in favor of such persons. Whether the similar discrimination provided by the same section in favor of “ any soldier or sailor resident in this Commonwealth who served in the army or navy during the war of the rebellion or the war against Spain and who has received an honorable discharge from such service ” also is unconstitutional, was not passed upon because it was not referred to in the argument.</p> <p>The whole statute contained in R. L. c. 65, §§ 13-29, in regard to the licensing of hawkers and pedlers, as it stood before its amendment by St. 1906, c. 345, was made unconstitutional by the provisions of §§ 15, 16, discriminating between agricultural products of the United States and agricultural products of other countries, it being impossible to say' what the Legislature would have done in regard to the other provisions of the statute if they had noticed that the discrimination in regard to agricultural products was unconstitutional.</p>

<p>Larceny. Evidence, Presumptions and burden of proof, Proof of negative fact.</p> <p>At the trial of an indictment for larceny of a sum of money which the defendant was alleged to have received as the contribution of a donor to the campaign fund of a political State committee, the donor testified that he handed the money to the defendant in the corridor of the rooms of the committee and the defendant testified that he turned it over to the committee through some one “competent to receive it.” There was evidence of circumstances from which it might be inferred that if the defendant failed to turn over the money his retention of it was for the purpose of embezzling it, and the principal question in dispute was whether the defendant turned over the money to the committee as he testified that he did. The Commonwealth called as witnesses thirty-four members of the committee who were all the members except four who it was agreed would testify to the same effect, and also called the chairman, the secretary and treasurer, the chairman of the finance committee, the bookkeeper, the messenger and the stenographers of the committee, and in all of their testimony there was no trace of the receipt of this money from the defendant nor any evidence of any knowledge of it by any member of the committee or by any of their clerks or agents. It appeared that in the year following the political campaign, after the defendant had been called upon to account for the money, he wrote a letter to the chairman of the committee saying that the donor gave him some money for the campaign the year before, that he did not remember the exact sum, and that it was turned over to the committee through the chairman or the secretary, he forgot which. Both the chairman and the secretary testified that they had no recollection in regard to the receipt of any money from the defendant, although neither of them testified positively that he did not receive it. The government introduced evidence, as tending to contradict the admission by these witnesses of the possibility of having received the money, that each of them testified before the grand j ury that he had not received the money. The secretary testified that from time to time he sent to the clerk who kept the account for the committee at the bank a record of the contributions received by him. This clerk, having refreshed his recollection by an examination of his entries, testified that there was nothing in his memoranda which made him think that he had received any money from the defendant for the campaign in question. Some of the witnesses declined to swear positively that they did not receive any money from the defendant, but it appeared that seemingly friendly relations existed between the defendant and some of these witnesses. The defendant testified that this was the only time that he ever received a contribution for the committee, that it was a roll of bills which he did not count, although the donor stated the amount of it, that he never made any memorandum of it, that in the offices of the committee he handed the money over to some one there at the time competent to receive it, stating that it was a contribution from the donor, and that he could not say to whom he gave it. In cross-examination he testified that he could not say that the chairman of the committee or the secretary was there. There was evidence of circumstances tending to impeach the credibility of the defendant’s testimony in regard to his disposition of the money. Held, that the case involved questions of fact which the presiding judge had no right to decide and which were proper for the consideration of the jury, and that the judge was right in refusing to rule that there was no evidence on which the jury would be authorized to find a verdict of guilty.</p>

<p>Tort for personal injuries incurred on October 30, 1901, while in the employ of the defendants, manufacturers of sausages doing business in Boston under the name of Park’s Sausage and Provision Company. Writ dated April 14, 1903.</p> <p>At the trial in the Superior Court before Bell, J. the plaintiff testified that he was born on December 20, 1878, in Annadale, New Brunswick, a town of about three hundred inhabitants, and worked on his father’s farm until he was eighteen years old; that his work consisted principally of driving horses and he had had nothing to do with any machinery; that when eighteen years old he came to the United States and worked as a carpenter for about three years in Chelmsford and for a while in Boston ; that he also had worked for a short time as a motorman for the West End Street Railway Company; that he went to work for the defendants about October 1, 1901; that up to that time he had had no experience with machinery of any sort; that on October 30 following, he was set at work to operate a meat chopping machine run by steam power and known as the Enterprise Chopper No. 62; and that his left arm was torn off at the elbow by the feed screw of the machine. Other evidence is described in the opinion.</p> <p>At the close of the plaintiff’s evidence the judge ordered a verdict for the defendants ; and the plaintiff alleged exceptions to this ruling and also to the exclusion of certain evidence described below.</p> <p>The evidence excluded was as follows: A witness who had been in the sausage making business about eighteen years testified that in the course of his experience he had noticed a habit or custom in regard to the sort of men employed on the kind of machine by which the plaintiff was injured and a habit or custom as to giving instructions to”men who were set at work to operate such machines. The plaintiff offered to prove by this witness that among sausage manufacturers in this vicinity it was the custom to employ only experienced men to run these machines, and further that it was not customary to set new or inexperienced men to operate them without careful instructions as to their dangers. The questions excluded, subject to the plaintiff’s exceptions, were the following:</p> <p>“ Now, I will ask you this question : what sort of employees is it customary among sausage makers in this locality to select to operate that machine ? ”</p> <p>“ Now, Mr. Fistori, will you state what instructions it is customary among sausage makers in this neighborhood to give to employees when they set them to operate, that is, to work that machine ? ”</p>

<p>Contract by a real estate broker for a commission for his services in procuring an exchange of real estate. Writ dated January 6, 1908.</p> <p>At the first trial of this case in the Superior Court before Wait, J. the jury returned a verdict for the plaintiff in the sum of $1,609, and the defendant alleged exceptions which were sustained by this court in a decision reported in 188 Mass. 466.</p> <p>At the new trial of the case before Schofield, J. the plaintiff testified that on or about June 15, 1902, the defendant placed in his hands for sale or exchange his farm in the town of Reading and that the plaintiff, after presenting to the defendant a number of propositions for exchange, presented one for the exchange of the farm for the equity in two dwelling-houses on Commonwealth Avenue in Boston owned by one Shapleigh.</p> <p>There was evidence tending to show that Shapleigh in the first instance placed his houses in the hands of one Paige, a real estate broker; that through Paige they came to one McDonald; and that at the time the negotiations were being carried on Paige and McDonald were acting as the agents for Shapleigh.</p> <p>It was testified by the plaintiff, and also by Paige and McDonald, that there was an agreement between the brokers, on both sides, that the commissions to be received by the brokers from each party, that is, the commission to be received by the plaintiff from the defendant, and by Paige and McDonald from Shapleigh, should be placed in one pool and divided equally between the three brokers, and that this agreement was without the knowledge or consent of the defendant or Shapleigh.</p> <p>There was other evidence which has become immaterial. It was agreed at the trial that if the plaintiff was entitled to recover in this action, he was entitled to recover five per cent on $30,000, that is, $1,500.</p> <p>The judge, among other instructions not objected to, instructed the jury as follows: “ That in case there was an agreement, not disclosed to the principals, by which the two brokers acting for and representing Shapleigh on the one side, and Quinn, representing the defendant on the other side, were to put into a common fund or pool as it is called the commission which each was to receive from their respective principals and divide the same equally between the three, then in that case, Quinn, the plaintiff in this action, cannot recover.” The plaintiff excepted to this instruction.</p> <p>In answer to the special questions the jury made the following findings: “Was-there an agreement to divide commissions?” “Yes.” — “If so, what was it?” “To pool their commissions and divide.”</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tort by a minor, by her father and next friend, for personal injuries received by the plaintiff while occupying a room in the tenement of her parents in a building on Salem Street in Boston owned by the defendants. Writ in the Municipal Court of the City of Boston dated August 17, 1901.</p> <p>On appeal the case was tried in the Superior Court before Aikén, C. J. It was agreed that the defendants at the time of the injury owned the building.</p> <p>The plaintiff testified that at the time of the injury complained of she was asleep in a room' in the building of the defendants; that this building was a dwelling house occupied by a number of different tenants each with their own tenement; that the defendant Ginsberg also lived in the house; that in the house, in a hallway directly over the plaintiff’s bedroom and not connected with the tenement of plaintiff’s parents, was a water closet; that this water closet was provided by the defendants for the use of all the tenants in the house, was under the control of the defendants and was used in common by all the tenants including Ginsberg and the occupants of the tenement rented by the plaintiff’s parents; that the pipe from this water closet entered and went through the room in which the plaintiff slept; that on the night of the injury the plaintiff on going to bed noticed nothing unusual about the room in which she slept; that there was no leakage or dripping from the pipe; that some time later during that night she was awakened by the falling of plaster and found that a part of the plaster had fallen from the ceiling and that some of the contents of the pipe from the water closet had leaked into her room; that- the room was filled with foul odor and that she thereby was made sick.</p> <p>The mother of the plaintiff testified that two days before the accident the water closet was wet, that she wiped the floor and “ observed in the pipe there was a little crack and the bad stuff was coming out of it,” whereupon she notified the persons who had charge of the house for the defendants.</p> <p>The Chief Justice ruled'that on all the evidence the plaintiff could not recover, and ordered a verdict for the defendants. The plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Tort for personal injuries incurred while a passenger on an electric car of the defendant which left the rails owing to a wheel being loose upon an axle, the wheel having been manufactured and pressed upon the axle and the axle and wheel having been supplied to the defendant by the National Cog Wheel Company, a reputable manufacturer and dealer. Writ dated July 15, 1904.</p> <p>In the Superior Court the case was tried before Hardy, J. The substance of the evidence and the instructions of the judge are described in the opinion. The jury returned a verdict for the defendant, and by agreement of the parties the judge reported the case for determination by this court. If the charge of the judge was warranted by the law as applied to the evidence the verdict was to stand; if not, the verdict was to be set aside and a new trial was to be granted.</p>

<p>Contract for the price of certain supplies and provisions furnished to the defendant, in which certain fish dealers were summoned as trustees, and the Atlantic Maritime Company, a corporation organized under the laws of the State of Maine, appeared as claimant. Writ in the Municipal Court of the City of Boston dated October 17, 1905.</p> <p>In the Superior Court the case was tried before Hitchcock, J., without a jury. The defendant was captain of the fishing schooner Georgiana, and while captain of that schooner sold a part of a certain catch of fish to the fish dealers summoned as trustees. The trustees answered that they had in their hands certain funds, being the proceeds of a part of the catch, but that they were claimed by the Atlantic Maritime Company, alleged to be the owner of the fishing schooner, and that the trustees were unable to determine to whom the funds belonged, and therefore prayed the judgment of the court. The Atlantic Maritime Company appeared as claimant, and alleged that it was part owner and managing owner for all the other owners of the schooner, and asserted that the funds belonged to it.</p> <p>The plaintiff offered no evidence. At the close of the evidence offered by the claimant, the claimant asked the judge to rule as matter of law that on all the evidence in the case the contract between the claimant and the defendant was that of employer and employee and not that of a charter party; and that the proceeds of the catch were not subject to trustee process on a claim against the defendant.</p> <p>The judge refused to make this ruling and charged the trustees. The claimant alleged exceptions.</p>

<p>Assignment. Sale. Good Will. Contract, Validity, Construction. Dentist. Equity Pleading and Practice, Injunction, Damages.</p> <p>A sale and conveyance by the trustee in bankruptcy of a dentist, who had purchased from a former partner and owned at the time of his bankruptcy the good will of the practice of the former partnership, of “ all the interest which ” the bankrupt “ may have in any right of action or any contractual rights against any one at the time of bankruptcy ” includes and conveys such good will.</p> <p>Where one of two partners engaged in the practice of dentistry, having an established practice carried on at an office in a certain city, in consideration of the payment of a sum of money sells to his copartner by a bill of sale in writing his half interest in the fixtures, office furniture and other personal property owned by the partners and used by the partnership “in carrying on the dental business ” in the office named “ together with the good will of said business,” without any express agreement on the part of the seller to refrain from competition, the sale of the good will includes an implied agreement by the seller not to practise dentistry so as to injure the business he has sold.</p> <p>In a sale for a sum of money by one of two partners to the other of the good will of a practice in dentistry established at an office in a certain city, the implied promise of the seller not to compete in the practice of dentistry within a restricted area is not invalid because unlimited in time.</p> <p>In a suit in equity by a dentist against his former partner in carrying on the practice of dentistry at an office in a certain city, who had sold his half interest in the good will of the business to the plaintiff for a sum of money, to restrain him from violating his implied contract not to practise dentistry so as to injure the business he had sold, if it appears that, although the former partnership business was carried on wholly at the office in the city, it was not derived wholly from that city but . included patients who came to the office from other cities and towns, and that the defendant opened a competing office for the practice of dentistry in the city in which the office of the former partnership was established, sent out printed circulars to former patients of the old firm and solicited their custom, that he thus obtained many of the patients of the old firm and that his business consisted substantially of this patronage, the plaintiff is protected sufficiently by an injunction restraining the defendant from practising dentistry within the limits of the city, and, unless some reason for doing so is shown affirmatively, it is not necessary to. enjoin the defendant from practising dentistry anywhere in the entire area within which former patients resided. The plaintiff in such a case is entitled, in addition to his injunction, to a decree for such money damages as he has sustained from the defendant’s breach of contract.</p>

<p>County Commissioners. Equity Jurisdiction, To enforce performance of order of county commissioners. Equity Pleading and Practice, Estoppel by agreement at hearing, Appeal. Railroad. Way.</p> <p>Where a board of county commissioners act within their jurisdiction and do not exceed their statutory ppwers their final decrees cannot be attacked collaterally.</p> <p>An order of a board of county commissioners, upon a petition by the selectmen of a town under R. L. c. Ill, § 132, alleging that a certain railroad so crosses a public way of the town as to obstruct it contrary to the provisions of § 124 of the same chapter, directing the corporation operating the railroad to restore the way to its former width in a certain manner within a time named, is within the jurisdiction of that board, and, in a suit in equity brought by the selectmen of the town against the corporation operating the railroad to compel performance of the order, it is not open to the defendant to show that the commissioners in making their order came to wrong conclusions of law or fact, their order being final unless corrected or reversed on certiorari.</p> <p>Under R. L. c. Ill, § 132, now St. 1906, c. 463, Part II. § 115, the county commissioners can prevent corporations operating railroads from obstructing highways which they cross, not only under the conditions of travel which existed when the railroads were built, but also under the conditions which exist at any time during their operation.</p> <p>If in a suit in equity by the selectmen of a town against a corporation operating a railroad, to compel the defendant to perform an order of the board of county commissioners under R. L. c. Ill, § 132, determining that the railroad of the defendant so crosses a public way of the town as to obstruct it contrary to the provisions of § 124 of the same chapter and ordering the defendant to restore the way to its former width in a certain manner within a time named, the parties agree at the hearing that the jurisdiction of the county commissioners and their right to make the order depend upon the question of fact whether the defendant’s railroad does so cross the way in question as to obstruct it contrary to the provision of the statute, and the justice who hears the case finds as a fact that it does not, and makes a decree that the bill be dismissed, from which the plaintiffs appeal, the justice appointing a commissioner to take the evidence and report it to this court, the plaintiffs are not estopped by their agreement at the hearing from contending before this court that the order of the county commissioners was final.</p>

Tort for personal injuries sustained by tbe plaintiff’s intestate, Patrick Finneran, on the evening of October 31, 1900, between six and half after six o’clock. Writ dated March 14, 1901. At the trial in the Superior Court before Bell, J. it appeared that Finneran was injured, and later died, as the result of a collision between a car of the defendant on which he was being transported and a team, near the corner of Boylston Street and Warren Street in Brookline.

<p> Peed. Boundary. Way. </p> <p>A grantor owned a lot of land at the west side of which was a road, and owned the fee of the land under the road. He conveyed the lot describing its boundaries as beginning at a point “in the east line o£ the road” and terminating the description as follows: “ thence northerly in the east line of said road about ninety-five rods to the place of beginning.” Held, that the description excluded the road and that the grantor retained the fee in the land under it.</p> <p>A deed conveyed “ A certain piece of land situate in the town of M. and on the road leading from the village to the lighthouse and being all I now own of the E. land, so-called, bounded as follows: ” Here followed a description which excluded the road mentioned above, which was at the west side of the lot, by-bounding the lot by “ the east line of said road.” The lot and the adjoining strip of land under the road had belonged to E. and were all of the E. land owned by the grantor. Held, that the general statement in regard to the E. land could not control the particular description which followed it, and that the fee in the land under the road remained in the grantor.</p>

Tobt for personal injuries alleged to have been received by the plaintiff on August 25, 1901, while a passenger on an elevated train of the defendant. Writ dated February 28, 1902. In the Superior Court the case was tried before Mason, C. J. The plaintiff was a woman twenty-eight years old.

