Volume 196 — Massachusetts Reports

<p>Equity Jurisdiction, To follow proceeds of funds abstracted by administrator, To reach, and apply equitable assets. Executor and Administrator. Trust. Equity Pleading and Practice, Decree for relief conditional on amendment.</p> <p>In a suit in equity by an administrator de bonis non to follow the proceeds of a fund abstracted from the estate of the plaintiff’s intestate by a former administrator of the estate and turned over without consideration to his wife the defence was set up that the plaintiff should seek his remedy through the account of the former administrator and by an action on his bond. Held, that the remedy by an accounting and an action on the bond was not exclusive and in this case was not adequate and constituted no defence to the suit.</p> <p>In a suit in equity by an administrator de bonis non to follow a fund of $20,000 abstracted from the estate of the plaintiff’s intestate by a former administrator of the estate, one of the defendants, and turned over without consideration to his wife, the other defendant, it appeared that the woman defendant received from her husband the $20,000 of the funds of the estate as alleged, that she purchased two mortgages against the estate for $10,000 each, paying for one of them $10,000 in full and upon the other $5,000 out of the abstracted funds, that the remaining $5,000 of the abstracted funds she disposed of in a manner unknown, and paid the remaining $5,000 of the purchase money for the mortgages with money borrowed from her brother. Held, that the plaintiff was entitled to a decree that one of the mortgages should be discharged and surrendered, and that the other mortgage should be declared to have been satisfied to the extent of $5,000, and should be held by the woman defendant as security only for the sum of $5,000 with interest and the taxes paid by her. But it also was held, that the plaintiff should be permitted to amend his bill within a time named by adding a prayer for alternative relief under R. L. c. 159, § 3, cl. 7, to reach and apply to the payment of the indebtedness of the woman defendant, for the $5,000 of the estate received and disposed of by her, her interest in the mortgage for which she paid with the money borrowed from her brother, and it was decreed that, if such an amendment was made and allowed, the decree should be modified by striking out the part which permitted the woman defendant to hold the mortgage as security for $5,000 and interest and taxes paid by her, and by inserting an order that her interest in the mortgage be applied to the payment of the $5,000 which she owed the plaintiff as administrator.</p>

<p>Practice, Civil, Terms of reservation, Ordering verdict. Pleading, Civil, Declaration. Trust, Construction of terms, Obligation of beneficiary, Termination. Words, “Agreement.”</p> <p>In an action of contract where the presiding judge had ordered a verdict for the defendant and had reported the case for determination by this court, the terms of reservation were as follows: “ If upon the pleadings and the evidence . . . the defendant is liable, judgment is to be entered for the plaintiff for the amount claimed in the declaration, but if the defendant is not liable, judgment is to be entered on the verdict.” Held, that by this reservation the case was to stand for trial unless upon the pleadings and the evidence as matter of law one party or the other was entitled to a verdict, and such a new trial was ordered.</p> <p>A declaration in an action of contract upon an account annexed contained the words “To your share of amount paid by” the plaintiffs “in settlement of liability on bond executed and given by them to one F. in the sum of $19,000 which said bond was executed at your request and for your benefit and upon your agreement to be responsible for your share, to wit: $3,666.66.” Held, that the word “agreement” in this sentence in the connection in which it occurred must be taken to mean an express agreement and not an obligation implied by law.</p> <p>A declaration of trust provided that the trustees should hold the title to certain land for the benefit and advantage of all the owners, and that “ upon demand each of said owners will pay their respective proportion of any interest charge, taxes, assessments or other lawful expense of said trust.” The trustees paid the sum of $11,000 in settlement of their liability on a bond for $19,000 secured by a mortgage given by them in part payment for the land held by them as trustees, and sued one of the four owners of the land for $3,666.66 as his proportionate share of the sum so paid by them. Held, that if it was shown that the defendant assented to and was bound by the declaration of trust, the words “other lawful expense of said trust” were broad enough to include any payment made by the plaintiffs in settlement of their liability on the bond, and to make the defendant liable for his proportionate share, if such payment was made in good faith and the settlement was a reasonable one.</p> <p>Whether a person named as beneficiary in a declaration of trust executed by trustees but not by him is bound by its terms depends on the question whether he assented to it, and such assent can be eitiier absolute or conditional.</p> <p>In an action of contract against a person named as a beneficiary in a declaration of trust executed by trustees but not by him, to enforce an alleged obligation of the defendant under the terms of the trust to reimburse the trustees for his proportion of a payment made by them, the defendant contended and introduced evidence tending to show that he assented to the declaration of trust only on condition that he could “ drop out” whenever he wanted to, and that before the payment was made by the plaintiffs as trustees he had elected to have nothing further to do with the matter and so had notified the plaintiffs. This was contradicted by evidence introduced by the plaintiffs. Held, that the question of the defendant’s liability was one of fact for the jury, and that it would be improper to order a verdict either for the plaintiffs or for the defendant.</p> <p>In an action by the trustees under a declaration of trust by which the plaintiffs had held certain land for the benefit of the owners, consisting of themselves, the defendant and another person, to recover from the defendant his proportionate share of a payment made by the plaintiffs for the benefit of the trust, it appeared that the declaration of trust contained a provision that upon demand each of the owners should pay his respective proportion “ of any interest charge, taxes, assessments or other lawful expense of the trust;” and that the payment made by the plaintiffs was such a lawful expense, that after the creation of the trust the land held by the plaintiffs was sold under foreclosure proceedings, and was bid in for the benefit of the trustees and such of the beneficial owners as chose to join them. The defendant contended that the plaintiffs could not maintain an action at law to recover the sum alleged to be due to them, because the trust was still open. Held., that, even if under the terms of the trust the trustees would be obliged to wait until its termination before recovering from the defendant his proportionate share of the payment made by them, which was doubted, the trust had been terminated by the foreclosure sale, and there was no objection to the maintenance of the action.</p>

<p>Negligence, Employer’s liability. Street Railway. Practice, Civil, Judge’s charge, Exceptions.</p> <p>In an action against a street railway company for personal injuries received while in the employ of the defendant by reason of the alleged incompetence of the motorman of the car on which the plaintiff was acting as conductor, it appeared that the motorman was employed later than the plaintiff, that it presently was rumored that he was incompetent, and that the defendant’s assistant superintendent, whose duty required him to supervise the operation of the cars, became satisfied from his observation that this motorman never would be able to run a car properly, and so reported to the defendant’s superintendent, that thereafter the motorman continued to be retained in the defendant’s employ, that on the morning of the accident, the plaintiff, finding that he was to be put on a car with this motorman, asked for another motorman, and, this request being refused by the starter, asked to have another conductor put on the car in his place, that this request also was refused, and the plaintiff took his place on the car, that, owing to the blasting of rock for the construction of a sewer, boulders had been thrown upon a portion of the track on which this car was running, that the defendant’s assistant superintendent directed the motorman and the plaintiff when they approached this place to change from the car which they were running to another car which was waiting for them on the other side of the obstruction, that they made the change and proceeded to the end of the route, where they reversed their positions and started on the return trip, that, as they approached again the place of the obstruction, running on a straight track which did not appear to have been otherwise than in good condition, the motorman, instead of stopping the car, ran directly into a boulder on the track, causing.the plaintiff's injuries. The mechanical and electrical appliances of the car were not shown to have been defective. Held, that there was evidence of the retention by the defendant of an unfit servant after notice of his incompetence and that the accident was caused by this servant's inefficiency; also, that it could not be held that as matter of law the plaintiff in starting on the car, after having protested against doing so with a general knowledge of the motorman’s incompetence, assumed the risk of such a degree of incompetence and heedlessness on the part of the motorman as was shown by his wholly disregarding his orders and running the car into an obstruction plainly visible on the track, so that the case properly was submitted to the jury.</p> <p>In an action against a street railway company for personal injuries received while the plaintiff was employed by the defendant as a conductor by reason of the alleged incompetence of the motorman of the car, who ran it against a boulder plainly visible on the track after having been ordered by the defendant’s assistant superintendent to stop his car before he -reached the obstruction, where there is evidence of the incompetence of the motorman and of the defendant’s knowledge of his unfitness for his work, if the defendant is apprehensive that a certain portion of the charge of the presiding judge, which is correct in substance, may be understood by the jury to mean that they are to pass upon the question of the negligence of the motorman instead of passing upon the question of his incompetence, he should ask for more specific instructions, and, if he fails to do so, he afterwards, in arguing an exception to this portion of the charge, cannot complain because more specific instructions were not given.</p>

<p>Way, Defect in highway.</p> <p>In an action against a town under R. L. c. 51, § 18, for personal injuries caused by stepping into a depression in an asphalt sidewalk of a highway of the defendant, alleged to have constituted a defect therein, the defendant asked for the following instruction : “If the defect or want of repair complained of consisted of a depression in the asphalt about one and one half to two feet in length parallel with the curbstone, and about fourteen inches to a foot and a half in breadth at right • angles with the curbstone, with a depth not greater than two or two and one half inches or three inches, with gradually sloping sides to the deepest point, and with no sharp edges, and filled in with earth tamped in to nearly the top, the jury must find that such depression did not constitute such a defect or want of repair as the defendant would be liable for.” The evidence was conflicting, and the defendant’s witnesses described the condition of the sidewalk as it was stated to be in the instruction requested. Held, that the instruction should have been given.</p> <p>If a depression in the sidewalk of a highway of a town is of such a character as to constitute a defect in the highway, the knowledge by the superintendent of streets of the town of the existence of such depression is a sufficient notice to the town to make it liable to a traveller injured by reason of stepping into it. In an action against a town under R. L. c. 51, § 18, for personal injuries caused by an alleged defect in a highway of the defendant it is right for the presiding judge to refuse to instruct the jury that “ The notice which the defendant must have, or which by the exercise of proper care and diligence it might have had of the defect or want of repair complained of, must be notice of the exact defect complained of and not merely of a situation likely to cause the exact defect in question,” and to instruct them instead that the town is not liable unless it had reasonable notice of the defect.</p>

<p>Habeas Corpus. Arrest, On mesne process, On execution. Jurisdiction. Poor Debtor.</p> <p>A judgment creditor brought an action,on bis judgment and procured the arrest of the debtor on mesne process upon a writ and affidavit in proper form. The debtor petitioned for and procured a writ of habeas corpus, seeking his discharge from arrest, contending that the court in which the judgment sued on was ordered had no jurisdiction. Held, that the fact that the petitioner had a good defence to the action on the judgment was not a ground for his discharge in habeas corpus proceedings.</p> <p>It seems, that if a judgment debtor is arrested on execution, he can procure his discharge in habeas corpus proceedings by showing that the court from which the execution issued had no jurisdiction.</p> <p>Where one brings an action against an alleged debtor and, having caused his arrest on mesne process, for a consideration discharges the defendant and discontinues the action, and subsequently brings a new action and obtains a judgment, he is not precluded from causing the arrest of the debtor on mesne process on a writ and affidavit in proper form in an action brought on such judgment.</p> <p>R. L. c. 168, § 45, gives an exemption from a second arrest to one arrested on mesne process and discharged after taking the oath for relief of poor debtors, but does not give the alleged debtor such exemption if he was discharged from such arrest by the plaintiS voluntarily, or if he was discharged upon his taking the oath that he did not intend to leave the Commonwealth.</p>

<p>Two ACTIONS OE TORT, the first by a girl seventeen years of age (hereinafter called the plaintiff) to recover for injuries received from being thrown from a car of the defendant as it was rounding a curve, and the second by her father to recover for loss of his daughter’s services and for expenses to him caused by her injury. Writs in the Superior Court for the county of Middle-sex dated August 20, 1904.</p> <p>There was a trial before Bond, J. From the plaintiff’s evidence it appeared that she was a passenger on a single truck, open car of the defendant, which was equipped with a hand brake, and that she was sitting at the left end of the front seat. The place of the accident was a sharp curve in the track preceded by a moderate down grade. The car ran down the grade at a speed variously described by the plaintiff’s witnesses as “ very fast,” “ at a very great speed,” “a pretty good rate of speed,” “at a fast rate of speed,” _“ very, very swiftly,” “ it seemed to be fast for a curve,” “ faster than I ever rode in a car before.” As the car reached the curve, the passengers were thrown with varying degrees of violence toward the left. The plaintiff testified that as the car approached the curve, which she had seen ahead, she was very nervous because it did not slacken its speed, and sat very still, watching the motorma.n. As she sat on the seat, her feet did not touch the floor and, with the swaying of the car, she held on to a rod at the end of the seat with her left hand, and on to her hat with the other. When the car reached the curve, she was thrown off. There was no evidence as to the roadbed or track or car being defective.</p> <p>The defendant’s evidence tended to contradict the plaintiff’s as to the speed of the car. The motorman testified that the defendant’s rules required a speed of not more than three miles an hour in going around curves, and that he was not exceeding that speed.</p> <p>- At the close of the evidence, the defendant requested the presiding judge to rule that on all the evidence the plaintiff could not recover, and also made the following request for ruling, referred to in the opinion as the defendant’s seventh request: “There being no evidence of any defect in the car or track, the plaintiff must show, in order to recover, that the car struck the curve at a dangerous and negligent rate of speed. It is not sufficient to show merely that the car was going at such speed as to make it probable that there would be a lurch or jolt, for it is fairly incidental to street car travel that cars should occasionally lurch and jolt, and passengers must be held to contemplate such occurrences. Neither is it sufficient to show that there was in fact an unusual or violent lurch of the car, or one sufficient to throw the plaintiff off. It must appear by other evidence that the speed was so unusual under the circumstances that the defendant’s servants ought to have realized before the accident occurred that the car was likely to lurch more violently and dangerously than is incident to the ordinary operation of cars upon curves in the track. ” The presiding judge refused both requests, and the defendant excepted.</p> <p>In the course of his charge to the jury, the presiding judge said, subject to the defendant’s exception: “If the curve is there, then it is for the company to go around that curve in such a way that they shall not unnecessarily endanger the safety of passengers. ... It is for you to say — determining what this curve was — whether this car was running around there with the highest degree of care that could be exercised by the motorman, by any person, so as not to endanger the safety of passengers, and at the same time run the car. . . . The question which you have to consider is, considering the condition of the track, the curve that was there, was this car run with that high degree of care which they ought to have exercised with reference to the safety of passengers and at the same time run their road.”</p> <p>In the course of the trial, a witness called by the plaintiff, also under summons by the defendant, had testified that the lurch which occurred when the car reached the curve was “ not more than the ordinary lurch in going around curves.” The presiding judge said to the witness: “ You say this was an ordinary lurch. Had you ever known anybody being thrown off before ? Is it a common thing to throw off people around a curve ? ” The defendant’s counsel objected to the question of the presiding justice, and he replied : “ I want to see if it is a common practice; because, if it is, this plaintiff cannot recover, — she has no case. ... It occurred to me whether this was an ordinary lurch, whether it was the custom to be shot off.”</p> <p>Later in the trial the motorman of the car, called by the defendant, testifying in cross-examination, stated that the lurch caused by the car going around the curve was not unusual. The conductor of the car was then called by the defendant and, testifying in direct examination, had stated that the lurch “ was not more than any of these single truck cars would make,” when the presiding judge interrupted the examination with the remark : “ That does not answer the question. He comes here to say that. The other man is just the same way. He is not asked that question,” and the following colloquy ensued in the presence and hearing of the jury:</p> <p>Defendant’s Counsel. — I must take an exception to your Honor’s saying that he came here to say that.</p> <p>The Presiding Judge. — Why should he say it? Both of them have said it and you have not stopped them.</p> <p>Defendant’s Counsel. — I did not object to your Honor’s asking if we were in the habit of throwing people off the cars in rounding curves, I did not take an exception to that; but I must take exception to this.</p> <p>The Presiding Judge. — I said that you should not run the car to throw people off. . . . That when he insisted that they were going in the usual way, and it was the usual jerk, I thought it would be a good way to test whether it was a usual jerk, to ask whether they usually threw people off, — and by that you would get some idea of what was a usual jerk.</p> <p>Defendant’s Counsel. — Now your Honor makes the statement that this witness comes here to say that.</p> <p>The Presiding Judge. — They shouldn’t do it. It is no use to have them answer that way and then strike it out. Whether they come here to say that, I don’t know whether that is so or not, but they shouldn’t say it.</p> <p>Defendant’s Counsel. — I shall certainly have to take an exception to the remark.</p> <p>The Presiding Judge. — You may take an exception.</p> <p>Commenting on these matters in his charge to the jury, the presiding judge stated : “ Now, there is another matter that occurred in this case, and I want to call your attention to it and caution you about allowing it to have any undue prejudice on your part. At the time one of the witnesses — it was the conductor, I think — was testifying, he was asked some question, and he added to his answer what was not responsive to the question, something to the effect that there was no unusual motion to the car as it went around the curve. The plaintiff’s counsel objected to that and asked to have it struck out, and he was entitled to have his motion allowed, but it occurred to me that it was rather technical and would only waste time, because the evidence was competent in itself. I think I owe the plaintiff’s counsel an apology that I did not grant the motion, because, technically, he was right, but it did not seem to me that it was necessary, — and I said he came here to testify to that, because that was one of the important features of the defence. I supposed he was coming here for that. The other man testified to it, and I suppose he meant to. But afterwards counsel to some extent, for the defendant, disclaimed anything of the kind. Now I don’t want you to allow yourselves to be prejudiced by any thought that I suggested to the plaintiff’s attorney that the evidence would come in here and he might as well let it remain where it was. That was a matter for him, but he had a right to make that objection, and I ought to have granted it. Don’t let that prejudice you in any way against the testimony of the conductor, or against the defendant’s case.”</p> <p>There were verdicts for the plaintiffs.</p>

<p>Devise and Legacy. Descent and Distribution. Words, “ Own right heirs.”</p> <p>At the hearing on a bill in equity by the trustee under a will to determine who was entitled to share in the final distribution of the trust fund, it appeared that the testator was seventy-five years of age when he executed the will and had been married three times, the last marriage having occurred eight months before he made his will and being to a woman thirty-one years of age, that when he made his will he. had no issue living' excepting a daughter by his second wife who was a widow and non compos mentis. The clause of the will relating to the trust, after making elaborate and painstaking provision for the support of his daughter during her life and of her issue, if any, after her death, for the support of his wife during her life and of her issue by the testator, if any, after her death, provided as follows: “. . . and upon the decease of such survivor [of the wife and daughter] leaving issue to distribute the principal of the trust fund among my issue; and if on the decease of such survivor there should be no living descendant of mine, then to distribute said principal among my own right heirs, unless my said adopted son, Thomas Blanchard Jr. or some issue of his, be then living, and in that case to pay over to him if living, or to his issue, if he be not then living, one half part of said principal fund.” Held, that by the provision quoted the testator intended to create a contingent interest and not one which should vest at the time of his death, and that by the words " my own right heirs ” he intended to designate those persons who would have been his heirs had he died immediately after the death of the last surviving life beneficiary.</p> <p>Where a will creates a contingent interest which on the termination of a life estate is to vest in persons described as the testator’s “ own right heirs,” the testator in effect has incorporated into his will the statute providing for the descent of the real estate of an intestate as it may be at the time of the happening of the contingency.</p>

<p>Municipal Lighting Plant. Municipal Corporations, Officers and agents.</p> <p>By St. 1905, c. 410, § 3, amending R. L. c. 34, § 20, which defines the powers and duties of the manager of a municipal lighting plant, the power to hire and discharge employees in such a plant operated by a city is vested originally in the manager, and not in the mayor.</p> <p>The manager of a municipal lighting plant operated by a city discharged an employee against the express orders of the mayor of the city, and refused to reemploy him although the mayor demanded that he should. Acting under orders of the mayor, the discharged employee reported daily for work to the manager. No regulations regarding the management of the plant had been established by the mayor. In an action by the discharged employee against the city to recover for services during the period after his discharge when he was reporting daily for work, it was held, that, under St. 1905, c. 410, g 3, amending R. L. c. 34, § 20, the mayor did not have power to hire or discharge employees in the municipal lighting plant, and, no contrary regulation having been established by the mayor, the manager’s discharge of the plaintiff was within his powers, and the plaintiff had no cause of action.</p>

<p>Two ACTIONS OR TORT. Writs in the Superior Court for the county of Worcester dated October 7, 1891, and December 3, 1897.</p> <p>The first action is to recover damages which the plaintiff, the owner of a mill privilege on Blackstone River a short distance below the confluence of Mill Brook and Middle River, which unite to form Blackstone River, suffered by reason of a diversion of the waters of Mill Brook by the defendant in June, 1890; and the second action is for damages resulting from such diversion between December 4,1891, and the date of the second writ.</p> <p>The two cases were referred to an auditor and tried together before him. At a trial before (faskill, J., without a jury, on the coming in of the auditor’s report, the only evidence being the report, the presiding judge made pro forma findings of fact and rulings of law in accordance with those of the auditor, and, at the request of the parties, reported the cases on the pleadings and the auditor’s report for consideration and determination by this court.</p> <p>There were six votes and orders of the city council of Worcester previous to March 8, 1880, which are mentioned in the third paragraph of the opinion. Each of these provided for the changes necessary to adapt Mill Brook to the uses of the sewer system of the city of Worcester in accordance with the provisions of St. 1867, c. 106. None of them assumed to lessen the amount of water flowing into Blackstone River from Mill Brook. The vote of March 8, 1880, referred to in the opinion, changed the place where Mill Brook was emptied into Blackstone River from its natural channel to a point farther down stream, but still above the plaintiff’s mill, and did not lessen the amount of water coming to the plaintiff’s mill. The channel as thus changed became the main trunk sewer of the sewer system of the city of Worcester, and into it, and, through it, into Blackstone River above the plaintiff’s mill, there were discharged (1) the entire sewage from the sewer system of the city of Worcester (being the water drawn from its public water supply and returned in part into the sewers, carrying with it the sewage from the buildings in the city) ; (2) the storm and surface water from the settled portion of the city (hereinafter designated as the “ urban area ”) collected by street gutters and catch basins and thence taken into the sewer system (herein is included some water which was not naturally tributary to Mill Brook, but was tributary to other streams, the waters of which in a state of nature were tributary to Blackstone River above the plaintiff’s mill) ; (3) ground water (being that part of the water falling on the urban area or leaking from the city’s water pipes which soaked into the ground and thence found its way into the sewer system through the pipe joints), and (4) the entire natural drainage of the watershed tributary to that part of Mill Brook which had not been appropriated as a sewer. All of this water was diverted by the defendant, purporting to act under St. 1886, c. 331, as stated in the opinion, and caused to flow into Blackstone River below instead of above the plaintiff’s mill.</p> <p>The auditor found that the water drawn from the city’s reservoirs through the pipes of its waterworks system and discharged into Mill Brook (which is classified first above) was not a part of any water theretofore taken from that stream, but was entirely water which naturally was not tributary to Mill Brook itself. All of it was, however, tributary to streams which were themselves tributary to Blackstone River and all of it entered Blackstone River above the plaintiff’s mill. Prior to the acts complained of, the city had legally taken the waters of Lynde, Tatnuck and Kettle Brooks for its water supply and, after the use of such waters, had received them into its sewer system, whence they were discharged into Mill Brook.</p> <p>Of the water reaching Mill Brook from the urban area (classified second above), the auditor found that about four fifths was surface and storm water from territory that was naturally tributary to Mill Brook, which would naturally have found its way into Mill Brook and come to the plaintiff’s mill. The grading and paving of the streets, the construction and maintenance of street gutters and catch basins and the providing of sewers did not, so far as this four fifths of the yield of the urban area was concerned, bring water which otherwise would have gone elsewhere, but merely facilitated its passage to its natural channel and perhaps slightly increased it in amount. The other one fifth was water falling on territory not tributary to Mill Brook. It was, however, tributary to streams of water which would naturally come to Blackstone River and the plaintiff’s mill. The acts of the city resulted merely in transferring this flow from one tributary of Blackstone River to another.</p> <p>The water classified third above the auditor found to consist of such part of the rainfall as soaked into the ground and found its way into the sewers through the joints of the sewer pipes, and of leakage from the city’s water pipes which percolated into the ground and likewise passed into the sewers through the joints of the pipes. The amount of leakage from the city’s pipes which found its way into the city’s sewers he found impossible to determine or estimate, “ it being so small as to be a negligible quantity in the present problem.”</p> <p>By St. 1822, c. 27, the Blackstone Canal Company was incorporated and was authorized to “ locate, construct and fully complete a navigable canal between” certain termini with “full power to employ and use as reservoirs for the purpose of supplying with water said canal or such works as may have any portion of their waters diverted from them to supply said canal, North Pond ... in the northerly part of Worcester . . . and also to save the flood and other waters in said ponds and to construct artificial reservoirs for the purposes aforesaid,” and to “ connect with said canal by feeders or by navigable canals any or all of said ponds and reservoirs.” Provision was made as to payment of damages to persons injured.</p> <p>North Pond is a great pond, the waters of which in their natural state flowed into Mill Brook.</p> <p>Proceeding under the power given by the Legislature, the canal company constructed dams for the purpose of saving the flood and other waters of North Pond, among others, and a due assessment of damages on petition duly filed was made to parties injured. The route of the canal was laid out along the line of Mill Brook and Blackstone River. At points above and below what is now the plaintiff’s mill feeders were constructed from the river to the canal. The company made no specific taking of the right to divert from their channel the waters of Mill Brook or of Blackstone River. Such right of diversion as it required was what resulted from the location above set forth and by the construction of feeders and works which did divert from Mill Brook and Blackstone River such part of their waters as the works constructed were capable of diverting. These works, however, did not divert the entire flow of either or both of these streams and there was no evidence to show to what extent the water was diverted. After the canal was opened and operated, the brook and the river continued to exist as independent streams, and after the canal was abandoned the river and brook flowed as formerly in their ancient channels.</p> <p>The canal company, under authority of St. 1844, c. 166, sold all its rights in the canal, flams, rights of way and “ all other privileges and appurtenances . . . however the same may have been acquired by ” it to persons, the interests of part of whom were ultimately conveyed to the defendant.</p> <p>With regard to the witness Eddy, mentioned in the opinion, the auditor reported that he was the superintendent of sewers of the defendant, and was called as a witness by the plaintiff and examined at length about various matters of fact and of opinion. It was admitted that he was exceptionally well qualified to express an opinion upon the matters which were the subjects of inquiry. During his direct examination he was asked as to his estimate or opinion as to the amount of sewage and surface or freshet water discharged into'Mill Brook month by month during the time covered by these actions. The subject matter of the inquiry was material and the witness had given his estimate or opinion of the average daily flow of sewage for the month of June, 1890, from the sewers into Mill Brook. Being then asked as to the elements upon which that opinion was based, it transpired that such opinion was based primarily upon the amount of city water drawn from the city’s reservoirs, that the figures showing this draft were tabulated but had been furnished to him by some one in the city engineer’s office. He then was asked for a table containing those figures and procured it. On his being asked to give the tabulated figures, the defendant objected on the ground that the figures asked for and the opinion formed and the computations made by him were made solely for the use of the defendant. The witness himself had no objection to replying. The auditor ruled that the witness could be required to express an opinion, if he had one, but that he could not be compelled to study the case or perform labor in order to qualify him to express an opinion.</p> <p>Upon further inquiry, witness testified that he had formed an opinion as to the amount of sewage delivered into the system of Mill Brook, that he had had that opinion a short time before when he last consulted his tables, that this opinion was expressed in figures and tabulated and that by consulting these tables (which were within reach of his hand) he could state that opinion, otherwise he could not. He then was asked to consult the tabulated figures for the purpose of stating the opinion he had formed, but declined to do so unless ordered. The defendant objected that the witness should not be required so to refresh his recollection. The auditor ruled that the witness, being upon the stand and qualified to express an opinion upon the subject matter of the inquiry, could be required to express it if he had formed one, and that if the witness had formed an opinion which he had committed to paper, he must refresh his recollection and state that opinion if the means were at hand. The witness thereupon, consulted his memoranda and gave the information desired, and the defendant excepted.</p> <p>The auditor ruled that the plaintiff could recover damages suffered by him for the diversion by the defendant of waters which otherwise would naturally flow down Blackstone River to his mill, refusing to allow him damages resulting from the diversion of waters described as first in the classification on page 47, but allowing damages resulting from the diversion of those classified as second, third and fourth, and refused to make any deduction from the damages awarded for diversion of water of the third class although some of it had leaked from pipes of the defendant’s waterworks system, the amount of such water being too small to calculate. He further ruled that the defendant in no way gained any right to divert the waters that would naturally flow past the plaintiff’s mill from North Pond.</p> <p>Other facts are stated in the opinion.</p> <p>The case was submitted on briefs.</p>

<p>Contract, Performance and breach. Evidence, Presumptions and burden of proof. Practice, Civil, Conduct of trial, Judge’s charge.</p> <p>In an action for an alleged breach of a contract to deliver to the plaintiff certain structural steel and iron “ as per plans and specifications ” for a building named, the deliveries to be made within certain specified times after the receipt from the plaintiff “ of complete figured drawings and specifications,” where the defence was that the defendant’s delay in the delivery of the materials was due to the failure of the plaintiff to furnish the complete figured drawings and specifications required, there was evidence that about one month after the making of the contract the defendant notified the plaintiff in writing of the plans and specifications which it would require and that about three weeks later the defendant acknowledged the receipt from the plaintiff of the plans and specifications thus called for. The defendant asked the presiding judge to instruct the jury that the defendant was not bound under the contract to deliver any part of the required materials until after the receipt of complete figured drawings for the whole building and also to instruct them that if the plaintiff did not perform his part of the contract he could not recover from the defendant for the defendant’s failure to carry out its part of the contract. There was no contention that the plaintiff failed to perform his part of the contract except in the matter of furnishing complete figured drawings. The judge refused to give these instructions, and the jury returned a verdict for the plaintiff. Held, that the refusal was right, as the instructions requested contained no reference to the matter of waiver on the part of the defendant, and it was a question for the jury whether the defendant expressly or by its conduct had waived the receipt of complete figured drawings, or had lost the right to object that such drawings had not been furnished.</p> <p>At the trial of an action of contract for an alleged breach of a contract to deliver to the plaintiff certain structural steel and iron “ as per plans and specifications ” for a building named, the deliveries to be made within certain specified times after the receipt from the plaintiff of “ complete figured drawings and specifications,” where the defence is that the delay in the delivery of the materials was due to the failure of the plaintiff to furnish the complete figured drawings required, it is not necessary for the presiding judge upon the request of the defendant to tell the jury in so many words that the burden of proof is upon the plaintiff, if it is plain that from the tenor of the judge’s charge the jury must understand that the plaintiff, to recover, is bound to satisfy them that the plans he furnished were “ complete figured drawings ’’ or that, if they were not, the defendant had waived any objection that the plans did not comply with the contract, or that the defendant by its conduct had estopped itself from taking advantage of that objection, it being immaterial that the precise phrase is not used by the judge so long as the substance of the matter is dealt with correctly.</p>

<p> Intoxicating Liquors. Transportation of Intoxicating Liquors. Carrier. Master and Servant. Agency. </p> <p>It here was assumed for the purposes of the opinion that, upon a complaint under R. L. c. 100, § 50, against a person conducting a general express business for failing to enter in a book kept for the purpose the date of the reception by him of packages of intoxicating liquors for delivery in a city or town where licenses of the first five classes are not granted and a correct transcript of the marks required by law to be upon the outside of such packages, if it is shown that the defendant failed to comply with the requirements of the statute it is no defence that his failure to do so was owing to an honest mistake.</p> <p>Upon a complaint under R. L. c. 100, § 50, against a person conducting a general express business for failing to enter in a book kept for the purpose the date of the reception by him of packages of intoxicating liquors for delivery in a city or tpwn where licenses of the first five classes are not granted and a correct transcript of the marks required by law to be upon the outside of such packages, if it is shown that a servant of the defendant, who in the course of his employment in the defendant’s business received packages of intoxicating liquors, failed to comply with the provisions of the act, this does not justify the defendant’s conviction, unless it further is shown that the defendant participated in the act of his servant or acquiesced in it, and accordingly it is error on the part of the presiding judge to exclude evidence offered by the defendant to show what instructions he gave to his servant in regard to conducting the business and that he told him “ to run the business right and to be sure to keep the book straight.”</p>

<p>Insane Person. Words, “Known,” “Sufficient,” “ Of sufficient ability.”</p> <p>R. L. c. 87, § 78, provides that “ the charges for the support of insane persons not having known settlements in this Commonwealth shall be paid quarterly by the Commonwealth and may afterwards be recovered by the treasurer and receiver general from such insane persons, if of sufficient ability.” At the trial of an action brought by the treasurer and receiver general under this provision to recover charges paid for the support of an insane person during a certain period at the Worcester Insane Hospital, there was evidence that so far as the authorities at the hospital knew and so far as the State board of insanity knew the defendant had no settlement in this.Commonwealth. The defendant offered to show that before her support in the hospital she lived in Boston for a period of ten years and had a settlement there, but the presiding judge excluded the evidence, and instructed the jury that it was immaterial whether or not she had a settlement in this Commonwealth if it was not known to the State authorities. Held., that the word “ known” as used in the statute means known to those whose statutory duty it is to ascertain whether such persons have settlements or not, and that the exclusion of the evidence and the instruction to the jury were right.</p> <p>R. L. c. 87, § 78, provides that “ the charges for the support of insane persons not having known settlements in this Commonwealth shall be paid quarterly by the Commonwealth and may afterwards be recovered by the treasurer and receiver general from such insane persons if of sufficient ability.” At the trial of an action brought by the treasurer and receiver general under this provision, the defendant contended that the action could not be maintained because she was not “ of sufficient ability ” under the statute. It appeared that the defendant was about seventy years of age and that she had about $1,200 in two savings banks. There was evidence that she was in good condition physically and, if she could be well cared for, had a good prospect of living ten years and ultimately might recover. The presiding judge instructed the jury that the facts, that the defendant might be released from the hospital, might recover and live a few years longer and might need this money for her support, had no bearing on the case, and that if they were satisfied on the evidence that the defendant was of sufficient ability at the date of the writ to pay the sum sued for they should find for the plaintiff on that issue. The jury returned a verdict for the plaintiff in the sum of $800. Held, that the instruction was correct and that the defendant properly could be found to be “ of sufficient ability ” within the meaning of the statute.</p>

Contract by the treasurer and receiver general of the Commonwealth under R. L. c. 87, § 78, to recover the charges for the support of the defendant at the State Asylum for Insane Criminals at Bridgewater from January 1, 1900, to January 1, 1906, amounting to $876.40. Writ dated April 11, 1906.

<p>Negligence. Street Railway. Carrier, Of passengers. Evidence, Of what is customary, Remoteness. Practice, Civil, Verdict.</p> <p>If, in an action for personal injuries alleged to have been caused by the negligence of the defendant, the jury in answer to questions put to them by the presiding judge make special findings that the plaintiff was not in the exercise of due care and that the defendant was not negligent, and also return a general verdict for the defendant, the verdict must stand if either of the special findings was warranted and there was no error in the rulings and instructions or in the admission and exclusion of evidence upon that issue, although there may have been error in the trial of the other issue.</p> <p>It is not negligent for the conductor of an electric street car with a seat running lengthwise on each side to suffer a bag or satchel to be placed by a passenger on the floor of the car and to allow it to remain there, when it is not placed so as to obstruct a free passage through the car or to render the passageway dangerous to a person in the exercise of due care.</p> <p>In the trial of an action by a woman against a corporation operating a street railway for personal injuries caused by the plaintiff, when in the act of leaving a car of the defendant, stumbling over a bag or satchel which another passenger had placed on the floor of the car, it is right for the presiding judge to refuse to instruct the jury that the defendant was bound to exercise toward the plaintiff “ the utmost care and diligence in providing against those injuries which can be averted by human foresight,” and to instruct them instead that the defendant owed the plaintiff “ the highest degree of care which was consistent with the practical carrying on of its business.”</p> <p>In the trial of an action by a woman against a corporation operating a street railway for personal injuries caused by the plaintiff, when in the act of leaving a car of the defendant, stumbling over a bag or satchel which another passenger had placed on the floor of the car, it would be error for the presiding judge to instruct the jury “that under all conditions the aisles, entrances and exits [of street cars for the transportation of passengers] shall be kept free from all obstructions by the use of the highest possible degree of care and caution on the part of” the corporations engaged in operating such cars.</p> <p>In the trial of an action by a woman against a corporation operating a street railway for personal injuries caused by the plaintiff, when in the act of leaving a car of the defendant, stumbling over a bag or satchel which another passenger had placed on the floor of the car, the defendant may be allowed to show that it is customary not to have racks for baggage or parcels in street cars and to allow the passengers to put hand bags and dress suit cases on the floor, as bearing upon the question whether the defendant exercised the degree of care required of it.</p>

<p>Agency, Scope of authority, Ratification. Contract, What constitutes. Estoppel. Practice, Civil, Different positions at successive trials. Damages.</p> <p>At the trial before a judge without a jury of an action for breach of an alleged agreement to charter vessels, there was evidence tending to show that the defendant, in a letter to a shipbroker, offered to furnish certain vessels and that the broker transmitted the offer to the plaintiff, that the plaintiff wrote to the broker a letter which he intended for an acceptance of the offer, but which, through inadvertence on his part, varied from the terms of the offer, that the plaintiff also orally told the broker that he accepted the offer, that the broker wrote the defendant a letter stating that the plaintiff accepted the offer in terms, and that subsequently the plaintiff ratified the broker’s action. The presiding judge refused to rule in accordance with a request of the defendant that the letter of acceptance of the broker to the defendant exceeded the authority given in the letter of the plaintiff to the broker, and that therefore there was no valid acceptance of the offer by the plaintiff. Held, that such refusal to rule was right, as the presiding judge properly might have found that the broker’s letter of acceptance was authorized orally and was ratified by the plaintiff.</p> <p>At the trial before a judge without a jury of an action for breach of an alleged agreement to charter vessels, there was evidence tending to show that the defendant offered in a letter to a shipbroker to “ furnish ” certain vessels, and that the broker transmitted the offer to the plaintiff, that the plaintiff wrote to the broker a letter which he intended to be an acceptance of the offer, but which, through his inadvertence, varied from the terms of the offer, that the plaintiff also orally told the broker that he accepted the offer, that the broker wrote the defendant a letter stating that the plaintiff accepted the offer in terms, and that subsequently the plaintiff ratified the broker’s action. Held, that the evidence warranted a finding that there was a valid acceptance by the plaintiff of the offer of the defendant, the plaintiff’s unsuccessful attempt to accept the offer in writing not precluding him from an oral acceptance through the broker.</p> <p>An offer in writing to a broker to “ furnish four or five barges that will insure cargoes at a satisfactory rate and carry not less than 8000 tons of coal and a first class tug boat of not less than 1000 H. P. to tow these or other barges, . . . to carry coal . . . beginning before November 1 and continuing until May 1,” was held to have been accepted by an authorized letter from the broker stating “ Tour offer ... to furnish four or five barges and a tug to transport not less than 8000 tons of coal . . . from November 1 or earlier to May 1 has been accepted.”</p> <p>At the first trial of an action for breach of an alleged agreement to furnish to the plaintiff certain barges and a tug, the plaintiff, to establish the contract, relied upon an offer contained in a letter of the defendant to a sliipbroker and communicated to the plaintiff, an intended acceptance contained in a letter from him to the broker, and evidence tending to establish that certain variations from the terms of the offer contained in the letter intended for an acceptance were waived by the defendant. On exceptions of the defendant after a finding for the plaintiff, this court held that the variations in the letter intended as an acceptance rendered it inoperative as such and that there was no waiver by the defendant of the right to object to the variation as rendering the acceptance inoperative. At a second trial, the plaintiff introduced evidence tending to establish that, at the time he handed to the broker the letter which was intended by him to be, but had been adjudged by this court not to be an acceptance of the defendant’s offer, he orally had communicated his acceptance to the broker, and that the broker had written to the defendant a valid acceptance. Held, that the position taken by the plaintiff at the first trial did not estop him from taking the one he took at the second trial, the two not being inconsistent.</p> <p>In an action for breach of an alleged agreement of the defendant, an Ohio corporation, to furnish certain vessels to the plaintiff for use in carrying coal between certain ports on the Atlantic coast, the plaintiff relied upon an offer in writing beginning “ We will agree,” and signed “ M., Manager,” and the defendant contended that M. did not intend to and was not authorized to make such an offer on its behalf. There was evidence tending to show that the defendant by its corporate charter had power to acquire, own and operate tugs and other vessel property, that M. was its general manager with an office in Boston in which the offer was signed by him, and was empowered under the by-laws of the defendant to “ conduct the business operations of the company as its business representative in all respects subject to the control of the board of directors,” that, when signing the offer, he did not state that he was not acting for the defendant and that, immediately after acceptance of the offer, he went to the home office of the corporation in regard to the matter, that he sought to procure from one of the officers of the defendant the refusal of a vessel owned by him which might be fitted to the purposes of the alleged agreement, and, in conversations and in correspondence written on business stationery of the defendant with regard to procuring such vessel, he discussed other matters relating to the business of the defendant. The defendant relied on evidence tending in part to controvert the foregoing, and also on evidence tending to show that the defendant did not own vessels which could be used to carry out the terms of the offer signed by M., and had not in its business used any but its own vessels, that M., at the time of signing the offer, had been and was “ manager ” for various craft on the Great Lakes in the sense that he had been accustomed to make agreements for chartering them and in so doing had not acted for the defendant, and that the broker knew that the word “ manager ” commonly was used in shipping circles to mean one actively in charge of a vessel. Held, that there was evidence warranting a finding that M. signed the offer with ostensible authority and with intention to bind the defendant.</p> <p>An action for breach of an agreement, made by the defendant on September 28, to furnish to the plaintiff, a wholesale and retail dealer in coal,-barges and a tug for transportation of its coal for a period beginning before November 1 and ending May 1, which was repudiated by the defendant on October 7, was referred to an assessor for assessment of damages, who found, on evidence warranting his findings, that the coal intended to be transported in the vessels which the defendant had agreed to furnish was but a part of that brought by the plaintiff to its wharves, that, neither on October 7 nor up to May 1, were barges and a tug to be procured on terms such as those agreed upon between the plaintiff and the defendant at any price that fairly could be called a market price, or which the plaintiff could pay wisely or properly, nor were sailing vessels to be had on such terms at prices proper for the plaintiff to pay, and that, acting reasonably, the plaintiff chartered, from time to time according to its needs and on the best terms procurable, vessels of various sizes and sorts for its purposes specified in the agreement. He then found the difference per ton between the sum paid by the plaintiff for transportation of coal under such arrangement and the sum that he would have paid under the agreement sued on, which difference he multiplied by the number of tons which he found that the plaintiff could have carried under the agreement sued on. The resultant sum he assessed as damages. Held, that the rule adopted by the assessor was proper, and that he was not required to adopt a rule contended for by the defendant which was based on an assumption that the plaintiff might have acted differently, he having found that the plaintiff acted reasonably.</p>

<p>Contract by the firm of shipbrokers who procured for the defendant the agreement which was the basis of the case next preceding. Writ' in the Superior Court for the county of Suffolk dated January 22, 1901.</p> <p>The case was tried before Cfaslcillr J., together with the case next preceding on facts there reported. The defendant. requested the presiding judge to rule in substance (1) that on the whole evidence the plaintiffs were not entitled to recover, (2) that they were not entitled to recover because, in the letter of acceptance which they wrote Mack, they exceeded the terms stated in the letter written them by the Metropolitan Coal Company on the same day, (3) that, even if the Metropolitan Coal Company ratified the plaintiffs’ letter of September 28 to the defendant, the fact that such letter varied from the terms of the letter from the Metropolitan Coal Company to them of the same date prevents recovery by the plaintiffs. The presiding judge refused the requests, made a special finding, as stated in the report of the case next preceding, and found for the plaintiffs, and the defendant excepted.</p>

<p>Bill in equity filed in the Superior Court for the county of Suffolk January 10, 1906.</p> <p>There was a hearing before Fox, J., and at the request of the plaintiff a commissioner was appointed to take the testimony under Equity Rule 35. The presiding judge made the following memorandum of findings:</p> <p>“The single question of fact which appears to be in issue between the parties is, whether certificates of deposit of the face value of $7,500, payable to the order of H. F. Doble, are held by Allen as security for certain notes of E. H. Doble & Co., held by the Mount Vernon National Bank, of which Allen was the president and is now the liquidating agent.</p> <p>“ I find by the preponderance of the evidence that the certificates are so held; and, as the indebtedness so secured exceeds the value of the security, the result is that the bill must be dismissed.” The plaintiff appealed from a decree dismissing the bill. The material facts are stated in the opinion.</p>

Tort. Writ in the Municipal Court of the City of Boston dated March 23, 1904. On appeal to the Superior Court, the case was tried before Hardy, J., who refused a request of the defendant to instruct the jury to return a verdict for him. There was a verdict for the plaintiff and the defendant excepted. The material facts are stated in the opinion.

<p>Attorney at Law, Disbarment. Disbarment Proceedings. The Bar Association of the City of Boston. Practice, Civil. Pleading, Civil.</p> <p>At the hearing on a petition for the disbarment of an attorney at law, which alleged that the attorney had not observed his oath of office, had not continued to be and was not of good moral character, and had been guilty of deceit, malpractice, and other gross misconduct, the presiding judge found, on facts warranting the finding, that the respondent received from a client, then in jail, an assignment in writing of $800 in the hands of a clerk of the Superior Court, which was all the money that the client had, the consideration being stated in the assignment in the words “ in consideration of services rendered and to be rendered by . . . [the respondent] ... as my attorney,” that, coincidently with the delivery of the assignment, the client gave the respondent in writing authority “to pay . . . [his former attorney] ... all money due him, for services as my attorney, and charge the same to . . . [the client] . . .” and also gave the respondent an order on the clerk in favor of the former attorney; that “ upon all the evidence . . . [the client] . . . authorized the respondent to receive the money from the clerk as his attorney and with the right to hold the money so collected as security for his fees ” ; that he, the presiding judge, had no reason for believing that the respondent did not act for his client with fidelity and reasonable skill, but that $250 was ample compensation for all the services rendered; that the respondent received $725 from the clerk and refused to deliver any part thereof to the client. Held, that an order disbarring the respondent was warranted.</p> <p>It is too late, at the hearing in this court of an appeal by the respondent from an order of the Superior Court disbarring him from practice as an attorney at law, for the first time to raise a question of variance between the pleadings and the proof.</p> <p>The judge presiding at the hearing on a petition for the disbarment of an attorney at law filed a memorandum stating that he found that one B., when under indictment and in jail, in accordance with the advice of a fellow prisoner, sent for the respondent and that the respondent came to him and undertook his case for him; that the respondent procured from B. an assignment in writing of $800 in the hands of the clerk of the court formerly deposited as cash bail by B., stated to be “ in consideration of services rendered and to he rendered by . . . [the respondent] ... as my attorney,” and also an order on the clerk to pay $75 to an attorney employed before the respondent in the same matter, that the money assigned to the respondent was all of B.’s property, and that the real understanding between B. and the respondent was that the respondent should take the money as B.’s attorney and hold it as security for his fees; that services rendered by the respondent were worth $250; that the respondent received $725 from the clerk and refused to deliver any of it to B. The petition alleged that the respondent had not observed the requirements of his oath, had not continued to be and was not of good moral character, and had been guilty of deceit, malpractice and other gross misconduct, and “ more particularly,” besides allegations which were found to be true by the presiding judge, it alleged that B., in jail and advised by a man unknown to him that counsel then employed by B. was “too young and inexperienced,” employed the respondent as his counsel, and that the respondent discharged B.’s former counsel, that the respondent procured an assignment from B. of $800 on deposit with the clerk of the court, representing to him that the purpose of the assignment was to enable the respondent to receive the money and that lie would immediately upon receipt of it pay it to B., that the respondent paid none of the money to B., but, without authority, paid $75 to the former attorney and retained $725, “falsely pretending that it was due him for legal services rendered and to be rendered by him,” that " no sum, or a sum very much less than $725, was in fact due from” B. to the respondent. Held, that while the particulars in respect to the matters relied on were not stated in the petition with entire accuracy in all respects, the respondent was fully informed therein of the substance of the charge against him.</p> <p>A petition for the disbarment of an attorney at law was presented to the Superior Court by The Bar Association of the City of Boston, incorporated by St. 1886, c. 22, for the purposes “of promoting social intercourse among its members, of insuring conformity to a high standard of professional duty, and of making the practice of the law efficient in the administration of justice,” and the presiding judge in accordance with R. L. c. 165, § 44, appointed a member of the bar to prosecute the inquiry and proceedings. The respondent appeared, there was a full hearing on the merits, and the presiding judge filed a finding that the respondent fraudulently appropriated to his own use money of his client and ordered him disbarred absolutely. The respondent appealed. Held, that the petition properly was filed by The Bar Association of the City of Boston and that the proceedings were conducted properly; and, further, that the question whether a less punishment would have met the demands of justice was not raised on the record.</p>

<p>Tort by a street lamplighter for personal injuries incurred on December 28, 1903, by being thrown from a ladder while filling a street lamp on Charles River Road, which forms a part of the park system on the Cambridge side of the Charles River, owing to a dog of the defendant, alleged to have been in the parkway unlawfully, rushing under and frightening the horse attached to the wagon on which the foot of the plaintiff’s ladder was l’esting. Writ dated December 19,1904.</p> <p>In the Superior Court the case was tried before Bond, J., who excluded the evidence described in the opinion. The jury returned a verdict for the plaintiff in the sum of $300; and the defendant alleged exceptions.</p>