<p> Attorney at Law. Accord and satisfaction. Agency. </p> <p>Whether an agreement to settle a case made by the defendant with the attorney for the plaintiff, and a payment in pursuance thereof made by the defendant to such attorney and received by him in full settlement and satisfaction of the plaintiff’s claim, would bar the further prosecution of that claim, if the settlement was made without authority from the plaintiff and contrary to his instructions although he had employed the attorney generally in the ease and the limitation of his authority was not known to the defendant, it here was not necessary to determine, because it appeared that the defendant understood that the attorney for the plaintiff did not have full authority to settle the case, and there was no evidence warranting a finding that an absolute agreement of settlement was made with the plaintiff’s attorney.</p> <p>Where in an action for personal inj uries the defence relied upon is a settlement alleged to have been made with the plaintiff’s attorney, if it appears that by the terms of the alleged settlement the plaintiff’s attorney was to procure a release from the plaintiff and that no payment was tendered in behalf of the defendant until the plaintiff’s attorney had delivered to the defendant a paper purporting tobe such a release, of which the signature was forged, this shows that the defendant understood that the plaintiff’s attorney did not have full authority to settle the case, and there is no evidence warranting a finding that an absolute agreement of settlement was made with the plaintiff’s attorney.</p>

<p>Contract against a surety on a promissory note. Writ in the Municipal Court of the City of Boston dated September 30, 1905.</p> <p>The action originally was brought by James E. French, assignee of the Wolfboro Loan and Banking Company, a corporation organized under the laws of the State of New Hampshire. By an amendment of the writ and declaration allowed in the Municipal Court that corporation itself was substituted as plaintiff.</p> <p>The note sued upon was as follows:</p> <p>“ $475.00 Wolfboro, N. H., Oct. 3d, 1899.</p> <p>“ For value received we jointly and severally promise to pay the Wolfboro Loan & Banking Co. or order four hundred and seventy-five dollars in six months</p> <p>“The sureties agree to be liable without notice so long as there is any liability of the principal, although the bank may grant extensions from time to time for the payment of all or any part of this note.</p> <p>“ Frank R. Hobbs Frank W. Edgerly, Surety, Charles H. Rollins, Surety.” Indorsements.</p> <p>“Received on principal June Int. paid to July 3,1900</p> <p>Dec. “ “ “ Jan. 3, 1901,</p> <p>June “ “ “ July 3, 1901.”</p> <p>On appeal to the Superior Court the case was submitted to Bond, J. upon an agreed statement of facts.</p> <p>It appeared that on March 16, 1904, by an order of the Superior Court of the State of New Hampshire James E. French was appointed assignee of the.Wolfboro Loan and Banking Company under the provisions of c. 162 of the Public Statutes of New Hampshire, which were printed in full in the agreed' statement of facts, the corporation before such appointment having been represented by the bank commissioners of the State of New Hampshire to be insolvent.</p> <p>James E. French since his appointment as assignee has been engaged in winding up the affairs of the Wolf boro Loan and Banking Company. Before bringing this action he did not petition any court in Massachusetts for authority of any kind to act in any way whatsoever. Before the giving of the note in suit, Frank R. Hobbs of Wolf boro, New Hampshire, purchased certain furniture of Charles H. Rollins, the defendant. Being unable to pay for it, in August, 1898, he- borrowed the money from the plaintiff, receiving a cashier’s check to his order for the sum of $475 which was given to the defendant and deposited by him to the credit of the estate of Charles Rollins, his father, which owned the furniture. The plaintiff received from Hobbs the note of Hobbs for a like amount, which was indorsed by the defendant at the request of Hobbs and also by Frank W. Edgerly. This note was renewed in October of 1898, was renewed again in January, 1899, and was renewed again two or three times during the summer in substantially the same form, in each case the note being paid by a new note for the same sum with the same signers. On October 3, 1899, the note dated June 3, 1899, was paid by the note in suit, for six months, signed by Rollins and Edgerly as sureties. This note never has been protested and no notice was given to the defendant of its non-payment at maturity.</p> <p>On April 6, 1903, Hobbs filed a petition in bankruptcy and was discharged on June 16, 1903, his estate paying no dividend, and no attempt was made to collect any portion of the amount due on this note from the bankrupt estate of Hobbs. The obligation of Hobbs to the bank upon this note was scheduled. In the year 1900 Frank W. Edgerly, one of the sureties on the note in suit, died, and no attempt ever was made by the plaintiff or its agents to collect any portion of the amount due on this note from the estate of Edgerly. That estate now is settled, and any attempt to collect from it by the bank or by Rollins is barred by the statute of limitations.</p> <p>It was understood and agreed that such inferences of fact might be drawn by the court as were warranted by the agreed facts as above set forth.</p> <p>The defendant asked the judge to make the following rulings:</p> <p>1. Upon all the evidence the plaintiff is not entitled to recover.</p> <p>2. The assignee or receiver of a New Hampshire savings institution appointed under c. 162 of the Public Statutes of New Hampshire cannot bring a suit in the Commonwealth of Massachusetts to realize upon the assets of his corporation without authorization from a Massachusetts court of competent jurisdiction.</p> <p>3. The Wolf boro Loan and Banking Company, which sues in this action by James E. French, assignee, being in the hands of an assignee or receiver appointed by a New Hampshire court, cannot bring suit in Massachusetts without further authorization from some Massachusetts court of competent jurisdiction.</p> <p>4. The liability of the defendant did not extend beyond the time when there was liability on the part of the principal, Hobbs, and Hobbs having received his discharge in bankruptcy there is no further liability on the part of the defendant.</p> <p>5. The obligation of the defendant, if any, was the obligation of a surety, and the extent of it is set out in the second paragraph of the note sued upon.</p> <p>6. The discharge in bankruptcy of the principal, Hobbs, put an end to all liability on his part to pay the note in question, and when his liability ceased the liability of the defendant ceased.</p> <p>The judge refused to make any of these rulings, and found for the plaintiff in the sum of $617.03. The defendant alleged exceptions.</p>

<p>Negligence, Employer’s liability, Bes ipsa loquitur.</p> <p>In an action by an administrator against the employer of the plaintiff’s intestate, a corporation engaged in the manufacture of fireworks, for causing his death, if it appears that the intestate was killed by an explosion in the funnel of an automatic machine for filling firecrackers which the plaintiff was operating, that the machine was inspected several times daily to see whether it was working right, that the accident occurred late in the afternoon, that the machine had been “ running nicely ” that day and that there was no complaint from the intestate that day in regard to it, and the defendant’s superintendent testifies without contradiction that the machine had been running well for three weeks, the facts, that the machine was a complicated one and likely to get out of order and that the material used to fill the firecrackers was of an explosive nature, are no evidence that the explosion was due to a defect in the machine or to the want of proper care on the part of the defendant.</p> <p>In a dangerous occupation such as the manufacture of firecrackers, where the explosive nature of the compound used to fill the crackers makes the happening of an accident probable even with the exercise of the highest degree of care, the doctrine of res ipsa loquitur does not apply in case of an injury or death caused by an explosion in such a machine, unless there was some circumstance fairly warranting the inference that the accident would not have occurred without negligence on the part of the person or corporation maintaining the machine.</p>

<p>Deceit. Practice, Civil, Findings by trial judge. Words, “Relied.”</p> <p>In an action of tort for false and fraudulent representations whereby it was alleged that the plaintiff was induced to convey certain real estate to the defendant in exchange for shares in a certain corporation in regard to whose earnings the representations were made, the judge, before whom the case was tried without a jury, found that the defendants had made certain representations to the plaintiff concerning the earnings of the corporation, and upon the question whether the plaintiff was misled by these representations made the following finding: “I am not satisfied that the plaintiff relied upon the oral statements made to him by the defendants, and find for the defendants accordingly.” Held, that the meaning of this finding was that the judge was not satisfied that the representations operated upon the plaintiff’s mind in such a way as to cause him to depend upon them materially in making the trade, this being the plain import of the word “ relied ” as used by him, and that, if the plaintiff did not rely on the representations, it was immaterial whether they were false.</p>

Tort by a minor, by his next friend, for personal injuries received on August 9, 1896, when the plaintiff was alleged to have been a passenger upon the running board on the left hand side of an open electric car of the defendant on Broadway between D Street and E Street in that part of Boston called South Boston. Writ dated December 4, 1896.

<p>Master and Servant. Negligence. Judgment, Satisfaction of.</p> <p>In an action against a coal company for negligence in leaving open and unguarded a coal hole in a sidewalk of a city street while two men alleged to be servants of the defendant were putting in coal from a team, it appeared that the team did not belong to the coal company but was hired by it from another concern, and that.one of the men was in the employ of the coal company while the other man was a teamster in the employ of the concern from which the team was hired who assisted in unloading the coal. Held, that for the purposes of the case both men must be regarded as the servants of the coal company.</p> <p>It is the duty of the owner of a building in a city, who retains control of the basement and heats it, employing the engineer and fireman who operate the heating apparatus, to see that a coal hole in the adjoining sidewalk when opened for the purpose of putting coal into the building is properly guarded and protected so that persons passing along the sidewalk in the exercise of due care will not be likely to fall into it, and in an action against such an owner for personal injuries caused by falling into tbe coal hole when thus left open, it is no defence for the owner that the servants of the coal merchant from whom he ordered the coal also were negligent in leaving the hole open and unguarded.</p> <p>If the servants of a coal company while or after unloading coal negligently leave open and unguarded a coal hole in the sidewalk of a city street, it is no defence for the coal company, in an action against it for personal injuries caused by falling into the hole thus left open, that the owner of the building maintaining the coal hole also was negligent in permitting it to remain open and failing to guard it.</p> <p>It is not necessarily negligent to walk into an open coal hole in a sidewalk of a city street even if there is a coal team standing near and two men also are there who have been unloading coal from it, and, in an action for injuries thus caused against the person who negligently left the coal hole open and unguarded, it is for the jury to say how far the plaintiff properly could rely upon the fact that coal holes in sidewalks 'i-dinarily are not left open without some notice or railing to warn and protect travellers, and to say how far the presence of the men and tbe team should have put the plaintiff on his guard, and generally whether he was exercising the degree of care which the circumstances called for.</p> <p>In an action for personal injuries caused by falling into a coal hole in a sidewalk in a city street negligently left open and unguarded by the defendant, the cause of action is the defendant’s negligence and it is immaterial whether or not the coal hole was a nuisance.</p> <p>Where a person, who has been injured by falling into a coal hole in a sidewalk of a city street negligently left open and unguarded, brings two actions for his injuries, one against the coal company whose servants opened the coal hole and left it unguarded and the other against the owner of the building who maintained the coal hole and had ordered the coal which was being put in, and where in each of tbe actions the plaintiff rightfully obtains a verdict for the full amount of the damage caused by bis injuries, there can be but one satisfaction of his claim. Whether either of the defendants is liable to the other is a different question which here was not considered.</p>

<p>Petition, filed in the Superior Court for the county of Suffolk, on February 17,1902, under R. L. e. 48, § 27, by the Boston Chamber of Commerce, the Boston Five Cents Savings Bank .and the Central Wharf and Wet Dock Corporation for the assessment of damages, the petitioners being aggrieved by the refusal of the street commissioners of the city of Boston to award any damages to the petitioners for the taking of part of their property for the extension of Milk Street in Boston.</p> <p>The petitioners filed in court the following stipulation, which was not assented to by the respondent:</p> <p>“ In the above entitled cause it is stipulated and agreed by all the petitioners in said cause that the jury may find and return a verdict for the total amount of damages sustained by the owners of the property involved in this suit, estimating the same as an entire estate and as if it were the sole property of one owner in fee simple and that the total amount of damages so found need not be apportioned by the jury in their verdict among the parties entitled thereto.</p> <p>“ Boston Chamber of Commerce,</p> <p>By Charles S. Hamlin, Attorney,</p> <p>The Boston 5 Cents Savings Bank,</p> <p>By C. S. Hamlin, Attorney,</p> <p>Central Wharf and Wet Dock Corporation, By Charles A. Williams, Atty.”</p> <p>The case was tried before Bishop, J.,,who reported it for determination by this court as stated below. The facts reported by the judge are stated in the opinion.</p> <p>The following is a reduced copy of a part of the plan which was used at the trial and which is referred to in the opinion.</p> <p> </p> <p>At the trial the petitioners contended and asked the judge to rule and to instruct the jury (1) that the damages were to be assessed as of the date of the order laying out the street, and that the only persons who could recover damages on account of such laying out were the persons interested in the land at that time; that as the petitioners together owned the entire title to the twenty-nine hundred and fifty-five square feet of land taken for the street, and as they had filed in court a stipulation that the damages might be awarded to the petitioners in a lump sum and were not to be apportioned between the petitioners by the jury, the petitioners were entitled to recover the full fair market value of the property taken, which they offered to show was $60,000; (2) that the petitioners were entitled to recover the full fair market value of the land taken, estimating it as if it were an entire estate and as if it were the sole property of one owner in fee simple; (3) that, even if as a matter of law the Central Wharf and Wet Dock Corporation was not entitled to recover any damages for or on account of the taking, then the other petitioners jointly, or the Chamber of Commerce alone, were entitled to recover the full market value of the property taken, estimating it as if the land taken were at the time of the taking the sole property of one owner in fee simple and unincumbered.</p> <p>The respondent objected to the rulings asked for by the petitioners, and contended and asked the judge to rule that the damages were to be assessed as of the date of the order laying out the street and according to the condition of the title of the land at that time; that the owners of estates for whose possible or probable benefit the restrictions had been placed upon adjoining lands were not the owners of such interests in land as are entitled to damages under R. L. c. 48, and asked the judge to rule that the taking for highway purposes did not take the fee of the land, but only imposed upon it an easement of public travel, and if the jury were of opinion that, when land in this vicinity was subject to a restriction so that it could not be built upon, the only real advantage which came to the owners from its possession was that of light and air, and were of opinion that light and air from the street would be just as valuable as the light and air from the open space, that, as the owners would be relieved by reason of the taking from paying taxes upon the land to be used for street purposes, they could find no damages or such sum as they might think the Chamber of Commerce was entitled to by reason of tbe taking of this restricted land; that in considering the question of the fair market value of the land taken and the damage, if any, to the remaining estate, they could take into consideration the probability or improbability of the Central Wharf and Wet Dock Corporation releasing its rights in the land so far as such probability or improbability might affect the judgment of a possible purchaser.</p> <p>The respondent offered to show, by the testimony of witnesses qualified to testify as to the fair market value of land in this part of Boston, that as the land at the time of the passage of the order was owned by the Boston Chamber of Commerce, subject to the reservation and restriction that it could not be built on, which restriction was of great value to the Central Wharf and Wet Dock Corporation, the damage to the fair market value of the estate of the Boston Chamber of Commerce by reason of the taking was little or nothing.</p> <p>The petitioners objected to the rulings asked for by the respondent, and contended that such evidence was immaterial, incompetent and inadmissible generally, and especially was immaterial and incompetent in this proceeding in which ail the parties having any interest in the land taken at the time of the laying out had joined as petitioners, and had filed in court a stipulation that damages might be awarded the petitioners in a lump sum without apportionment between the petitioners, and was calculated to divert the minds of the jury from the real issue in the cause; and also was incompetent and inadmissible for the reason that the proposition contended for by the respondent and sought to be proved by such witnesses was not and could not be the subject of expert testimony; and that, even if the proposition could be the subject of expert testimony, the witnesses offered by the respondent, being qualified merely as experts of the value of real estate in this part of Boston, were not qualified to testify upon the subject matter of the respondent’s contention.</p> <p>It was agreed that if the law was substantially as stated in the petitioners’ requests for rulings, damages were to be assessed for the petitioners in the sum of $60,000 without interest; and if as matter of law, in the state of the title at the time of the taking, the petitioners were in no event entitled to full damages, estimating them as if the land taken were an entire estate and as if it were at the time of the taking the sole property of one owner in fee simple, and if the evidence offered by the respondent was admissible and competent, and the law was substantially as stated in the respondent’s requests for rulings, the petitioners’ damages should be $5,000 without interest.</p> <p>The petitioners contended and asked the judge to rule that if the statutes under which these proceedings were brought were to be construed as contended for by the respondent, or so as to deprive the petitioners of the right to recover the full fair market value of the property taken, the statutes as so construed would be unconstitutional under the Constitutions of the Commonwealth and of the United States, and particularly and especially under the Fourteenth Amendment of the Constitution of the United States, and they contended that such construction of the statutes was erroneous.</p> <p>The judge refused to rule as requested by the petitioners, and ruled that the evidence offered by the respondent as to the damages to the petitioners in the state of the title at the time of the taking was admissible, material and competent, and also ruled that in the state of the title at the time of the taking the petitioners as matter of law were in no event entitled, nor was any one, or more, of them entitled, to recover the full fair market value of the property estimated as if the property taken were free from all reservations and restrictions; and ruled that the statute as so construed would not be unconstitutional either under the Constitution of Massachusetts or under the Constitution of the United States. He ordered a verdict for the petitioners in the sum of $5,000 without interest, which was returned accordingly, and at the request of the parties he reported the case for determination by this court.</p> <p>If the rulings of the judge were right, judgment was to be entered for the petitioners on the verdict for $5,000 without interest. If the substance of the rulings requested by the petitioners ought to have been given, or if the petitioners or any of them in the state of the title at the time of the taking were entitled to recover the full fair market value of the property taken, estimated as if the property taken were free from all reservations and restrictions, the verdict was to be set aside, and judgment was to be entered for the petitioners in the sum of $60,000 without interest.</p>

<p> Negligence. </p> <p>In actions by the engineer of a building for being scalded and made blind by the explosion of a shelf of a steam oven, respectively against his employer and against a corporation which furnished and set up the oven in the building, if it appears that the apparatus was intended simply for heating dishes and warming food and was not intended to carry high pressure, and that the accident might have been caused by the plaintiff’s intentional or thoughtless manipulation: of a valve which let into the oven a .dangerous pressure of steam, and there is no evidence tending to show any defect in the apparatus or in the plan of its construction, and no intelligible explanation of the accident is offered which is consistent with due care on the part of the plaintiff, verdicts should be ordered for both defendants.</p>

<p>Contract by the widow of Charles C. J. Spear, late of Dover, a retired member of the Boston Police Relief Association, incorporated under St. 1876, c. 16, amended by St. 1882, c. 78, against that corporation. Writ dated June 14, 1906.</p> <p>The defendant filed a petition for interpleader to summon in certain claimants, upon which an order of notice was issued to Charles E. Spear of Roslindale as one claimant and Orline G. Richards whose residence was unknown as another claimant. The order of notice was served by publication and otherwise, and by an order of court on September 25,1906, Charles E. Spear and Orline G. Richards were made defendants and the Boston Police Relief Association was stricken out as a party, having paid into court the sum of $972.92, being the original sum claimed, to wit $1,000 less the costs awarded by the court.</p> <p>The case then proceeded between the plaintiff and the claimants Charles E. Spear and Orline G. Richards, the last named being represented by counsel in accordance with a stipulation signed by the other parties and filed in court.</p> <p>The material facts are stated in the opinion.</p> <p>In the Superior Court Pierce, J., who heard the case without a jury, found for the plaintiff and ordered that judgment when entered should be for the balance of the $1,000 deposited in court under R. L. c. 173, § 37, namely, for the sum of $972.92. A judgment was entered in accordance with this order, from which the claimants appealed.</p>

<p>Contract on a promissory note. Writ in the Municipal Court of the City of Boston, where there was a trial and judgment for the plaintiff, dated May 24,1904. On appeal to the Superior Court for the county of Suffolk, the case came on for trial in the session without a jury and the defendant made a motion that it “ be removed from the ‘ jury waived ’ list and placed upon the list from which he may get trial by jury.” His motion was supported by an affidavit of one McNamara stating in positive terms that he had filed a claim for a jury trial on behalf of the defendant with the assistant clerk of the Superior Court on the entry of the appeal. The motion was heard by Mitchcoch, J., and there was testimony, which is described in the opinion, of the assistant clerk referred to in the affidavit of McNamara. The motion was denied • and the defendant excepted and appealed.</p> <p>Upon the case being reached for trial, the defendant’s attorney stated that the defendant “ was not in court because he denied the jurisdiction of the court, claiming that he had a right to trial by jury.” The presiding judge ordered the defendant defaulted, to which the defendant excepted.</p>

<p>Two ACTIONS OE contract. Writs in the Supreme Judicial Court for the county of Suffolk dated respectively May 3, 1898, and July 18, 1898. The Eastern Expanded Metal Company will hereinafter be called the plaintiff, and the Webb Granite and Construction Company the defendant.</p> <p>The first action is on a quantum meruit for labor and materials furnished in the erection of the Hotel Somerset in Boston, and the answer alleged that the labor and materials were furnished under an entire and indivisible contract in writing which the plaintiff had refused to perform completely and had broken in other respects specifically set out, among them in that the plaintiff, while contracting to conform with the building laws of the city of Boston, had failed to furnish in the work steel and other materials in conformity with such laws.</p> <p>In the second action the defendant sought recovery from the plaintiff for breach of the contract in writing which lie had set up in defence to the first action, and the defence of the plaintiff was that such contract was illegal.</p> <p>The main facts upon which the controversy between the parties is based are stated in the opinion.</p> <p>The cases were referred to. an auditor who made a report. There was a trial before- Sheldon, J. The question submitted to the jury and referred to at the beginning of the second paragraph of the opinion was as follows:</p> <p>“Did the plaintiff, when it executed either of the agreements with the. defendant, have actual knowledge that the agreement called for a roof with a pitch of more than 20 degrees ? ”</p> <p>The jury answered in the negative.</p> <p>On facts admitted by the parties the presiding justice ruled that the contract in writing set up in defence of the first action and as the basis of the second action was illegal and could not be relied on for either purpose, and the defendant excepted.'</p> <p>It appeared that, after discovery by the plaintiff of the illegality of the contract, there were negotiations between the parties looking toward a new arrangement either for the construction of the roof as planned or of a roof which would conform with St. 1892, c. 419, § 64. During such negotiations the plaintiff employed one Mace Moulton to make some plans as to the roof. These plans were never delivered to the defendant, and no recovery for them was sought by the plaintiff. The defendant contended that the making of such plans was the performing of illegal work under the contract and barred recovery on a quantum meruit for lawful work already performed. It was admitted by the defendant that no work on the roof other than the making of the plans was done by the plaintiff. The presiding justice ruled that the making of the plans was not work on the roof and charged the jury on the subject as follows:</p> <p>“ Nor is the plaintiff precluded from recovering in this case by the fact, which I understand both parties agree to be the fact, that Mace Moulton worked upon plans for the roof in question either before or after the plaintiff knew of the illegal pitch of the roof. As long as they did the work either for their own convenience or otherwise in having the plans drawn, but did not turn those plans over to the defendant and did not themselves perform any work either upon the roof or on the trusses or structural steel for the roof to be made with this illegal pitch, the mere fact that they told Moulton to prepare plans for the roof, whether he was to prepare them for a legal or an illegal roof, being something which they did, so far as they did it, in looking forward to possible future agreements that were not afterwards made, would not prevent them from recovering.”</p> <p>At the trial before the auditor and at the trial before the jury, it appeared that some of the structural steel furnished by the plaintiff was not of sufficient strength to comply with the requirements of St. 1892, c. 419, and that the defendant was obliged to re-enforce certain members and was put to an expense of $3,418. The auditor in his finding deducted this expense from the claim of the plaintiff as being a legitimate lessening of the benefit to the defendant of the labor and materials furnished by the plaintiff. At the trial before the jury, the parties agreed that, if there was any finding in favor of the plaintiff, it should be in the amount found by the auditor. The jury found for the plaintiff.</p> <p>The defendant did not contend either at the trial before the auditor or at the trial before the jury that the furnishing of steel not in accordance with St. 1892, c. 419, precluded recovery by the plaintiff on a quantum meruit. It did so contend on the argument of its exceptions.</p> <p>The defendant filed numerous requests for rulings which were refused by the presiding justice, to which refusal it excepted. What such requests were sufficiently appears in the opinion. Among them was the following:</p> <p>“If the court should rule and instruct the jury that the contract of November 8,1897, as modified by the contract of December 17, 1897, was an illegal contract and void, and that it was no defence to this action under the quantum meruit on that ground, then upon all the evidence in this case the plaintiff in this case cannot recover.”</p>

Tort by the administrator of John A. Nauss. Writ in the Superior Court for, the county of Essex dated February 4, 1904.