<p>Contract on the following- promissory note:</p> <p>“ $750.00 Dec. 9, 1903.</p> <p>one year</p> <p>“ On demand after date- we promise to pay to the order of James F. Skelley Seven Hundred and Fifty Dollars at any bank in Boston.</p> <p>Value received witheut interest.</p> <p>No__</p> <p>“ Frederick Freeman & Co.</p> <p>2 18/28</p> <p>" Due-44068 ”</p> <p>Indorsed: " Waiving demand and notice James F. Skelley. Lillian M. Freeman William L. Wood.”</p> <p>Writ in the Municipal Court of the City of Boston dated December 14, 1904.</p> <p>On appeal to the Superior Court the case was tried before DeCourcy, J., and the trial took the course which is described in the opinion. The rulings which the defendant requested the judge to make before the note was shown to the jury were as follows:</p> <p>1. There is on the face of this note a manifest alteration in the erasure of the letters " out ” in the word " without ” ; which alteration the plaintiff is bound to explain to the court before the note can be shown to the jury.</p> <p>2. There is an apparent alteration inconsistent with the terms of the written instrument, offered by the plaintiff, in the adding to or writing in above the defendant’s indorsement on the back of the note the words " waiving demand and notice,” and this the plaintiff is bound to explain to the court before the note can be shown to the jury.</p> <p>3. On a scrutiny of the note there are evident material alterations which the plaintiff must explain to the court before the note can be shown to the jury.</p> <p>4. The alterations in the written instrument offered by the plaintiff are patent, and before it can be shown, to the jury he must explain the same to the court.</p> <p>5. The alterations on the note offered by the plaintiff being patent and visible on inspection, it is the province of the court to decide whether or not they are material and they, the alterations, must be satisfactorily explained by the plaintiff to the court before the note can be shown to the jury, otherwise judgment must be for the defendant.</p> <p>The judge refused to make these rulings and allowed the note to be shown to the jury without complying with the requests.</p> <p>At the close of the evidence and before argument, the defendant asked for certain rulings, among which were the following:</p> <p>1. That on the whole evidence the plaintiff cannot recover and the judgment should be for the defendant.</p> <p>5. If the jury believe that part of the evidence of the defendant, that the note was written “ without interest,” and that subsequent to its delivery to the payee the letters “out” in the word “ without ” were erased, interlined, or crossed out, so that the note was made to read “ with interest,” it, the jury, are to presume that the alterations were made by the plaintiff, or with his knowledge, and fraudulently in so far as legal fraud attaches to a wilful change of an instrument by one of the parties thereto and the plaintiff cannot recover.</p> <p>9. The plaintiff can in no event recover more than the face of the note and interest from December 9, 1904.</p> <p>13. The jury may also take into consideration as bearing on the good or bad faith of the plaintiff, that a considerable part of his business is the taking over of commercial paper as bearing on the probabilities of whether such alterations as appear on the note would put him on his guard as to legal infirmities in the instrument.</p> <p>14. The alterations on the note offered by the plaintiff, being open and patent, the burden of proof is upon him throughout to satisfy the jury beyond a reasonable doubt that he acted in good faith and without notice of any legal infirmities in the instrument.</p> <p>The judge refused to make any of these rulings and submitted the case to the jury, concluding his charge as follows:</p> <p>“ If you find that this note as it is now is in the same condition, and especially with reference to ‘ with interest ’ and ‘ waiving demand and notice,’ that it was when it was delivered, then there is no defence shown with reference to material alterations, because none of course would exist. If, on the other hand, you should find upon this evidence that the note was materially altered as I have explained it, after the delivery, then the plaintiff, claiming to be the holder in due course, has the burden upon him of satisfying you that he is a holder in due course and took the note without knowledge or notice of material alterations.” The jury returned a verdict for the plaintiff in the sum of $860.02; and the defendant alleged exceptions.</p>

<p>Tort by an administrator under R. L. c. 171, § 2, or R. L. c. Ill, § 267, for causing the death of the plaintiff’s intestate as stated in the opinion by the alleged gross negligence of the defendant’s agents or servants. Writ dated July 26, 1904.</p> <p>In the Superior Court the case was tried before Oroshy, J., who ordered a verdict for the defendant. The plaintiff alleged exceptions. The following is a reduced copy of a plan used at the trial.</p> <p> </p> <p>The case was submitted on briefs.</p>

<p>Negligence. Evidence, Admissions and confessions. Practice, Civil, Conduct of trial. Bankruptcy. Damages.</p> <p>One who, in proceeding to board an open electric car at a crowded corner, crosses the street ten feet in front of an approaching dray drawn by a pair of horses at a walk, when he has placed both feet on the running board of the car has a right to assume that he has reached a place where he need pay no further attention to the team, and if, while he is standing on the running board looking for a seat and is on the point of stepping within the car, he is struck by the hub of a wheel of the dray, in an action against the owner of the dray for his injuries thus caused he can be found to have been in the exercise of due care.</p> <p>It is the duty of the driver of a pair of horses attached to a dray, when driving them in a city street, to guide them in such a manner as not to injure persons rightfully upon the running board of an open electric car.</p> <p>In an action for personal injuries from being struck by the huh of a wheel of a dray, the horses attached to which were alleged to have been driven negligently by a servant of the defendant, the defendant refused to admit that he owned the team, and the plaintiff, against the defendant’s objection, was allowed to put in evidence a report, apparently addressed to an insurance company, in which the defendant stated, among other things, that he was the owner of the team. On an exception to the admission in evidence of this report, it did not appear by the copy of the report annexed to the bill of exceptions for what purpose it was made or whether the defendant was insured. Held, that the statement of the defendant in the report was an admission of a material fact and properly was admitted in evidence; that, if it had appeared by the report that the defendant was insured, this would not render incompetent the material statement signed by him; and that it was a matter for the discretion of the presiding judge whether to permit the report to be taken by the jury to their room.</p> <p>Under the bankruptcy act of 1898, § 70 a, the rights of a bankrupt in an action for personal injuries pending at the time of his adjudication in bankruptcy do not pass to his trustee in bankruptcy.</p> <p>In an action for personal injuries, where the plaintiff was adjudicated a bankrupt while the action was pending, the defendant contended that the plaintiff was not entitled to recover as an element of damage the amount of the wages which he was prevented by his injuries from earning between the date of the accident and his adjudication in bankruptcy. Held, that the contention could not be sustained, first, because under the bankruptcy act property acquired by the bankrupt between the date of the filing of the petition and that of the adjudication in bankruptcy does, not pass to the trustee in bankruptcy, and, secondly, because the plaintiff did not claim this amount of money as earnings but merely proved the loss of his earnings to show as an incidental element of damage the value of his time while prevented from working by reason of the negligence of the defendant.</p> <p>In an action for personal injuries, where the plaintiff was adjudicated a bankrupt while the action was pending, the defendant contended that the plaintiff was not entitled to recover for debts incurred for physicians’ services which never were paid by him and which had been proved against his estate in bankruptcy or included in his schedules. Held, that, assuming that the debts incurred for physicians’ services would be barred by the plaintiff’s discharge in bankruptcy, this was not through any virtue of the defendant, and that the plaintiff could recover in his damages the charges for physicians’ services if they were found to be reasonable.</p>

<p>Equity Pleading and Practice, Appeal, Decree, Costs. Contract, Performance and breach. Equity Jurisdiction, To compel specific performance.</p> <p>On an appeal from a decree in a suit in equity where the evidence was taken by a commissioner and no findings of fact nor rulings of law were made by the judge who heard the case the only question open is whether on all the evidence the decree was plainly wrong.</p> <p>In a suit in equity to compel the specific performance of an agreement in writing to purchase certain land from the plaintiff, if the agreement provides that the deed shall be delivered and the consideration shall be paid at a time and place named “ unless the parties agree in writing to some other time and place,” and it appears that before the time for performance arrived the defendant orally requested an extension of the time upon the promise of an additional payment, to which the plaintiff agreed, that the defendant failed to keep his promise and that at about the time that the extension expired or shortly afterwards he refused to carry out his part of the contract, the plaintiff is entitled to a decree without showing any tender of a deed.</p> <p>In confirming on appeal a decree of the Superior Court in a suit in equity the decree here was modified to include the costs of the appeal.</p>

<p>Landlord and Tenant, Covenant not to assign, Agreement to extend term. Equity Jurisdiction, To enforce specific performance.</p> <p>In the absence of specific provisions showing an intention to the contrary, a general covenant by the lessee in a lease of land not to assign his interest should not be construed to prevent the transmission of the leasehold interest, in case of the lessee’s death, either to the administrator of his estate or to the executor of or to a legatee under his will.</p> <p>A lease of land to the lessee “ and his representatives . . . during the full term of twenty-five years . . . with privilege to the lessee of renewing for five or ten years ” contained covenants regarding rent during the term “ and for such further time as the lessee or any person . . . claiming under him shall hold the premises,” and a covenant on the part of the lessee, “for himself and his representatives,” not to assign the lease. The lessee died leaving a will in accordance with the terms of which the executor, after holding the lease for a time, transferred it to himself as trustee. The lessor refused to grant a request of the executor for an extension of the term of the lease, and the executor brought a bill in equity for specific performance of the agreement to extend the term. Held, that a proper construction of the whole lease did not show an intention to prevent, by the general covenant not to assign, the transmission of the leasehold interest either to the executor or to the trustee under the will of the lessee, that therefore there had been no breach of the covenants of the lease by the lessee or his successors, and that the plaintiff was entitled to specific performance of the agreement to extend the term of the lease.</p>

<p>Tort for personal injuries received by the plaintiff from being struck upon the head by an insulator alleged to have been dropped from a pole by reason of negligence on the part of a lineman in the employ of the defendant. Writ in the Municipal Court of the City of Boston dated April 31, 1904.</p> <p>On appeal to the Superior Court, the case was tried before Wait, J., and there was a verdict for the plaintiff subject to an exception by the defendant to a refusal of the presiding judge to direct the jury to return a verdict for the defendant. There also was exception by the defendant to the admission of certain evidence.</p> <p>All material facts are stated in the opinion.</p> <p>The case was submitted on briefs.</p>

<p>Bill in equity filed in the Supreme Judicial Court for the county of Suffolk September 4,1906.</p> <p>The bill alleged that the plaintiff was of Boston and that the defendant was a corporation established under the laws of the State of New York and having a usual place of business in Boston, that the defendant issued to the plaintiff on September 8, 1886, a policy of insurance having as its register date June 9, 1886.</p> <p>A copy of the policy was annexed to the bill. It provided that, in consideration of the application of the plaintiff and of his statements therein, and in consideration of payment of premiums by him “at the office of the society in the city of New York,” the defendant on the death of the insured would pay to the beneficiary named in the policy the sum of $25,000 “ at the office of the society in the city of New York”; that the policy was issued subject to certain provisions and requirements of which the following are material to this case: (1) that the policy was issued under the semi-tontine plan; (2) that the tontine dividend period for the policy would be completed June 9,1906 ; (3) that no dividend should be allowed or paid upon the policy unless the plaintiff should survive the tontine dividend period and the policy then be in force; (4) that all surplus of profits derived from such policies on the semi-tontine plan as should not be in force at the date of the completion of their respective tontine dividend periods should be apportioned equitably among such policies as should complete their tontine dividend periods; (5) that upon the completion of the tontine dividend period on June 9,1906, provided the policy should not have been terminated previously by lapse or death, the plaintiff should have the option either: “ First, to withdraw in cash the policy’s entire share of the assets: i. e., the accumulated reserve, and in addition thereto, the surplus apportioned by the society to the policy ” ; • or to have the society apply that amount in either of three other ways specified; (6) after the completion of the ton-tine dividend period, while the policy should remain in force, it was to be entitled to all the rights and privileges of ordinary policies of the same age and kind; (7) all premiums were provided to be due in the city of New York at the date named in the policy, but at the pleasure of the society suitable persons might be authorized to receive such payments at other places, but only on the production of the society’s receipt therefor, signed by the president, vice-president, actuary, secretary or assistant secretary, and countersigned by the person to whom the payment was made. The policy was executed at the defendant’s office in the city of New York.</p> <p>The bill of complaint further alleged that the defendant had refused to account to the plaintiff for his share in the “ tontine fund,” had not equitably apportioned to him his share, had failed to manage either the dividends retained by it or the tontine fund or the general business of the company honestly, carefully or prudently, and had misappropriated and wasted the dividends and the interest and profits thereon; also that the items of the accounting were peculiarly within the knowledge of the defendant, and that the accounts were complex and such that they could not conveniently or properly be adjusted or settled in an action at law.</p> <p>The prayers of the bill were for an accounting, a determination of the amount fairly due to the plaintiff under the terms of his policy, a decree that such amount be paid to him, and fpr general relief.</p> <p>The defendant moved that the bill be dismissed on the grounds that the defendant was a New York corporation with its principal place of business in the city of New York and that all the books, papers and documents relating to its business were there, none of them being in this Commonwealth, although it maintained a place of business here; that the plaintiff’s policy of insurance was a contract made in New York, to be executed there, and was subject to the law of that State; that the relief prayed for by the bill involved an inquiry into the relations between the corporation and its policy holders which might be very extensive; that it was a matter of grave inconvenience to the business of the defendant, and to the officers familiar with its business, to be held to account within this Commonwealth, and that the relations and rights of the parties could not be effectually and properly administered here.</p> <p>The defendant also filed a plea to the jurisdiction of the court, alleging the same grounds as it alleged as the basis of the motion to dismiss, but, by amendment, setting forth with great particularity the inconvenience and expense to which it would be put by having to account in this Commonwealth. There were also contained in the amended plea some parts of the provisions in the charter of the defendant, among them being provisions that the stockholders of the defendant should not receive annually dividends greater than seven per cent of the par value of their stock and that the earnings and receipts over and above the dividends, losses and expenses, should be accumulated, and the provision, “ The insurance business of the company shall be conducted upon the mutual plan.”</p> <p>The amended plea also alleged that “the earnings or profits over and above seven per cent were accumulated and held for the benefit of the society’s policy holders who were entitled to share in the distribution thereof in accordance with the terms of their contracts and the principles and methods adopted by the society regulating the distribution thereof; that therefore any expense to which the society would be put in conducting an accounting in this action would fall upon the body of the holders of policies of the society issued upon the deferred dividend plan ; that if any greater amount of surplus was apportioned to the policy in suit than had already been apportioned by the society, the additional amount would have to be borne by other policy holders in the reduction of the amounts to which they would be entitled under their contracts,” and that, “ owing to the fact that the business of life insurance is extremely complicated and intricate, and based upon calculations and tables specially compiled and arranged, such account would be of no value or assistance whatever to the plaintiff,” that the capital stock of the defendant was $100,000, and that “on December 31, 1905, its total assets amounted to $420,973,756.92, and its total liabilities amounted to $352,516,566.65, which said total liabilities included the legal reserve required to be maintained by it, amounting to $347,092,662. Therefore the difference between said total liabilities and said total assets, to wit, the sum of $68,457,190.27, constituted the surplus of said society.”</p> <p>No replication to the plea was filed.</p> <p>There was a hearing before Rugg, J., who denied the motion to dismiss, adjudged the plea to the jurisdiction of the court bad, and, the defendant appealing, reported the case for consideration and determination by the full court.</p>

<p>Fraternal Beneficiary Corporation. Receiver. Judgment, Of court of foreign jurisdiction. Merger. Election. Contract. Accord and Satisfaction. Equity Pleading and Practice, Decree.</p> <p>A receiver was appointed in proceedings under R. L. c. 119, § 19, for the winding up of a fraternal beneficiary corporation and took possession of death and emergency funds held by the corporation under §§ 7, 8, of that chapter, and provision was made for the proof of claims to the fund before him. There was no order authorizing the receiver to submit the determination of any claim to any court of another jurisdiction. The beneficiary named in a certificate issued by the corporation to a member, who had died before the appointment of the receiver, after his appointment recovered a judgment against the corporation in a court of another State and sought to prove the judgment as such as a claim for the payment of its full amount out of the funds in the hands of the receiver. Held, that the judgment as such could not be proved, it being for the court which, through its receiver, had taken into its hands the assets of the corporation, and for that court alone, to determine who was entitled to payment from those assets and what amount should be paid.</p> <p>Where the beneficiary named in a certificate issued by a fraternal beneficiary corporation doing business under R. L. d. 119 brought an action in a Federal court or in a court of another State against the corporation to establish his claim to a death benefit under the certificate, and recovered judgment, his claim to the benefit was not so merged in the judgment that such claim could not be proved and paid out of emergency and death benefit funds accumulated by the corporation under §§ 7, 8, of that chapter and in the hands of a receiver, who, in the meantime and before such judgment, had been appointed in this Commonwealth in proceedings to wind up the corporation under § 19.</p> <p>It seems, that a judgment of a Federal court or of a court of another State for the plaintiff in an action by a beneficiary named in a certificate issued by a fraternal beneficiary corporation, doing business under the provisions of R. L. c. 119, against the corporation to establish the plaintiff’s claim to benefits is provable as such against death and emergency funds accumulated by the corporation under §§ 7, 8, of that chapter, where such funds are in the hands of a receiver appointed in proceedings under § 19, provided such action reached final judgment before the date of the appointment of the. receiver.</p> <p>In proceedings under R. L. c. 119, § 19, to wind up the affairs of a fraternal beneficiary corporation, a receiver was appointed who took possession of death and emergency funds accumulated under §§ 7,8, of that chapter. After the appointment of the receiver, a beneficiary named in a certificate providing for a death benefit issued by the corporation recovered a judgment in a court of another State in an action against the corporation to establish his claim. Held, that such beneficiary, by pursuing his action to judgment after the appointment of the receiver, had not waived his right to share in the funds in the hands of the receiver nor elected to look solely, to future assets of the corporation for satisfaction of his judgment.</p> <p>A receiver was appointed in proceedings under R. L. c. 119, § 19, for the winding up of a fraternal beneficiary corporation and took possession of death and emergency funds accumulated by the corporation under §§ 7, 8, of that chapter, and there was provision for proof before him of claims under certificates of benefit insurance issued by the corporation. The beneficiary named in a death benefit certificate issued by the corporation recovered a judgment, after the appointment of the receiver, in an action in a court of another State brought against the corporation to establish his right to a death benefit. The judgment included in-0 terest and costs of court besides an amount awarded as the death benefit. Held, that so much of the claim on which the judgment was founded as appeared to the court which appointed the receiver to be due as a death benefit might be proved to be paid out of the fund in the possession of the receiver; and, also, that, if it should appear to such court that there had been a release or an accord and satisfaction or other matter of defence which could not be overcome on the ground of fraud or mistake or otherwise, such defence was effectual against proof of the claim, notwithstanding the judgment.</p> <p>A fraternal beneficiary corporation doing business under R. L. c. 119, after issuing many membership and benefit certificates, adopted a new by-law providing that “ no action at law or in equity, in any court, shall be brought or maintained on any cause or claim arising out of any membership or benefit certificate unless such action is brought within one year from the time when such action accrues.” Held, that such by-law was invalid as to rights arising under membership or benefit certificates issued before it was adopted by the corporation. .</p> <p>The question whether a debt sought to be proved before a receiver appointed in proceedings under R. L. c. 119, § 19, to wind up the affairs of a fraternal beneficiary corporation, is barred by the provisions of a valid by-law of limitation of the corporation depends upon its status on the date of the sequestration decree.</p> <p>A report of a single justice of this court, made after a hearing upon a report of a receiver of a fraternal beneficiary corporation appointed in proceedings under R. L. c. 119, § 19, to wind up the corporation, submitted to the full court the question whether, under New York law, there was an accord and satisfaction which prevented the proof of a claim under a certificate of benefit insurance 'issued by the corporation, where it appeared that there had been a dispute between the beneficiary named in the certificate and the corporation as to the amount due, that a representative of the corporation had handed to the attorney of the beneficiary a draft for a sum" less than that claimed, that the attorney took the draft, saying to the representative of the corporation, You must understand that we accept the draft as a payment on account only and do not waive our rights to the full amount,” signed a receipt on the certificate stating that the amount received was “ two fifths of the amount herein agreed to be paid, less five per cent,” and, before signing at the end of the receipt a statement that the certificate was “ surrendered . . . for cancellation,” struck out the words “ for cancellation.” Held, that, under the law of New York, there was no accord and satisfaction.</p> <p>Payment of a less sum in discharge of a greater is not at common law an accord and satisfaction.</p> <p>Where the common law of another State is material, it is presumed, in the absence of proof to the contrary, to be the same as that of this Commonwealth.</p> <p>A receiver appointed in proceedings under R. L. c. 119, § 19, for the winding up of the affairs of a fraternal beneficiary corporation, in which provision was made for proof, before the receiver, of claims made under the terms of benefit certificates issued by the corporation, took possession of death and emergency funds accumulated by the corporation under §§ 7, 8, of that chapter, and, without authority from the court appointing him, opposed the prosecution of an action brought against the corporation in another State to enforce a claim to a benefit under a certificate issued by the corporation, and a judgment was entered therein against the corporation. Held, that the court appointing the receiver, if it deemed it advisable, might enter an order nunc pro tune submitting the question so litigated to the court where the action was brought and allowing the judgment so obtained to be proved before the receiver so far as it covered a death or disability benefit.</p>

<p>Bill in equity by the assignee under a common law assignment for the benefit of creditors by the Tanners Leather Company, seeking instructions regarding the distribution of the proceeds in his hands from the liquidation of the assets of the assignor, filed in the Supreme Judicial Court for the county of Suffolk May 16, 1906.</p> <p>The case was referred to a master who made a report to which objections and exceptions were filed. The case was heard before Bugg, J., who reserved it for consideration and determination by the full court. The facts are stated in the opinion.</p>

<p>Damages, For property taken or injured under statutory authority. Water Supply. Evidence, Collateral issues. Practice, Civil, Conduct of trial. Words, “Market value.”</p> <p>The " market value ” of a parcel of land which its owner is entitled to recover from a town which has taken it for a water supply means the value of the land for the purposes of sale.</p> <p>Whether evidence which is relevant to the issue being tried should be excluded because it involves the trial of collateral issues which may confuse the minds of the jury and unduly protract the trial is to be left largely to the discretion of the presiding judge, whose decision will not be reversed unless plainly wrong.</p> <p>At the trial of a petition for the assessment of damages against a town for the taking under statutory authority of land of the petitioner for a water supply, where the market value of the land at the time of the taking already has been shown by the testimony of other witnesses, the presiding judge in his discretion properly may exclude the testimony of experts offered by the petitioner to show the value of the land for the special purpose of a water supply.</p> <p>At the trial of a petition for the assessment of damages against a town for the taking under statutory authority of land of the petitioner for a water supply, the presiding judge in his discretion properly may exclude testimony of experts offered by the petitioner to show by what municipalities or communities the water in the petitioner’s land could be used for a water supply.</p> <p>At the trial of a petition for the assessment of damages against a town for the taking under statutory authority of land of the petitioner for a water supply, where the judge properly has told the jury that the town got no absolute right to percolating water and that if a neighbor cut off such water by wells on his own land the respondent would lose nothing to which it had a right, if the petitioner wishes to have this instruction supplemented by the addition of the phrase that until so cut off the jury could consider the water which the ownership of the land would give the respondent, he must ask the judge to qualify his ruling in this manner, and, in the absence of such a request, he cannot complain, on the argument of an exception to this part of the charge, that the qualification was not made.</p> <p>At the trial of a petition for the assessment of damages against a town for the taking under statutory authority of land of the petitioner for a water supply, the presiding judge gave to the jury the following instruction : “ I said that you could consider the evidence of the uses to which this property was adapted, all the uses. Upon that, in connection with those uses, you can take into account the fact that there was or was not, as you find it to be from the evidence, a supply of water upon the premises. If that would give an added value to the property in the mind of any purchaser in the open market and in the mind of any seller in the open market you could take that into account hut you could not use it to mark up a price beyond the fair market value of the property, you could not give to the [petitioner] the value of the land, for instance, to the [respondent] as a water supply. That you are not to do. If the fact that it was adapted to use as a water supply, if you find that to he a fact, would have affected the mind of anybody in dealing with the property, that you can take into account, but that is the extent to which you can go, and you may think that that, practically, as the land was situated did not affect its value at all. On the other hand, you may think that it added to or decreased its value.” Held, that this instruction was correct.</p> <p>At the trial of a petition for the assessment of damages against a town for the taking under statutory authority of land of the petitioner for a water supply, the presiding judge gave to the jury the following instruction : “ The petitioner is not entitled to swell the damages beyond the fair market value of the land by any consideration of the chance or probability that the petitioner might ac. quire authority by legislation to carry the water in pipes for the purpose of supplying the [respondent] or any other town. You cannot go beyond the. fair market value of the property at the time that it was taken.” Held, that this instruction was correct.</p> <p>At the trial of a petition for the assessment of damages against a town for the taking under statutory authority of land of the petitioner for a water supply, the petitioner is entitled to recover the fair market value of the land at the time of the taking but not its fair market value to the respondent.</p>

<p> Husband and Wife. Fraud. Separate Support. </p> <p>At the hearing on a petition by a wife against her husband under R. L. c. 153, § 33, for separate support, it appeared that more than two years before the petition was filed the respondent had made a voluntary conveyance to trustees of all his property to hold during his life, paying him such sums out of the net income as they should deem necessary and desirable, and after his decease to transfer the trust estate to such persons as he should direct by will, or, if he made no will, to his heirs or representatives. At the time this deed was made the respondent and his wife were living apart, after having separated a number of times, although the final separation had not occurred. The respondent testified that he had had difficulty with his wife and had “ posted ” her, that he thought he was spending too much money, that he would not deny having said to various people that he made the deed to avoid liability for his wife’s debts, and it might have been found from his testimony that when he executed the deed he understood that he could get the property back whenever he desired. One of the trustees testified in substance that he knew that the respondent was having trouble with his wife and that he did not remember any other reason being given for the respondent’s putting his property out of his hands. Nothing appeared to indicate any other reason and it might have been found that there was none other. There also was evidence of the amount of net income realized and of the dealings with the trust property. Held, that the judge who heard the case and saw all the witnesses was warranted in finding that the deed was given by the respondent “ for the sole purpose of preventing, hindering or delaying his wife in any application she might make for separate support.”</p> <p>At the hearing on a petition by a wife against her husband under R. L. c. 153, § 33, for separate support, it appeared that more than two years before the petition was filed the respondent had made a voluntary conveyance to trustees of all his property to hold during his life, paying him such sums out of the net income as they should deem necessary and desirable, and after his decease to transfer the trust estate to such persons as he should direct by will, or, if he made no will, to his heirs or representatives. The judge who heard the case found, on evidence which warranted such a finding, that the conveyance was made by the respondent “for the sole purpose of preventing, hindering or delaying his wife in any application she might make for separate support.” Held, that the wife, by obtaining a decree for separate support, became a creditor and acquired the right to avoid the voluntary conveyance which previously had been made by her husband for the fraudulent purpose of preventing her from obtaining satisfaction of such a decree.</p>

<p>Two actions op tort, the first by a child, by her father and next friend, for personal injuries received on September 13, 1905, in the manner stated in the opinion, and the second by the father of the plaintiff in the first case for expenses incurred for surgical treatment and care by reason of her injuries. Writs dated February 10 and 24, 1906.</p> <p>In the Superior Court Wait, J., ordered verdicts for the defendant ; and the plaintiffs alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Deed, Delivery. Agency. Husband and Wife. Equity Jurisdiction, To set aside discharge of mortgage from husband to wife. Mortgage, Of real estate. Frauds, Statute of</p> <p>It seems, that one, who, having executed as grantor a deed of real estate, made no manual delivery of it but with the consent of the grantee retained it in his possession, may be shown to have been the agent of the grantee to accept the delivery of the deed, and that the question of his authority is one of fact.</p> <p>Where a man makes a deed of real estate to a woman about to become his wife, and with the knowledge and consent of the grantee retains the deed in his possession without making any manual delivery of it, and the grantee at the request of the grantor executes and delivers a mortgage of the property to him, whereupon he has the deed and the mortgage recorded, and later the grantee takes possession of the property and assumes control of it with the apparent consent of the grantor, the assertion of title by the grantee in her act of executing and delivering the mortgage is an acceptance of the deed by her, and the acceptance of the mortgage by the grantor shows his intention that the deed should take effect.</p> <p>Where a man upon consideration of marriage makes an oral agreement with the woman he is about to marry to discharge after their marriage a mortgage which he holds upon her real estate, and after marriage performs his agreement by executing a discharge of the mortgage, the fact that under R. L. c. 74, § 1, cl. 3, his oral agreement might not have been enforceable against him, affords him no ground for rescinding the transaction and avoiding his discharge of the mortgage.</p> <p>Whether the discharge of a mortgage held by a husband on real estate of his wife executed by the husband to the wife would be void, if the note secured by the mortgage was a valid note of a third person and was in force when the discharge was executed, it here was not necessary to consider.</p> <p>In a suit in equity to set aside and cancel a discharge of a mortgage of real estate executed by the plaintiff to the defendant, where the plaintiff was a man and the defendant was a woman who had been the plaintiff’s wife and from whom he then was divorced, it appeared that before and in contemplation of their ■ marriage the plaintiff conveyed to the defendant the real estate covered by the mortgage, that he took the note and mortgage to the defendant and told her that he was giving her all his real estate and thought that a husband ought to give his wife the home, that this was the best he could do for her, and that he wanted her to sign the note and execute the mortgage to him as protection for himself until the marriage, when it would be discharged, and that in accordance with this promise he after their marriage executed and recorded the discharge which he now sought to have set aside on the ground that it was void because given by a husband to his wife. Held, that, even if the note secured by the mortgage was not invalid originally for lack of consideration, or, assuming its antecedent validity, if it did not become a nullity upon the marriage, the plaintiff showed no ground for relief, having executed the discharge voluntarily in pursuance of a moral obligation to perform a promise which might not have been enforceable against him.</p>

<p>Tort for injuries to the plaintiff and his property, with four counts, as stated and described in- the opinion. Writ dated October 11, 190á.</p> <p>In the Superior Court the case was tried before Aiken, C. J. The course of the trial and the character of the evidence are described in the opinion. The Chief Justice ruled that upon the evidence the action could not be maintained upon the second and fourth counts, and as to the first and third counts said that in his judgment those counts by reason of the allegations in them could be regarded as either common law counts or statutory counts, and he directed that the plaintiff’s attorney should elect how those counts should be regarded. The plaintiff’s attorney objected to such direction and excepted thereto, but elected to treat the counts as statutory counts, and the Chief Justice thereupon ruled that the action upon those counts could not be maintained, and ordered a verdict for the defendant on all the counts. The plaintiff alleged exceptions.</p> <p>The case was argued at the bar in December, 1906, before Knowlton, 0. J., Hammond, Boring, Braley, & Bugg, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Petition for registration of title to land, filed in the Land Court October 28, 1905.</p> <p>There was a hearing before Davis, J., who found for the petitioner and reported the case for determination by this court. The facts are stated in the opinion.</p> <p>The case was submitted on briefs.</p>

<p>Evidence, Extrinsic affecting writings. Sale. Contract.</p> <p>At the time of the making of an agreement as'to the sale of merchandise, the vendee signed and gave to the vendor an instrument in writing stating some of its terms. The vendor did not sign and was not mentioned in the instrument. Held, that the instrument was not a contract of sale in writing the terms of which could not be added to by evidence showing that there were agreements between the parties other than those stated therein.</p> <p>At the trial of an action of contract for the price of one hundred cases of eggs, the plaintiff introduced as evidence of the contract the following instrument signed by the defendant only: “ 100 Cases Eggs, 3000-191*. Storage rate. ... He to make deposits . . . upon delivery into storage. . . .” The defendant offered evidence tending to show that the plaintiff agreed to deliver eggs of a certain quality and had not done so. The presiding judge refused to admit the evidence on the ground that the contract between the parties was in writing and could not be varied by paroi evidence. Held, that the evidence should have been admitted, the instrument being a mere bill of parcels, as to which the rule that extrinsic evidence is not admissible to vary or control a contract in writing did not apply.</p>

<p> Devise and Legacy. Trust. </p> <p>By a clause in her will a testatrix bequeathed one half of the residue of her estate to a society for the prevention of cruelty to animals “ and the other half to my friend B. in the confidence that he will use it in' the prosecution of his work against the encroachments of the Roman Catholic Church upon our common school system. And if said B. shall not be living at the time of distribution ... I direct my executors to pay said one half ... to any organization which in their judgment . . . may be carrying on the same work as B., but if in their judgment there is no such organization . . . then ” to a society for the prevention of cruelty to children. The executor brought a bill in equity for instructions, and at a hearing thereon it appeared that, before the death of the testatrix, B. had been engaged in conducting public meetings for the purpose of calling attention to what he and others believed to be a danger to all American social, political and religious institutions from the Roman Catholic Church, that in so doing he used funds which he had solicited for the purpose, together with sums which be himself contributed, and that he kept a careful account, separate from his personal accounts, of funds so .used but rendered an account to no one, that the testatrix, whose relations with B. were those of confidence, was a contributor to the work, was on one of the committees in charge of it and was a frequent attendant at the meetings. Held, that there was no trust, but that the gift to B. was absolute.</p>

<p>Contract, Construction. Evidence, Extrinsic affecting writings.</p> <p>A town about to construct a system of waterworks sent a blank form of proposal of a contract for the construction to a contractor together with specifications as to the construction and with directions requiring him before making a proposal to “ examine the location ... in person,” and to “ examine the plan of piping.” The contractor examined the location and, at his request, was shown the plan referred to in the proposal and was told by a representative of the town who accompanied him that the piping to be laid was shown on the plan. He thereupon filled out, signed and delivered to the town a proposal, attached to the specifications, wherein he stated that it was “ made in accordance with the preceding specifications ” and “ with full intention to carry out in detail . . . every requirement in said specifications,” and wherein he also stated that he agreed to do all the work “contemplated in the plan of piping.” His bid was accepted and thereafter he and the town made a contract in writing wherein his proposal was referred to but was not incorporated and the plan was not even referred to, he therein agreeing to construct the works as described in the specifications which were made a part of the contract. He performed work and furnished materials in places not shown on the plan but included in the specifications and sought to be paid therefor as extras and not according to the contract price. Held, that such work was performed and such materials were furnished under the contract and should be paid for at the prices stated in the contract and not as extras.</p> <p>A contract in writing was made between a town and a contractor for the construction of a system of waterworks after a proposal in writing to do the work according to a certain plan had been made by the contractor and accepted by the town. In the contract no mention was made of the plan, but it was provided that the work was to be performed according to certain specifications made a part of the contract. In an action by the contractor to recover an extra price, not the contract price, for work done and materials furnished, which were not shown on the plan but were included in the specifications, it was held, that evidence of reports of various town committees and commissions, of a contract with a different person for another portion of the work which provided for performance in accordance with the plan, and of statements and conduct of agents of the town, all tending to show an intention, both before and after the date of the contract, that the plan should determine what work was included in the contract, were inadmissible to vary the terms of the contract.</p>

<p>Bill in equity, filed in the Supreme Judicial Court for the county of Suffolk, September 22, 1905, by a trustee under the will of Francis W. Sayles to set aside a transfer of mortgages by the plaintiff’s predecessor as trustee to the estate represented by the defendants, as trustees, which transfer the plaintiff alleged to have been made without authority.</p> <p>There was a hearing before Braley, J., who reserved the case upon the pleadings and agreed facts for consideration and determination by this court.</p> <p>It appeared that the plaintiff’s predecessor as trustee was one Charles F. Berry, who was also one of two trustees under the will of one Pickett. Having purchased the mortgages in question as trustee under the authority of the Probate Court as stated in the opinion, Berry as trustee under the Sayles will sold them for cash to himself and his co-trustee under the will of Pickett and misappropriated the proceeds. Other facts are stated in the opinion.</p> <p>The case was submitted on briefs.</p>

<p>Municipal Corporations, Powers, By-laws and ordinances. Constitutional Law. Lowell.</p> <p>A city, which already has a city hall sufficient for the accommodation of its city council and its officers and public boards, -lawfully may expend money in erecting a commodious and convenient hall to be used for political rallies, conventions and other public meetings of its citizens, which occasionally may be let for private uses when not required for the public needs.</p> <p>Although it is clearly illegal for a city to permit a hall which it owns and maintains for public meetings of its citizens to be used for private purposes free of charge, such an incidental and unessential element in the management of the building, which easily can be corrected, does not affect the right of the city to replace the building when destroyed by fire.</p> <p>By St. 1896, c. 415, § 6, the city of Lowell was empowered to create commissions by ordinance and to transfer duties to them, with an exception here immaterial. By an ordinance approved on May 15, 1906, that city created an unpaid commission to acquire a site and rebuild Huntington Hall, a building which had been used for public meetings of its citizens and had been destroyed by fire. Tiie ordinance provided that the commission should be constituted of four citizens of Lowell who should hold no other municipal office and the mayor ex officio, that the four members of the commission other than the mayor should be elected by the aldermen and common council in joint convention, that the chairman of the board of aldermen and the president of tile common council should constitute a committee to submit to the joint convention a list of four names as nominees for commissioners, that such names should be voted on separately and in case of failure to elect any one or more of the persons so named, new names should be submitted by the committee until four persons should have been elected, who together with the mayor should constitute such commission. In a suit in equity by ten taxable inhabitants of Lowell under E. L. c. 25, § 100, to restrain that city and its treasurer from paying for the proposed hall, it was contended by the plaintiffs that the ordinance was invalid as in violation of E. L. c. 26, § 7, which provides that “ no election of a city officer by a municipal body or board shall be valid unless ” the vote is taken in the manner there prescribed. Held, that, assuming that the members of tile commission were city officers and not merely agents of the city, they were not city officers whose election was required by any general or special law but were the creatures of an ordinance, that the city council having power to create the commission necessarily possessed the incidental power to determine how its members should be chosen, and that the ordinance was a reasonable one within the jurisdiction of the city council and w.as valid.</p> <p>In tile absence of an ordinance or rule of a ¡city to the contrary, its city council can make an appropriation of money by an order.</p> <p>An order of a city council cannot be invalidated on the ground that it was passed in violation of the parliamentary rules adopted for the regulation of meetings, as all deliberative bodies can abolish or waive their own rules.</p>

<p>The case was argued at the bar in December, 1906, before Knowlton, C. J., Hammond, Loring, Braley, & Sheldon, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Contract, Consideration, Validity. Evidence, Extrinsic affecting writings. Practice, Civil, Exceptions. Words, “ Released.”</p> <p>Where an instrument in writing in the form of a bond to pay money upon the performance of a condition is not under seal and is stated to be “ in consideration of one dollar and other valuable consideration hereinafter named ” and no other consideration is named thereafter in the instrument, it may be shown by oral evidence that there was no consideration or that the consideration was an illegal one, or that the money was to become payable only upon the performance of a promise which has not been performed.</p> <p>An agreement to procure “ straw ” bail for a person under arrest and when this is obtained to have him leave the State is a fraud on the court in which such bail is to be furnished, and a promise to pay money for which this is part of the consideration cannot be enforced.</p> <p>An action of contract was brought on the following instrument in writing, not under seal: “ In consideration of one dollar and other valuable consideration hereinafter named, I, G. [the defendant], agree to pay to W. $250 in cash, upon the following conditions : Whereas D. is now under bond in the criminal court for the sum of $800, and the said G. is. surety on said bond, or has a deposit of $800 as surety; now when said G. is released or said bond released upon said deposit, then said sum of $250 shall become due and payable, and I agree to pay said sum on demand to said W. Witness my hand and seal this twentieth day of January, 1904.” The defendant, who was a friend of D. and had made the deposit of $800 from his own money, testified that he was asked by the plaintiff to sign the instrument, that he asked a brother of D. whether it was all right, and, receiving an affirmative answer, signed it, that nothing was said to him before signing the agreement and he remembered nothing which was said after signing. Against the objection of the plaintiff, the defendant was allowed to testify that “ he was to pay the plaintiff $250 when he got his money.” Held, that this evidence might have been admitted, either to show that the making by the plaintiff of such an arrangement respecting bail as would enable the defendant to get his $800 was a condition precedent of any obligation on the part of the defendant to pay the $250 and that the instrument was not to become operative until this condition was performed, or, in view of the defendant’s testimony that no conversation took place between the plaintiff and himself at the time of signing the agreement, to show the substance of a subsequent conference between the plaintiff and the defendant resulting in a modification of the instrument in writing, and that on either ground of admission the evidence was not in contradiction of the writing.</p> <p>One G. signed an agreement in writing “ to pay to W. $250 in cash upon the following conditions : Whereas D. is now under bond in the criminal court for the sum of $800 and the said G. is surety on said bond, or has a deposit of $800 as surety; now when said G. is released or said bond released upon said deposit, then said sum of $250 shall become due and payable.” In an action on this agreement there was conflicting evidence as to the circumstances and conditions under which the agreement was signed by the defendant. It appeared that D. surrendered himself, and the deposit of $800 was about to be returned to the defendant, but that the bail of D., after having been raised in amount, again was fixed by the judge at $800 and that that sum of money originally deposited by the’ defendant remained in the hands of the clerk of the court and was treated as deposited anew. The plaintiff asked the presiding judge .to rule that as matter of law the $800 was released by the surrender of D. as shown by the evidence. The judge refused to give this ruling and instructed the jury that it was a question of fact for them to decide whether the $800 in the hands of the clerk of the court was released by the surrender of D. in the manner disclosed by the evidence. Held, that the refusal of the plaintiff’s request involving the meaning of the word “ released ” was right, and that the instruction given by the judge leaving the question for determination by the jury was sufficiently favorable to the plaintiff.</p> <p>One G. signed an agreement in writing “ to pay to W. $250 in cash upon the following conditions: Whereas D. is now under bond in the criminal court for the sum of $800 and the said G. is surety on said bond, or has a deposit of $800 as surety; now when said G. is released or said bond released upon said deposit, then said sum of $250 shall become due and payable.” In an action on this agreement it appeared that G., the defendant, was a friend of D. and had made the deposit of $800 from his own money, that the plaintiff procured two men who agreed to become sureties for D., that D. surrendered himself to the court, and the clerk of the court took from D. a receipt for the $800 and was ready to pay over that sum of money to the person entitled to it, whereupon the judge increased the amount of the bail to'$2,000 and the two men proposed as sureties declined to be sureties for that sum and retired, that I)., being taken in custody, signified his desire to re-deposit the $800, that thereupon the judge reduced the bail to the former sum of $800 and D. re-deposited it, a record being made of that fact and the money having remained all the time in the hands of the clerk, and that D. was allowed to go on his own recognizance. The defendant introduced evidence tending to show that the consideration for the agreement in writing was that the plaintiff should procure effectual bail, and that the defendant thereby should be enabled to get his $800. The plaintiff contended that all he agreed to do was to procure bail for $800, that his contract was performed when he procured two sureties sufficient for that amount, and that under the agreement the $250 was due to him from the defendant irrespective of the fact that the amount of the bail had been raised by order of the court. The judge instructed the jury that it was for them to determine what kind of bail it was which the plaintiff agreed to furnish, that they had a right to consider all the circumstances attending the transaction to ascertain the real consideration of the defendant’s agreement, and, if they found that the plaintiff had not performed what he agreed to do, they should find for the defendant. The jury found for the defendant. On exceptions by the plaintiff, it was held, that the instructions of the trial judge were right.</p>

<p>Practice, Civil, Exceptions, Findings of judge, Res judicata. Mandamus. Veteran. Civil Service. Damages.</p> <p>On an exception to the refusal of a judge sitting without a jury to give a ruling involving findings of fact, if the facts found by the judge are inconsistent with the ruling refused and there is evidence to warrant his findings, the exception must be overruled.</p> <p>A decision of this court, that a veteran employed by a city as a laborer and discharged in violation of the rules of the civil service commissioners is entitled to a writ of mandamus to compel his reinstatement, is an adjudication that there has been no acquiescence by the veteran in the illegal acts of the city and that he has availed himself seasonably of his rights in the premises, and establishes these facts in an action of contract by the veteran against the city to recover the wages which he would have received if he had been employed continuously until the date bf the filing of the petition for the writ of mandamus.</p> <p>A veteran employed by a city as a laborer, who is entitled to the protection afforded by R. L. c. 19, § 23, which provides that a veteran in the employment of a city shall not be removed or suspended, “ except after a full hearing of which he shall have at least seventy-two hours’ written notice, with a statement of the reasons for the contemplated removal ” or suspension, has an absolute right to such notice and hearing before his discharge or suspension, and it is no excuse for a failure of the city to give him such a hearing that he never applied for one.</p> <p>At the trial of an action of contract by a veteran against a city by which he had been employed as a laborer and had been discharged without a hearing after seventy-two hours’ notice thereof in violation of R. L. c. 19, § 23, to recover the wages which he would have received if he had been employed continuously, the judge, who heard the case without a jury, refused to rule, at the request of the defendant, that, if the plaintiff had been guilty of such misconduct and neglect of duty as to make his removal inevitable in case he had been given a hearing, he could recover only nominal damages. There was no evidence of such acts or omissions on the part of the plaintiff as would preclude him from relying upon his right to continuous employment. Held, that the refusal was right, that the question was not whether the plaintiff ought to have been removed or could have been removed but whether he was removed, he having a right to continuous employment until removed lawfully; also that the judge might have refused to give the ruling on the ground that he did not find sufficient facts to warrant a removal, in which case no exception would lie.</p> <p>At the trial of an action of contract by a veteran against a city by which he had been employed as a laborer and had been discharged without a hearing after seventy-two hours’ notice thereof in violation of R. L. c. 19, § 23, to recover the wages which he would have received if he had been employed continuously, the judge, who heard the case without a jury, found that the defendant had suspended and discharged the plaintiff unlawfully. He found that before a certain date the plaintiff was suspended from time to time but had reason to believe that he soon might be employed again, but that on the date named he was discharged finally, and then must have understood that he was not wanted and thereafter had no reason to suppose that he might be employed again by the city, yet made no effort to get other employment. The judge ruled that during the first period the plaintiff could recover the wages he would have earned if he had been employed continuously, but that for the period after the date of his final discharge the plaintiff could recover only nominal damages. Held, that the ruling was right; that, when it became clear to the plaintiff that nothing short of a mandate of the court after litigation would procure his reinstatement, it was his duty to seek employment elsewhere.</p>

<p>Pleading, Civil, Answer, Declaration. Evidence, To contest genuineness of signature, Admissions and confessions. Forgery. Savings Bank. Assignment.</p> <p>The provision of R. L. c. 178, § 86, that “ a signature to a written instrument which is declared on or set forth as a cause of action . . . shall be taken to be admitted unless the party sought to be charged thereby files in court ... a special denial of the genuineness thereof and a demand that it shall be proved at the trial,” does not apply to an action of contract against a savings bank for the amount of a deposit, which was made by one who afterwards died intestate and is claimed by the plaintiff as his assignee, where the declaration alleges that the intestate “during his lifetime assigned and delivered to her .■. . said book and the sums therein stated as deposited and all other sums therein stated of accumulated interest and dividends,” and where the administrator of the estate of the intestate appears as a claimant, and files an answer denying that the intestate assigned or delivered the bank book to the plaintiff and avers that, should it appear that the intestate signed any transfer or assignment of the deposit to the plaintiff, he had not sufficient mental capacity to execute it and it was procured by fraud and undue influence, and if in the trial of such an action the plaintiff, in support of the alleged assignment to her, introduces in evidence an instrument in writing purporting to be an assignment signed by the intestate, the claimant may show that the alleged signature is a forgery. Whether in such a case the administrator appearing as claimant is “the party sought to be charged” within the meaning of the statute here was not considered, as there was nothing in the declaration showing that a written assignment was relied on, and the administrator was not required to admit or deny the signature to such an instrument.</p> <p>A deposit in a savings bank may be transferred by a delivery of the book without an assignment in writing.</p> <p>In an action of contract against a savings bank for the amount of a deposit, which was made by one who afterwards died intestate and is claimed by the plaintiff as his assignee, where the administator of the estate.of the intestate appears as a claimant, if the administrator in his answer, after denying that the assignment was made, avers that, if it should appear that the intestate signed any transfer or assignment of the deposit to the plaintiff, he had not sufficient mental capacity to execute it and that it was procured by fraud and undue influence, this is not an admission that the intestate signed an instrument of assignment and does not preclude the administrator from contesting the genuineness of the signature of an instrument in writing put in evidence by the plaintiff purporting to be an assignment signed by the intestate.</p>

<p>Contract, with counts in tort which were not relied on at the trial. Writ in the Superior Court for the county of Worcester dated November 2,1904.</p> <p>At the trial, which was before Pierce, J., the plaintiff relied on the third count only of his declaration, which alleged that the plaintiff purchased of the defendant “ an automobile Yale touring car ” and that the defendant warranted the car to be well and thoroughly made and, suitable in construction for the ordinary use intended to be made of it. The breach alleged was that the car was “ defectively and imperfectly constructed in that it contained a crank shaft which was not of proper shape, was not of proper materials and was not adapted for the use for which it was intended,” and that, while being used under ordinary conditions, the crank shaft broke as also did two others furnished by the defendant to replace the first one, “ by reason of similar improper construction or lack of adaptation.”</p> <p>Evidence introduced by the plaintiff tended to show that, desiring to purchase an automobile, he visited the sales room of one Read, who was selling cars owned by a predecessor-of the defendant, and there examined various cars, among them the one which he afterward purchased; that Read told the plaintiff that the car in question had been used through the summer as a demonstration car ; that it had not been run five hundred miles; that it “ was in good condition, first class condition ”; that he had kept it so; that no one else had run it except himself. He offered the automobile to the plaintiff for $1,000, saying that if it were new it would sell for $1,600 or $1,700. The plaintiff did not buy at once, but, after subsequent visits and trials of the car, offered Read $900 for it, and the sale was made on those terms, Read giving the plaintiff a bill receipted by him which read: “1 2nd Yale Touring Car, $900.”</p> <p>At the close of the plaintiff’s case the presiding judge directed the jury to return a verdict for the defendant and the plaintiff excepted.</p> <p>The case was submitted on briefs.</p>

<p>Tort, for waste alleged to have been committed by the defendant, the life tenant of real estate of which the plaintiffs are remaindermen. Writ in the Superior Court for the county of Plymouth dated April 11,1906.</p> <p>The facts were agreed upon and the case was tried before jDana, J., without a jury, who found for the defendant. The plaintiff appealed. The facts are stated in the opinion.</p> <p>The case was submitted on briefs.</p>

Petition, filed in the Supreme Judicial Court for the county of Essex and dated April 18,1907, for a writ of mandamus directing the respondents to restore the petitioner to the position of police officer, from which office he alleged he had been removed illegally. The mayor alone will hereinafter be referred to as the respondent, since he alone opposed the petition.