<p> jEvidence. Municipal Corporations. </p> <p>The decision of a city to undertake the public service of removing ashes from buildings in the city is not a legislative act and can be proved by evidence other than an ordinance.</p> <p>Employees of a city, acting within the scope of their employment and in performance of the public service of removing and disposing of ashes from buildings in the city, but not in pursuance of any order of the city council, deposited ashes in a watercourse on private land and thus caused water to collect and percolate through the soil into a cellar on land of an adjacent owner, who brought an action against the city for damages thus incurred by him. Held, that such act, whether intentional or negligent, was an act done in the public service and was not in contemplation of law the act of the city and imposed upon the city no liability.</p> <p>Discussion by Loeing, J. of the question whether there is any distinction as to the liability of a municipal corporation for wrongful acts of its employees in the scope of their employment in work of a public nature, between acts of intentional and acts of negligent wrongdoing.</p>

<p>Tax. Corporation, Domestic, Taxation. Ship. Statute, Construction. Words, “Merchandise.”</p> <p>Steamships owned by a domestic corporation and used by it in the coastwise transportation of freight and passengers between domestic ports are merchandise within the meaning of St. 1903, c. 437, § 74, relative to the taxation of the corporate franchises of domestic corporations.</p> <p>The word “ merchandise ” in St. 1903, c. 437, § 74, so far at least as respects chattels, must be construed as including tangible property which may be the subject of sale.</p> <p>Review by Hammond, J., of the history of the legislation in this Commonwealth upon the subject of the taxation of corporations.</p> <p>Two PETITIONS filed respectively June 6, 1906, and April 13, 1906, in the Supreme Judicial Court for the county of Suffolk, brought under St. 1903, c. 487, § 84, each for the abatement of an excise tax assessed upon the petitioner under § 74 of that statute.</p> <p>The cases were heard on petitions and answers by Sheldon, J. and by him reserved for the consideration and determination of the full court. The facts appear in the opinion.</p>

<p> Assault and Battery. Innkeeper. </p> <p>- In actions against an innkeeper for assault and battery, if there is evidence warranting a finding that the plaintiffs in company with another person were conducting themselves improperly as guests of the hotel of the defendant, and that the defendant properly refused to serve them further and ordered them to leave the hotel, the defendant is entitled to have the jury instructed that, if the plaintiffs wrongfully refused to leave the defendant’s premises when requested, the defendant and his servants had a right to remove them and that their resistance to such removal was unlawful.</p> <p>An innkeeper has a right to order a guest of his hotel who has been conducting himself improperly to leave the hotel, and, if he wrongfully refuses to leave when requested to do so, the innkeeper may remove him using no more force than is reasonably necessary, whether the guest has continued to behave improperly or not.</p>

<p> Negligence. Railroad. </p> <p>If a track man in the employ of a railroad company, who is one of a gang of six men in charge of a foreman, when he is working alone digging out the snow on a track at a place where trains are likely to come at any time, turns his back upon the station, about half a mile away on a straight track, from which all trains come upon that track, and fails to look in that direction for at least three or four minutes, and then is struck by a train, he is not in the exercise of due care, and it is no excuse for his negligence that he was not warned of the approach of the train by the foreman who was directing the work of the other men of the gang at a point three hundred and fifty feet farther away than the plaintiff was from any train approaching on that track.</p>

<p>Negligence, Employer’s liability. Evidence, In rebuttal. Practice, Civil, Conduct of trial.</p> <p>In an action by the driver of a coal team against his employer for personal injuries from being struck by the top of the doorway of a coal shed of the defendant as the plaintiff was driving through it on the seat of a wagon about six feet and an inch above the ground, if it appears that the plaintiff had been employed by the defendant about sixteen months and was accustomed to drive through this doorway frequently, and the plaintiff testifies that he “ could not go under there without ducking. He always bent in case of anything happening anyway. . . . He never had tried to go through there sitting upright,” and it also appears by the plaintiff’s testimony that if a portion of an old chute projected below the line of the top of the doorway it was there when the plaintiff entered the defendant’s employment, the plaintiff cannot recover, as his testimony shows that the accident was caused by his neglect to lower his head sufficiently in passing through the doorway under conditions with which he long had been familiar, an injury from the projection of the old chute, if such a projection existed, being one of the open and obvious risks of the plaintiff’s contract of service.</p> <p>The exclusion of evidence offered by a plaintiff in rebuttal, which he should have introduced at the beginning of the trial as a part of his case, is within the discretion of the presiding judge and is not subject to exception.</p>

<p>Fraternal Beneficiary Corporation. Insurance, Life. Suicide. Contract, Construction. Evidence, Best and secondary.</p> <p>In an action on a certificate of a fraternal beneficiary corporation for a death benefit, where the certificate'contains no provision as to death by suicide and where by the terras of the contract the beneficiary could be changed by the member at any time before his death, the plaintiff cannot recover if the member voluntarily killed himself while he was of sound mind, it being an implied condition of the contract that the member should not take his own life.</p> <p>'Whether the rule referred to in Daniels v. New York, New Haven, Hartford Railroad, 183 Mass. 393, 397, that, if death is the result of volition by one who has a conscious purpose to end liis life and has intelligence to adapt means to ends, it is his own act within the meaning of a policy of life insurance which excepts from the terms of the contract cases of death by suicide or by the hand of the assured, even though he is so far insane as not to be morally responsible for his conduct, could be applied to a policy or certificate of insurance which contains no provision as to death by suicide, it here was not necessary to decide, because the trial judge found as a fact that the insured committed suicide while he was of sound mind.</p> <p>In an action on a certificate of a fraternal beneficiary corporation for a death benefit, where one of the questions was whether the member whose life was insured was insane when he shot himself or whether he was acting intelligently with a motive to escape punishment for crime and perhaps to obtain through his insurance policies a large amount of money for his family, the defendant introduced evidence that for ten or twelve years the insured had been engaged in a series of embezzlements of sums of money entrusted to him to lend for the owners, for which he was accustomed to return fictitious and forged notes and mortgages. Against the objection and subject to the exception of the plaintiff, two witnesses, who had examined the books of account of the insured, were permitted to testify, without producing the books, what they had found them to contain, the witnesses having no knowledge of the matters in question except that which they had obtained from their examination of the books and from their investigations. Held, that, assuming that the books were competent evidence as to a'part of the conduct of the insured to be considered in connection with his later conduct as bearing upon the question whether he was insane, the contents of the books could not be proved by oral evidence against the objection of the plaintiff without producing the books themselves.</p>

<p>Bond. Constable. Officer. Practice, Civil, Verdict. Evidence, Docket entries, Extended record.</p> <p>Under Pub. Sts. c. 27, §§ 113,115, now R. L. c. 25, §§ 88, 90, requiring a constable to give a bond “ for the faithful performance of his duties in the service of all civil processes committed to him ” and providing that “ any person injured by the breach of the condition of such bond may at his own expense institute a suit thereon in the name of the town ” or city to which the bond was given, a bond given by a constable which contains this condition is a good statutory bond although it contains also other conditions not required by the statute; but the - remedy given by the statute to a person injured by a breach of the condition of such a bond is confined to a breach of the condition required by the statute.</p> <p>If in the service of civil process and for the purpose of making such service a constable commits an unlawful assault, semble that this is a breach of the condition of his statutory bond and that he may be sued on his bond by the person assaulted; but to make him liable the act must have been done under color of • his office.</p> <p>In an action on a constable’s bond where the evidence relied on to show a breach of the bond is the extended record of a judgment in a previous action brought by the plaintiff in interest against the same defendant, if it appears by the extended record that in this previous action the declaration contained three counts, the first for an assault, the second for assault and false imprisonment and the third for malicious prosecution, and that a general verdict was returned for the plaintiff in a sum named, and there is nothing in the record as extended to indicate upon which count or counts the jury returned their verdict, this shows no breach of the defen dant’s bond, as, however it might be if the verdict had been returned on the first or the second count, if the verdict was returned on the count for malicious prosecution, the acts of the defendant alleged and proved could not have bc-en performed under color of the defendant’s office in the service of civil process.</p> <p>Although docket entries may be regarded as the record of a case until the record has been extended, and also may be admissible to show that a record as extended should be amended in the case itself, yet when the record as extended is offered in evidence in another case, the docket entries are not admissible to show a fact which does not appear by it.</p>

<p>Tort for an assault and battery. Writ in the Municipal Court of the City of Boston dated October 10, 1905.</p> <p>There was a trial in the Superior Court before Bond, J. The plaintiff’s evidence tended to establish an unprovoked assault and battery on the plaintiff by the defendant. On cross-examination he denied that he was under the influence of intoxicating liquor at the time of the assault, and denied that he had been drinking intoxicating liquor that morning, and further testified that he never drank intoxicating liquor in his life. Other witnesses called by the plaintiff testified that they never ■ knew him to drink liquor, and never saw him under the influence of intoxicating liquor.</p> <p>The defendant’s evidence tended to establish that the plaintiff was intoxicated, accosted the defendant and, on the defendant’s replying, made a move to strike him and fell, thereby receiving the injuries complained of. The defendant then offered evidence tending to show that the plaintiff was, and for a long time had been, a drinking man, and that he was frequently drunk, which was excluded, and to the exclusion of which the defendant excepted. There was a verdict for the plaintiff.</p> <p>The case was submitted on briefs.</p>

<p>Contract. Writ in the Municipal Court of the City of Boston dated April 8, 1905.</p> <p>The first and second counts set forth claims based on contracts as to the purchase and sale of stock, and are alike except for differences in dates of transactions and names and prices of stocks and the items in the accounts annexed showing amounts paid by or to be credited to the plaintiff. They allege that the defendant was a stockbroker and that he agreed with the plaintiff to purchase for her certain stock at the then market price plus a commission, in consideration of an initial payment of a specified sum by her as margin and of payment by her of such further sums as should be necessary to protect him from loss due to fall in the market price of the stock, he to charge her with interest on the amount of the purchase price of the stock and to eredit her with dividends paid on it, to sell at market price when directed by her to do so and to pay to her the profit on the transaction. The breach of contract alleged in each count is a failure to pay the profit after the plaintiff ordered á sale.</p> <p>The third count is similar to the first and second excepting that it alleges not only that the defendant agreed to sell when directed to by the plaintiff but also that he further agreed to deliver the specified stock to the plaintiff upon three days’ notice from her and upon payment of the balance due to him from her upon that stock, and that it alleges that the plaintiff, at a time when she owed the defendant nothing, gave the required notice and demanded the stock, but that the defendant refused to deliver it.</p> <p>The defendant in his answer, besides a general denial, set up payment, release and discharge, and that the alleged contracts were illegal and void at common law and by virtue of R,. L. c. 74, § 7. The question of release does not appear to have been raised at the trial.</p> <p>The defendant also filed a declaration in set-off in two counts alleging that on certain specified dates the plaintiff contracted with him upon margin to buy of him, and he contracted with her upon margin to sell to her, certain securities, he intending that there should be no actual purchase or sale and she having cause to believe that such intention existed; and that on such contracts he paid her certain specified sums set out in an account annexed, which he claimed the right to recover under R. L. c. 99, §§ 4-6.</p> <p>The answer to the declaration in set-off set up a general denial and payment.</p> <p>In the Superior Court the case was referred to an auditor, and upon the filing of his report the defendant moved that it be setting out specifically as the grounds of his motion certain alleged error's of law in the auditor’s findings. The was denied, and the defendant filed no exception or appeal from the order denying that motion.</p> <p>At the trial, which was before Hardy, J., the defendant moved to strike out certain findings in the auditor’s report, and his motion was denied and the defendant excepted. Upon the offering the report in evidence, the defendant objected to allowing the portions containing these same findings to be read to the jury, but the presiding judge allowed the entire report to be read and admitted in evidence, and the defendant excepted. The alleged errors of law in the auditor’s findings are included in the requests for rulings and instructions hereinafter set out.</p> <p>The auditor’s report contained among others the following findings of fact:</p> <p>The accounts stated by the plaintiff as to the various transac-I tions were correct.</p> <p>The plaintiff was of a low grade of intelligence and imperfectly educated, absolutely ignorant of the business of buying and selling stocks and, before her transactions with the defendant, had never been in a broker’s office. ,</p> <p>The defendant carried on business ostensibly as a stockbroker with a central office and several branch offices. The plaintiff dealt in a branch office of which one Emerson was manager, where he was assisted by a Mrs. Crosby. This branch office was connected by telephone with the main office.</p> <p>In each of the transactions in question the plaintiff gave an order to buy stock to Mrs. Crosby who filled out a printed form called a “ buy slip,” telephoned the particulars to the central office and, as soon as the price at which the stock was tobe bought appeared on the ticker tape, again telephoned the central office and inquired whether the order had been filled, and was told it was. She told this to Emerson. All this was done in the plaintiff’s hearing. Emerson then filled out a printed form of ticket or contract which he delivered to the plaintiff. The plaintiff then paid the initial margin called for. Later payments of margin and receipts of dividends by the defendant were subsequently written upon the ticket or contract by Emerson. The three tickets or contracts corresponding to the three counts of the declaration were introduced in evidence respectively as Exhibits 1, 2 and 3. The forms upon which they were written were alike. The items written into the body of the tickets varied in particulars not material to the case. The following is Exhibit 1:</p> <p>Established 1890. Do business with a reliable house.</p> <p>(4812)</p> <p>Commercial Stock Co., Bankers and Brokers.</p> <p>(Page 35)</p> <p>Long distance Telephones Main 3597-4 24 Congress Street.</p> <p>Oxford 1379-5 128Aand 131 Tremont Street.</p> <p>Night ’Phone, 356-3 Newton Highlands 70 Devonshire Street.</p> <p>Chamber of Commerce.</p> <p>$317.50 Interest 66.00</p> <p>$251.50</p> <p>Boston, Jun 1 1903 (F)</p> <p>Mrs. Picard</p> <p>Has bought of us for his account and risk on Margin. (189f)</p> <p> </p> <p>Interest from Jun 1 1903 at 6 per cent, per annum will be charged on the purchase value of this stock.</p> <p>We solicit and will receive no business except with the understanding that the actual delivery of property Bought upon orders, is in all cases contemplated and understood. Three days’ notice required for the delivery of Stock.</p> <p>By the agreements made between the plaintiff and Emerson and Crosby, representing the defendant, the plaintiff was to be charged with interest on the purchase price of the stock at the rate of six per cent per annum, and was to be credited with the amount of dividends and rights declared on the stock. The defendant was to hold the stock so long as the plaintiff kept up her margin and in the transactions instanced in the first and second counts of the declaration was to sell it when directed by her to do so. In the transaction mentioned in the third count of the declaration, the defendant was to hold the stock so long as the plaintiff kept up her margin and was to sell out when directed by her, or to deliver the stock to the plaintiff on three days’ notice. In fact both purchases and sales were in all cases fictitious. No stock was ever actually bought or sold by the defendant and the transactions amounted, so far as the defendant was concerned, to wagers on the probable rise or fall in the price of the stock, with the additional element that he charged a commission to his customers on the amount of the supposed purchases and sales. The defendant fraudulently held himself out as a broker making actual purchases and sales of stock for his customers, and the plaintiff in her transactions with him was deceived by this holding out and believed him to be acting as broker for her, and believed that he was making actual purchases and sales of stock for her account. She never saw and never asked to see certificates of the stock which she believed the defendant held for her, but she once asked Emerson if the defendant really bought stock, to which Emerson replied: “ Certainly, Mr. Beers buys the stock and your ticket is a voucher. The stock is held in your name.”</p> <p>The breaches of contracts set out in the various counts of the declaration the auditor found to have occurred as alleged.</p> <p>Exhibit 10, referred to in the defendant’s requests for rulings, contained the tickets or contracts relating to the transactions referred to in the declaration in set-off. Exhibit 11 contained tickets or contracts in other transactions between the plaintiff and the defendant which were introduced in evidence by the defendant to show that the plaintiff must have known the real nature of the transactions between them. The defendant introduced further evidence on this latter point at the trial, including evidence that the plaintiff made a contract with the defendant for at least one short sale of stocks upon the settlement of which he paid or credited to her on other transactions certain of the money declared for in his declaration in set-off; also that all the contracts relative to the securities set forth in the defendant’s declaration in set-off were settled either by payment of differences in each or by credit to her on other transactions.</p> <p>The defendant, in his first three requests for rulings, requested that the jury be instructed to disregard the findings of the auditor that the defendant owed the plaintiff under the first three counts of the declaration. The next eight requests were that the jury be instructed to disregard the following findings of the auditor:</p> <p>(4) That the defendant contracted with the plaintiff as her broker to buy and sell for her the stocks set forth in Exhibit 10 of the auditor’s report.</p> <p>(5) That the plaintiff did not have reasonable cause to believe that the defendant intended at the time of contract with her relative to the several stocks set forth in his declai-ation in set-off and again in Exhibits 10 and 11 of the report, that there should be no actual purchase or sale.</p> <p>(6) That the plaintiff believed the defendant intended actually to purchase for her account the stocks specified in the declaration in set-off and again appearing in Exhibit 10 of the report.</p> <p>(7) That it appeared from the testimony and the tickets or contracts, appended to the report as Exhibits 10 and 11, that the plaintiff had employed the defendant to buy and sell stocks including those specified in the declaration in set-off and also appearing in Exhibits 10 and 11 of the report.</p> <p>(8) That the plaintiff believed the transactions, as to the stocks specified in the declaration in set-off, were real ones as distinguished from fictitious ones.</p> <p>The presiding judge refused all of these requests and the defendant excepted.</p> <p>The defendant further requested that the jury be instructed:</p> <p>(9) That if the defendant was not, at the time of each of the contracts relied on by the plaintiff in her declaration, the owner or assignee of the stock contracted for or authorized by the owner or assignee thereof to sell the same, that contract was invalid under § 7 of c. 74 of R. L. and she could not recover upon such contract or for breach thereof.</p> <p>(10) The papers set forth as Exhibits 1, 2 and 3 of the report are contracts between the plaintiff and the defendant wherein they contract together as principals and not as principal and broker.</p> <p>(11) The papers set forth in Exhibit 10 of the report and numbered 2017 and 2035 are contracts between the plaintiff and the defendant as principals and not as principal and broker.</p> <p>(12) Aside from those numbered 2017 and 2035 the papers set forth in Exhibit 11 of the report are contracts between the plaintiff and the defendant as principals and not as principal •and broker.</p> <p>(13) The papers set forth as Exhibits 1, 2 and 3 of the report are memoranda of contracts between the plaintiff and defendant wherein they contract together as principals and not as principal and broker, and these contracts so far as covered by these memoranda cannot be varied by extraneous testimony.</p> <p>(14) The papers set forth in Exhibit 11 of the report and numbered 2017 and 2035 are memoranda of contracts between the plaintiff and the defendant as principals and not as principal and broker, which contracts so far as covered by these memoranda cannot be varied by extraneous testimony.</p> <p>(15) The papers, aside from those numbered 2017 and 2035, set forth in Exhibits 10 and 11 of the report are memoranda of contracts between the plaintiff .and the defendant as principals and not as principal and broker, which contracts so far as covered by these memoranda cannot be varied by extraneous testimony.</p> <p>(16) If it appear that a transaction set forth in the declaration in set-off was settled by the payment of differences and that no actual purchase or sale of the stock was made, that is prima facie evidence that the plaintiff in set-off had within §§ 4, 5 and 6 of c. 99 of R. L. an affirmative intention that there should be no actual purchase or sale of that stock, and that the defendant in set-off had reasonable cause to believe he so intended.</p> <p>(17) If you find that ticket or contract numbered 4774, appearing in Exhibit 11 of the report, was settled by the decline in the market price of that stock equalling or exceeding the amount of the margin thereon, that fact is prima facie evidence that Beers intended no actual purchase or sale of that stock and that Mrs. Picard had reasonable cause to believe that such was his intention.</p> <p>These requests also were refused and the defendant excepted.</p> <p>The presiding judge explicitly charged the jury that, in order to find for the plaintiff either upon the declaration or upon the declaration in set-off, they must find that the defendant was acting for her as her broker. There were no exceptions to the charge to the jury. The verdict was for the plaintiff.</p>