<p>Petition, filed in the Supreme Judicial Court for the county of Suffolk March 22, 1906, for a writ of mandamus against the city of Boston and the superintendent of its municipal printing plant, commanding them to refrain from the use of the union label of the “ Allied Printing -Trades Council of Boston, Mass.,” and commanding the superintendent “to refrain from extending any preference in employment in said office to members of said unions or discriminating in any manner against other citizens who may be applicants for positions in said office, not members of said unions.”</p> <p>The petition alleged that the city council of Boston in April, 1901, had passed a vote enacting as follows-: “ All printed matter hereafter done for the City of Boston shall, so far as it can legally do so, bear the imprint of the union label of the Allied Printing Trades Council of Boston, Mass.”; that the use of such label was permitted by the Allied Printing Trades Council only in shops where members of labor unions were employed exclusively; that any employer so using such label was not permitted to employ other than union men in a shop or establishment where the label was used, and that, in recognition of the ordinance, the respondent superintendent was operating the city’s printing plant as a union shop, so called; that he was unjustly and unlawfully discriminating in favor of members of the unions and against other citizens of the city not members of said unions; that the use of the label on documents which the petitioners were obliged to receive from the city was “ repugnant and obnoxious ” to them and to other citizens not members of the unions, that the label was placed on the city printing and documents without lawful authority and in violation of the rights of the petitioners and other citizens, that the expenditure of the public moneys for the maintenance of such a plant, run in such a manner, was an abuse of corporate power, and unlawful, and that the ordinance requiring the use of said label was in violation of the constitutional rights of the petitioners and other citizens not members of said unions, and therefore invalid.</p> <p>The respondents demurred to the petition and assigned as the third ground for the demurrer that if the petition was intended to prevent an abuse of corporate power or an illegal expenditure of public money, the petitioners’ only remedy was in equity under the provisions of R. L. c. 25, § 100.</p> <p>There was a hearing before Sheldon, J., who made the following reservation : “By agreement of the parties, this case is reserved for the consideration of the full court on the petition and demurrer. If the demurrer is sustained, the petition is to be dismissed: otherwise, the respondents are to file answers, and the case is to be heard on the merits.”</p>

<p>Petition, filed in the Land Court December 22, 1905, for registration of land constituting a passageway five feet wide and two hundred feet long running between Bennington Street and Newtonville Avenue in Newton, or, in the alternative, for registration of an easement of way in the passageway.</p> <p>The case was tried before Davis, J., who made findings and rulings admitting evidence to which only the respondent Barker excepted.</p> <p>The evidence referred to in the fifth paragraph of the opinion was as follows: All the property mentioned was situated on the northerly slope of Mt. Ida, a steep hill in Newton, and, owing to the slope of the hill, the streets ran east and west to the main street which led to the railroad station around the easterly slope of the hill. The passageway in question saved considerable amount- of time and distance over the route to the station through the public streets. Shortly after purchasing the lots now belonging to the respondents, John B. Gould laid out a passageway over the strip now in question, fenced it and erected steps leading down to it from Bennington Street and steps leading down from it at its northerly end to Newtonville Avenue. This was used by Gould in connection with three lots of his on the southerly side of Bennington Street while he still retained the equity of redemption therein, and also by the petitioner in connection with a lot belonging to her on the southerly side of Bennington Street. The way also was generally used by residents on Bennington Street, and from some of these John B. Gould received compensation for such use. The use of the way was of material value to John B. Gould while owner of the lots on the southerly side of Bennington Street, and would still be of material value to the petitioner for use of her lot.</p> <p>It appears from the bill of exceptions that the source of the titles of the petitioner and of the respondents' was one John B. Gould, husband of the petitioner, who obtained title to lot 17 on a plan not material to the case in 1886. This lot 17 then included the lots of both respondents and the land upon which the passageway, to a fee or to a right of way in which the petitioner claimed title, afterwards was built. In 1894, after building the passageway, Gould divided lot 17 into northerly and southerly portions, and mortgaged them separately to the Hingham Institution for Savings and in describing the premises used the bounds stated in the second paragraph of the opinion.</p> <p>In the mortgage of what is now the Wagner lot there was reference to lot 10 by mistake for lot 17. The further history of the title to the Wagner lot, which, since the respondent Wagner took no exceptions, is material here only as making clear the facts appertaining to the next to the last paragraph of the opinion, was as follows : In 1894, Gould made the conveyance spoken of at the end of the first paragraph of the opinion, and in 1897 made a quitclaim deed of what is now the Wagner lot to the Hingham Institution for Savings, stipulating that the title should not merge with the mortgage title which the bank already owned. There was the same defect as to number of the lot in this deed of 1897 as there was in the mortgage deed, and so Gould and his wife joined in making the deed dated April 23,1903, which is mentioned in the next to the last paragraph of the opinion. The description in this deed was identical with that in both of the deeds which it was given to confirm, excepting that it read “ lot 17 ” instead of “ lot 10.” This deed the judge of the Land Court ruled “ was effective to convey the equity of redemption of the petitioner, acquired under her said deed, through a conduit, from her husband in the westerly half of the passageway adjacent to the land now owned by the respondent Wagner.”</p> <p>The history of the title of the Barker lot, after the mortgage to the Hingham Institution for Savings, was as follows: Through mesne conveyances the equity of redemption passed to one who, in 1897, conveyed it to the Hingham Institution for Savings, subject to the mortgage that bank already held and by a deed especially stipulating that the titles should not merge. The bank conveyed the equity in June, 1903, to one from whom by mesne conveyances it came to Barker. In October, 1903, the bank made an entry to foreclose its mortgage and thereafter its mortgage title was deeded to Barker by mesne conveyances. The descriptions in all of the deeds as to the Barker lot were the same as set out in the second paragraph of the opinion.</p> <p>The judge of the Land Court found “ title in the petitioner to the easterly half of the passageway, subject to the right in favor of the respective respondents’ estates to use the same as a part of said passageway, and to that portion of the westerly half of the passageway which adjoins the estate of the respondents Barker, subject to the mortgage from John B. Gould to the Hingham Institution for Savings held by said Barker and to the right of the said respondents’ estates to use the same as a part of said passageway”; and, further, that the petitioner had “the right, as appurtenant to the fee in the easterly half of said passageway, to use the whole of said passageway”; and the respondent Barker excepted.</p> <p>The case was argued at the bar in January, 1907, before Knowlton, C. J., Morton, Loring, Braley, & Sheldon, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Evidence, Proof of foreign law. Georgia. Marriage and Divorce. Statute, Extraterritoriality. Polygamy.</p> <p>The law of another State must be proved as a fact, and in the absence of proof ' there is no presumption in regard to the statute law of another State.</p> <p>Upon the issue whether by the common law of the State of Georgia a marriage ceremony, performed when one of the parties had a husband or wife living, is made a lawful marriage by the cohabitation of the parties after the impediment has been removed by a divorce previously granted having become absolute, the statutes and decisions of the State of Georgia introduced in evidence at the trial did not justify a finding or a ruling that the common law of Georgia differed from that of Massachusetts and that by such cohabitation in Georgia a lawful marriage relation was created, and although decisions of the Supreme Court of Georgia were cited at the argument which indicated that upon a full investigation of the law of that State a contrary conclusion might be reached, these decisions, not having been introduced in evidence at the trial, could not be considered by this court.</p> <p>Where in proving the law of another State a volume of the statutes of that State is put in evidence this does not put in evidence the cases which are cited in the marginal notes to such statutes.</p> <p>R. L. c. 151, § 6, providing that if a man and woman between whom a ceremony of marriage has been performed continue to live together as husband and wife in good faith on the part of one of them after an impediment to their marriage has- been removed by the death or divorce of the other party to the former marriage of ope of them, they shall be held to have been legally married from and after the removal of such impediment, has no extraterritorial force and applies only to persons who were living together as husband and wife in this Commonwealth at the time the impediment was removed. It does not apply to persons who were living together as husband and wife in another State at the time that the impediment was removed and who several months later lived together as husband and wife in this Commonwealth.</p>

<p>The case was submitted on briefs.</p>

<p>Indictment, found and returned in the county of Berkshire in .January, 1906, under R. L. c. 208, § 51, charging that the defendant on May 29,1905, at North Adams did buy, receive and aid in the concealment of one thousand yards of cloth of the value of fifteen cents a yard, the property of and stolen from the Arnold Print Works, well knowing this property to have been stolen as aforesaid.</p> <p>In the Superior Court the defendant was tried before Qrosby, J. At the close of the evidence the defendant asked the judge to make five rulings which are referred to in the opinion. The form of the requests has become immaterial, the substance of the instructions of the judge being stated in the opinion.</p> <p>The jury returned a verdict of guilty, and the defendant alleged exceptions. The judge imposed sentence, but certified that in his opinion there was reasonable doubt whether the judgment should stand, and ordered that execution be stayed until the further order of the court, and admitted the defendant to bail with sureties in the sum of $700.</p> <p>The case was submitted on briefs.</p>

<p>Taxes, Abatement. Bankruptcy. Words, “ Person aggrieved.”</p> <p>A purchaser of land, buildings and machinery from a mortgagee, which acquired its title by a foreclosure sale, is not a person aggrieved within the meaning of R. L. c. 12, § 73, by the assessment of a tax upon this property to the mortgagor, a corporation, if before the first day of May in the year for which the tax was assessed such corporation liad been adjudicated a bankrupt and its trustee in bankruptcy had been appointed, to whom under the bankruptcy act of 1898, § 70, all its property, with certain exceptions not material, had passed, and certificates of the adjudication and the appointment had been recorded in the registry of deeds in the county where the property was situated, the assessment being void, and therefore such purchaser from the mortgagee cannot maintain a petition for an abatement of the tax under the statute.</p> <p>“ A person aggrieved ” by the taxes assessed upon him, who by R. L. c. 12, § 73, is given the right to apply for an abatement, is a person whose pecuniary interests are or may be affected adversely.</p>

<p>Contract, Validity, Implied: common counts. Wagering Contracts. Gaming.</p> <p>A wagering contract for the purchase of stock on a margin where no actual pur- ' chase or sale is intended, although not prohibited by any statute imposing a penalty, is illegal and void at common law.</p> <p>One who has advanced money to be used in an illegal transaction cannot recover the money from the wrongdoer whom he has aided.</p> <p>One, who at the request or with the consent of another has paid money upon such other person’s wagering contracts for the purchase of stocks on a margin, in order to prevent the stocks from being sold out, cannot recover the amount of such payments from the person for whom they were made.</p>

Toet for personal injuries received by the plaintiff while a passenger on an electric car of the defendant. Writ in the Superior Court for the county of Berkshire dated April 5, 1905. At the trial, which was before Dana, J., there was uncontradicted evidence that the plaintiff became a passenger at Adams to go to Pittsfield.

Indictment for obstructing an alleged highway found and returned in the Superior Court for the county of Hampshire December 18, 1905. At the trial, which was heiore' Hardy, J., it was admitted that the defendants obstructed the way in question, and that it was not a highway unless it had been established by prescription. The material facts are stated in the opinion. The case was submitted on briefs.

<p>Evidence, Statement of agent, Res gestae, Relevancy and materiality. Agency. Street Railway. Damages. Malicious Prosecution. Assault. False Arrest.</p> <p>There is no difference between declarations made after and those made before the event in question, in the application of the principle that a mere declaration of a servant or agent, not made within the scope of his employment or authority, is inadmissible in evidence against his employer or principal unless it either accompanies an act which is itself competent and material to be proved and which it tends to qualify, characterize or explain, or it is itself a part of the transaction under investigation.</p> <p>At the trial of an action against a street railway company for an assault alleged to have been committed upon the plaintiff by the conductor in charge of a car operated by the defendant while the plaintiff was a passenger thereon, it was admitted that there was an encounter between the conductor and the plaintiff, but there was much contradictory evidence as to which of them was the aggressor. The presiding judge permitted a witness for the plaintiff to testify that, a “comparatively short time” before the encounter, but at a time when the plaintiff was not on the car, the conductor had stated to the witness that he “ would assault some one on the car before he got through,” and instructed-the jury to consider the testimony only upon the question whether the conductor did or did not begin the assault. Held, that, while a different conclusion would have been reached if the conductor were the defendant in this case, the evidence should not, have been admitted against the conductor’s employer, since it did not constitute part of the res gestae.</p> <p>Evidence is admissible, at the trial of an action by a physician against a street railway company for assault, false arrest and malicious prosecution, to prove, upon the question of damages, the professional standing and reputation of the plaintiff and the nature and extent of his practice before and after the injury.</p> <p>At the trial of an action by a physician practising in Ansonia for assault, false arrest and malicious prosecution, where it was competent to prove, upon the question of damages, the professional standing and reputation of the plaintiff and the nature and extent of his practice before the injury, another physician, testifying for the plaintiff, had stated that, during twenty years’ acquaintance with the plaintiff, he had “ run across ” him or “ had to do with him professionally ” many times. He then was asked if he knew about the nature and extent of the practice the plaintiff had had, and replied “ I have been for considerably over twenty years called in consultation by various physicians ’’ in Ansonia “ and believe that ” the plaintiff “ has for twenty years had the largest practice ” there, “ that no physician there has had as extensive or desirable a practice.” The defendant excepted to the admission of the testimony generally, but not specifically. Held, that the presiding judge was warranted in finding that the witness’s knowledge of the matters inquired about was sufficient to qualify him to testify; but quaere, whether, if specific objection had been taken to the answers given, they would have been admissible.</p> <p>At the trial of an action against a street railway company for malicious prosecution, there was evidence tending to show that, while the plaintiff was a passenger upon a car operated by the defendant, the conductor without provocation committed an assault upon him, that, arriving at a terminal of the line and searching for a police officer to arrest the conductor, he was told by a superintendent of the defendant that he, the superintendent, was a “ railway policeman,” that the superintendent, being asked by the plaintiff to arrest the conductor, after a conversation apart with the conductor, refused to do so, but arrested the plaintiff and took him without the conductor to a police station and charged him with assaulting the conductor, that, because the assault was alleged to have been committed in another town, the plaintiff was taken by a police officer unaccompanied by the superintendent to a police station in that town where, on a complaint charging him with assaulting the conductor, a warrant was issued for his arrest and he was arrested and subsequently tried and acquitted, and that, before that trial, the general manager of the defendant stated that, if the plaintiff “ wanted to see him, he could settle it now; if not, he could go ahead.” Held, that there was evidence warranting the submission of the case to the jury.</p> <p>At the trial of an action in three counts against a street railway company for assault, false arrest and malicious prosecution, there was evidence tending to show that there had been an encounter between the conductor in charge of an electric car operated by the defendant and the plaintiff, a passenger, and that subsequently the plaintiff was arrested and prosecuted by the defendant’s agents for assaulting the conductor. There was much contradictory evidence as to who was the aggressor in the encounter between the conductor and the plaintiff. The defendant asked the presiding judge to instruct the jury that, "if the plaintiff was tlie aggressor and made an unjustifiable assault on ” the conductor, he could not " recover on his count for malicious prosecution, nor on his count for his arrest and assault.” The request was refused. Held, that, while the request contained a correct statement of the law as to the count for malicious prosecution, it could not have been given in full because, although the plaintiff were the aggressor, the defendant would have been liable on the count for assault if the conductor had used excessive force upon him.</p>

<p>Indictment under R. L. c. 112, § 72, as amended by St. 1906, c. 479, for a refusal by the defendant to sell to one Chapin, alleged to be a “ pupil” at Northampton Commercial College, a ticket at one half the regular fare charged by it. The indictment was found and returned in the Superior Court for the county of Hampshire June 13, 1907.</p> <p>At the trial, which was before Aiken, C. J., the facts were agreed upon, and the presiding judge refused, pro forma, to give instructions requested by the defendant and directed the jury to return a verdict of guilty, and the defendant excepted. The facts are stated in the opinion.</p>

<p>Tort for the conversion of a cash register. Writ in the Police Court of Springfield dated May 31, 1902.</p> <p>On appeal, there was a trial before Hitchcock, J., without a jury, and a finding for the plaintiff. The defendant excepted to rulings of the presiding judge excluding evidence, as stated in the opinion.</p> <p>The case was submitted on briefs.</p>

<p>The case was submitted on briefs.</p>

<p>Practice, Civil, Equitable replication. Equity Jurisdiction, Mistake. Res Judicata.</p> <p>A plaintiff in an action at law who wishes to claim equitable rights in a replication under R. L. c. 173, § 32, must state in his replication that he seeks equitable relief which otherwise would not be open to him in such an action.</p> <p>The kind of mistake which is a ground for equitable relief is a mutual mistake of the parties, and not a mistake of one of them.</p> <p>In an action at law, where a decree in a previous suit in equity brought by the plaintiff’s predecessor in title against the same defendant had been held to be a bar as an adjudication of the same issues, the plaintiff sought to avoid the effect of the adjudication by filing a replication under R. L.-c. 173, § 32, and introducing evidence thereunder to show that his predecessor in title when he brought the suit in equity, and the plaintiff himself-when he brought his action at law, were ignorant and mistaken as to material facts involved in the suit in equity as the issues were stated in the pleadings and were determined in the final decree. The matters relied on were that the plaintiff in the suit in equity, who was a trustee in bankruptcy, was ignorant of some of the facts when he filed his bill, that the bankrupt, whose title he took as trustee and under whom the defendant claimed, declined by advice of counsel to give the plaintiff information and that afterwards the defendant in good faith made some statements which proved to be incorrect. Held., that these facts afforded no ground for interference with the decree.</p> <p>One, who sets up a former adjudication upon a different cause of action between the same parties as a bar to an opposite adjudication in the pending case, in order to establish such a bar, must show either from the record alone or from the record supplemented by other evidence that the same issue was considered and was determined upon its merits in the former suit.</p>

<p>Tort for the alleged conversion of a house in the town of Russell. Writ in the District Court of Western Hampden dated May 27, 1905.</p> <p>On appeal to the Superior Court the case was tried before Wait, J. The character of the. evidence is described in the opinion.</p> <p>At the close of the evidence the plaintiff asked the judge to make the following rulings:</p> <p>1. " That a building erected upon land of another is personal property when there is an express agreement that it may be such, when it may be fairly inferred from circumstances that it is such, or when the owner of the land has treated it as such.”</p> <p>2. “If evidence shows that the Woronoco Paper Company consented to the building remaining on the land since purchased and has collected rent therefor, the house is personal property.”</p> <p>The judge refused to make the rulings requested, and instructed the jury, that if they found that the house was on the land of the Woronoco Paper Company the evidence would not be sufficient to enable the plaintiff to recover and they must return a verdict for the defendant, and, if they found that the house did not stand on that company’s land, they must determine whether it was personal property in accordance with principles stated in the charge.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions. For the purposes of the exceptions it was admitted in the bill of exceptions that the house stood on land belonging to the Woronoco Paper Company.</p>

<p>The case was submitted on briefs.</p>

<p>Railroad. Street Railway. Fire. ' Pleading, Civil, Declaration, Demurrer. Practice, Civil, Amendment. Res Judicata.</p> <p>The liability imposed by R. L. c. Ill, § 270, upon a railroad corporation or street railway company for damages caused by fire communicated by its locomotive engines does not apply to damages caused by a fire communicated by a locomotive engine while used upon a track in constructing the railway of a street railway corporation.</p> <p>On a demurrer to a declaration in an action against a street railway company under R. L. c. Ill, § 270, for damages caused by fire communicated by a locomotive engine of the defendant, the court found it unnecessary to decide whether, under the definition of a street railway in R. L. c. Ill, § 1, as a railway “ operated by motive power other than steam,” it could have been assumed that the use of a locomotive engine upon a street railway within the meaning of R. L. c. Ill, § 270, was authorized under R. L. c. 112, § 51, without an averment that express authority was given to the railway company by the board of aldermen of a city or the selectmen of a town to use steam as a motive power, because the case was disposed of on another ground and also because by St. 1906, c. 463, Part III. § 35, street railway companies no longer are allowed to use steam as a motive power.</p> <p>It is within the discretion of a judge who has sustained a demurrer to a declaration to decide whether the plaintiff shall be' allowed to amend his declaration after the decision against him.*</p> <p>A defence of res judicata, depending on facts which do not appear in the declaration or in the record of the case, cannot be made by demurrer but must be stated in a plea or answer.</p>

<p>Negligence, Employer’s liability.</p> <p>At the trial of an action under R. L. c. 106, § 71, cl. 2, by an employee in a stone quarry against his employer for injuries alleged to have been received by reason of negligence oh the part of the superintendent who had general charge of the defendant’s business, there was evidence tending to show that a stone weighing about five tons was lifted by the direction of the superintendent from the pit in the quarry and was placed in the pattern yard upon a quantity of loose stone chips which had accumulated upon the bed of the yard, a sloping surface of solid rock, where it remained for a week or ten days before the accident, and that the superintendent stood within ten yards of the stone as it was being placed; that, later, the superintendent directed the plaintiff with other workmen to remove a log which lay on the sloping bed of the yard near the lower side of the stone, that while the men were moving the log and the plaintiff was between it and the stone and the superintendent was standing by within ten feet, the stone slipped and caught the plaintiff’s foot, causing his injury. Held, that there was evidence of negligence on the part of the superintendent in permitting the stone to be placed as it was and to remain as it did, and in directing the plaintiff to work below it without giving directions and taking precautions for his safety.</p> <p>At the trial of an action by an employee in a stone quarry against his employer for personal injuries, there was evidence warranting a finding that the plaintiff was injured by a large stone’s slipping upon him while he was attempting, under direction of the superintendent in general charge" of the quarry, to remove a piece of wood lying on a slope below the stone, and that, owing to negligence on the part of the superintendent, the stone had been placed on an accumulation of stone chips upon a sloping surface, that, until he went to work in the pattern yard a short time before the accident, the plaintiff had worked only at drilling in the pit of the quarry and that he never had seen a stone slip in the pattern yard. Held, that there was evidence warranting a finding that the plaintiff was in the exercise of due care, as he was acting in obedience to orders and was warranted in trusting to the experience and authority of the superintendent; and, also, that the plaintiff did not assume the risk of injury due to the negligence of the superintendent.</p>

<p>Evidence, Of experiments.</p> <p>At the trial of an action for personal injuries alleged to have been received by the plaintiff in falling down improperly lighted stairs in a building of the defendant, it was admitted that a gas jet at the top of the stairway was not lighted at the time of the accident, but a question at issue was whether light from outside sources sufficiently illuminated the stairs. The defendant called a witness who testified that he had made observations of the lighting on a date considerably after the accident to the plaintiff, but at a time of day corresponding, with regard to sunset, with the time of the accident and under conditions as to surrounding lights which the jury would have been warranted in finding were the same as those existing at the time of the accident. The presiding judge, subject to exceptions by the plaintiff, then permitted the witness to testify in detail with regard to his observations, and in his charge to the jury instructed them that, unless they found that the conditions existing when the witness made his observations were “ precisely the same as at the moment ” when the accident to the plaintiff occurred, they should disregard the testimony. Held, that the testimony properly was admitted by the judge in the exercise of his discretion, and that his instructions carefully guarded the jury from making any improper use of it.</p>

<p>Indictment found and returned in the Superior Court for the county of Worcester January 21, 1907, in four counts, the first charging the two defendants, Asherowski and Fielding, with the wilful burning of insured property with intent to defraud an insurer thereof, the second charging Asherowski as principal in such a crime and Fielding as accessory before the fact, the third charging Fielding as principal and Asherowski as accessory before the fact, and the fourth charging both Asherowski and Fielding as accessories before the fact to a principal whose name was unknown to the grand jury.</p> <p>At the trial, which was before Brown, J., after the empanel-ling of the jury, the district attorney, with the consent of the defendants, nol pressed the first and second counts.</p> <p>The following facts, besides those stated in the opinion, were in evidence:</p> <p>The defendants were engaged as partners under the name of Asher and Fielding in the manufacture and sale of clothing and occupied a building at the corner of Spruce and Green Streets in Worcester. The fire occurred at about.one o’clock in the morning of November 21, 1906. When the members of the fire department arrived, all the doors and windows of the building were securely fastened, and they had to force an entrance. They found that the fire was in the basement where were fire traps composed of bundles of matches having pink heads wound together with string, surrounded with cloth and small pieces of wood, and all saturated with oil. Around the matches were collected a large amount of the merchandise belonging to the defendants which ordinarily would not have been in the basement. Matches and string like those used in the fire traps were found in the desk in the store.</p> <p>The defendant Fielding was at the fire. The deputy chief of the fire department, not knowing who he was, ordered him to leave the building as they were going to close it up. Fielding said “ Yes, I will get away from this place as quick as I can,” but did not state that he was one of the proprietors of the store.</p> <p>Six witnesses testified that the defendant Fielding was with them at a card party of eleven at his home from about half past seven until about fifteen minutes before one on the night of the fire, and was not absent from the house at any time during that period. There was evidence that the day after the fire Fielding had told a member of the State police that he had gone to bed at half past ten the night of the fire, and that he said nothing of having been at any party.</p> <p>It was admitted that the defendant Asherowski left Worcester the morning of November 20 for a business trip to Boston and Portland, Maine, and that he returned to Worcester November 22.</p> <p>There were three keys to the building, one in the possession of Fielding, one in the possession of the bookkeeper, and one in the possession of a foreman. They all testified that they did not set the fire, and the foreman testified that he was the last one to leave the premises the night before the fire and that he locked the door to which he had the key.</p> <p>At the close of the evidence, the defendants asked the presiding judge to rule that the Commonwealth must elect upon which of the two remaining counts it would rely. The request was refused and the defendants excepted.</p> <p>The defendants then requested that verdicts be ordered for them on each of the third and fourth counts. The requests were refused and the defendants excepted.</p> <p>The jury found both defendants guilty on the fourth count, and not guilty on the third.</p> <p>The defendants moved for a new trial on the ground that the verdict against them on the fourth count was not warranted by law. The presiding judge overrruled the motion and the defendants excepted.</p> <p>Other facts are stated in the opinion.</p>

<p> Replevin. Bankruptcy. Sale. Fraud. </p> <p>After an adjudication of bankruptcy under the bankruptcy act of 1898 and before a trustee has been appointed or anything else has been done to obtain possession of the bankrupt’s property, the owner of property which is in the possession of the bankrupt can maintain an action of replevin in a State court to obtain possession of it.</p> <p>A vendor cannot regain in an action of replevin merchandise delivered by him to the defendant from five to eight months after it was ordered by the defendant in the ordinary course of his business if the evidence shows only that the defendant was insolvent when the merchandise was delivered, but does not show that he was insolvent when it was ordered, or that, at the time of delivery, he had given up the hope and expectation of continuing in business and ultimately paying all his debts.</p>

<p>Tort for an assault upon the plaintiff by one Driesnaek, alleged to have been employed by the defendant and acting within the scope of his employment. Writ in the Superior Court for the county of Worcester dated August 4, 1906.</p> <p>There was a trial before Wait, J., who refused to direct a verdict for the defendant, and the defendant excepted.</p> <p>The facts are stated in the opinion.</p>