<p>Contract for rent accruing under a lease of premises by the plaintiff to one Sheehy, the lease having been assigned to the defendant by Sheehy. Writ in the Superior Court for the county of Suffolk dated March 17,1904.</p> <p>There was a trial before Pierce, J., without a jury, upon an agreed statement of facts and a finding and judgment for the defendant. The plaintiff appealed.</p> <p>Of the facts agreed upon the following are material:</p> <p>The plaintiff leased a store on Washington Street in Boston to one Sheehy by an instrument dated September 1, 1900, for a term of five years, rent to be paid on the first day of each month. Coincidently with a voluntary assignment for the benefit of his creditors made by Sheehy in 1900, the plaintiff executed under seal an instrument whereby he agreed “ that any assignment for the benefit of creditors, or petition in bankruptcy by or against said Sheehy ” should not be a breach of the lease. The purpose of the assignment for the benefit of creditors made in 1900 was fulfilled and a re-assignment of all the property covered thereby made to Sheehy.</p> <p>Sheehy made another such assignment on April 18, 1903, and the lease was specifically included therein. The defendant was the assignee and he accepted the assignment, entered upon the premises and carried on the business there with large signs in the window, “ Assignee’s Sale, George Strong, Assignee.” Sheehy acted as the defendant’s agent in the conduct of the business. The defendant paid the plaintiff rent for a period up to October 1, 1903.</p> <p>The defendant re-assigned the lease to Sheehy September 29, 1903. No notice was given to the plaintiff of such re-assignment and he had no knowledge of it. There was no apparent change in the occupation, Sheehy remaining in charge as before, and until November 3, 1903, the plaintiff thought the defendant was still occupying as he had since April 18. '</p> <p>On October 30, 1903, the defendant settled his accounts with Sheehy. On November 3, 1903, the premises were vacated. This action is for rent for the months of October and November, 1903.</p>

<p>Contract. Writ in the Superior Court for the county of Suffolk dated October 6, 1905.</p> <p>The plaintiff alleged in its writ that it was a corporation duly-organized under the laws of the State of Maryland and having a usual place of business in Baltimore in that State.</p> <p>The declaration merely stated in two counts that the defendant owed the plaintiff certain sums according to an account annexed which is not material. The answer was as follows:</p> <p>“ Now comes the defendant in the above entitled cause and for answer denies each and every allegation in the plaintiff’s writ and declaration therein contained.”</p> <p>There was a trial before Hardy, J., November 20, 1906, at which, before any evidence was offered by either party, the defendant moved to amend his answer by adding thereto the following:</p> <p>“ And further answering the defendant says that the plaintiff, on the day of the commencement of this action, prior thereto and to the present time, had and has had a usual place of business in this Commonwealth, and was and is transacting business in this Commonwealth within the meaning of Sections 58, 60 and 66 of Chapter 437 of the Acts of 1903 and failed and has failed to comply with the requirements of said sections of said chapter.” The motion was denied and the defendant excepted.</p> <p>Other facts are stated in the opinion.</p>

<p>Probate Court, Appeal. Separate Support.</p> <p>An appeal from a decree of the Probate Court dismissing a petition for revocation of a former decree of the same court made upon a petition for separate support under R. L. c. 153, § 33, should not be entered in the Supreme Judicial . Court under R. L. c. 162, § 9, but in the Superior Court under R. L. c. 162, § 18.</p>

<p>Negligence, Employer’s liability. Railroad.</p> <p>In an action under R. L. c. 106, § 71, cl. 3, and § 73, it appeared that the plaintiff’s husband was a railroad man of twenty-two years’ experience, most of it as freight brakeman and freight conductor, and had been working in the defendant’s yard for two or three years before the accident, that he was run upon and killed by an engine of the defendant which backed upon him without its bell being rung as he crossed a track in the yard diagonally with his back to the engine, the track being one that was used irregularly but might be used at any time. The yard contained a great many tracks,- a coal house, turntable and ash pit and was in constant use. There was no rule requiring engineers to ring bells in the yard. Held, that there was no evidence that the plaintiff's husband was in the exercise of due care.</p>

<p>Contract, on a poor debtor recognizance, against the defendant Herbert W. Cook, hereinafter called the defendant, as principal and the defendant Barlow M. Cook as surety. Writ in the Municipal Court of the City of Boston dated November 10,1905.</p> <p>On appeal to the Superior Court, there was a trial before Hardy, J. The plaintiff’s evidence established the following facts:</p> <p>The plaintiff brought an action in the Municipal Court of the City of Boston against one Field of Boston, two other parties described in the writ as of Salem, and the defendant Cook described in the writ as of Lynn in the county of Essex and having a usual place of business in Boston in the county of Suffolk. He procured judgment, execution, and under R. L. c. 168, §§ 17, 18, a citation in the poor debtor session of the Municipal Court of the City of Boston against the defendant and others, all of whom appeared pro se in that court. In the citation and several successive executions the defendant was described as he had been in the original writ. After several continuances, the defendant Cook was defaulted and, a certificate of arrest under R. L. c. 168, § 20, issuing, he was arrested at Lynn by a Lynn constable and taken before the judge of the Lynn Police Court, to whom he protested that his arrest was illegal and that the court had no jurisdiction. The judge of that court declined to hear the question of jurisdiction until the defendant had entered into a poor debtor recognizance. The defendant under protest thereupon entered into such recognizance, the condition of the bond being as follows:</p> <p>“ That the said Herbert W. Cook within thirty days from the time of his arrest, as above-mentioned, will deliver himself up for examination, before some magistrate authorized to act, giving notice of the time and place thereof in the manner provided in and by the one hundred and sixty-eighth chapter of the Revised Laws of the said Commonwealth, and the Acts amendatory thereof and supplementary thereto, and appear at the time fixed for his examination, and from time to time, until the same is concluded, and not depart without leave of the magistrate, making no default at any time fixed for his examination, and abide the final order of the magistrate thereon; and if the said Herbert W. Cook shall in all respects observe, perform and keep the said condition, then this recognizance to be void, otherwise to be and abide in full force.”</p> <p>Eight days afterwards, having given the notice required by R. L. c. 168, § 33, the defendant was heard on the question of jurisdiction, and the judge found that at the time of the application for the certificate authorizing the arrest of the defendant he had no place of abode or place of business in Suffolk County but that he both lived and had his usual place of business in Lynn in said county of Essex at the time of said application. He therefore found that the arrest was illegal and discharged the defendant for want of jurisdiction.</p> <p>At the close of the plaintiff’s case the defendant requested the presiding judge to rule that the plaintiff was not entitled to recover against the defendant, which he declined to do, and the defendant excepted.</p> <p>The defendant thereupon offered evidence to prove that at the time of the issuance of the certificate of arrest by virtue of which he was arrested he neither lived nor had a usual place of business in Suffolk County, but that he lived and had a usual place of business in Lynn in the county of -Essex. The evidence was excluded as immaterial and the defendant excepted.</p> <p>The defendant made several requests for rulings among which was the following:</p> <p>2. That upon all of the evidence in the case there was and has been no breach of recognizance declared on and judgment must be rendered for both of the defendants. The request was refused and the defendant excepted.</p> <p>At the close of the evidence the presiding judge at the request of the plaintiff and against the objection and subject to the exception of the defendant directed the jury to find for the plaintiff, which they did.</p>

Complaint, received and sworn to in tbe First District Court of Northern Worcester on July 27,1905, charging, under R. L. c. 76, § 8, in one count that the defendant at certain specified times and at Gardner in this Commonwealth “ did hold herself out as a practitioner of medicine, the said Hanna Porn not being then and there registered as a qualified physician by the board of registration in medicine as required by law and not being then and there authorized to practise…

<p>Two petitions for writs of mandamus directing the defendant, the general secretary-treasurer of the Boot and Shoe Workers Union, to issue to the petitioners certificates of their election as general president and general vice-president, respectively, of that organization, filed November 8, 1906.</p> <p>There was a hearing on the petitions, answers and evidence introduced by both parties before Morton, J., who reserved and reported the cases upon the pleadings and a statement of facts by him for determination by the full court.</p> <p>In view of the decision, the following only of the facts alleged in the petitions and answers and statement of facts are material:</p> <p>The petitioners and the respondent were members of the Boot and Shoe Workers Union, a voluntary national organization “composed of male and female boot and shoe workers organized in local unions or as members at large.” In the constitution of the organization appear the following:</p> <p>Under the heading “ Government,”</p> <p>“ Section 3. The government of all local unions and members shall be vested in this general union as the supreme head, to which all matters of general importance shall be referred and whose decision shall be final.</p> <p>“ The -administrative power of this general union, when not in convention, shall be vested in the general officers, subject to control of joint action of the general executive board. . .</p> <p>Under the heading “ General Officers — Duties,”</p> <p>“ Section 4. The general officers of this general union shall be a general president, a general vice-president, and a general secretary-treasurer.</p> <p>“ These officers shall at all times be subject to the control and instruction of joint action of the general executive board.”</p> <p>Under the heading “ General President,”</p> <p>“ Section 5. The general president shall be the chief executive officer of this union.</p> <p>“ He shall enforce the laws, decide all constitutional questions (subject to an appeal to the general executive board), be ex-officio member of all committees and boards . . . report in detail to the general executive board. . . .</p> <p>“He shall be paid two thousand dollars per annum and all legitimate expenses.”</p> <p>The general vice-president was to perform all the duties of the general president in case of his death, resignation or removal from office, and, when called upon by the general president, perform such duties as might be assigned to him. His salary was $1,800 per annum.</p> <p>The general secretary-treasurer had the usual duties of such an office, and was to “ keep all records of conventions and of the general executive board, ... be ex-officio a member of all committees and boards . . . issue all credentials, . . . perform such other duties as this constitution or the general executive board may assign, and be responsible to the general executive board for efficiency of his office administration.”</p> <p>Under the heading “ General Executive Board,” it is provided that such board shall “ hold all property as trustees, have power to require of any officer full detailed statements of the business of the office, have power by majority vote to remove any officer for unfaithfulness or incompetency, hire suitable headquarters as directed by union, decide appeals from decision of general president, decide all questions of usage wherein the constitution is silent, issue and revoke charters, levy assessments when they deem it necessary, perform such other duties as this constitution may provide, and at all times consider the welfare of the organization superior to persons and places in arriving at decisions.”</p> <p>Under the heading “ Election of General Officers, General Executive Board and General Auditors,” it is provided that such officers “shall be elected annually by a popular vote. The candidate receiving the largest number of votes shall be declared elected.” Under the same heading occur the following:</p> <p>“ Section 19. During August the general executive board shall select three local unions, each of which unions shall elect by written ballot one member in good standing who is not a candidate for any national office, to serve as general inspector's of election. Each union so selected shall notify the general secretary-treasurer of the name and address of the member elected, and shall give the member a certificate of election to be presented at headquarters.</p> <p>“ Section 20. The general inspectors of election shall meet . . . the Monday after election, and in the presence of each other open the envelopes or boxes containing the votes, etc., and proceed to count the ballots, and at 10 A. M. on the second Monday after election they shall declare the polls closed, ascertain and verify the result of the election, and they shall at once prepare a report of the same to be submitted to the local unions by the general secretary-treasurer. They shall place all votes, etc., together with a copy of their report, in a box, which shall be closed and sealed by them, and kept at headquarters, subject to the order of the general union.</p> <p>“The report of the general inspectors of election shall be forwarded to the local unions within ten days after the result is announced.</p> <p>“ Any candidate may demand and receive a recount upon the petition of one joint council or five local unions, provided such petition is presented within thirty days after announcement of the general inspectors of elections.</p> <p>“ Candidates for general president, vice-president, secretary-treasurer and general executive board may have one representative present during the recount of the ballots. . .</p> <p>“ Section 21. All officers shall be installed by mail and take office on the first of the month succeeding the completion of the election.”</p> <p>A “joint council” is a council composed of delegates from local unions in one city or town.</p> <p>Under the heading “ Appeals,”.</p> <p>“Section 106. Appeals against the decision of any officer, committee, board, union or council shall be presented in writing to the next highest authority, and no appeals shall be considered unless the appellant conforms to the decision appealed from, pending decision on the appeal.”</p> <p>Under the heading “ Conventions,”</p> <p>“Section 108. A convention shall be called for the third Monday in June, provided a majority of all local unions have in the preceding January, voted in favor of holding same, and special conventions may be called at any time on official vote and request of a majority of all local unions.”</p> <p>Paragraph 3 of section 20, quoted above, was first adopted by a convention of the organization in June, 1906. As originally reported to the convention, there were added at the end of the paragraph the following words, “ provided such joint council or five local unions can furnish sufficient evidence to the general executive board justifying the recount,” but this was objected to and finally stricken out by the convention and the paragraph as given above adopted.</p> <p>The defendant was the general secretary-treasurer of the organization.</p> <p>On September 13, 1906, elections were held in the various component local unions. At these elections John F. Tobin and Thomas B. Hickey, the petitioner, were the only candidates for president, and Collis Lovely and Charles P. Murray, the petitioner, were the only candidates for .vice-president, and these four were all members of the union, 'qualified to serve as president and vice-president, if elected. The ballots cast at the local unions were sent to the general offices in Boston, and there came into the hands of Michael H. Lydon, Edgar Y. Lucas and Walter H. Edmonds, who were, at the time of the returns of these votes, the lawfully constitued board of inspectors of elections, provided for by section 20 of the constitution. This board met in accordance with section 20 and voted by a majority vote to make a report to the general secretary-treasurer declaring the petitioners elected general president and general vice-president respectively. Michael H. Lydon, who voted against the making of such report, sent to the general secretary-treasurer a “ minority report ” setting forth various irregularities in the election, particularly as to local unions numbered 44 and 192, and stating:</p> <p>“ If this ballot is to stand, I would throw out the entire vote of Unions No. 44 and No. 192 as being the most flagrant cases of wholesale fraud, and would declare the following results:</p> <p>“ For General President— John F. Tobin received 4965 votes; Thos. B. Hickey received 4637 votes. John F. Tobin having received the highest vote is hereby declared elected.</p> <p>“ For General Yice-President — Collis Lovely received 4636 votes; Chas. P. Murray received 4299 votes. Collis Lovely having received the highest vote is hereby declared elected.”</p> <p>His report closes</p> <p>“ I hereby appeal to the general executive board, that they may take notice of the many irregularities as discovered by the inspectors of election, and adopt the minority report; or, what might be better still, to immediately take steps to the end that a new election be held, so that the wishes of the members- may be clearly understood.”</p> <p>The general secretary-treasurer sent letters to' all the local unions enclosing copies of both reports and stating that the general executive board would meet at Boston on October 24,1906, “ for the purpose of considering and taking action on the two reports submitted by the general inspector.”</p> <p>On October 23, 1906, the petitioner Hickey addressed the following letter to the general executive board:</p> <p>“Gentlemen: General Secretary-Treasurer C. L. Baine has notified the local unions that the general executive hoard will hold a meeting in Boston commencing Wednesday, October 24th for the purpose of considering and taking action on the two reports submitted by the general inspectors. There have not been two reports submitted by the general inspectors. The constitution provided that they shall ‘ prepare a report.’ It does not provide for the submission of two reports by them, and a so-called minority report of the dissenting members is not a report of the general inspectors.</p> <p>“ The general executive board has no authority to pass upon, revise or affect in any way the report of the general inspectors of election; and if you attempt to interfere with or nullify in any way the report of the general inspectors of election, I will invoke the aid of the courts to protect and inforce my rights, and the rights of the people who have elected me general president of the Boot and Shoe Workers Union.”</p> <p>The general executive board held its meeting on October 24 and 25, 1906, the two reports from the general inspectors of election and the letter from the petitioner Hickey were read and, the candidates Tobin and Lovely having authorized a statement to the board that they would abide by any decision that the board might make other than declaring them, Tobin and Lovely, elected to office, the board after extended deliberation voted to “ sustain the appeal of M. H. Lydon and order a new election to fill the offices of general president and general vice-president, the same candidates to contest,” and subsequently ordered such election to be held on December 6, 1906, giving notice to the local unions on October 29, 1906. On the latter date the secretary of the general board of inspectors wrote to the petitioner Hickey as follows :</p> <p>“ Dear Sir: A canvass of national election of 1906 by General Inspectors of Election shows that you have been elected President of the Boot and Shoe Workers Union.</p> <p>“ Edgar Y. Lucas</p> <p>“ Secretary of General Insp. of Election.”</p> <p>He also sent a similar letter to the petitioner Murray.</p> <p>On October 27,1906, due demand supported by petition for a recount of votes of the election was filed with the executive board by one Prout, a candidate for tbe executive board, who had been declared not elected, and between November 2 and November 6 such demands supported by petitions were made by Tobin and Lovely.</p> <p>On November 1, 1906, the petitioners respectively demanded from the respondent proper credentials of their election, and such credentials were refused.</p>