<p> Railroad, Negligence. Agency. Master and Servant. </p> <p>In an action against a railroad company for personal injuries, where it appeared that the plaintiff drove upon a dangerous grade crossing when, although a train was approaching, the first gates had been left up to allow a street car to pass out and the second gates were closed but the gate tender raised them to allow the plaintiff to pass and then shut one of them down between the plaintiff and his horse, and the plaintiff was struck by the train, it was assumed by the parties that there was evidence of due care on the part of the plaintiff and of negligence on the part of the gate tender, and the assumption was found by this court to be warranted by the evidence.</p> <p>In an action against a railroad company for personal injuries incurred at a grade crossing of a crowded city street by the defendant’s railroad, parallel to which ran the tracks of another railroad company as a part of the same grade crossing, where the evidence shows that gates had been maintained and operated at the crossing for a long time and that this was done under some arrangement made by the defendant with the other railroad company, the fact that the gate tender, whose negligence could have been found to have caused the accident, was hired and paid by the other railroad company does not prevent a finding that the business of operating the gates never was taken out of the control of the defendant and that, in relation to third persons, the gate tender was the defendant’s servant or agent.</p> <p>The frequent running of railroad trains over a grade crossing of a crowded street • in a large city is a business fraught with such danger to travellers on the street as to impose upon the corporation operating the trains a duty to take precautions for the safety of such travellers, which it cannot escape by entrusting its performance to an independent contractor.</p>

<p>The case was submitted on briefs.</p>

<p>Negligence, Employer’s liability.</p> <p>If a man, employed by a street railway company as a night watchman, goes in the ” night time without a light into the cellar of the car barn where he is watchman, and gropes his way to the side of a coal bin to find the key with which to wind his time clock, when some coal, which was put in that day and was piled carelessly by his fellow servants, falls upon him and injures him, he cannot recover at common law from his employer for his injuries, even if he was in the exercise of due care, because the negligence was that of -his fellow servants, and the chance of such an injury was one of the obvious risks of his employment.</p> <p>At common law a superintendent is a fellow servant of a workman employed under him in the same work.</p>

<p> Springfield. Municipal Corporations. </p> <p>St. 1902, c. 134, transferred the powers of the mayor and aldermen of the city of Springfield in relation to the establishment and maintenance of a police department, the appointment of a constable, or a city marshal and assistants, and all other police officers, to the city council to be exercised as it might from time to time prescribe and wholly or in part through the agency of any persons acting as a board whom it might from time to time designate, and with such limitations of power as it might by ordinance determine. Under the charter of the city the mayor and aldermen, before the passage of this statute, had an absolute power to remove the city marshal without any notice or hearing. Acting under the statute, the city council passed an ordinance establishing a police commission, which it made the executive head of the police department, and conferred upon it “ the management and control of the officers and members of the police department, with power to make such lawful rules for their government and discipline ... as they may deem proper.” The ordinance provided that the commission annually should elect a marshal, assistant marshal and other members of the force who should continue in office until their successors were elected and qualified “ unless sooner removed.” A city marshal appointed under this ordinance was removed by a vote of the commission, and filed a petition for a writ of mandamus to compel the commissioners to reinstate him in his office. It was agreed by the parties that the office of city marshal of Springfield did not come within the civil service statutes and rules. Held, that the commission had absolute power to remove the petitioner, and that his petition must be dismissed.</p>

<p>Witness, Cross-examination, Impeachment. Evidence, Of conviction of crime, Best and secondary.</p> <p>Although by R. L. c. 175, § 21, the conviction of a witness of a crime may be shown to affiect his credibility, and although this applies to the defendant in a criminal case who testifies in his own behalf under § 20, cl. 3, of the same chapter, such a conviction can be shown only by the production of the record and cannot be shown by an oral cross-examination of the defendant.</p> <p>On the trial of a complaint for the illegal sale of intoxicating liquors, where the defendant appears as a witness in his own behalf, he cannot be compelled on his cross-examination to answer the question whether he ever has been convicted of illegally keeping intoxicating liquors for sale, as this can be shown only by the production of the record.</p>

<p>Contract, Implied: common counts. Interest.</p> <p>At the trial of an action for money had and received, it appeared that the plaintiff executed an order in writing upon the treasurer of a savings bank directing him to pay to the defendant funds standing to the plaintiff’s credit at the bank, but did not deliver the order to the defendant. The defendant in some way other than through a delivery by the plaintiff got possession of the order, presented it to the bank and had the account transferred to his name. Held, that the action could be maintained although the defendant never had actual possession of the money.-</p> <p>It is not necessary for one whose money fraudulently has been misappropriated to demand its return of the person who misappropriated it before bringing against him an action of contract for money had and received.</p> <p>In an action for money had and received brought against one who fraudulently has misappropriated money of the plaintiff, the defendant is chargeable with interest from the time of the fraudulent misappropriation by him.</p>

<p>Fire. Nuisance. Pleading, Civil, Declaration. Negligence.</p> <p>Where one builds a fire on his own premises, it is his duty to use reasonable care to prevent its doing injury to personal property of other persons, whether such property is on other land than his or is on his land by his invitation.</p> <p>The owner of land through which a highway passes has a right to make any reasonable use of that part of the highway upon his land which does not interfere with the enjoyment of the public easement.</p> <p>A declaration alleged that the defendant negligently built a fire upon his own premises within the limits of a public highway and that, owing to his gross negligence, the fire “ was so unguarded and cared for” that it communicated itself to cord wood belonging to the plaintiff and standing upon the sides of the highway. The defendant demurred on the ground that it appeared by the declaration that the plaintiff was a trespasser and that therefore the defendant owed him no duty. Held, that the demurrer should be overruled, for it did not appear from the declaration that the plaintiff was a trespasser, there being nothing to show on whose land his wood was standing nor that his use of the highway interfered with the enjoyment of the public easement.</p> <p>A declaration, in which it is averred that the defendant negligently built a fire on his own land within the limits of a public highway and that because of his gross negligence it communicated itself to wood of the plaintiff piled in the highway, need not allege also that the plaintiff was not a trespasser and was not guilty of any wrong in the disposition of the wood, the law not presuming that his conduct was unlawful. 7</p> <p>A declaration, in which it is averred that the defendant negligently set a fire on his own land and negligently guarded it whereby wood of the plaintiff was burned, alleges a nuisance and therefore need not contain a further averment denying contributory negligence on the part of the plaintiff.</p>

<p>Evidence, Of character or reputation, Relevancy and materiality. Breach of Promise to marry. Contract, Performance and breach. Damages, Mitigation. Practice, Civil, Conduct of trial, Exceptions.</p> <p>In civil actions in this Commonwealth evidence of character or reputation is not admissible for the purpose of meeting evidence of specific acts of misconduct.</p> <p>In an action for breach of a promise to marry, where the defendant has introduced, in justification of his refusal to marry the plaintiff, evidence of specific acts of unchastity on her part previous to the alleged promise, she should not be allowed, in rebuttal, to introduce evidence of her general reputation for chastity.</p> <p>In this Commonwealth character cannot be shown by evidence of specific acts, but only by evidence of reputation.</p> <p>Actual unchastity of one of two parties mutually promising to marry, either before or after the making of the promises, will justify the other party in breaking the engagement if there has been no waiver of the objection.</p> <p>At the trial of an action for breach of a promise to marry, the defendant offered to show that, before the time of the alleged promise, the plaintiff had gone into the bedroom of-a man lodging at her mother’s house and conducted herself in a manner to entice him, that she had stood by without dissent and heard her mother suggest indecent and unchaste conduct on her part with men lodgers, that her mother at one time had pushed a married man into a bedroom where the plaintiff was naked, and that the plaintiff on various occasions had guarded the door of a bedroom where she knew her mother was committing adultery, thereby aiding and intending to aid the commission of the crime of adultery. The evidence was excluded. Held, that the evidence offered, although it tended to prove immodest and indecent acts of the plaintiff, and perhaps a violation of the criminal law, did not tend to prove unchastity on her part, and therefore was excluded rightly.</p> <p>In an action for breach of a promise to marry, evidence of immodest and indecent acts of the plaintiff, or of violations of the criminal law on her part, cannot be introduced by the defendant to mitigate damages.</p> <p>At .the trial of an action for breach of a promise to marry, there was evidence, introduced by the defendant in justification of his breach of promise, that the plaintiff had committed fornication with a man other than the defendant. Evidence which did not tend to show unchastity, but tended to show conduct on the part of the plaintiff which was immodest and indecent and in violation of the criminal law, rightly had been excluded, and then the defendant, having testified that, after a conversation with one W., he ceased going to the plaintiff’s house, was asked “ Whether or not it was because of what W. told him that he did not go afterwards to the plaintiff’s house.” The presiding judge refused to allow him to answer the question but permitted him to state all that he did after his conversation with W. There also was evidence that, until the defendant’s conversation with W., the plaintiff for some time had been committing fornication with the defendant. The defendant contended that W. told him of the acts of unchastity of the plaintiff, evidence of which already had been admitted, and of the acts of immodesty and indecency and in violation of the criminal law, evidence of which had been excluded. Held, that justification of the defendant’s breach of his promise could not be shown by evidence that he broke the engagement by reason of information which he received as to misconduct on the plaintiff’s part not amounting to unchastity, and that such reason therefore was irrelevant and incompetent; and that, the defendant having been allowed to introduce evidence of unchastity of the plaintiff, the further fact that he was informed of it was irrelevant and immaterial, and therefore the question asked properly was excluded.</p> <p>At the trial of an action for breach of a promise to marry in which justification was alleged as a defence, there was evidence of misconduct on the part of the plaintiff before the promise of the defendant such as would justify the defendant in breaking the engagement. The presiding judge instructed the jury that “ if the plaintiff was guilty of unchastity before the defendant’s promise to her, and did not inform him and he did not know of it until after action brought, the verdict must be ” for the defendant; and then, at the request of the plaintiff and subject to exception by the defendant, ruled that “ mere silence on the plaintiff’s part, without inquiry by him, though resulting in the concealment of matters which would have broken the engagement if known, would not constitute fraud on the part of the plaintiff.” Held, that the two rulings taken together were correct, since it was not the plaintiff’s duty, in the absence of inquiry by the defendant, to communicate to him the previous circumstances of her life.</p> <p>At the trial of an action for breach of a promise to marry in which justification was set up as a defence, there was evidence tending to show that the plaintiff had been guilty, before her engagement to the defendant, of acts of fornication with another man, but that the defendant did not know of such conduct. There also was evidence that the defendant, for some time until the breaking of the engagement, himself had been committing fornication with the plaintiff. The presiding judge, subject to exception by the defendant, ruled that, if the defendant abandoned the plaintiff “ for any reason other than her fornication with another, such fornication would now be no defence to this action, even though he would have been justified at the time of such abandonment in breaking his promise by reason of such fornication if he had known of it.” The jury found specially that the plaintiff had not been guilty of fornication with the other man, and found for the plaintiff generally. Held, that the ruling was erroneous, but that the defendant was not harmed by it, and that therefore the exception should not be sustained.</p> <p>At the trial of an action for breach of a promise to marry, there was evidence that the plaintiff had committed fornication both with the defendant and with another man. The defendant asked for a ruling “ that evidence of fornication on the part of the plaintiff could be considered in mitigation of damages.” The ruling was refused. Held, that the ruling rightly was refused, since, if it had been granted, by its terms fornication with the defendant could have been considered in mitigation of damages.</p>

<p>Attorney at Law. Agency, Scope of authority. Release. Joint Tortfeasor.</p> <p>Whether, under a general employment, an attorney is authorized to compromise his client’s claim without his permission, still is an open question in this Commonwealth.</p> <p>At the trial of an action against the judge of a police court for false imprisonment of the plaintiff in committing him, in proceedings under R. L. c. 168, §§ 80,81, to a house of correction instead of to a common jail and in doing so without first complying with the requirements of § 81, it appeared that the order of commitment was made out by the clerk of the court, and there was evidence that would have warranted the jury in finding that, after the commencement of this action, the plaintiff’s attorney with his consent induced the clerk, by threatening to join him in the action as co-defendant with the judge, to pay to the attorney $76 to release him from all claim by the plaintiff. Held, that the defendant was. released by the release of the clerk although the latter never became a party to the action.</p> <p>If the plaintiff in an action of tort, by representing to one who is not a party to the action that he intends joining him as a defendant because he likewise was liable for the tort alleged to have been committed, induces such person to pay a sum of money in consideration of an agreement that he should not be so joined and releases him from further claim in the matter, such release of him is a bar to the further prosecution of the action against any defendant, even if it appears that in no case could such person have been held liable as a co-defendant if he had been joined.</p>

<p>Legitimacy. Statute, Construction. Descent and Distribution.</p> <p>Although St. 1853, c. 233, now R. L. c. 133, § 5, with regard to the legitimating of an illegitimate child upon marriage of his parents and acknowledgment by his father, since it modifies the common law, must be construed strictly, the construction adopted should advance, rather than defeat, the purpose of the Legislature.</p> <p>The acknowledgment by the father, which is necessary under R. L. c. 133, § 6, to render an illegitimate child legitimate after the marriage of the parents, while it must be unambiguous, need not be by declarations, but may be by conduct.</p> <p>A finding that an illegitimate child has been legitimated after the marriage of his parents by his father’s acknowledging him as his child is warranted on evidence which tends to show that before his marriage with the child's mother the father consistently treated the child as his own and that after the marriage he continued to do so and that, in testifying as a witness at the trial of a suit by the child’s mother for a divorce, he spoke of the child as his “ boy.”</p>

<p>Contract by the town of Whately against the town of Hatfield for expenditures amounting to $261.52 incurred on and for a period after September 3, 1904, for the immediate relief and support of the family of one John Wagner, a pauper alleged to have a settlement in Hatfield. Writ dated March 29, 1906.</p> <p>In the Superior Court the case was submitted upon an agreed statement of facts to Fessenden, J., who ordered judgment for the defendant. The plaintiff appealed.</p>

<p> Frauds, Statute of. </p> <p>A memorandum of a contract for the sale of land which does not describe or identify the land intended to be conveyed, where it does not appear that such land is the only land owned by the party to be charged, does not satisfy the statute of frauds, and, if there has been no such part performance or fraud as to take the case out of the statute, the contract cannot be enforced if the statute is pleaded.</p>

<p>Contract on a promissory note against the maker and the indorser. Writ in the Police Court of Holyoke dated August 2, 1904.</p> <p>On appeal to the Superior Court the case first was tried before Flaherty, J. At this trial the defendant Howard A. Crafts, the maker of the note, admitted his liability and the judge ordered a verdict for the plaintiff as against him. As against the other defendant, Linus D. Crafts, the indorser of the note, the jury returned a verdict for the plaintiff in the sum of §451.33. This defendant alleged exceptions which after the death of Flaherty, J., were allowed by Hitchcock, J., and later were sustained by this court.</p> <p>Judgment having been entered against the maker of the note, there was a new trial, against the indorser alone, before Wait, J.</p> <p>The note was as follows:</p> <p>“ Holyoke, Mass., Apr. 2, 1900. “ §500.</p> <p>“ On demand after date I promise to pay to the order of James W. Toole Five hundred dollars with interest at 6 per cent per annum.</p> <p>“ Value received.</p> <p>“ No. Due. Howard A. Crafts.”</p> <p>Indorsed on back as follows:</p> <p>“ L. D. Crafts.</p> <p>“ Int. paid to Oct. 2, 1900.</p> <p>Int. “ “ April 2, 1901.</p> <p>§100.00 paid ón note.</p> <p>Int. paid to Oct. 2,1902.</p> <p>Int. “ “ April 2, 1903.</p> <p>“ “ “ Oct. 2, 1903</p> <p>“ June 27, 1904.</p> <p>Waiving demand, notice and protest.</p> <p>“L. D. Crafts.</p> <p>“ Witness</p> <p>“ E. A. Allyn.”</p> <p>It was admitted that the plaintiff lent §500 on the note; that the plaintiff received from Howard A. Crafts on April 2, 1800, the promissory note for $500, signed by Howard A. Crafts, payable to the order of the plaintiff, on demand, with interest at six per cent per annum; that the note was indorsed by Linus D. Crafts, the defendant, before delivery; and that the indorsements of payments appeared on the note which are printed above. The plaintiff testified that he made no demand of any kind upon Howard A. Crafts before June 2,1900, that is within sixty days, and had no talk with him about the note during that time; that he wrote to him two or three times three or four years later, and finally placed the note with R. A. Allyn, Esquire, a lawyer in Holyoke, for collection; and that no more had been paid on the note than the interest as stated, and the sum of $100.</p> <p>The judge in making his charge put to the jury the following questions:</p> <p>1. Did the waiver relate to future action, that is, future demand to be made and notice to be given in the future.</p> <p>2. Did it relate to a waiver of the original requirement of a demand to be made and notice given before the defendant should become liable at all?</p> <p>Upon this matter he instructed the jury as follows:</p> <p>“How, perhaps the first, thing you should determine is this: It is possible, it is argued upon the evidence, that Mr. Crafts’ indorsement upon the back of that note related entirely to things that were to take place in the future, that he did not intend and did not suppose that he was waiving the consequences of a failure to do acts in the past, but supposed he was dealing solely with regard to things that were to be done in the future, and he was simply using that word regarding things to be done. If that is what that waiver means, if it related to what was going to be done in the future, you can find for the defendant at once. If, on the other hand, you think it was with reference to what had gone on in the past, if it related to the failure to give notice originally, then the case demands further consideration at your hands. But if you think that that waiver was merely a waiver of the acts which Mr. Allyn says he told him he was going to do, if it was simply to excuse him, saying, “You need not go to that trouble, you need not do anything of that kind, I will save you that trouble, I will waive^that,” if that is all, it does not amount to anything, because that was an unimportant and nugatory act that had no legal effect whatsoever. On the other hand, if he meant to waive what had taken place in the past, to waive his right to insist upon the effect of his not giving a demand, making a demand and not giving notice, then it is important, it may help in the final disposition of this case. Mow, as to what conclusions your minds come upon that question, I am going to have you take these questions. ... If you say the waiver related to the future, you may bring in a verdict for the defendant. If you think it related to the past, then you are to go on to consider the other questions which are involved here.”</p> <p>The plaintiff excepted to the questions put by the judge to the jury, and to the judge’s instructions relating to them.</p> <p>The judge then instructed the jury upon the question of fraud, the defendant having contended that his signature was procured fraudulently. The jury answered the first question in the affirmative and the second question in the negative, and returned a verdict for the defendant. The plaintiff alleged exceptions.</p> <p>The character of the exceptions in regard to the admission of oral evidence is described in the opinion.</p>

<p>Negligence, Employer’s liability. Statute, Violation as evidence of negligence. Practice, Civil, Judge’s charge, Exceptions.</p> <p>In an action against the proprietor of a factory for causing the death of the plaintiff’s intestate, while he was working as an apprentice in the defendant’s employ, if there is evidence that the plaintiff’s intestate had been hired by the defendant’s superintendent to learn the business of a millwright, that the intestate and one of the defendant’s assistant millwrights upon finishing the piece of work upon which they had been engaged both were ordered, or the assistant millwright was ordered, by the superintendent to start an engine which had remained unused .for more than three days, that the assistant millwright attempted to start the engine, while the intestate was standing in the doorway of the engine room looking at him, and performed this duty in such a careless and incompetent manner that a pipe of the engine exploded and caused the injuries which re-suited in the death of the intestate, it cannot be said as matter of law that the intestate was not present rightfully.</p> <p>In an action against the proprietor of a factory for causing the death of the plaintiff’s intestate while he was working as an apprentice in the défendant’s employ “to learn the business of a millwright,” it appeared that the plaintiff’s intestate was standing in the doorway of the boiler room watching an assistant millwright of the defendant who had been ordered by the defendant’s superintendent to start an engine which had remained unused for more than three days, and who performed this duty in such a careless and incompetent manner as to cause an explosion which scalded the intestate fatally, and it also appeared that the intestate had no mechanical knowledge of the adjustment of this kind of engine or of the manner in' which it was operated, and that, when the assistant millwright began to start the engine in an unskilful and dangerous way by opening a drip valve without shutting off the steam, a fireman in the employ of the defendant said “ For God’s sake Fred what are you doing 7 ” that the assistant millwright said “ I am drawing the water out of the pipe,” that the fireman said “ You are going to blow up the boiler room if you don’t look out,” and that the assistant millwright replied “ I don’t think so. It will be all right when I get the water out,” whereupon the fireman said “ I don’t think so ” and went out of the room, and immediately the explosion occurred. Held, that it could be found that the inexperience of the plaintiff’s intestate was such that, although he heard the warning of the fireman, upon hearing the reply of the assistant millwright he failed to appreciate the peril of the situation, and that it could not be ruled as matter of law that knowing the danger he voluntarily exposed himself to the chance of mortal injury; therefore that the question of his due care was for the jury.</p> <p>An apprentice in a paper mill, who has been hired by the superintendent “ to learn the business of a millwright,” does not assume the risk of injury from an explosion caused by the carelessness of an incompetent fellow servant of whose incapacity he is entirely ignorant.</p> <p>In an action against the proprietor of a factory for causing the death of the plaintiff’s intestate while working there as an apprentice, if there is conflicting evidence on which it could be found that the defendant’s superintendent knowingly ordered an incompetent servant to start an engine which had been unused for more than three days, the starting of which if done in the wrong way would be dangerous, and the servant, obeying this order, by reason of his incompetency caused an explosion which scalded the plaintiff mortally, the question of the negligence of the superintendent is for the jury.</p> <p>It seems, that in an action at common law against the proprietor of a factory for causing the death of the plaintiff’s intestate while employed by the defendant by the explosion of a pipe of an engine, if it appears that the engineer’s license of the defendant’s superintendent in charge of the engine, required by R. L. c. 102, § 78, had expired under the provisions of § 81 of the same chapter some months before the accident and that it had not been renewed, the defendant’s retention of an unlicensed engineer in its service may be considered by the jury as evidence of the defendant’s negligence.</p> <p>Where an action of tort is submitted to the jury on four different counts, and certain instructions are given by the judge intended to apply only to one of the counts, if the defendant is apprehensive that the jury may be misled into applying these instructions inadvertently t.o another count on which the verdict finally is returned, he must ask the judge to give further instructions to make the matter clear, and, if he fails to do so, cannot complain afterwards because such further instructions were not given.</p>

<p> Elections. Constitutional Law. Voting Machine. </p> <p>The provisions of the Constitution requiring that representatives to the General Court shall be “ chosen by written votes/’ those which by implication require that other State officers shall be chosen in the same way and those in regard to the sorting and counting of votes in such elections cannot be complied with by the use of a voting machine which does not indicate the choice of the voter by some kind of writing upon a paper or other material thing which in his sight shall pass from his control to that of the officers charged with the duty of conducting the election, and which with the other written votes cast in the election shall continue to be the same material things capable of being handled, sorted and counted.</p>

<p>Evidence, Remoteness, Declarations as to boundaries. Practice, Civil, Offer of proof. Deed.</p> <p>A plaintiff in an action for breach of a covenant of seisin in a deed, the description in which, if the measurements therein stated were to govern, included land of which the defendant was not seised, cannot, in order to show that the defendant meant such measurements to govern, introduce in evidence a deed made by the defendant of the same premises which contained the same measurements as the deed to the plaintiff but which conveyed the property in mortgage to another person and was dated five years earlier.</p> <p>At the trial of an action for breach of a covenant of seisin contained in a deed, one - boundary of which was on land “ belonging . . . now or lately to one White,” there was a question whether land, then in the possession of one George White, was included in the description in the deed, and it appeared that George White was alive but personally had not been living on the premises in question for twenty years. The plaintiff called as a witness one who had known George White well and offered in evidence a conversation that the witness had had with George White while he lived in the city where the land was “ as tending to show the character of his occupation of this tract in dispute, taken in connection with his acts of occupation.” The evidence offered was excluded and the plaintiff excepted. Held, that the evidence properly was excluded, it not appearing that the declarations were made upon the land in question; and, moreover, that the exception must be overruled, since it did not appear from the offer what the declarations were.</p> <p>In an action for breach of a covenant of seisin in a deed which described premises bounded easterly by a highway, northerly and southerly by lines measuring fourteen rods in length and westerly “ by land formerly belonging to Henry Bliss, now or lately to one White,” it appeared that, if the northerly and southerly lines were measured as described, a tract of land belonging to George A. White and not to the defendant had been included by the defendant in the deed and that the covenant was broken, and that if the westerly bound was on the land belonging to George A. White, the northerly and southerly bounds were considerably less than fourteen rods in length. The mesne conveyances, by which the premises included in his deed to the plaintiff had been conveyed to the defendant, were by deeds in which the entire description of the westerly boundary was “ by land formerly belonging to Henry Bliss.” It was agreed that so much of the tract belonging to George A. White as was claimed by the plaintiff to be included in the terms of the defendant’s deed to him was included in a larger tract of land described in a deed of a former owner of the defendant’s land to George A. White. The boundary which was on the easterly side of the premises described in that deed was "by land of James L. White.” The presiding judge ruled that the westerly boundary in the deed to the plaintiff gave a monument which controlled the distances on the northerly and southerly bounds and that the land in the possession oí George A. White was not included in the deed, and directed a verdict for the defendant. Held, that the ruling that the westerly boundary gave a monument which controlled distances on the northerly and southerly boundary was correct, but that the addition, in the deed of the defendant to the plaintiff, of the words " now or lately to one White " to the description of a bound which in previous deeds always had been only “ by land formerly belonging to Henry Bliss ” did not change the position of that bound ; and that the question therefore was as to the position of the bound “ by land formerly belonging to Henry Bliss,” which might be determined by ascertaining what was the land which belonged “ now or lately to one White,” regarding which there was evidence which should have been submitted to the jury as to whether "one White " meant George A. White or James L. White.</p>