<p> Malicious Prosecution. </p> <p>At the trial of an action for malicious prosecution, there was undisputed evidence that the defendant caused a warrant to issue against the plaintiff charging an assault and battery by the plaintiff upon the defendant, that after a trial the plaintiff was acquitted, that before initiating the proceedings the defendant had consulted counsel and had been advised by him that there was ground for making the complaint, but the evidence was conflicting as to whether the plaintiff committed any assault upon the defendant and as to whether the facts which the defendant stated to his counsel and to the court in procuring the warrant were true. Held, that the questions whether an assault was committed, or, if not committed, whether the defendant made a fair and full disclosure to his counsel, and, after receiving advice, acted in good faith believing that the crime had been committed or that there was probable cause for thinking that it had been, were for the jury.</p>

<p>Bill in equity, filed in the Superior Court on June 19,1902, against the Globe Construction Company, a corporation organized under the laws of the State of Iowa, and certain persons constituting the partnership of George A. Fernald and Company, to establish a debt due to the plaintiff from the defendant corporation as a commission for work in connection with one E. S. Ells-worth in placing certain bonds under a contract in writing, which is quoted in the opinion, and to reach and apply in payment of such debt any sums of money due to the defendant corporation from the other defendants by reason of the contract of the partnership to purchase the bonds in question.</p> <p>In the Superior Court the case was heard by Fessenden, J., who made the following findings of fact:</p> <p>“ I find that the plaintiff was a broker in investment securities, residing in Chicago, Illinois; and that he made a contract in writing with the defendant, the Globe Construction Company, in said Chicago, a copy of which is hereto annexed. [This is the contract quoted in the opinion.]</p> <p>“ Within a few days after the making of this contract and in pursuance thereof and at the request of the Globe Construction Company, the plaintiff went to New York and there saw various bankers and other persons in reference to the purchase of the bonds of the Des Moines, Iowa Falls and Northern Railway Company.</p> <p>“ E. S. Ellsworth, mentioned in the contract, was the president of this Railway Company. The Globe Construction Company was engaged in constructing the railroad of the Railway Company and was entitled to its bonds in instalments of $70,000 upon the completion of each five-mile section in payment for the construction. Ellsworth was authorized by the Globe Construction Company to act for it in placing its bonds.</p> <p>“ Ellsworth made three or four visits to New York and was introduced by the plaintiff to parties with whom the plaintiff was in communication with reference to selling the bonds, and on such visits conferred with the plaintiff in reference to the sale of the bonds.</p> <p>“ About January 26,1902, Ellsworth commenced negotiations for the sale of the bonds with George A. Fernald and Company of Boston, and on February 1, 1902, George A. Fernald and Company agreed to purchase and did subsequently purchase eight hundred and sixty-six of the bonds. The plaintiff had no negotiations with George A. Fernald and Company and the sale to them was effected entirely by Ellsworth.</p> <p>“ During the time of the negotiations with George A. Fernald and Company of Boston, and after his arrival at New York, the plaintiff was carrying on negotiations with parties in New York and in correspondence with Ellsworth and the officers of the Globe Construction Company and was working in connection with said Ellsworth within the meaning of the contract as construed by me. There was a reasonable prospect of his succeeding in selling the bonds. On February 8, 1902, the plaintiff was informed by the Globe Construction Company that the bonds had been placed and his services were no longer needed.</p> <p>“ The plaintiff has been paid an agreed sum for his expenses, and $400 more.</p> <p>“ The defendant asked me for a ruling that on all the evidence the plaintiff was not entitled to a decree against the defendant the Globe Construction Company, and for a ruling that on the contract hereto annexed the plaintiff could not recover, unless he effected the sale of the bonds. Both these rulings I declined to give, and ruled that under the construction of the above contract the plaintiff was entitled to a commission of one per cent on the bonds placed with George A. Fernald and Company, less the sum of $400, which he received under an agreement to credit on account of commissions.</p> <p>“ I find that at the date of the suit and of the service of the subpoena and on the date of the interlocutory decree, the Globe Construction Company was indebted to George A. Fernald and Company, but that previous to those dates Fernald and Company had agreed in writing with the Globe Construction Company to purchase from it and the Globe Construction Company had agreed in writing to sell to George A. Fernald and Company all the bonds of the Des Moines, Iowa Falls and Northern Railway Company which it had not then sold, which amounted, as a matter of fact, to $866,000 face value, the bonds to be delivered as received by the Globe Construction Company in instalments of $70,000 on the completion of each five miles of the railroad, and paid for by Fernald and Company by sight draft.</p> <p>“ After the date of the service of the subpoena and the date of the interlocutory decree, and before the hearing, George A. Fernald and Company received under their contract all of the bonds, for which they became indebted under the contract to the Globe Construction Company in a sum sufficiently large to repay in full the amount due to George A. Fernald and Company and to pay the amount decreed to be due to the plaintiff in this case.</p> <p>“ No evidence was introduced to show the value of the rights of the respective parties under the agreement between the Globe Construction Company and George A. Fernald and Company.”</p> <p>The judge made a final decree that the defendant the Globe Construction Company pay to the plaintiff the sum of $9,994, being the amount of the indebtedness decreed to be due from the defendant to the plaintiff after adding interest thereon to the date of this decree, and that the bill be dismissed as to the defendants constituting the partnership of George A. Fernald and Company.</p> <p>Both the plaintiff and the defendant corporation appealed from the decree.</p>

<p>Corporation, Foreign, Liability of officers and of stockholders.</p> <p>The provision of R. L. c. 126, § 17, that the officers and members or stockholders of foreign corporations which have a usual place of business in this Commonwealth shall be jointly and severally liable for its debts and contracts on the same conditions and in the same manner as is provided for domestic corporations by §§ 58 to 68 inclusive of R. L. c. 110, applies only to liabilities to which such officers and stockholders may be subject under existing laws, and does not apply to the liability imposed on the officers of domestic corporations by cl. 6 of § 58 of R. L. c. 110 for debts contracted before the original capital has been fully paid in and the certificate of such payment has been filed, because the requirements referred to in that clause do not apply to foreign corporations.</p> <p>Whether the liability imposed on stockholders of domestic corporations by R. L. c. 110, § 69, cl. 1, for debts contracted before the original capital is fully paid in, in case such stockholders have not paid in full the par value of their shares or have purchased such shares with knowledge of the fact, was intended to apply to stockholders in a foreign corporation doing business in this Commonwealth, and, if so, whether it could be enforced against them, it here was not necessary to consider.</p>

<p>Contract, Construction, Rescission. Waiver. Practice, Civil, Refusal to order verdict, Exceptions.</p> <p>In an action of contract by a woman to recover $1,250 as the price of five thousand shares of a certain corporation which it was alleged that the defendant had agreed to buy back from the plaintiff, the plaintiff testified that the defendant said to her, “ I have five thousand shares here, and if you will take it, if it does not pay you a dividend within a year I will pay you back the money with interest at six per cent,” and that she took the shares and paid the defendant $1,250, and "that a certificate for the shares was delivered to her. The plaintiff further testified that more than a year later she signed at the request of the defendant the following instrument in writing: “I, C., am the owner of certificate No. 368, 5000 shares R. Company’s capital stock. I do authorize W. [the defendant] to dispose of said stock _in one block or in any way that it is possible for said W. to dispose of said stock. Said stock to net me not less than 25c. per share. All commissions and other costs for marketing said shares to be paid by said W., providing said W. succeeds in disposing of said shares. I do hereby agree to give said W. an option on said shares of stock for four months from this date,” that the plaintiff delivered to the defendant this instrument and also the certificate for the shares and the defendant gave her a receipt for the certificate containing the statement “ Said stock to be disposed of for said C. See contract dated this date.” No dividend had been paid on the stock. The defendant contended that by signing the instrument in writing the plaintiff had elected to keep the shares as her own property, and asked the presiding judge to order a verdict for him, which the judge refused to do, and the jury returned a verdict for the plaintiff. Held, that the plaintiff by giving the defendant express authority to dispose of the shares which stood in her name did not waive necessarily her right to assert that as between her and the defendant the shares should be treated as his, that the plaintiff’s rights under the previous oral agreement after the finding of the jury must be taken to have vested, and that the new agreement, although reduced to writing, did not show as matter of law that the previous oral agreement was rescinded or was merged in a new bargain, and therefore that the refusal of the judge to order a verdict for the defendant was right.</p> <p>On an exception to a refusal of a presiding judge to order a verdict for a defendant, the ruling of the judge will be sustained if there is any ground on which the plaintiff’s case should have been submitted to the jury, although such ground is not the one on which the presiding judge submitted it.</p>

<p> Voluntary Association. Court Samuel de Champlain, No. J¡9. Order of Foresters. </p> <p>A vote of a voluntary association called the Court Samuel de Champlain, No. 49, which was subject to the constitution and general laws of the grand court of the Order of Foresters, to break all relations with the Order of Foresters and constitute itself an independent body to be known by a different name, was shown to be contrary to the constitution and by-laws of the grand court of the Order of Foresters which provided that “in no event can a subordinate court withdraw from this grand court except as provided ” in certain articles which had no application to this case, and also to have been passed in violation of an article of the constitution and by-laws of the association itself, which provided that no change in the rules should be made without a previous notice in writing and a reading of the proposed amendment at a regular meeting, and the proposed amendment thereafter resting on the table through three regular meetings before being taken into consideration, none of these requirements having been complied with. Held, that the attempt at withdrawal from the order was oí no effect and did not dissolve the court.</p> <p>A voluntary association, which was a subordinate court of an order subject to the constitution and general laws of the grand court of the order, passed a vote to break all relations with the order and constitute itself an independent body, which was of no effect because in violation of the general laws of the grand court and also of the by-laws of the subordinate court itself. A general law of the grand court provided that fifteen or more members, voting in the minority against their court disbanding or seceding from the order, should “ be recognized by the executive council of the grand court as the same court to which they formerly belonged, under a new dispensation, bearing the same number.” Under this general law the executive council of the grand court found that the vote mentioned above was illegal, and that fifteen of the members present at the meeting voted against secession. They voted to expel the seceders from the order, and that the members who voted not to secede be recognized as constituting the subordinate court by the same name as before, “ retaining the charter and all authority conveyed by it and all power and authority conveyed to said expelled members by any dispensation heretofore existing be and hereby are abrogated and cancelled.” On the same day the grand court granted a new dispensation to the loyal minority to hold the court under the old name, “ being the same court to which they formerly belonged and which has never been legally dissolved.” Held, that the recognition of the minority as constituting the court and granting them a new dispensation, if it was of any legal effect, did not dissolve the subordinate court but left it in continued existence.</p> <p>If a majority of the members of a voluutary association, which is a subordinate court of an order subject to the constitution and general laws of the grand court of the order, pass a vote to break all relations with the order and constitute themselves an independent body, which is of no effect because in violation of the general laws of the grand court and also of the by-laws of the association itself, and if all those persons who were officers of the subordinate court withdraw from it and abandon their offices and transfer their support to the new organization which they have formed, to which they attempt to transfer all the valuable property of the association, the members who remain loyal, although a minority before the secession, may organize and elect officers of the association' to take the place of those who have declared their abandonment of their membership in it, and the officers thus elected are entitled to receive the bank deposits and other property, the books of account and the books of record of the association.</p> <p>"Whether a majority of the members of a voluntary association, which is a subordinate court of an order subject to the constitution and general laws of the grand court of the order, who in violation of such general laws and of the bylaws of the association itself attempt to secede from the grand court and constitute themselves an independent body, can be expelled from the association by a vote of the executive council of the grand court, at a meeting of which the only notice was by publication, in two newspapers, respectively four days and two days before the meeting, and where some of the members whom the vote purported to expel had no notice or knowledge of the meeting until after it was held, here was not considered, the case being disposed of on other grounds.</p>

<p>Joint Tenants and Tenants in Common. West’s Beach Corporation. Seashore. Corporation, Ultra vires. Estoppel. Equity Pleading and Practice, Trial of issues framed for jury.</p> <p>A tenant in common owning in fee an undivided share in land upon the seashore may maintain a bill in equity against a stranger to the title to restrain him from unlawfully erecting bath houses and other structures upon the beach included in the land.</p> <p>St. 1852, c. 157, incorporating West’s Beach Corporation, providing that “ the members of said corporation may use and occupy said described portion of seashore, beach, and flats, for the purposes of gathering drift-stuff and sea-weed, and of boating and bathing, as said premises have heretofore been used and occupied by them and their predecessors,” contains a provision that nothing contained in the act shall be so construed as “ to impair the legal rights of any person,” and therefore gave that corporation no valid title as against the legal title of any private- owner, passing to the corporation only such public or common rights as existed in the tract described in the grant.</p> <p>Por the purposes of this decision, it was assumed, without deciding it, that West’s Beach Corporation, incorporated by St. 1852, c. 157, by reason of the different proceedings before the Legislature and the town of Beverly, and the notoriety of the acts of the corporation in regard to the beach, has acquired a title by disseisin and limitation to all the property described in its charter against such private owners as have made no claim since the corporation'took possession.</p> <p>St. 1852, c. 157, incorporating West’s Beach Corporation, provides that “ the members of said corporation may use and occupy said described portion of sea-shore, beach, and flats, for the purposes of gathering drift-stuff and sea-weed, and of boating and bathing, as said premises have heretofore been used and occupied by them and their predecessors.” It further provides that “ No member of this corporation shall transfer his corporate right in said beach; but said beach shall be and forever remain, for the use of the present and future residents within the limits designated in the first section of this act.” The corporation made an agreement under seal with the owner of an upland lot adjoining West’s Beach, whereby the corporation agreed to release to him “ all interest they may have to that portion of the beach which fronts upon his land situated to the westward of a line ” described “ reserving only such privileges as may have been acquired by usage or otherwise, to collect seaweed and driftwood and to pass and repass over said beach which privileges are still to remain to be enjoyed by them in common with the owner of said land. Said corporation further agreeing that the sixth and seventh sections of their act of incorporation [relating to the removal of sand, gravel, drift-stuff and seaweed] shall not apply to said portion of the beach.” Then followed a stipulation that no sand should be removed from this portion of the beach, under a prescribed penalty. Before this agree-' ment was made there had been doubtful questions in regard to the respective rights of the corporation and the owner of the upland lot in the beach, and the agreement had been preceded by negotiations between the parties and by votes of the corporation. After the execution of the agreement, the owner of the upland lot and his successors in title 'treated it as binding, and for a long time the corporation did the same, but afterwards proposed and attempted to erect and maintain bath houses and other structures on this part of the beach. In a suit by the successors in title of the owner of the upland lot against the corporation to restrain it from committing these acts, the defendant contended that the agreement purporting to be made by it as above described was ultra vires and void. Held, that, even if the defendant could not bind itself in this way for the settlement of doubtful questions affecting its rights, which the court was not prepared to assert, it at least was bound by the agreement by way of estoppel after both parties had acted upon it.</p> <p>In a suit in equity to restrain West’s Beach Corporation, organized under St. 1852, c. 157, from erecting bath houses and other structures on a beach in which the plaintiffs were owners in fee of undivided shares as tenants in common, where the rights of the respective parties were found to depend on an agreement in writing between the defendant and a predecessor in title of the plaintiffs, who owned as tenant in common the same undivided shares held by them, in deciding that the agreement was binding upon the defendant at least by way of estoppel, the court held that any prescriptive rights which the defendant might have acquired as against the other tenants in common of this part of the beach were subject to the rights of the plaintiffs under the agreement.</p> <p>In a suit in equity to restrain the defendant from erecting bath houses and other structures on a beach alleged to be owned by the plaintiffs, where it is admitted that the plaintiffs are owners in fee as tenants in common with others of undivided shares of the upland and that if they own the beach they own it in the same way, one of the issues framed to be tried before a jury was whether the predecessor in title of the plaintiffs at a time named owned “ the fee of said land.” At the trial of the issues before the jury, the presiding judge ordered the jury to answer this question “ Yes, as tenant in common.” The defendant contended that the judge could not direct the answer in this form. Held, that the addition of the words “ as tenant in common ” showed partly the nature and extent of the plaintiffs’ predecessor’s ownership in fee, and, even if the words were not necessary in answering the issue as it was framed, they were desirable and not objectionable.</p> <p>Where in a suit in equity issues are framed to be tried before a jury, if the answers to the issues which are tried rightly are sufficient to enable this court to dispose of the case, it does not matter whether or not there was error in the trial of the other issues, and it is not necessary to consider exceptions to the exclusion of evidence offered upon such other issues which has no bearing on the issues on which the case is decided.</p>

<p>Gift. Bond. Assignment. Corporation, Transfer of shares of stock. Savings Bank. Evidence, Admissions.</p> <p>At the trial before a judge sitting without a jury of an action against an executor for conversion, in which the plaintiff contended that the defendant wrongfully was detaining a bond given to the plaintiff by the defendant’s testate, there was evidence that the bond was payable to the defendant’s testate, and was transferable by an assignment duly indorsed thereon, that the defendant’s testate made a proper assignment in writing on the bond and delivered it to the plaintiff, that it then was put in the safety deposit box of the defendant’s testate marked as the property of the plaintiff and with the statement “ This is here for safe keeping,” that it subsequently was transferred to a safety deposit box of the plaintiff and, on his giving up the box, again was transferred to the box of the defendant’s testate where it was at the time of his death although in the meantime the plaintiff had procured another box of his own, and that there never had been any transfer of the bond on the books of the obligor. Held, that a finding for the plaintiff was warranted.</p> <p>A gift of a bond, a share of the capital stock of a corporation and a savings bank deposit, subject to an agreement by the donee that the donor shall have the income from them during the donor’s life, takes effect notwithstanding such reservation.</p> <p>At the trial before a judge sitting without a jury of an action against an executor for conversion, in which the plaintiff contended that the defendant wrongfully detained a coupon bond which the defendant’s testate had given to the plaintiff, there was evidence that the bond was payable to bearer, that the defendant’s testate had handed the bond to the plaintiff with the words, “This is yours, but if you will cut off the coupons and give them to me during my life,” that thereafter the bond at first was kept in the safety deposit box of the defendant’s testate, but, when the plaintiff had such a box, was kept there, that on the day of his death the defendant’s testate asked the plaintiff for the bond to sell to provide funds for a journey that they were to take together and the plaintiff gave him the bond, but, the defendant’s testate finding he had sufficient other funds, returned the bond to the plaintiff, that, there being at that time some conversation between them as to who should have the bond in case they should die together, the defendant’s testate at the plaintiff’s suggestion wrote on the envelope containing it “This document is to be given to ” the plaintiff “ if he survives me, and in event of his death and mine at the same time, I wish this given to E.,” and signed the statement, that, it then being necessary to hasten, the plaintiff, to save time, put the bond in the box of the defendant’s testate, where it was found after his death. Held, that a finding for the plaintiff was warranted.</p> <p>At the trial before a judge sitting without a jury of an action by an executor for conversion, in which the defendant contended that certain shares of the capital stock of a corporation, alleged by the plaintiff to have been converted by the defendant, were given to him by the plaintiff’s testate, there was evidence that the plaintiff’s testate filled out the blank form for transfer of the shares found on the back of the certificate, providing for transfer to the defendant, and delivered the certificate to the defendant, that it was intended by the plaintiff’s testate that he, the plaintiff’s testate, should continue to receive the dividends during his life and such dividends were sent by the corporation to his bank and there deposited to his credit, that the certificate at first was put in a safety deposit box of the plaintiff’s testate marked in his handwriting, “ This is the property of ” the defendant, “ put here for safe keeping,” but that later it was kept in the defendant’s box. There also was evidence that at one time before the delivery of the certificate to the defendant the plaintiff’s testate expressed an unwillingness to transfer and deliver the stock during his life to the defendant, but wished to retain it in his own control, as well as evidence of statements and conduct of the plaintiff’s testate inconsistent with an intention to make a complete gift to the defendant. The stock never was presented for transfer on the books of the corporation. Held, that a finding for the defendant was warranted.</p> <p>Where, at a trial before a judge sitting without a jury, a material question was whether one before his death made a completed gift of a savings bank deposit, and there was evidence that the depositor wrote an order on the bank to pay the amount of his deposit to the person claiming it and delivered to that person the pass book, at the same time stipulating that he, the depositor, should be allowed the interest during his life, that the pass book at first was kept in the depositor’s safety deposit box, later in a box of the donee, and later still and until his death in the depositor’s box, but the written order was always in the possession of the donee. Held, that, although there was evidence which would support a contrary finding, a finding that there was a completed gift was warranted.</p> <p>Evidence of admissions óf a party to an action by language and conduct is not conclusive but can be explained, and lie can take a position inconsistent with that seeming to be indicated by such evidence.</p>

<p>CONTEAOT OR TORT. "Writ in the Superior Court for the county of Plymouth dated March 13, 1906.</p> <p>The declaration was in five counts, but there was a trial upon the first and fifth counts only. The first count was upon an account annexed which contained several items, apparently for services and disbursements in connection with funeral and burial services. The name of the deceased was not stated.</p> <p>The fifth count was as follows:</p> <p>“ Count five. In tort. .</p> <p>“ And the plaintiff further says that the said corporation ordered goods and services of the plaintiff as set forth in count one by an employee, one Harris, which contract may have been in excess of the powers of said corporation, but not prohibited by law; but said goods and services have been furnished upon said order, and demand made upon said corporation for payment, which said corporation refuses to make, whereby the plaintiff is damaged to the amount of $154 and interest, by breach of said contract.”</p> <p>There was a trial before Dana, J., who, at the close of the evidence introduced on behalf of the plaintiff, directed the jury to return a verdict for the defendant. The plaintiff excepted.</p> <p>The material facts were as follows: One Lenix, who had been general baggage agent of the defendant, died at the house of a Mrs. Benson in South Weymouth, where he was a lodger. The attending physician, not in the employ of the defendant, summoned the plaintiff, an undertaker, who came and laid out and embalmed the body. After he had done so, the plaintiff had a conversation with one Harris, then a clerk in the defendant’s general passenger and ticket office, as to which he testified that Harris gave him the order for the funeral in detail, selected a casket from a catalogue and told him that the defendant was owing Lenix a little over $150 and that he, Lenix, had some money in the bank and it was thought he owned a block in the city somewhere and that he, Harris, thought the amount the defendant owed Lenix was sufficient for a proper burial. The plaintiff further testified that Harris was at the house with some half dozen railroad people when the casket was delivered, that they looked it over and discussed it and that Harris said it was very satisfactory.</p> <p>Harris was called as a witness for the plaintiff and denied that he had ordered the funeral or the casket, but stated that the plaintiff had asked him in detail as to Lenix’s affairs which he gave as fully as he was able because, he supposed, the plaintiff was looking for information as to who would be responsible for his bill, that, on his return to Boston, he had told one Hanson, the defendant’s general passenger agent, of the information he had given as to Lenix, and Hanson had said that what he had told the plaintiff was “ all right.”</p> <p>The plaintiff wrote letters to both Harris and Hanson seeking to make the defendant pay the amount of his claim. They denied owing him and referred him to the representative of Lenix’s estate, to whom the defendant had paid what had been owing Lenix.</p> <p>The case was submitted on briefs.</p>

<p>Conversion. Replevin. Evidence, Of ownership, Relevancy and materiality, Admissions and confessions. Witness, Deposition. Attorney at Law.</p> <p>At the trial of an action for the alleged conversion of certain whiskey, it appeared that an agent of the plaintiff, authorized only to solicit orders and make collections, requested one B. to store for him some whiskey in barrels, asserting it to be his own, and, B. consenting, four barrels of whiskey of the plaintiff’s brands, three labelled “ Hornpipe” and one “ Boston League,” were delivered to B. and there remained stored until taken from him on a writ of replevin by the defendant. A deposition of the plaintiff was read, in which, in response to the question, “ Did you ship any whiskey to B. 1 If you say you did, state how and under what circumstances and describe the whiskey and how the barrels were marked,” he stated, “ I notified my teamster to deliver to B. four barrels of Hornpipe and one of Boston League. The whiskey consisted of three barrels Hornpipe and one of Boston League. Three barrels were marked ‘ Hornpipe,’ and one ‘ Boston League.’ ” Held, that there was evidence that the whiskey taken from B. by the defendant came to B. from the plaintiff, and that the plaintiff had not parted with his title to it.</p> <p>At the trial of an action of tort for conversion, it appeared that the defendant caused a writ of replevin to issue against one B. and that an officer, acting under that writ, took from the possession of B. whiskey which was the property of the plaintiff, that the defendant received the whiskey from the officer and sold it. Held, that there was evidence of a conversion by the defendant.</p> <p>At the trial of an action for conversion of whiskey in barrels, it appeared that an agent of the plaintiff, authorized only to solicit orders and make collections, asked one B. to store for him some whiskey in barrels, his property, and, B. consenting, thereupon, by falsely representing to the plaintiff that B. had ordered the whiskey of the plaintiff, the agent induced the plaintiff to ship it to B. The agent was not called to testify, but the defendant sought to show certain acts and statements of ownership of the property by him. Held, that such evidence rightly was excluded.</p> <p>At the trial of an action for conversion, it became material for the plaintiff to establish that certain whiskey in barrels taken from one B. by the defendant was the same delivered to B. by the plaintiff. The plaintiff’s deposition was read in which he was asked, “ Did you ship 'any whiskey to B.? If you say you did, state how and under what circumstances and describe the whiskey and how the barrels were marked ”; and answered, “ I notified my teamster to deliver to B. four barrels of Hornpipe and one of Boston League. The whiskey consisted of three barrels Hornpipe and one of Boston League. Three barrels were marked ‘Hornpipe’ and one ‘Boston League.’” He also was asked “ Please state what whiskey you shipped to B. and its value,” and answered “ The value of the Hornpipe whiskey amounts to §279, and the value of the one barrel of Boston League whiskey amounts to §118.” It also appeared that B. received from the plaintiff and the defendant took from B. three barrels of whiskey labelled as the plaintiff’s brand of Hornpipe whiskey and one barrel labelled as the plaintiff’s brand of Boston League. Held, that the questions and answers in the deposition tended to identify the whiskey and rightly were admitted.</p> <p>At the trial of an action against a corporation for conversion, it appeared that, up to within two months of the trial, one A. had appeared as attorney of record for the defendant, and, while such attorney of record, had given to the plaintiff’s attorney a signed statement that, when the case was tried, the treasurer of the defendant would admit certain facts. A. was not attorney for the defendant at the time of the trial. The statement was introduced in evidence to prove the facts therein admitted, and was held to have been admitted properly.</p>

<p>Tort for personal injuries alleged to have been sustained by the plaintiff, an employee of the defendant in its cotton mills in Lowell, because of a defective set screw, a part of the machinery of the mills. Writ in the Superior Court for the county of Middlesex dated February 1,1906.</p> <p>There was a trial before Stevens, J., at which, beside the facts stated in the opinion, it appeared that the plaintiff had been for eleven years in the employ of the defendant in various capacities in its cotton mills where there was much shafting and many belts and pulleys, and for eighteen months or two years had been engaged in doing the work at which he was employed when injured. By the direction of one who was his immediate superior, the plaintiff, when injured, was in charge of several men putting belts back upon pulleys after the finishing of night work in the mills and in preparation for the work of the next morning, and was himself putting the belt upon a rapidly revolving pulley, using a leather sleeve made for him for that purpose, when the sleeve caught on the set screw of the pulley and the plaintiff’s arm was broken. The jury found that the set screw projected two inches above the hub of the pulley, and laterally one eighth of an inch beyond its rim, and there was testimony that this was unusual and, in the terms used by the defendant’s head machinist, a “ monstrosity.” The plaintiff called as a witness one Hamilton, an assistant foreman of the defendant’s machine shop, and attempted to prove by him that previous to the accident he, Hamilton, had been directed to remove the set screw which caused the injury, and to show the reasons why he had been directed to do so. There was no statement as to what wei’e the reasons offered to be shown. The presiding judge excluded the evidence and the plaintiff excepted.</p> <p>The jury, under direction of the presiding judge, returned a verdict for the defendant; and the plaintiff excepted.</p>

<p>Tort. Writ in the Superior Court for the county of Suffolk dated July 20, 1906.</p> <p>The declaration, excepting copies of the will and codicil which were annexed to and made a part of it, was as follows:</p> <p>“ The plaintiff says that he is a son and one of the heirs at law of Henry Grosvenor Lewis, late of Baltimore in the State of Maryland, deceased, and that the said Henry G. Lewis was a second cousin and a blood relative of Jane Virginia Corbin, late of Boston in the County of Suffolk, deceased, the grandfather of the said Henry G. Lewis having been a brother of the grandmother of the said Jane V. Corbin; that said Jane V. Corbin (hereinafter called the testatrix) died at said Boston on or about the first day of May A. D., 1904, and that on the sixteenth day of May A. D., 1904 the defendant filed for probate in the Probate Court for said county an instrument purporting to be the last will of said Jane V. Corbin and an instrument purporting to be a codicil to said last will; that said will was proved and allowed and said codicil was disallowed by said Court on the twenty-fourth day of June A. D. 1904, as by the record thereof in said Court appears.</p> <p>“ The plaintiff further says that by the terms of said will the defendant was given a legacy of twenty thousand dollars and was made residuary legatee and executor of the estate of the testatrix, and. that these facts were known to defendant at the time of the making and execution of the codicil as hereinafter stated; that on the tenth day of August A. D. 1908, at Newport in the State of Rhode Island, the defendant at the request of the testatrix drew up said codicil, whereby the testatrix bequeathed the sum of five thousand dollars to said Henry G. Lewis, plaintiff’s father, who at this time was dead, his death being unknown both to the testatrix and to defendant.</p> <p>“ The plaintiff further says that at the time of the execution of the codicil, the said Jane Y. Corbin was over eighty years old and depended upon the defendant for advice and assistance in business matters, and that said defendant occupied towards her a confidential relation.</p> <p>“ The plaintiff further says that defendant, wrongfully and fraudulently intending and contriving to defeat the will and intention of the testatrix and to deprive and defraud said Henry G. Lewis and his heirs and legal representatives of the sum of five thousand dollars, intended to be bequeathed by the testatrix as aforesaid, did advise and procure the testatrix to execute said codicil, in the presence of only one witness, to wit, the defendant, whereas the laws of Rhode Island in force at the time of the execution of said codicil required the execution of said codicil in the presence of more than one witness, as defendant well knew.</p> <p>“ The plaintiff further says that the estate of the testatrix disposed of by said will amounted to a large sum of money to wit, the sum of one hundred and seventy-five thousand dollars, and was nearly or quite sufficient to pay all the legacies given thereunder, and that if said codicil had not failed and been disallowed for want of due attestation, owing to the fraud practised by defendant, as hereinbefore stated, the plaintiff, as one of the heirs of said Henry G. Lewis and a distributee under the provisions of said codicil and the laws of the Commonwealth of Massachusetts and of the State of Maryland would have been entitled to receive and would have received the sum of sixteen hundred and fifty dollars more or less.”</p> <p>The defendant demurred and stated as grounds of his demurrer the following:</p> <p>1. Because said plaintiff has not in and by his declaration set - forth a legal cause of action.</p> <p>2. Because said plaintiff in and by his declaration has not shown that the defendant is under any liability to him or that the plaintiff has sustained any damage.</p> <p>3. Because it appears that at the time said codicil was made Henry G-. Lewis, a legatee therein named, was dead.</p> <p>4. Because it appears that the plaintiff would have had no beneficial interest under said codicil if the same had been duly executed.</p> <p>There was a hearing before Gaskill, J., who overruled the demurrer and reported the case for determination by this court.</p>

<p> Tax. Corporation. </p> <p>A Massachusetts corporation, having its principal place o£ business in this Commonwealth, carried on business in Pennsylvania where it was subject to astax upon its capital stock. Held, that the corporation’s franchise was not “ property situated in another state and subject to taxation therein,” the value of which should be deducted from the value of the capital stock in computing the franchise tax under St. 1903, c. 437, § 72.</p> <p>The real estate, machinery and merchandise, the value of which under St. 1903, c. 437, § 74, as amended by St. 1904, c. 261, § 1, forms part of the basis for computation of the maximum amount to be levied as a franchise tax on a domestic corporation, includes real estate, machinery and merchandise both within and without this Commonwealth.</p>

<p>Contract on a certificate of accident insurance issued by a fraternal beneficiary corporation. Writ in the Superior Court for tbe county of Suffolk dated March 13, 1901.</p> <p>There was a trial before Hardy, J., who, subject to exception by the plaintiff, directed the jury to return a verdict for the defendant and reported the case for determination by this court, judgment to be entered on the verdict if his ruling was correct, otherwise judgment to be entered for the plaintiff in the sum of 12,500.</p> <p>The agreed facts as to methods of travel in Nebraska and customs of commercial travellers there were as follows: People generally relied upon freight trains for transportation from town to town. These freight trains carried cabooses and were not regular in their movements and, although they had a time schedule given them, the schedule was seldom, if ever, followed, the trains sometimes leaving the stations before and sometimes later than the time given in the schedule, their movements depending upon the amount of freight which they had to load and unload at the various towns. It was, and for many years had been, the habit of commercial travellers travelling in this vicinity not to rely upon the schedules of time for freight trains, but, upon the arrival of a train, to ascertain as nearly as possible when it would depart, and to continue the transaction of their business while it was being loaded, if their business had not been completed, and, if they were not sooner through, to continue their work until the starting of the train, and then to board it at whatever point on the train they could reach it, whether at the caboose or at the side of a freight car, and upon climbing up the side of the car and reaching the top, they would walk down the line of cars upon their tops and enter the caboose in this manner. Men who had travelled for years in such sections of the country were as expert in so climbing upon freight cars in motion as were members of the train gang. The plaintiff had travelled continuously in such sections of Nebraska as a commercial traveller for eight years and upwards immediately prior to the time of the accident, and during that time had boarded freight trains while they were in motion in the manner described on an average of more than once a week. The plaintiff made no representations to, and did not inform the defendant as to the manner of operating the trains in such portion of Nebraska or of the custom of passengers or commercial travellers in reference thereto, or that it was his own custom so to board trains.</p> <p>Other facts are stated in the opinion.</p>

<p> Negligence. Elevated Railway. </p> <p>At the trial of an action by a passenger on a train of an elevated railway to recover for personal injuries alleged to have been caused by negligent operation of an iron gate on a car, there was evidence introduced by the plaintiff tending to show that, as the plaintiff was leaving the car, walking with the rapidity usual on leaving an elevated train and in full view of the defendant’s brakeman, she was struck by the iron gate operated by the brakeman, and that she did not see the gate before it struck her. Held, that there was evidence of due care on the part of the plaintiff and of negligence on the part of the brakeman.</p>

<p>Petition, filed February 18,1907, for a writ of mandamus to compel the police commissioner of the city of Boston to restore the petitioner to his position as a member of the police force.</p> <p>There was a hearing before Braley, J., who found that, while the petitioner was a member of the police force of Boston, he was complained against by a captain of police for assaulting a man whom he was arresting, that there was a hearing before the police commissioner, the petitioner with counsel being present but there being no trial board in attendance, and that subsequently the respondent discharged the petitioner from the police force; and that at the time of the complaint against and trial of the petitioner, there was a trial board,' duly appointed under St. 1906, c. 291, § 10.</p> <p>The petition was ordered dismissed and, at the request of the petitioner, the case was reported for consideration and determination by this court.</p>

<p>Tort for libel. Writ in the Superior Court for the county of Suffolk dated February 20,1899.</p> <p>The alleged libellous matter was contained in a document of which the heading and first two paragraphs read:</p> <p>“ Commonwealth of Massachusetts.</p> <p>City of Boston and County of Suffolk.</p> <p>“ To the Honorable Justice Charles S. Lilly of the Superior Divorce Court:</p> <p>“We the undersigned do most respectfully petition and pray that the dismissal of a libel for divorce may be reconsidered and granted from the evidence of the following witnesses for Charles A. Fernald, physician, in good standing, and son of a Christian farmer, Jonathan Poor Fernald and his wife Mary Cotton Pike, deceased.”</p> <p>Then followed fourteen paragraphs stating evidence of acts of adultery, attempted poisoning, assaults and cruelty on the part of the plaintiff toward Charles A. Fernald, her husband, with names of witnesses. The document then proceeded:</p> <p>“ I most respectfully petition and pray that the dismissal of the libel will be reconsidered and a divorce granted, as was in the case of Eleanor R. Fernald’s friend Mrs.. Nellie Basset, (therein this case not a precedent), and a divorce granted.</p> <p>“ Charles A. Fernald</p> <p>“ 1483 Washington St., Boston, Mass.”</p> <p>“We the undersigned have known Dr. Charles A. Fernald as an upright, honorable physician and gentleman for many years and do with pleasure in the cause of justice and right respectfully request that his petition be granted by Your Honor.”</p> <p>There were then appended ninety signatures and addresses, among them those of the defendants, and, at the close of the list, the following:</p> <p>“ the facts are true herein</p> <p>“ Charles A. Fernald.”</p>

<p>Tort, by an employee against his employer to recover for personal injuries. Writ in the Superior Court for the county of Suffolk dated March 1, 1904.</p> <p>There was a trial before Harris, J. The facts introduced in evidence are stated in the opinion. The facts relative to the questions to the plaintiff’s expert, mentioned in the last paragraph of the opinion, were as follows:</p> <p>One Pinel, a manufacturer of granite tools, testified that he had had experience with reference to the quality of iron and steel used in tools, and that when the hatchet used by the plaintiff was struck on the head by the hammer used by him particles of steel were liable to fly off from the hatchet at every blow. He was then-asked, “ What is that hatchet fitted for?” and “ What is the proper material of which to make a wedge ? ” and the plaintiff offered to show by expert testimony that the hatehet and hammer used by the plaintiff at the time of the accident were not safe and suitable tools to be used for the purpose for which or in the manner in which they were used at the time of the accident.</p> <p>The presiding judge excluded the questions and ruled that the evidence offered was inadmissible on the ground that it was not a proper subject for expert testimony, and the plaintiff excepted.</p> <p>At the close of the evidence introduced by the plaintiff, the presiding judge directed the jury to return a verdict for the defendant, and the plaintiff excepted.</p>