<p>Tout for false and fraudulent representations, relying upon which, the plaintiff purchased bonds, paying therefor a sum far in excess of their value. Writ in the Municipal Court of the City of Boston dated October 28,1904.</p> <p>On appeal to the Superior Court, the case was tried before Schofield, J. The facts with regard to “ the testimony of the witness Skelton,” referred to in the sixth paragraph of the opinion, were as follows: The plaintiff had testified that he had had two interviews with the defendant Cox, and at the second had made up his mind to take the bonds, and had told Cox to have one Libbey, the cashier of the bank in whose custody the bonds were, bring them up to his office. Subsequently Libbey brought the bonds to the plaintiff’s office, and he, the plaintiff, Cox and one Skelton were present. Skelton, called by the plaintiff, testified as to conversations on that occasion, that the plaintiff informed him that he was about buying five Massachusetts Securities bonds; that he asked the plaintiff if he had looked into the matter, and that the plaintiff said he had; that he asked the plaintiff what they were worth, and the plaintiff replied “ they are worth par,” or at least that he so understood from Cox, and, turning to Cox, asked, “ Isn’t that so ? ” and Cox replied, “ That is so ”; that he, Skelton, asked a general question, “ How low have they sold ? ” and that Cox answered, “ They haven’t sold lower than 95.” The defendant Cox objected to the admission of the testimony on the ground that the plaintiff already had testified that he had made up his mind to buy the bonds before this conversation took place, but the presiding judge overruled the objection and admitted the testimony, and the defendant Cox excepted.</p> <p>The statement in the bill of exceptions as to “ the testimony in regard to the six dollar note and the London, Aylmer and North Shore Railroad,” referred to in the next to the last paragraph of the opinion, is as follows:</p> <p>“The plaintiff offered in evidence a note of the defendant Cox for the sum of six dollars, with a London, Aylmer and North Shore Railroad bond for $1000 accompanying it, in order to show, as he claimed, that such bond was worthless. Cox testified that one Weeks had asked the defendant Cox to get a loan for him of six dollars of somebody as he was out of money, and said he had this bond that he could put up as security, and wanted the defendant Cox to get the loan for him. In compliance with such request the defendant Cox went to a person on Washington Street and obtained the six dollars and gave it to Weeks, and. Weeks went out of town, and on his return asked Cox to go and redeem the note and take up the bond. Cox found that the bond had been sold by the person with whom it had been deposited, and could not get it, and said note was not paid, and said bond was not taken up. The defendants objected to the admission of such six dollar note and bond and evidence concerning the same, but the presiding judge allowed the same to be received in evidence against the defendants’ objection, and the defendants excepted, but the presiding judge stated, when the evidence was admitted, ‘ This evidence is applicable only to the defendant Cox, and can be used only in Ms case, or the cases in which he is defendant.’ ”</p> <p>The bond of the London, Aylmer and North Shore Railroad was not mentioned elsewhere in the bill of exceptions or in the pleadings in either tMs case or either of the two cases which, as stated in the first paragraph of the opimon, were tried with it. The plaintiff contended that the evidence was admissible as affecting the credibility of the defendant Cox as a witness.</p>

<p> Landlord and Tenant. </p> <p>Where a landlord agrees with his tenant either to make specific repairs or, generally, to make such repairs as may be needed from time to time upon the premises, as the premises of the tenant, and then negligently fails to repair after notice from the tenant, he is not liable in'tort for an injury received by the tenant and due to the want of repair of which he was notified.</p> <p>Where a landlord agrees with his tenant to maintain the premises, the use of which is let, in such a condition that they will be safe for the tenant and those claiming under him to use them, and to relieve the tenant from any duty to provide for their safety or to notify the landlord of their want of repair, the landlord is liable in tort to the tenant or any one claiming under him for an injury which is due to a want of repair of such premises.</p> <p>While a landlord, who lets premises in a condition so unrepaired that they are a nuisance and agrees to keep them in repair, is liable in tort to any person other than the tenant who is injured because of such condition on the ground that by the letting he has authorized the maintenance of the nuisance, he is not in such case liable in tort to the tenant.</p>

<p>Contract or tort, for damages resulting from the burning of “fiberloid” alleged to have been manufactured improperly and sold to the plaintiff by the defendant. Writ.in the Superior Court for the County of Essex dated February 14, 1906.</p> <p>There was a trial before Wait, J. The order written to the defendant by the plaintiff, mentioned in the fourth paragraph of the opinion, read as follows: “ Dear Sir: Please send at the earliest date possible, 10 sheets of 175 shell and 1 sheet No. 60 shell, and oblige, Yours truly, Mr. Geo. Leavitt, Peerless Mfg. Co., Salisbury, Mass.” ; and the bill of parcels mentioned in the same paragraph was as follows:</p> <p>“Fiberloid.”</p> <p>“Indian Orchard, Mass., Oct. 18th, 1905. ' “ Sold to Peerless Mfg. Co., Salisbury, Mass.</p> <p>80 1/4 Lbs. No. 176 175/1000 H. H.</p> <p>2 1/2 “ “ 60/ “ “</p> <p>82 3/4 “ .90 74.47”</p> <p>The plaintiff excepted to the rulings of the presiding judge stated in the opinion, directing a verdict for the defendant on the count in tort, and restricting the damages to be recovered by the plaintiff under the count in contract. The defendant excepted to his refusal to give certain rulings requested which are sufficiently stated in the opinion. Other facts are stated in the opinion.</p> <p>The case was submitted on briefs.</p>

<p> Trespass, Quare clausum fregit. Easement. Joint Tenants and Tenants in Common. Deed. Estoppel. </p> <p>An action for trespass quare clausum fregit cannot be maintained for a trespass committed before the plaintiff became the owner or entitled to possession of the close.</p> <p>One to whom land is conveyed after a person wrongfully has entered and erected a structure thereon can maintain an action for trespass quare clausum fregit .against such person if be does not remove the structure after having been asked by the new owner to do so.</p> <p>Where one of two tenants in common of land attempts by deed to convey to a third person an easement in the land, such conveyance is voidable as to his co-tenant ; and, if thereafter both of the tenants in common convey the land to a person other than the grantee in the deed which purported to convey the easement, such person cannot be affected by the easement against his will.</p> <p>One of two tenants in common of land executed, acknowledged and delivered a deed which purported to convey to a telephone company a right to maintain poles on the land owned in common, and the deed was recorded. The other tenant in common signed and delivered a similar deed which in no way referred to the deed of his co-tenant, but the latter deed was not acknowledged or recorded. Both of the tenants in common thereafter for value conveyed the land to one who had no notice of the deed of the second co-tenant, and who, after the conveyance, gave the telephone company notice to remove poles which it had erected on the land and, upon its refusing, brought against it an action of trespass guare clausum fregit. Held, that the deed of the first co-tenant was void as to the second co-tenant, and was not ratified or affirmed by the deed of the latter, that the plaintiff succeeded to the right of the second co-tenant to deny the validity of the grant of the easement and was not estopped from doing so, and, therefore, that the action might be maintained.</p>

<p>Bill in equity, filed in the Superior Court on July 30,1906, alleging that the plaintiff is a corporation having a usual place of business in Hatfield, that it brought an action of contract against the defendant Walker and attached an equity of redemption belonging to him in certain real estate in Dighton, mortgaged to the defendant savings bank, which thereafter sold the real estate under a power of sale in the mortgage and received a sum of money largely in excess of the sum due to it, and that the plaintiff in its action against the defendant Walker had obtained judgment and taken out execution; praying that the amount of the proceeds of the foreclosure sale in the hands of the defendant savings bank above the amount due to it might be ascertained and that the defendant savings bank might be ordered to apply $550 of the balance thus ascertained, or the whole of it if less than that amount, in satisfaction of the plaintiff’s execution to the amount of such balance.</p> <p>The defendant pleaded in abatement that the plaintiff was a foreign corporation within the meaning of St. 1903, c. 437, § 56; that it had a usual place of business in this Commonwealth and that it had not filed with the commissioner of corporations the writings and papers required by §§ 58, 60 of the same chapter.</p> <p>At the hearing of the case by Lawton, J., the facts appeared which are stated in substance in the opinion.</p> <p>At the close of the evidence the plaintiff asked the judge for four rulings, of which the fourth was as follows: That the plaintiff, having since the bringing of this action but before the hearing of it in this court, to wit, on the 12th day of October, 1906, duly complied with all the provisions of law in this Commonwealth, the statute bat of St. 1903, c. 437, § 60, has been removed and he is entitled to maintain this suit.</p> <p>The judge refused to make this ruling, and sustained the plea in abatement described above. He ordered that the bill be dismissed ; and the plaintiff alleged exceptions.</p>

<p>Tort for personal injuries, resulting in the amputation of a leg and a finger, from being run over by a car of the defendant on the night of October 28, 1905, at about ten minutes before eleven o’clock while the plaintiff was regaining consciousness after having been pushed and struck in the head by two men and left lying unconscious by t the side of the road between East Brookfield and West Warren. Writ dated May 17, 1906.</p> <p>At the trial in the Superior Court Graskill, J., at the close of the plaintiff’s evidence ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Tort in the nature of trespass quare clausum fregit. Writ dated June 15, 1905.</p> <p>At the trial in the Superior Court before Wait, J., the defendant contended that the plaintiff could not recover because he had failed to prove boundaries of his alleged close which included the locus of the alleged trespass. The judge so ruled, and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Petition filed in the Supreme Judicial Court on February 21, 1900, and amended on July 2,1902, under St. 1895, c. 488, § 14, alleging that on April 1, 1895, the petitioner was -the owner of an established business on land in the town of West Boylston as the treasurer and general manager of the L. M. Harris Manufacturing Company, that such business was decreased greatly in value by the carrying out pf the metropolitan water supply act by loss of custom and otherwise, and that the petitioner was unable to agree with the board of commissioners as to the amount of the damages to be paid for such injury.</p> <p>The case came on to be heard before Rugg, J., who, by agreement of the petitioner and the Attorney General, reserved it for determination by the full court.</p>

Tort for personal injuries incurred while the plaintiff was employed by the defendant as a freight brakeman from having his arm caught between two freight cars when he was uncoupling them upon a side track near Hammond Street in Worcester adjoining the coal pockets of the Donohue Coal Company on December 23, 1904. Writ dated January 18, 1905.

<p>Evidence, Extrinsic affecting writings. Contract, Construction, Performance and breach, Repudiation.</p> <p>At the trial of an action for the purchase price of wood, it appeared that the plaintiff had accepted an order in writing of the defendant for the shipment of “ 900 cords of dry wood largely chestnut, some hard wood, pine and poplar, to be delivered on cars, as much as two or three cars per day or more if possible, payments to be made as shipments, say weekly.” Held, that evidence as to the situation of the parties was admissible to show whether it was their intention that each car load delivered should contain the proportions stated in the order.</p> <p>A manufacturer, apprehensive lest, because of a strike which was occurring among the laborers at the coal mines, he might be unable to obtain coal to use in annealing furnaces and for making steam, which was the motive power in his factory, wrote to a dealer in wood, who understood the circumstances, an order for shipment of “900 cords of dry wood largely chestnut, some hard wood, pine and poplar, to be delivered on cars, as much as two or three cars per day or more if possible, payments to be made as shipments, say weekly,” and the dealer accepted the order in writing, and, from a yard containing wood of quality and quantity sufficient to fill the manufacturer’s order, shipped several car loads of wood containing one quarter chestnut, one quarter birch and the remainder pine, intending, however, that the shipment as an entirety should be of different kinds of wood in the proportions named in the order. The manufacturer thereupon repudiated the contract. The wood furnished could have been used for making steam but not in the annealing furnaces. Held, that the intention of the parties was that each car load should be for immediate use by the manufacturer and therefore of the proportions named in the order, and that the repudiation was justifiable.</p>

<p>Way, Public. Negligence, In use of highway, Due care of plaintiff.</p> <p>Pedestrians have a right to travel anywhere upon a highway and are not confined in their rights to specially prepared crosswalks.</p> <p>In actions by the administrator of the estate of a woman respectively against a street railway company and a town for personal injuries to the plaintiff’s intestate caused by her stepping between the curbstone of a sidewalk and a pile of rails, improperly left so as to obstruct the highway, when she was following her husband and her sister in haste to take a street car for which they had been waiting, it appeared that the intestate was nearsighted, and the defendants asked the presiding judge to rule that “ if the plaintiff’s intestate had defective eyesight, she should take greater care in walking the streets than one of good eyesight, and if she failed to use this greater degree of care, the verdict must be for the defendant.” The judge refused to make this ruling, and instructed the jury, in substance, that the plaintiff must show that she was exercising the degree of care that a reasonably prudent and careful person, acting prudently and carefully at the time, should have exercised under all the circumstances, including not only the external circumstances but also her personal peculiarities as they were shown to exist. Held, that the instruction requested by the defendants was refused properly, because it asked for the ordering of a verdict upon a single phase of the testimony which was not necessarily decisive, and also, because the standard of care established by the law is what an ordinarily prudent and cautious person would do under given conditions, a physical deficiency or infirmity, when it exists, being one of the conditions.</p> <p>At the trial of an action for personal injuries caused to the plaintiff by her falling upon some street railway rails piled in a street beside the curbing, it appeared that the plaintiff was so nearsighted that she could not recognize a friend at a distance of more than twelve feet, and that, just previous to the accident, which occurred at half past two o’clock in the afternoon, she and her husband and her sister were in a store purchasing street car tickets, that the husband, seeing the car approaching, rushed out to stop it, and the plaintiff’s sister and, closely behind her, the plaintiff followed him ; that the car stopped in front of the store and at one side of a crosswalk, that the sister, not using the crosswalk, went from the store across the pile of rails into the street with safety, but that the plaintiff, following closely and not seeing the pile of rails, stepped between them and the curbing and was injured. Held, that there was evidence warranting a finding that the plaintiff did not assume the risk of injury by not using the crosswalk, and that she was in the exercise of due care.</p>

Two actions OF tort by passengers upon a car for personal injuries received by reason of a collision between the car upon which they were and a work car, alleged to have occurred because of negligence for which the defendant was responsible. Writs in the Superior Court for the county of Worcester dated December 7, 1904.

<p>Contract, Construction, Termination. Evidence, Presumptions and burden of proof. Agency. Attorney at Law.</p> <p>Where, in a contract, there are no express words of limitation, the presumption is that the promisor intends to bind his personal representatives.</p> <p>At the trial of an action of contract against the executor of the will of one who, when his brother was under indictment jointly with the plaintiff for the alleged commission of a crime, had instructed the plaintiff to undertake the work of preparation of the defence to the indictment and had agreed with him to pay to him one half of .the expenses that might be incurred, it appeared that, before any of the expenses necessary to the defence had been incurred, the defendant’s testator died, and the executor verbally notified the plaintiff that he would not recognize any liability for further outlays by the plaintiff unless specifically authorized by the executor, but the plaintiff in reply asserted his intention to proceed under the agreement with the defendant’s testator, to which the executor replied that whatever agreement the testator had made would be carried out. The plaintiff continued with the preparation of the defence and the persons under indictment finally were acquitted. The defendant contended that the contract between his testator and the plaintiff was terminated by the testator’s death and the notice by the executor. Held, that the defendant’s testator intended to agree to pay one half of the entire expense incurred while the proceedings against his brother lasted, and did not intend to retain any control over the work of the plaintiff, that the relation of principal and agent had not existed between the plaintiff and the testator, but one of contract, and that the contract was not terminated by the death of the testator nor by the conversation between the plaintiff and the executor.</p> <p>At the trial of an action of contract against the executor of the will of one who, when his brother was under indictment for the alleged commission of a crime, interviewed the plaintiff, an attorney at law, and stated that he “ wished to engage his services to defend his brother," whom he wanted “ defended from the beginning to the end,” and that he would leave it to the plaintiff to make, the best defence possible, it appeared that, after the plaintiff had rendered some services, the testator died, and that the plaintiff then continued with the preparation and trial of the case and the brother finally was tried and acquitted. The defendant contended that the contract between the plaintiff and the defendant’s testator was terminated by the testator’s death, and that the plaintiff could recover only for services rendered before the testator’s death. Held, that the intention of the defendant’s testator was to pay for services to be rendered by the plaintiff “ from the beginning to the end ” of the case against his brother, and that he did not intend to exert or retain any control over the plaintiff in the defence of the case, that the relation of attorney and client had not existed between the plaintiff and the testator, but one of contract, and that the contract was not terminated by the testator’s death.</p>

<p>Practice, Civil, Exceptions, Conduct of trial. Pleading, Civil, Answer. Evidence, Presumptions and burden of proof, Relevancy and materiality.</p> <p>A defendant at the trial of an action of contract is not harmed by the exclusion of evidence which later, after an amendment to the answer, is admitted, and therefore no exception lies to such exclusion.</p> <p>At the trial of an action of contract for services rendered to the defendant by the plaintiff, where the answer is a general denial merely, if evidence is offered by the defendant to prove both unskilfulness on the part of the plaintiff in the performance of the services and damage resulting to the defendant therefrom, it tends to prove a claim in recoupment which should be specifically set forth in the answer, and therefore properly may be excluded.</p> <p>At the trial of an action of contract for services rendered by the plaintiff to the defendant under a special agreement, there was evidence tending to show that the defendant had not raised any objection to the nature of the services rendered until the trial, and, the answer being a general denial merely, evidence of unskilfulness on the part of the plaintiff and consequent damage to the defendant was excluded until, during the trial, the defendant amended his answer by pleading in recoupment, when the evidence was admitted. The plaintiff, subject to exception by the defendant, was permitted to argue to the jury that the defendant had not raised the defence of unskilfulness or questioned the plaintiff’s charge on that account before the trial and that the filing of the amendment during the trial gave the plaintiff no opportunity to meet such a claim unless a continuance of the case were asked. In his charge to the jury, the presiding judge stated that they could consider the time of the filing of the amendment to the answer only with respect to the evidence which the plaintiff might have been expected to, but did not, produce upon that issue. Held, that the argument of the plaintiff to the jury, which was excepted to, was not upon the pleadings but was upon the failure of the plaintiff to produce evidence, and therefore, particularly as guarded by the instructions of the presiding judge to the jury, was not objectionable.</p> <p>The judge presiding at the trial of an action before a jury may in his discretion either interrupt and stop an improper argument of counsel to the jury or may permit it to proceed and in his charge correct the error.</p> <p>The burden of proving the allegations in an answer in recoupment in an action of contract is upon the defendant.</p> <p>Where, in an action of contract, the answer is a general denial, but the defendant relies in defence upon evidence, introduced by him without objection on the part of the plaintiff, that there was a material modification of the contract upon which the action is based after it was partially performed, the burden of establishing such defence is upon the defendant.</p> <p>At the trial of an action of contract, the presiding judge, in commenting to the jury on the answer, stated: “ There is a further answer set out, that if the defendant ever owed the plaintiff anything, he has paid him that amount. That admits that there was such a contract as the plaintiff alleges, but says . . . that the amount due . . . has been paid.” The defendant excepted. It appeared that it was admitted throughout the trial that the original contract had been made as alleged by the plaintiff. Held, that, though the statement that the plea of payment admitted the contract was inaccurate, the defendant was not harmed and his exception must be overruled.</p> <p>An exception to a portion of a charge to a jury will not be sustained although the portion excepted to, if read alone, misstates the law, if, when read with the whole charge, it appears that the judge was directing the attention of the jury to a particular issue in the case as to which the law as stated by him in the portion of the charge to which the exception relates was correct.</p> <p>A bill of exceptions in an action of contract stated an exception by the defendant to a ruling of the judge who presided at the trial excluding certain evidence. It appeared that originally the answer of the defendant was a general denial merely, but that, during the trial, he was permitted to amend his answer by pleading in recoupment. The evidence offered might have been admissible under the answer in recoupment, but was not admissible under a general denial, and the bill of exceptions did not show at what stage of the trial it was offered. Held, that it did not appear that the defendant was harmed by the exclusion of the evidence, and that therefore the exception must be overruled.</p> <p>At the trial of an action of contract for services rendered to the defendant by the plaintiff under a special agreement to care for the defendant’s horses, an answer in recoupment alleged that the plaintiff had performed the alleged services unskilfully and had injured the defendant’s horses, and the defendant . offered evidence that one of the horses, before the plaintiff had taken him in charge, had “ worked a mile in 2.30,” and that he was well bred. The presiding judge excluded the evidence offered. Held, that, in the exercise of his discretion, the presiding judge was warranted in excluding such isolated facts unconnected with testimony as to other attributes of the horse which might assist the jury in reaching a conclusion as, to his value.</p>

<p>Bill in equity, filed in the Supreme Judicial Court May 14, 1903, to set aside and cancel a contract made by the plaintiffs with the town of Athol for the construction of an extension of the sewer system of that town and to recover the fair value of the work done and the materials furnished by the plaintiffs for the defendant.</p> <p>The case came on to be heard, upon the report of a master and the exceptions of the defendant thereto, before Braley, J., who reserved the case for determination by the full court, such decree to be entered as justice and equity might require.</p> <p>There also was an appeal by the defendant from an interlocutory decree overruling its demurrer to the bill.</p>

<p>Marriage and Divorce. Husband and Wife. Trust. Attachment. Intervener. Words, “ Creditor.”</p> <p>A woman, who, after a divorce, has obtained a decree against her former husband giving her the custody of their minor child with an order for the child’s maintenance, and has obtained an order for a special precept directing the attachment of the land of her former husband to secure the payment of any sum awarded for such maintenance, after she has made the attachment and has obtained an order for the payment of a fixed annual sum for the support of the child, becomes an attaching creditor of her former husband, and under R. L. c. 147, § 3, has the rights of a purchaser for value, as of the date of the' attachment, whose title cannot be defeated by any trust concerning the land of which she had no notice at that time.</p> <p>Where a decree of divorce made no provision as to the custody and maintenance of a child of the marriage, the former wife under R. L. c. 152, §§ 25, 29, may apply to the Superior Court for a decree giving her such custody and maintenance and for the enforcement of such decree by the issuing of process of attachment and of execution.</p> <p>Where a former wife, divorced by a decree which made no provision as to the custody and maintenance of a child of the marriage, has obtained under R. L. c. 152, §§ 25, 29, decrees giving her such custody and maintenance and the issuing of process of attachment upon land of her former husband to secure the payment of any sum awarded for such maintenance, and also has obtained an order for execution, and the land is sold upon such execution, if the decree for the maintenance of the child orders the payment of a certain sum of money annually in quarterly payments, and the proceeds of the sale of the land on execution are more than sufficient to pay the amount then due for such maintenance, the lien of the attachment, which in equity still attaches to the proceeds of the sale of the land, holds such surplus proceeds as against one claiming under an oral trust concerning the land of which the former wife had no notice when her attachment was made, so that the payments necessary for the maintenance of the child may be enforced by successive executions until the property attached has been exhausted.</p> <p>Where a former wife, divorced by a decree which made no provision as to the custody and maintenance of a child of the marriage, under R. L. c. 152, §§ 25, 29, has obtained decrees giving her such custody and maintenance and the issuing of process of attachment and execution upon land of her former husband, whether, upon a further petition by her to enforce these decrees, a person, who claims the attached land under an alleged oral trust, even if he has a valid claim, can intervene by a petition in this proceeding instead of filing an independent bill in equity, quaere.</p>

<p>Tort by the administratrix of the estate of Michael Lizotte, who also was his widow, to recover for his conscious suffering and death while employed by the defendant as a section hand, alleged to have been caused by the negligence of a person in charge and control of a train of the defendant, or by a defect in a brake of a car constituting a part of the ways, works or machinery of the defendant. Writ dated March 27, 1905.</p> <p>At the trial in the Superior Court, before Wait, J., the evidence for the plaintiff was introduced which is described in substance in the opinion. At the close of the plaintiff’s evidence, the judge ruled that there was not sufficient evidence to warrant a finding for the plaintiff upon any count of the declaration, and ordered a.verdict for the defendant. The plaintiff alleged exceptions, including exceptions to the exclusion of certain evidence offered by her.</p> <p>On page 521 is a reduced copy of a part of the plan which is referred to in the opinion.</p>