<p>Contract for money alleged to be due for labor performed by the plaintiff for the defendant. Writ in the District Court of Southern Norfolk dated May 27, 1905.</p> <p>On appeal to the Superior Court the case was tried before Wait, J., without a jury. The defendant admitted that the work was performed by the plaintiff, but denied liability to pay for it, because of a rule of the defendant corporation, of which the plaintiff knew and to which he had agreed to conform.</p> <p>The rule of the company upon, which the defendant relied was in force as early as 1899 and the judge found that it was agreed to by the plaintiff. It was as follows :</p> <p>“ Every person intending to leave the employ of the company must give ten days’ notice of such intention at the office and to his foreman. Any person leaving the employ of the company •without giving such notice and working out the same (unless discharged by the company), shall forfeit whatever wages may be due him.”</p> <p>The plaintiff left the defendant’s employ without giving and working out the ten days’ notice. It appeared in evidence that the defendant paid its employees weekly.</p> <p>At the close of the evidence, the plaintiff asked the judge to make the following ruling:</p> <p>“ The contract upon which the defendant relies as a defence to this action is a special contract between a corporation and an employee, having for its object the exemption of the defendant from certain provisions of St. 1892, c. 450, and is governed by the provisions of said chapter, prohibiting such special contracts, and cannot be enforced against the plaintiff; and therefore, if the court finds as a matter of fact that such contract was made, it is no defence to the plaintiff’s cause of action.”</p> <p>The judge refused to make this ruling, and found for the defendant. The plaintiff alleged exceptions.</p>

<p>Tort for the alleged false imprisonment of the plaintiff by the defendant, who appears to have been the chief of police of the town of Hull, although this is not stated expressly in the record. Writ dated July 7, 1905.</p> <p>At the trial in the Superior Court before Hardy, J. the plaintiff testified in substance as follows : That on Saturday, May 20, 1905, between the hours of five and seven in the afternoon and evening, he was in the town of Hull in a hotel kept by one Sweeney, and drank some beer there; that while coming out from the hotel upon a private passageway he fell on the steps of the hotel, breaking his leg and sustaining other injuries; that he was placed upon a chair and while in that position was arrested by the defendant and was taken to the Hull police station, was examined as to his physical condition by the defendant, and then was locked in a cell and was kept in the cell from the time of his arrest until the next morning, which was Sunday, and that no food or water was given him or medical attendance procured, although he asked for it; that late on Sunday morning the defendant procured a team and sent him home; that he did not take him to court then or at any time thereafter, and that the plaintiff suffered great pain and injury because of the alleged arrest and wrongful treatment.</p> <p>One Dr. Fernald testified in substance, that he was called tó attend the plaintiff on Sunday, May 21,1905, and found him suffering from a broken leg; that the leg could have been found to be broken upon ordinary examination, and that failure to call medical assistance while the plaintiff was in the police station materially retarded the plaintiff’s recovery.</p> <p>The defendant testified that he was called from headquarters by officer Tremaine on the evening of May 20,1905, to the Hull police station, and found the plaintiff sitting in the chair; that he greeted him, examined his foot and worked it from side to side; that he did not discover that it was broken ; that he washed the plaintiff’s face and asked him if he wished to go home; that the plaintiff said he preferred to stay there over night and he led him to a cell where he left him, and that he did not see him again until the next forenoon when the plaintiff was being helped into a carriage to be sent home.</p> <p>One Tremaine, the police officer referred to above, testified that he was told that some one was injured and needed his help ; .that he found the plaintiff on the ground; that he called for assistance and removed him to the station house and notified Chief Reynolds, the defendant; that he did not arrest the plaintiff ; that he had nothing more to do with him except that he was present when the plaintiff was sent home the next day ; that his friends were not notified; and that no physician was called.</p> <p>One Mitchell, another police officer, testified in substance that the plaintiff was not locked in a cell; that water was given him when he asked for it; that his face was washed and that he was sent home the next morning; that no physician was called and no medical care was given; that no notice was sent to his friends; and that he was not booked as a prisoner.</p> <p>The above was all the evidence material to the case.</p> <p>The plaintiff excepted specifically to the following portions of the judge’s charge :</p> <p>1. To that portion of the charge in which the court instructed the jury as follows :</p> <p>“ Now there is another question presented here as to his release without presentation to the court. Of course I am dealing only with the testimony of the plaintiff,- If you see fit to disbelieve all the evidence on the part of the defendant.</p> <p>“ It seems that about ten o’clock the next morning he was discharged. Under our statutes and under the ordinary proceeding of the courts in connection with the arrest of prisoners it is the duty of the officer within a certain time, within twenty-four hours, if the arrest happens to be on some other day than Saturday (and if made on Saturday night then Monday morning), that he should be presented or brought before the court. It seems, as I remember the evidence, that this man, if you believe the plaintiff’s story, was taken in custody on Saturday night. That he was released somewhere about ten o’clock on Sunday.</p> <p>“Now, the question is, under that release, if there was a release, has the defendant abused the process of the court. If an officer, having arrested a man, sees fit to discharge him without presenting him to court in accordance with the requirements of the statute, such officer is liable to a penalty. He is liable to prosecution and a fine, as I remember the statutory law.”</p> <p>2. On the ground that there was no evidence of a request, agreement or understanding relative to the plaintiff’s discharge, the plaintiff excepted specifically to that portion of the charge in which the court instructed the jury as follows:</p> <p>“ A prisoner may if he sees fit request the officer to discharge him from custody. He may make that request, and if there is a request made by the prisoner and he so far requests it, and he is discharged with the understanding that he will make no claim against the officer, and such agreement is intelligently and fairly made between the officer and prisoner, then the officer would not be liable for prosecution by the party arrested. That is, the man who thus secures his discharge by requesting it or consenting to it where it appears that the agreement is that no claim is to be made for damages by reason of his detention, where they understand each other, such a person would have no right to bring a suit against the officer afterwards civilly. It would be said that he waived a right to make that claim because of his consent to discharge.</p> <p>“Now if you are dealing with the plaintiff’s evidence here, it is for you to say whether he consented to the discharge. Whether there was any intention at that particular time manifested on his part that no claim would be made for damages. Whether they understood each other fairly and intelligently.”</p> <p>8. To that portion of the charge in which the court instructed the jury as follows:</p> <p>“ I think some of you were on the jury last week when I said an officer might be the agent of a city or town on receiving a notice about a street, but these officers do not act for and in behalf of each other, and supposing you find upon the plaintiff’s testimony that Mr. Tremaine made an arrest here in the absence of Mr. Reynolds, that would not make Mr. Reynolds liable. He would not be the principal who would be liable for the act of Tremaine if he did not participate in this arrest.</p> <p>“ The evidence on the part of the plaintiff tends to show that the defendant was there. This is denied by Tremaine, by Mitchell and by Reynolds himself. They say he was not there when the body of this plaintiff was taken possession of, if you find .a possession was taken in any way. Tremaine says he found him in that position, in a condition of disability and he needed help. If you find there was a removal to the station on the part of Tremaine for the purpose of making an arrest and the arrest was reported to Mr. Reynolds and Mr. Reynolds then took part in an abuse of process, if he then controlled and restrained unlawfully the liberty of the plaintiff and participated in the act of Tremaine in restraining him unlawfully then he might be considered liable in an act of trespass, if you find the other things proved, about which I shall speak to you later, but in order to show that a man is guilty of a trespass or an assault upon another it must be shown that he either ordered or directed it or was present and participated in it in such a way that he can be said to be present.</p> <p>“ It does not mean that if three officers are near together that all must touch the prisoner. If one directed it and another touched the person of the prisoner, of the party arrested, and another helped afterwards and they were so near each other as to assist, then they may be said to be participants, and as participants they would all be equally liable as principals, but if you find that Mr. Reynolds was absent while Tremaine was making the alleged arrest, if you find an arrest, the mere fact that he was the chief of police does not make him liable in this case except you find further facts in accordance with the plaintiff’s testimony.”</p> <p>4. On the ground that there was no evidence of a request, agreement or understanding relative to the plaintiff’s discharge, the plaintiff excepted specifically to that portion of the charge in which the court instructed the jury as follows:</p> <p>“ It is for them to draw all the inferences they may. It is for them to say what the inference is.”</p> <p>The jury found for the defendant; and the plaintiff alleged exceptions.</p>

<p> Negligence. Railroad. </p> <p>In an action against a railroad company by an administratrix for causing the death of the plaintiffs intestate at a grade crossing of a highway, the jury found that the defendant gave the signals required by law, and the presiding judge refused to allow the plaintiff to go to the jury on the other counts of her declaration which required the proof of due care on the part of the plaintiff’s intestate. It appeared that the plaintiff’s intestate, with a boy by his side, was driving in a closed low milk wagon with glass windows at the ends and sides and a sliding door on each side, the front being shut from the horse “ with just a place through for the reins,” that the accident occurred before daylight on a dark and foggy morning, that there were no gates at the crossing but a flagman was stationed there day and night, that the intestate. was familiar with the crossing and knew that a regular train was due at about the time of the accident, that as they approached the crossing they looked down the tracks toward the station from which the train was about due and saw a light, which both thought was at the. station, that they did not see the flagman or hear any bell, whistle or other warning, that the horse was going at a walk and after seeing the light walked “ a little bit faster” to get across the tracks, that when the wagon was on the second track the horse, which had cleared the tracks, stopped and reared, and “began teetering up and down . . . while you could count seven,” that when the horse stopped they looked down the track and saw the light of the approaching train, that the intestate “ yelled out for the horse to go ahead,” that the whip was on the outside of the wagon and the intestate tried to open the sliding door to get it, but the blanket caught behind the door and he could open it only far enough to get his hand out as far as the wrist and could not reach the whip, that the flagman “ yelled to go ahead,” and then the train struck them. Held, that, even if the plaintiff’s intestate was not negligent in proceeding at an ordinary pace across the rails after having seen through the darkness a light on the track from which a train was about due, which he then thought was a station light, without pausing to assure himself that it was not a headlight, yet with the additional facts of his neglect to listen in such a way as to be likely to hear anything outside his wagon, his failure to have in ready control the ordinary implements of driving, his suffering the door of the wagon to become clogged by the blanket so that it would not slide, and his walking his horse across a double tracked railroad at about train time, there was no evidence for the jury that the plaintiff was in the exercise of due care, and the ruling of the judge was right.</p>

<p>Executor and Administrator, Account of. Probate Court. Evidence, Presumptions and burden of proof.</p> <p>Where an administrator claims a debt alleged to be due to him from the estate of his intestate and the parties fail to agree upon arbitrators under the provisions of R. L. c. 141, §§ 6, 7, it becomes the duty of the Probate Court, and of a single justice of this court on appeal, to pass upon such claim of the administrator as well as upon all other matters involved in his account.</p> <p>Where parties objecting to the allowance of the account of an administrator contend that the administrator has not charged himself with sums of money which came into his possession, they can examine him in regard to it and present evidence to show that his account in that particular is incorrect.</p> <p>Where parties objecting to the allowance of an account of an administrator contend that the administrator has not charged himself with sums of money which came into his possession, the Probate Court on the request of the administrator may order the filing of specifications of alleged errors if the accountant seems to need them for his information, but this is not necessary to the jurisdiction of the court, and a refusal of such a request deprives him of no right to which he is entitled, especially where there is no reason to think that the accountant has suffered injustice in this respect.</p> <p>Under R. L. e. 150, §§ 1-3, it is the duty of an executor or administrator to present a true account and to verify it by his oath, and his account cannot be allowed until the court is satisfied by affirmative evidence that it is correct. In proving this the burden is upon the executor or administrator as well in showing credits for all that the accountant has received as in presenting truly the items of expenditure for which he asks to be allowed.</p>

<p>Indtctment found and returned.on September 3, 1906, for murder in the second degree, charging that the defendant on July 24,1906, at Somerville “did assault and beat George W. Gilmore with intent to murder him by shooting him in the body with a gun loaded with powder and ball, and by such assault and beating did kill and murder the said George W. Gilmore.” In the Superior Court the defendant was tried before Bell, J. The government introduced evidence that Gilmore, who had been for some time a lodger in the defendant’s family and had left them about the first of June, went to the defendant’s house shortly before seven o’clock in the morning of Tuesday, July 24, 1906, accompanied by one Field, a driver of an express wagon, to get his trunk.</p> <p>Field testified that he backed his team up and went up the front steps; that the door was closed, but not locked; that Gilmore opened it, using no key, and went up the stairs, Field following; that when Gilmore was within a few steps of the landing at the head of the inner stairs, Field heard the defendant say: “ You son of a bitch, get down ”; that the defendant was at the time beside the railing on the landing at the head of the stairs; that he had a gun at his shoulder; that Gilmore said, “ Good morning, Parsons,” and went up another step; that Parsons shouted four or five times for Gilmore to get down; that Gilmore replied, “ That is all right ”; that Parsons then shot, the gun being about one and one half feet from Gilmore at the time of the shooting; that the light was good and he could see Parsons distinctly.</p> <p>Dr. Durrell, medical examiner, testified that he viewed the body at about 8.30 A. M. on the day of the shooting and that the death was due to hemorrhage and was practically instantaneous.</p> <p>It appears from the testimony of the defendant’s wife that immediately before Gilmore and Field entered the house she had left it to get liquor for her husband, at his request; that lie had been drinking for a week and that the night before he had abused her.</p> <p>It also appeared from the testimony of one Lapham, the landlord who let the tenement to the defendant, that within two hours after the shooting Mrs. Parsons told him that the defendant told her that if she should bring an officer to the house he would shoot her and the officer too.</p> <p>It further appeared from the testimony of a police officer, one Crossman, that the defendant’s wife hid his revolver a few days before the shooting and that the defendant then loaded the musket with which the shooting was done and said that he would use it against her or any one else.</p> <p>The defendant testified that he had been drinking heavily before the shooting; that he did not see any one when he shot, nor before he shot, nor after he shot; that he thought there were burglars-in the house and that he was looking upstairs where he thought the burglars were and fired downward, intending to scare or frighten them; that it was only when he was committed to jail and was told by his wife that he had shot Gilmore that he knew anything at all about it.</p> <p>Dr. Buifum, called by the defendant, testified that he had been Parsons’s family physician for four years and that he was of the opinion that the defendant at the time of the shooting was suffering from temporary aberration of mind; that when drunk he always seemed to be temporarily insane.</p> <p>Dr. Edward R. Utley, the prison physician, called by the government in rebuttal, testified that he first saw the defendant about noon on the day of the shooting and that he had examined him since; that the defendant was not insane at the time of trial or at the time of the shooting. He further stated that Parsons told him in company with Dr. Jelly some weeks after the shooting that he saw a man coming up the stairs at the time he shot, but did not know who he was; that he shot the person coming up, but did not know whom he had shot.</p> <p>Dr. Jelly, an expert on insanity, testified that some weeks after the shooting he examined the defendant, who stated to him that he heard some one coming upstairs and ordered him to go down ; that the defendant stated to him that he would shoot his head off; that the man answered “ The hell you will ” ; that he saw the man, shot at him and he fell and that he did not recognize him. Dr. Jelly further testified that the defendant was sane at the time he examined him and was sane at the time the homicide was committed.</p> <p>The defendant offered to prove by the wife of the defendant that a burglar was seen in his house within a year before; that she had seen him, and that she told her husband of it. This the judge excluded, and the defendant excepted.</p> <p>The defendant offered to prove by one Lindley, who lived in the house directly adjacent to that in which the defendant lived, that four years before the shooting Lindley’s house had been entered by burglars and one thousand dollars worth of jewelry had been taken from it; that this was a notorious fact in the neighborhood and had been brought home to the knowledge of Parsons; that Parsons when drunk always feared burglars or was suspicious of there being burglars in the house. Evidence of the Lindley burglary and of Parsons’s knowledge of it was excluded by the judge on the ground that it was too remote, and the defendant excepted.</p> <p>In the cross-examination of Dr. Jelly, the defendant’s attorney asked a hypothetical question concluding with the words “ In your opinion, was the defendant at the time of the shooting under these circumstances of sound mind?” and insisted upon a direct answer. This the witness refused to give unless one element was taken out of the question. This the attorney refused to do, and the judge, against the defendant’s objection, permitted the witness to answer and make explanation. The defendant excepted. The witness answered that the defendant in his opinion was of sound mind and responsible for his act.</p> <p>The defendant made the following sixteen requests for rulings and instructions to the jury:</p> <p>1. There is no presumption in this case that the defendant, in firing the gun, intended to shoot the deceased or anybody else. This is a question for the jury to decide.</p> <p>2. The jury will not be justified in finding the defendant guilty of murder in the second degree unless they are satisfied beyond a reasonable doubt: (1) That he fired the gun intending to wound or kill the deceased, and (2) that he did this with malice aforethought.</p> <p>8. Upon all the evidence in the case, the defendant is not guilty of murder in the second degree. The fact that he used a deadly weapon and in a careless manner is not enough. To warrant a finding of malice, it must appear to the satisfaction of the jury beyond a reasonable doubt that he wilfully fired the gun intending to shoot the deceased, and if the jury have a reasonable doubt as to his intention to shoot the deceased, the defendant is not guilty.</p> <p>4. If the jury find that there was no previous quarrel or ill will of any kind between the defendant and Gilmore, that the defendant had no motive for billing the deceased, no spite or revenge and no advantage to gain, and that at the time of the shooting the defendant did not know that it was Gilmore who was on the stairs, then there is no evidence of malice in the case and the defendant is not guilty of the crime charged in this indictment.</p> <p>5. There is no evidence in the case that the defendant either procured or loaded the gun with the intention of shooting anybody, and if the jury find that he simply picked up and fired the gun to frighten an intruder, under a reasonable apprehension of some immediate and serious bodily danger, however mistaken, he is not guilty of any crime and should be discharged.</p> <p>6. If the jury find that the defendant, under the circumstances, had reason to believe that the deceased was some stranger, intending to do him or his little boy great bodily harm, and that there was imminent danger of such harm which he had reason to believe no other means could effectually prevent, he would be justified in defending himself by shooting although it afterwards turned out that the appearances were false and that, in fact, there was no such danger.</p> <p>7. There is no evidence in the case to warrant the jury in finding that at the time of the shooting the defendant knew and intentionally took the life of the deceased.</p> <p>8. If the jury find that the defendant, iij firing the gun, under the circumstances, did not intend to shoot the deceased or anybody else, but merely to frighten strangers he believed to be in the house, then the defendant is not guilty of the crime of manslaughter.</p> <p>9. The jury will not be justified in finding the defendant guilty of manslaughter unless they are satisfied beyond a reasonable doubt that in firing the gun he (1) intended to shoot the deceased, and (2) without sufficient excuse or justification.</p> <p>10. Every man has a legal right to own and carry firearms for the purpose of protecting property, self-defence or amusement. There is no evidence in the case that at the time of the shooting the defendant was in pursuit of any other unlawful act which contributed to or caused the death, and, if the jury find that he unintentionally shot the deceased, he is not guilty of manslaughter.</p> <p>11. There can be no crime without a criminal intent, and if the jury find that he did not intend to kill or shoot the deceased or anybody else then, as he was not committing or attempting to commit any criminal act, causing or contributing to tbe death, he is guilty of no crime, and should be discharged.</p> <p>12. The jury must be satisfied beyond a reasonable doubt of every essential point in the government’s case, so that they can come to no other reasonable conclusion. If, on the contrary, they have a reasonable doubt as to any one essential point, then the government has failed to make out its ease, and he should be discharged.</p> <p>IB. While mere intoxication is no excuse for crime, yet if the jury find that at the time in question the defendant, from an excessive use of intoxicating liquor, or the want of it, was actually under some sudden apprehension of immediate bodily danger, and for the moment deprived of his reason and self-control so that the shooting was not the product of his mind and did not proceed from his will, there was no criminal intent on his part within the meaning of the law. In other words, if the discharge of the gun was the act of a man for the moment insane, whatever the cause of that insanity, it was no crime, and the defendant should be discharged.</p> <p>14. If, upon all the evidence in the case, the jury find that the defendant fired the gun under a sudden and uncontrollable impulse, without intending to shoot or kill anybody, then it was an accidental homicide, and the defendant should be discharged.</p> <p>' 15. If the jury find that the defendant intentionally billed the deceased, but not knowing who he was ; that for any reason he thought it was night time and believed that the deceased was a burglar who had entered the house for some evil purpose; that he ordered him out, and that from the reply, as he understood it, he believed that he or his little boy was in imminent danger of serious bodily harm, and that he could not in any other way prevent it, then, however mistaken or unfortunate the results, he was guilty of no crime and should be discharged.</p> <p>16. There is no evidence in the case upon which to claim that, at the time of the shooting, the defendant was in pursuit of any act, lawful or unlawful, which caused or in any way contributed to the death of the deceased, and, therefore, if the jury find that the shooting of the deceased was unintentional, the defendant is not guilty of manslaughter and should be discharged.</p> <p>Of the instructions requested as above the judge gave the second and twelfth to the jury, and refused to give the others, the sixth and thirteenth on the ground that there was no evidence to support them.</p> <p>Full instructions were given as to the distinction between murder in the second degree and manslaughter, and also as to the meaning of the words “malice aforethought.” The judge also instructed the jury that the burden was upon the government to prove beyond reasonable doubt every essential point in its case, including the sanity of the defendant. The judge also instructed the jury as to insanity and intoxication as an excuse for crime.</p> <p>He further instructed them that they were to find the intent of the defendant from all the facts, including what he said and his use of the gun. He instructed them in substance that the government need not prove that the defendant intended to kill Gilmore; that malice was sufficiently established if he shot, intending to kill, even though he did not recognize Gilmore.</p> <p>The jury returned a verdict of guilty of murder in the second degree; and the defendant alleged exceptions.</p>

<p>Bill IN equity seeking payment under R. L. c. 112, § 19, from the defendants, directors of the Marlborough Street Railway Company, of a judgment rendered for the plaintiff in an action of tort for personal injuries against that corporation. The suit was begun as an action at law by writ in the Superior Court for the county of Middlesex dated July 5, 1904, and changed by amendment into a suit in equity on October 21, 1904.</p> <p>There was a trial before Lawton, J., who entered a decree dismissing the bill, and the plaintiff appealed.</p>

<p>Petition in the Probate Court for the county of Suffolk for revocation of a settlement of personal property in trust, filed November 25, 1905.</p> <p>In the Probate Court a guardian ad litem or next friend was appointed to represent the interests of persons then unborn or unascertained and made a report objecting to a revocation of the settlement, and a decree was entered dismissing the petition.</p> <p>On appeal there was a trial before Rugg, J., who reserved the case upon the pleadings and agreed statement of facts for consideration and determination by this court.</p> <p>It appeared from the agreed statement of facts that the plaintiff, when of full age and unmarried, executed and delivered to the defendant an instrument under seal by the terms of which he did “give, grant, bargain, sell and convey unto” it certain stocks and securities, “to have and to hold to the said trust company, its successors and assigns forever, in trust nevertheless for the following purposes:</p> <p>“ 1. To hold and invest or reinvest the whole or any part of the property hereby conveyed as from time to time shall seem to it advisable, and I hereby’ authorize said trust company to sell any part or all of any securities, which are or may become a part of this fund, by public auction or private sale for such consideration and on such terms as it shall deem expedient.</p> <p>“No purchaser from said trust company shall have any responsibility as to the application of the proceeds of any such sale.</p> <p>“Said trustee shall have absolute power to invest and reinvest said fund in such securities as it may see fit, having regard to the permanent safety of the principal, but where possible selecting those yielding a larger income than is ordinarily expected of trustee’s investments.</p> <p>“ 2. To pay the net income from said fund to me or to my order during my life by quarterly payments as nearly equal as may be; and in the discretion of my trustee when the circumstances of myself or my family or business seem to warrant to pay me or my order such portion of the principal as it may see fit.</p> <p>“ Upon my death to pay the balance of said principal fund and any income on hand to my legal heirs, provided however I have not disposed of the same by will. And I hereby except and reserve full power to dispose of the principal of said fund and any unpaid income by will. And in case of my death leaving a will, I hereby authorize and direct said trust company, its successors or assigns to pay at once to the executor or executors named in my will or to his other successors all the principal and income then in their possession or control.”</p> <p>The instrument contained no express clause of revocation.</p> <p>Subsequently the petitioner married, notified the respondent that he wished to revoke the trust and demanded a return of the property conveyed.</p>

<p>Equity Jurisdiction, To enforce regulation of metropolitan water and sewerage board. Metropolitan Water and Sewerage Board. Great Pond.' Evidence, Relevancy and materiality. State Board of Health.</p> <p>Under Sts. 1895, c. 488, §§ 3,10; 1901, c. 168, requiring the metropolitan water and sewerage board to construct, maintain and operate a system of metropolitan water works and to secure and protect the purity of the water of such system, and providing that such board “ shall have the exclusive right and control over all ponds and reservoirs used by them in supplying water, and may order all persons to keep from entering in, upon and over the waters thereof,” such board has power to adopt and enforce a regulation that no person who has not a license from them shall boat upon the waters of a great pond which is a part 'of tiie metropolitan water works system, and may maintain a bill in equity to enjoin one using such waters for boating without such license.</p> <p>At a hearing on a bill in equity brought by the metropolitan water and sewerage board to enjoin the defendant from boating upon a great pond which is a part of the metropolitan water works system in violation of a regulation of such board made under Sts. 1895, c. 488, §§ 3, 10; 1901, c. 168, that no person shall boat upon such pond without a license from them, the defendant offered evidence, which was excluded, tending to show that the regulation was unnecessary to preserve the purity of the water and that the use contemplated by him would not injure anybody. Held, that the power given to the board by the Legislature to keep persons from entering upon the waters of the pond included the power to permit persons to go upon the pond under reasonable regulations, that the regulation violated by the defendant was reasonable and that the evidence offered therefore was immaterial and was excluded rightly.</p> <p>The power given to the State board of health by St. 1895, c. 488, § 24, to make rules and regulations for the sanitary protection of all waters used by the metropolitan water board is intended to protect the interests of water takers that are not sufficiently protected under § 10 of that statute. The right of the State board of health to make regulations under § 24 was not considered in this case.</p>

<p>Sales of Merchandise in Bulk. Equity Jurisdiction, To set aside sale in violation of St. 1903, o. 415, Bona fide purchaser for value. Statute, Construction. Mortgage. Words, “Void.”</p> <p>By the enactment of St. 1903, c. 416, which provides that certain sales of merchandise in bulk, where notices, prescribed by that statute, were not given by the vendee to the creditors of the vendor, shall be “ void," it was not the intention of the Legislature that such sales should stand upon any different footing from the general class of fraudulent saleB theretofore existing, but to add them to that class as fraudulent and therefore voidable by creditors, and, such sales not being absolutely void, creditors seeking to have them declared so must proceed with reasonable despatch and before the rights of intervening parties acting in good faith have become fixed.</p> <p>The owner of certain merchandise sold it in bulk in fraud of his creditors and in violation of St. 1903, c. 415, which provides that certain sales of merchandise in bulk, where notices, prescribed by that statute, were not given by the vendee to the creditors of the vendor, shall be “ void,” and the vendee mortgaged it to the vendor to secure a portion of the purchase price. A creditor, who was not notified of the sale by the vendee in accordance with the requirements of the statute but was notified verbally by the vendor and assured by him that the requirements of the statute had been complied with, and who believed that the statute had been complied with and had no reason to believe and did not believe that the sale was fraudulent, in consideration of a loan to the vendor received from him an assignment of the mortgage. Upon the vendor’s being adjudicated a bankrupt his trustee in bankruptcy sought by a bill in equity against the assignee of the mortgage to have the title to the merchandise declared to be in the trustee by reason of the statute. Held, that the title of the defendant was that of a purchaser of the merchandise for value without notice, actual or constructive, of the fraud of the vendor, and as to him the sale should not be declared void; that therefore the bill must be dismissed.</p> <p>The owner of merchandise sold it in bulk in fraud of his creditors to one who gave back to the vendor a mortgage to secure a part of the purchase price. The requirements of St. 1903, c. 416, providing that a sale of merchandise in bulk not in the ordinary course of business shall be “ void ” unless, among other things, the vendee notifies the creditors of the vendor five days before he takes possession, were not complied with. A creditor of the vendor to a small amount, who had received no notice from the vendee but was notified verbally by the vendor and by him assured that all the requirements of the statute had been complied with, and who did not believe and had no reason to believe that the sale was in fraud of the vendor’s creditors, relied on the assurance of the vendor and made a loan to him, taking an assignment of the vendee’s mortgage. Held, that the assignee of the mortgagee was not culpably negligent in relying upon the vendor’s assurance that the terms of the statute had been complied with, and that he was not in the position of the fraudulent vendee, but in that of a bona fide purchaser of the merchandise for value, and that his title was unassailable.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on April 11, 1902, by the owner of a parcel of land through which runs a stream called Beaver Brook, in the town of Dracut, having thereon a paper mill operated by the plaintiff from 1888 continuously for a period of almost twelve years, and thereafter operated by another paper manufacturer under a lease from the plaintiff until he was prevented from carrying on the business of manufacturing paper there by the acts of the defendant alleged in the bill, against a corporation manufacturing woollen and other cloths and owning since April, 1899, a large tract of land in Dracut situated on both sides of Beaver Brook and including the bed of the brook, about one and one half miles up the stream from the land and mill owned by the plaintiff, and having thereon large mill buildings, which, with the mill privileges and water rights appertaining thereto, constitute a manufacturing plant known as the Beaver Brook Mills, to restrain the defendant from emptying into Beaver Brook at any point above the premises of the plaintiff dyestuffs, chemicals, industrial or domestic sewage, scourings, acids, compounds of iron or of soap, or any other polluting matter, and from maintaining the height of the dam and flashboards upon its premises above the height at which they had been maintained previous to 1899, and from interfering with the natural flow of the water of Beaver Brook by holding back the water of the brook or otherwise; also praying that there might be an assessment of damages sustained by the plaintiff by reason of the quantities of dyestuffs, chemicals, industrial and domestic sewage, scourings, acids, compounds of iron and soap, and other polluting matter, which had been emptied into' the brook from the defendant’s premises since the defendant became the owner thereof, and by reason of the holding back of the water of Beaver Brook.</p> <p>The case was referred to Charles P. Greenough, Esquire, as master. He made a report to which both the plaintiff and the defendant filed exceptions. The case was heard upon the master’s report and the exceptions thereto by Morton, J., who sustained the exceptions of the plaintiff, and overruled those of the defendant. He ruled that upon the master’s report and the evidence the plaintiff was entitled to an injunction restraining the defendant from discharging noxious substances into the stream which flows past the plaintiff’s land and thereby corrupting its waters and rendering them unfit for drinking and domestic purposes and other uses. The justice filed a memorandum of decision which contained, among other things, the following:</p> <p>“ It seems to me that, taking the case as a whole, the master’s findings are warranted by the evidence and are all that is required for the proper disposition of the case. It is plain, it seems to me, that the evidence warranted a finding that the defendant has discharged, or caused to be discharged, into the brook various substances and things of a deleterious nature and in quantities which have corrupted the waters of the brook and rendered them unfit for use in the paper business at the plaintiff’s mill and for other purposes requiring clean water. I do not think that it had, or has, the right to do that. I do not think the plaintiff has lost his right to relief by laches, or anything resembling it, or that the defendant and its predecessors have acquired a prescriptive right to foul the stream. I do not think that the master was bound to find how much of the various acids, chemicals, soaps, dyes, etc., which they used the defendants discharged into the brook, or what would be a reasonable use of the brook for these and other like purposes if they had the right to so use the brook. The defendant was and is bound to keep within its rights at its peril. Whether it has the right to make such use of the brook will be considered later. It does not seem to me, as I have already in substance observed, that the master has omitted to find any material facts. I do not think that the defendant can claim a right to foul the water because the plaintiff, by a proper system of sedimentation and filtration, could cleanse it. . . .</p> <p>“ This brings me to the plaintiff’s exceptions. These involve, for the most part, in one form or another the question of the respective rights of the plaintiff and defendant in the waters of the brook. There is also a question as to the right of a party to an injunction in case of the invasion, or threatened invasion, of a right without actual damage. In view of the findings of the master, it would seem to be unnecessary to pass upon that question at this stage of the case, though I have no doubt that an injunction may issue in such a case, and that defendant’s fourth exception should be overruled.</p> <p>“ The master has ruled, as I understand him, that a riparian proprietor may foul the waters of a stream under certain circumstances ; that the question is in each case one of reasonable use, and that in passing upon that question the size and character of the stream, the density of population, the uses to which the stream has been and can be applied, the usages of the country in similar cases and the needs of the community, and the extent of the benefit to one party as compared with the injury to the other are all to be considered. I do not think this is a correct view of the law in its application to this case. I think that one riparian proprietor has no right to discharge into the stream substances and things which will tend to, and which do, corrupt and foul the waters thereof to the injury of a lower riparian proprietor. I think, moreover, that for him to do so is an invasion of the lower riparian proprietor’s right which entitles him to relief, though no actual damage is shown. The question of relative benefit or injury has nothing to-do with the matter, it seems to me. Each riparian proprietor has a right to have the waters of the stream come to him in as pure and uncontaminated a condition as the character of the stream and the density of population along its banks will permit.</p> <p>“ Each riparian proprietor has a right to make a reasonable use of the waters of the stream as it flows through his land. But this does not include the right to make of the stream a sewer, or to discharge into it substances and things which will tend to corrupt and foul the waters thereof. A riparian proprietor cannot complain if, in consequence of the density of the population along its banks, and the multiplication of various kinds of business, the waters of the stream do not come to him as pure as they originally were. But when, as here, the waters of a stream come to the dam of a manufacturing establishment substantially clean and pure, I think the lower riparian proprietor has a right to insist that they shall be permitted to come to him in the same condition, and that nothing shall be discharged into them from the manufacturing establishment which will tend to corrupt them and render them unfit for use. The reasonable use which the owner o‘f the manufacturing establishment may make of the stream does not include the right to corrupt and poison the waters thereof by turning acids', soaps, chemicals, dyes and other noxious substances into it. He must dispose of those in some other way, and the lower riparian proprietor is entitled to an injunction restraining him from discharging such things into the stream and thereby corrupting and fouling the waters thereof. In some cases a court of equity will decline to issue an injunction where the injury to the party complaining is very slight and may be entirely compensated by the payment of damages, and the consequences to the other party of an injunction will be most serious and altogether out of proportion to the damage complained of. But this is not one of those cases.</p> <p>“ I think that the master should have ruled, in substance, as requested by the plaintiff, that the defendant had no right to discharge noxious substances into the stream and thereby corrupt its waters and render them unfit for drinking and domestic and other uses, and that such action on its part constitutes an invasion of the plaintiff’s rights, and that the plaintiff is entitled to an injunction restraining the same. The plaintiff’s exceptions to the refusal of the master to rule as thus requested, and to the rulings that were made, must, therefore, be sustained.”</p> <p>After the decision stated above the plaintiff filed in the case a motion “ that a decree be entered therein in accordance with the findings of the court and of the master.” At the hearing on this motion the plaintiff presented a form of decree which he asked to have entered.</p> <p>The plaintiff requested the justice to take evidence on the question of damages sustained since the filing of the master’s report up to the date of the decree, contending that the master’s report showed what the damages were up to the time that the report was filed, and that the loss of the rent of his factory was the measure of the damages which he had sustained. The justice declined to take evidence as requested, and also declined to assess the damages to the date of the filing of the master’s report, for the reason that no damages were found by the master and that the facts as they appeared from the master’s report did not enable him to do so, and for the further reason that he did not think that he ought to be asked to assess the damages. He further declined a subsequent request of the plaintiff that he should re-read the evidence submitted with the master’s report on the question of the plaintiff’s damages and upon the basis of such evidence assess damages. Later the plaintiff moved to amend by a'dding to his motion for a decree a motion that the case be recommitted to the master for the assessment of damages in accordance with the rulings and findings of the court.</p> <p>At the hearing upon this motion the defendant contended that the plaintiff, by his failure to file objections and exceptions to the master’s report on the ground that it contained no finding of damages, had lost or waived his right to damages, that his course of conduct in the case both before the master and before the justice amounted to a waiver of his claim, and that the evidence before the master was insufficient for the assessment of damages.</p> <p>Afterwards the plaintiff withdrew his motion to recommit the case for the assessment of damages without prejudice to his right, if any, to file and prosecute a similar motion after a re-script from the full court, and at the suggestion of the justice asked that an interlocutory decree be entered in accordance with the memorandum of decision and that the case be reported to the full court for the purpose of determining the questions raised, including the question whether the plaintiff had lost or waived his claim for damages.</p> <p>The justice ordered that an interlocutory decree be entered restraining the defendant from polluting the waters of the stream, with a stay of proceedings, and, being of opinion that this and his rulings so.affected the merits of the controversy that the questions raised, including the question whether or not as the case stood the plaintiff had lost or waived his right to have his damages assessed, should be determined by the full court before further proceedings, he reported the case to the full court, such disposition to be made of it as should seem meet, saving, however, to the plaintiff his right, if any, to move subject to the defendant’s objection that the case be sent back to the master for the assessment of damages, and without prejudice to the defendant’s right to contend that the plaintiff’s request to have the case reported at this stage against the defendant’s objection constituted a further waiver.</p>

<p>On March 28, 1908, the following order was passed by the Senate and on March 26 was transmitted to the Justices of the Supreme Judicial Court. On April 3, 1908, the justices returned the answer which is subjoined:</p> <p>Senate, March 23, 1908.</p> <p>Ordered, That the Senate hereby requests the opinion of the Justices of the Supreme Judicial Court on the following important question of law:</p> <p>Is it within the constitutional power of the General Court to enact a law exempting from all other taxation, State and local, the classes of intangible personal property hereinafter enumerated, and to impose thereon, either as a property tax, duty, or excise, a uniform tax at the rate of three mills in each dollar of the fair cash valuation thereof, viz.:</p> <p>(1) Money on hand, on deposit, or at interest, and other debts due the taxpayer;</p> <p>(2) Public stocks and securities;</p> <p>(3) The bonds of domestic and foreign corporations ;</p> <p>(4) The shares in the capital stock of foreign corporations</p> <p>now taxable under the provisions of Chapter 12 of the Revised</p> <p>Laws?</p> <p>This question is propounded with a view to legislation set forth in appendix D, of the Report of the Commission on Taxation appointed under the provisions of Chapter 129 of the Resolves of 1907, a copy of which is submitted herewith.</p>