<p>Tort against Harry Ballard and Mary A, Ballard for personal injuries incurred by the plaintiff on May 15,1905, from large stones falling upon him in a quarry, known as the Ballard quarry, operated by the defendant Mary A. Ballard near that part of Worcester known as Quinsigamond Village, with four counts, the first, at common law, alleging that the falling of the stones was caused by the negligence of the defendant Harry Ballard acting as manager or agent of the defendant Mary A. Ballard, the second count, under the employers’ liability act, alleging a defect in the ways, works or machinery of the defendants, the third count also under the statute, alleging negligence of a superintendent, and the fourth count, at common law, alleging neglect of the defendants to keep their ways and appliances in a proper and safe condition and a failure to warn and instruct the plaintiff. Writ dated October 11, 1905.</p> <p>At the trial in the Superior Court before Wait, J., the defendants agreed that due notice of the time, place and cause of the injury had been given them by the plaintiff ; that the defendant Mary A. Ballard was the widow of John S. Ballard, and that the quarry, where the plaintiff was injured, was part of the trust estate of John S. Ballard, of which Mary A. Ballard was trustee, to the income of which she was entitled during her life; that the defendant Harry Ballard was operating the quarry for the trustee, Mary A. Ballard, his mother, under a salary, and was in actual management thereof for her.</p> <p>The plaintiff testified that he was about forty-two years of age; that on the day he was injured he was in the employ of the People’s Coal Company in Worcester, and had been with that company for several years as a teamster on a coal delivery team; that on May 15,1905, he went to the stables of the People’s Coal Company and was directed to go to the Ballard quarry with his team and draw some stone from the quarry to the wire works ; that he hitched his horses to a coal cart and, with another teamster of the People’s Coal Company, driving another team, went to the Ballard quarry, arriving there soon after seven o’clock in the morning; that as he drove into the quarry he was met by one Sullivan, who was the foreman or superintendent of the quarry, who told him to unhitch his horses from his coal cart and hitch them to a stone cart; that he did so, and Sullivan then asked him if he ever had worked in a quarry before or ever had handled stones, to which he replied that he had not; that Sullivan then told him to back down into the “pit” and get a load of hand stones and he would send some men to help him load; that Sullivan pointed out to him where he wanted him to go from where they were standing. The plaintiff testified as to this: “ He told me to back in there and pick up all the loose stones down in the bottom there ”; that he backed his team to “right where Sullivan had told him to go”; that the “ pit ” or place to which he went was a depression of about six feet in the road through the quarry and there was on the left side of his team, after he had reached the place to which he had been directed, a pile of large stones, weighing from five hundred to twelve hundred pounds and some of which were from three to five feet long, two or three feet wide, and from six to ten inches thick, the pile being about twelve feet high; that the edge of the pile of stones came to within about six feet from the side of the team; that three men, two of whom afterwards were called away, came to help him load the team with the hand stones lying round the team; that hand stones were such stones as a man could lift, large and small; that his team was about loaded when he heard some men near him say that they had better break up some of these stones as they were too large and heavy to lift; that they were using a large iron ball and dropping it or throwing it to break the stones; that he had just picked up a stone and was about tossing it upon the load while standing on the left side of the team, from four to six feet from it, when some of the-Iarge stones from the pile came down upon him ; that one of them struck him in the stomach and knocked him over and another caught him on the leg and broke it; that it was about a quarter to eight o’clock when the pile came down; that on the other side of the pile of stones was a derrick, and shortly before the pile fell a four horse team had been driven around near the derrick for loading stone from the pile.</p> <p>Other witnesses testified for the plaintiff, and there was evidence for the defendants that the accident was caused by the plaintiff’s pulling out small stones called “ pinners ” which were placed between the larger stones of the pile to hold them in place, that the plaintiff had been told not to pull out any of the pinners, that after he had done so and just before the pile fell he was told to step away from it, and that iron balls were not used on that day to break up the stones for the plaintiff’s team.</p> <p>At the close of the evidence the judge ordered a verdict for the defendants; and the plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Contract by the Citizens Loan Association, a corporation, against the Boston and Maine Railroad on an instrument in writing dated February 27, 1905, assigning to the plaintiff all the wages thereafter to become due from the defendant to one Stephen J. Westcott for services to be performed by him as a conductor within two years from the date of the assignment, whereunder there was alleged to have become due to him the sum of $91.94. Writ in the Central District Court of Worcester-dated June 7, 1906.</p> <p>The defendant in its answer, in addition to a general denial and an allegation of payment, alleged that Westcott, the assignor, was adjudicated a bankrupt on December 13, 1905, and was granted a discharge in bankruptcy on March 21, 1906, and set up these decrees in bankruptcy as a bar to the plaintiff’s claim.</p> <p>On appeal to the Superior Court the case was submitted to Giasldll, J., upon an agreed statement of facts, by which it appeared that Westcott was adjudicated a bankrupt and was granted a discharge in bankruptcy at the dates alleged in the answer, and that the assignment sued upon was given by Westcott on February 27,1905, while in the employ of the defendant as a conductor, as security for the payment of a note given by him to the plaintiff for money lent by the plaintiff to Westcott at that time.</p> <p>It was agreed that at the date of the plaintiff’s writ there was due from the defendant for services performed by Westcott in his capacity as conductor a sum in excess of the amount due the plaintiff under the assignment, to wit, a sum of not less than $200, which was due for services performed before and after the date of the adjudication of the bankruptcy of Westcott. It further was agreed that “ the only question intended to be raised by these facts is whether this assignment of wages can be enforced after said bankruptcy proceedings and the discharge therein.”</p> <p>The judge found for the plaintiff, and assessed damages in the sum of $70. Judgment was entered in accordance with this finding, and the defendant appealed.</p> <p>The case was submitted on briefs.</p>

<p>Tas, Collateral legacy. Corporation. Executor and Administrator.</p> <p>The tax upon collateral legacies and successions provided by R. L. c. 16, as amended by Sts. 1905, c. 470; 1906, c. 436, is an excise tax upon the privilege of passing the title to property on the death of the owner and is not a property tax.</p> <p>Shares of the capital stock of a domestic railroad corporation which owned and operated railroads extending beyond the boundaries of the Commonwealth into other States in which also it was incorporated by the same name and by each of which it was recognized as being one general organization engaged in a single general enterprise, exhibiting activities and owning properties in the various States while held in the same ownership, but of whose capital stock there was but a single issue representing all the property of all the corporations, subject to the tax upon collateral legacies and successions provided for by R. L. c. 16, as amended by Sts. 1905, c. 470; 1906, c. 436; but their valuation for the purposes of such tax should be based upon the value of the property in this Commonwealth only.</p> <p>The executors of a will which provided for the payment of legacies which were subject to the tax on collateral legacies provided by R. L. c. 15, as amended by Sts. 1905, c. 470; 1906, c. 436, cannot evade the payment of such tax by using the property in this Commonwealth for the payment of legacies and charges exempted from the provision of the statute, and not using therefor property in their possession but situated in another State and not subject to such a tax; but, in computing the tax, payments made for such purposes must be deducted from the property in this Commonwealth only in the proportion that the value of the property here bears to the value of the entire estate.</p>

<p>Petition filed in the Supreme Judicial Court for the county of Bristol May 22,1907, for a writ of mandamus directing the respondents to recognize the petitioner as the clerk of the Watuppa Water Board of the city of Fall River.</p> <p>There was a hearing before Braley, J., who reported the case for determination by the full court.</p> <p>It appeared that the offices of clerk of the Wattuppa Water Board and of water registrar, which were, as stated in the opinion, held by the petitioner for twenty-eight successive years before the filing of this petition, were classified under the civil service rules of the Commonwealth in 1885; that since that time the petitioner’s name has been on the civil service classifled list as holding said positions. Other facts are stated in the opinion.</p>

<p>Tort, under R. L. c. 106, § 71, cl. 1, and § 72, by the administratrix of one Antone Saures to recover for the conscious suffering and death of the intestate alleged in the third count of the declaration, which was the count upon which the action was tried, to be due to defective insulation of a wire used for conducting electricity. Writ in the Superior Court for the county of Bristol dated September 22, 1905.</p> <p>There was a trial before Schofield, J. It appeared in evidence that the accident to the plaintiff’s intestate occurred in a factory of the defendant where it was engaged in the manufacture of bed quilts. On the morning of the accident, when Antone Saures, the plaintiff’s intestate, arrived at the mill, a rat was discovered on the floor of the bleach house, and when certain of the men, including Saures and one Henry Heddleston, who the plaintiff contends had authority over her intestate, gave chase to it, it disappeared through a hoie in the floor used for the purpose of allowing cloth to be passed into a vat or “ sour pit ” in the cellar below. Upon the disappearance of the rat, Saures went to another part of the room, put on his working clothing, and was seen going in the direction of the stairs leading to the cellar. Subsequently he was discovered lying on the floor of the cellar near the vat above mentioned in an unconscious condition with his left hand very badly burned, and with a slight burn on the right thumb and a slight burn or abrasion on the chest, and an incandescent electric lamp was found on the floor of the cellar near him, the glass bulb of which was broken. There was considerable water on the floor of the cellar, and the vats contained an acid mixture in weak solution.</p> <p>The evidence, besides that stated in the opinion, with regard to whether or not Saures was acting within the scope of his duties when he was injured was as follows : One Correira testifled that a man whom he called Fred was the “ first boss,” and that, when he was not there, the “ second hand,” whose name was Henry, gave orders to the men. Saures did “ lots of work,” helped the men wash spots and sometimes he would “ go and mangle water,” and acted as interpreter between the workmen, who were Portuguese, and the bosses. When the rat was discovered in the bleaching room, Saures, the second hand, and he, Correira, were in the room. The first boss was not there. The witness heard all “ holler,” “ Catch the rat,” and heard the sec- and hand say that and, “ Antone, catch the rat.”</p> <p>Henry Heddleston, called by the defendant, testified that he was the second hand in the bleaching room, that he gave Saures no orders about the rat and did not exclaim “ Catch it ” or any such words at the time and heard none so exclaim. The rat would have done very little harm in the vat. He did not go down to get it out because he expected it would jump out. Ho part of Saures’ work required him to go into the cellar. He never told any one to use the electric light which caused the injury and did not know that any one was in the habit of using it as a portable light, but he had no charge of any of the factory outside of the bleaching room ; the first boss had charge of the wash room and cellar, where the light was.</p> <p>Fred Hathaway, testifying for the defendant, stated that he was overseer of the factory. He did not think it was important in any way in the interest of the mill to send any one down to catch the rat. He gave no directions to any one to use the light in question as a portable light, and never saw any one so using it.</p> <p>It appeared that one Cobral and one Rezeins were assigned from time to time to the task of cleaning the vats in the cellar. Their testimony, referred to in the next to the last paragraph of the opinion, was to the effect that they used the lights in the cellar as portable lights and that, about three or four weeks before the accident to the plaintiff’s intestate, they both received shocks from the same lamp that was alleged to have been the cause of his injury, but that they did not report the matter to any one.</p> <p>One Dunlap testified that, at the time of the accident to the plaintiff’s intestate, he was chief engineer and electrician of the defendant and had put in the system of lighting of which the lamp in question was a part. His testimony, referred to in the next to the last paragraph of the opinion, was to the effect that he had examined the wires and the lamp in question immediately after the accident, but that he did not find any defect. He stated that he examined the lighting apparatus every Sunday to see if it was in proper condition, going over it with a torch or a candle, but that he could not be sure that he did so the Sunday before the accident.</p> <p>One Hart, testifying for the plaintiff as an electrical expert, stated that in his opinion the insulation “ at the lamp ” in questian was defective at the time of the accident, and that this defeet could have been discovered by use of tests with a “ static ground detector ” or “ an instrument that is plugged in from time to time.”</p> <p>One Clifford, testifying for the defendant as an electrical expert, stated that in his opinion weekly tests in a cellar like the one where the lamp in question was (damp, with vats containing an acid mixture), would be ample and desirable. If he wanted to be very careful he would use the “ volt meter test.” If he found that the weekly tests when systematically carried out were showing no particular trouble he should say that tests-certainly were not required any oftener than once a week, and might feel that it was perfectly allowable to let those tests go over two weeks, but before he decided to extend the period beyond a week he would want to make systematic weekly tests, if he were the operating engineer, for a number of months.</p> <p>At the close of the evidence, the defendant made the following requests for rulings:</p> <p>1. On all the evidence in the case the plaintiff is not entitled to recover.</p> <p>2. There is no evidence of the defendant’s negligence and therefore the plaintiff is not entitled to recover.</p> <p>3. There is no evidence of the due care of the plaintiff’s intestate and therefore the plaintiff is not entitled to recover.</p> <p>4. It was not a part of the duty of the plaintiff’s intestate to use the electric light; in so doing he exceeded his instructions and therefore the plaintiff is not entitled to recover.</p> <p>5. There is no evidence that the plaintiff’s intestate was properly in the cellar in the vicinity of this electric light.</p> <p>The presiding judge refused to rule as requested, and the defendant excepted. The jury found for the plaintiff.</p> <p>Other facts are stated in the opinion.</p>

<p>Equity Jurisdiction, Contribution, Subrogation. Surety.</p> <p>Where one, contracting in writing to do certain work, gives a bond with sureties for the performance of his agreement and, during the progress of the work, borrows money from one of the sureties and assigns the contract to him as security, and then abandons the work, that surety, after having completed the work and having received from the other party to the contract the contract price therefor, cannot by a bill in equity compel his co-surety to contribute his pro rata share of the entire expense of completing the contract, but such co-surety need contribute only a share of the amount which such entire expense exceeds the sum paid by the other party to the contract to the surety who completed it.</p>

<p>Evidence, Presumptions and burden of proof, Negligence, Railroad.</p> <p>When at a trial a party has the burden of establishing a proposition by oral testimony, the presiding judge seldom can rule as a matter of law that the proposition is proved.</p> <p>At the trial of an action for personal injuries due to alleged negligence on the part of the defendant, whether certain facts relating to the conduct of someone whose conduct is material, without inferences from them, constitute negligence, is sometimes a question of law for the presiding judge, but, where such facts are being proved by evidence, important parts of which may be believed or disbelieved, or where they depend in part upon inferences of fact to be drawn from other facts, they are all for the jury to determine.</p> <p>At the trial of an action under R. L. c. Ill, § 268, against a railroad corporation to recover for personal injuries received by the plaintiff in a collision at a crossing with a passenger train of the defendant, alleged to be due to neglect of those in charge of the train to give the warnings prescribed by § 188 of that chapter, there was evidence warranting a finding of neglect on the part of the defendant as alleged, but the defendant contended that the plaintiff was grossly negligent at the time of the injury and introduced, as tending to show that fact, evidence which, if the burden had been on the plaintiff to prove that he was not grossly negligent, might have been held to be sufficient for the defendant’s purpose. The circumstances of the collision were described by witnesses, some of whom were contradicted and most of whom testified in such a way as to raise questions as to their credibility, and inferences of fact in determining some of the material questions were possible. Held, that, under the statute, the burden of proving the gross negligence of the plaintiff was on the defendant, and, the evidence being controverted, the question was for the jury.</p>

<p> Assignment. Fraud. Savings Bank. </p> <p>An assignment in writing of money deposited in a savings bank, executed by the depositor under seal and delivered to the assignee in consideration of his discharge of an attachment on the property of a third person, cannot be avoided by the assignor on the ground that it was obtained from him by fraud on the part of the third person, who deceived him as to the amount assigned and as to the purpose for which the assignment was given, if the assignee had no knowledge of the fraud.</p>

<p>Tort for personal injuries incurred while in the employ of the defendant in the manner stated in the opinion. Writ dated June 5, 1905.</p> <p>At the trial in the Superior Court Dana, J., ruled that the plaintiff had not made out a case, and ordered a verdict for the defendant, the plaintiff excepting to the ruling. The judge reported the case for determination by this court. If his ruling was right judgment was to be entered on the verdict for the defendant ; if not, the case was to stand for trial in the Superior Court.</p>

<p>Devise and Legacy. Will. Statute, Construction. Executor and Administrator. Words, “Estate.”</p> <p>The issue of a person, who was named in a will as legatee and died before the testator, in taking by virtue of B. L. c. 135, § 21, the same estate which the person whose issue he is would have taken if he had survived the testator, takes the legacy subject to the right given to the executor by E. L. c. 141, § 23, to set off against and deduct from the'legacy any debt due to the estate of the testator from the estate of the person named as legatee in the will.</p>

<p>Insurance, Life. Agency. Release. Accord and Satisfaction. Fraud.</p> <p>In an action by an administratrix on a policy of insurance upon the life of the plaintiff’s intestate, who also was her husband, issued in consideration of weekly payments of fifteen cents and containing a provision that payments of premiums “ to be recognized by the company must be entered at the time of the payment in the premium receipt book,” there was evidence on which it could be found that the plaintiff during the lifetime of her husband made a payment of a premium which was not entered in the book, that thereupon she had a dispute with the regular collector who refused to make the correction and thereafter for a time she made no payment, that the assistant superintendent of the defendant had a conversation with the plaintiff in which he in substance agreed that the plaintiff was right as to the disputed payment and that the collector was wrong and said that the mistake in failing to enter the payment would be corrected if the plaintiff would resume making payments on the policy, that the plaintiff assented, relied upon his promise to make the correction, and thereupon began to make payments again, making nine payments after that time which were entered properly in the book, but the error of the non-entry of the disputed payment remained uncorrected. It was a condition of the policy that it should lapse if the premiums were in arrears for a period exceeding four weeks. Unless the disputed payment was allowed as of the date when the plaintiff testified that it was made, there had been an interval of more than four weeks before the payment of premiums was resumed, so that, applying the payments in their order, at the time of the'death of the insured the premiums would have been in arrears for a period exceeding four weeks. Held, that on these facts the jury could find that the plaintiff made a sufficient explanation of the failure to enter the disputed payment in the book, and might rely upon the payment made by her but not entered in the book to keep the policy alive until after the death of the plaintiff’s intestate.</p> <p>The collecting agent of an insurance company whose duty it" is to collect small premiums payable weekly under a provision in the policies which requires that the payment of premiums “ to be recognized by the company must be entered at the time of the payment in the premium receipt book ” has authority to correct errors of entry in the premium receipt book, and an assistant superintendent over the collecting agent has at least as ample power in this respect.</p> <p>If in an action on a policy of life insurance the defendant puts in evidence a general release signed by the plaintiff alleged to have been given in pursuance of a settlement by which the plaintiff was to receive $16, and shows that the plaintiff accepted a check for that sum, and there is nothing in the terms of the alleged settlement to indicate fraud, the plaintiff may show that the defendant’s - superintendent fraudulently concealed from her the nature and contents of the paper and that she signed it supposing it to be a receipt for $15 as a part payment on account of her claim, and it is a question for the jury whether the plaintiff accepted the $15 as a compromise of a disputed claim or as a payment on account.</p>

<p> Arrest. Execution. Poor Debtor. Habeas Corpus. </p> <p>A judgment creditor, who has taken out execution in an action begun by an attachment of real estate of the debtor, is not obliged to avail himself of the attachment by levying on the real estate, but has the alternative remedy of proceeding by arrest of the debtor.</p> <p>If a judgment creditor, who has taken out execution in an action begun by an attachment of real estate of the debtor, has the execution served by an arrest of the debtor, it may be that a levy on the real estate by authority of the judgment creditor while the debtor is under a recognizance for his appearance to take the oath for the relief of poor debtors would be void.</p> <p>If a judgment creditor, who has taken out execution in an action begun by an attachment of real estate of the debtor, has the execution served by the arrest of the debtor, and, while the debtor is under a recognizance for his appearance to take the oath for the relief of poor debtors, an officer, without the direction or authority of the judgment creditor, proceeds to levy upon the real estate and to give notice of the levy under the statute, the levy is voidable by the judgment creditor and does not-affect his rights under the arrest previously made.</p> <p>After an arrest has been made upon an execution and a recognizance of the judgment debtor has been taken, the execution as against the debtor’s body is functus officio and the recognizance stands in its place as the security of the creditor, so that no alias execution authorizing an arrest can be issued. If satisfaction is not obtained on the first execution an alias execution subsequently issued can run only against the goods and estate of the debtor.</p> <p>Where the return of the officer upon an execution sets forth an arrest of the judgment debtor, with nothing to show what proceedings followed, and also sets forth a later levy upon real estate which was abandoned, it may be doubted whether upon this return an alias execution of any kind can be issued legally, and it is certain that an alias execution cannot run against the body of the defendant.</p> <p>An arrest and a commitment upon an execution, which was issued contrary to law and has upon it no certificate under R. L. c. 168, § 17, and no certificate under § 20 of the same chapter, are unauthorized and void, and the person so arrested and committed will be released from imprisonment and restraint upon a petition for a writ of habeas corpus according to the provisions of R. L. c. 191.</p>

<p>Tort for personal injuries received by the plaintiff in the collision of two engines, upon one of which he was riding,.in the yards of the New'York, New Haven, and Hartford Railroad Company in Worcester. Writ in the Superior Court for the county of Worcester dated June 13,1906.</p> <p>It appeared that, at the point in the yards where the collision occurred, there were five tracks, three of which were controlled by the defendant, New York Central and Hudson River Railroad Company, and two by the New York, New Haven, and Hartford Railroad Company, which was not a party to this action. Across these tracks a switch engine operated by the defendant, Boston and Maine Railroad, ran from time to time. Near at hand was a switching tower. No trains or engines could pass on the tracks at the place in question unless they were permitted to by the man in charge of the switching tower. That man was an employee of the defendant, New York Central and Hudson River Railroad Company.</p> <p>At the time of the collision, the plaintiff, under the circumstances stated in the opinion, was riding upon a passenger engine of the New York, New Haven, and Hartford Railroad Company from the south station to go to the union station, when that engine was run into by a switching engine of the defendant, Boston and Maine Railroad. The plaintiff contended that the collision occurred because of negligence both of the persons operating the switching engine and of the person operating the switching tower. At the close of the evidence, the presiding judge directed a verdict for both of the defendants, and the plaintiff excepted.</p> <p>Other facts are stated in the opinion.</p>

Tort by a woman employed in a candy factory against her employer to recover for injuries caused by the fall of a ladder upon which she was standing, alleged to have been caused by defective construction of the ladder and the floor upon which it stood. Writ in the Superior Court for the county of Suffolk dated October 5, 1905.

<p>Practice, Civil, Exceptions, Conduct of trial, Amendment. Rules of Court.</p> <p>Under Common Law Rule 48 of the Rules of the Superior Court of 1900, the judge presiding at a trial was warranted in refusing to grant requests for rulings presented to him after the arguments to the jury had begun, and the questions raised by such requests are not before this court on an exception to such refusal only, no exception having been taken to any portion of the charge to the jury.</p> <p>In an action by a real estate broker for a commission for procuring an exchange of real estate for the defendant, the answer was a general denial merely. At the trial, evidence was introduced without objection tending to show that the plaintiff had misrepresented to the defendants the value of the property which the plaintiff had received in the exchange and that the plaintiff had had an interest therein; and both counsel, in their arguments to the jury, discussed those grounds of defence, and the presiding judge in his charge stated the law with regard thereto. The jury found for the defendant. After the plaintiff had filed a bill of exceptions as to certain other rulings of the presiding judge, the defendant was allowed without terms to amend his answer so as to include the special defences of fraud and double employment, and the plaintiff excepted. Held, that it was doubtful whether Common Law Buie 6 of the Superior Court, requiring the payment of a double term fee on the allowance of certain amendments without consent, applied; but that, at any rate, the exception must be overruled because it did not appear that the plaintiff was harmed by the allowance of the amendment.</p>

<p>Tort for personal injuries received by the plaintiff while in the employ of the Greenfield and Turners Falls Street Railway Company, which, with another street railway corporation, was consolidated to form the defendant. Writ in the Superior Court for the county of Franklin dated February 21, 1906.</p> <p>At the trial, which was before Ritchcoele, J., there was evidence tending to show that, at the time of his injury, the plaintiff was assistant superintendent of the street railway, with duties which necessitated his going to and fro upon its various cars in order to ascertain whether the cars on the entire system were running on time and to remedy variations from the schedule if possible, and that he was privileged to ride upon any car at any time.</p> <p>The accident happened at about eight o’clock in the evening of February 4, 1904. There had been a snow storm, and snow plows and gangs of men were working clearing the tracks. The plaintiff came from his home in Montague City and boarded a car directly in front of the house. He testified that it was necessary for him to go directly to the despatcher’s office, which was at Cheapside, and that he also “ was in a hurry to get into communication with the person who was running ” the car which he boarded, “ in order to find out the condition of the road, where the schedule was and where the car was.” When the car arrived at Cheapside, it was directed to go to the car barns, and, as it was proceeding slowly, the plaintiff stepped off, but, owing to there being no step on the car, he fell directly under the wheels, and received the injury which is the subject of this action.</p> <p>The car formerly had been used as a regular passenger car, and the plaintiff himself, then a conductor, had run it at that time. Later it was adapted for use as a snow plow car, and at that time the step in question was taken off. The use as a snow plow car was abandoned and, at the time of the accident, the car was used to distribute sand and salt upon the tracks and as an ordinary work car. The steps, which had been removed for the snow plow, had not been replaced, however, and the plaintiff testified that, between two and three months before the accident, he had called the attention of the superintendent of the street railway to the lack of the step, and the jury so found in answer to a question submitted to them. There was conflicting evidence as to whether the plaintiff should have seen or did see the lower part of the car at any time after the promise of the superintendent, and whether he knew at the time of the injury that the steps had not been restored.</p> <p>At the close of the evidence, the defendant requested the following rulings:</p> <p>1. Upon the pleadings and all the evidence the plaintiff cannot recover.</p> <p>2. The plaintiff, in entering a car which he knew was not employed in the passenger service of his employer and which he knew was in fact used as a work car, was bound by the condition of the car as it was and cannot recover.</p> <p>3. If the jury should find that the plaintiff in the course of his duties as assistant superintendent was in and about the car barn daily preceding the day of the accident, during which time he had charge of arranging car crews, starting out cars and crews in the morning, looking out for the operation of cars in the evening and a daily view of the car in question in the barn or on the tracks, and had an opportunity to notice the absence of the steps from that car if he had used his eyes; then the risk of injury in alighting from the car at the point where steps were absent was an obvious one which the plaintiff assumed, wholly regardless of his testimony concerning his knowledge of the presence or absence of the steps, and he cannot recover. And this would be true, even if the jury should find that the superintendent had made the statement that he would have the steps replaced right away.</p> <p>4. If the plaintiff knew that the road at the point where he attempted to alight from the car was banked with snow and in that condition sloped abruptly downward to the tracks, and that condition contributed to the injury after he had alighted from the car while in motion, the plaintiff was not in the exercise of due care and cannot recover.</p> <p>5. If the plaintiff alighted from the car while it was in motion, he was not in the exercise of due care and cannot recover.</p> <p>The presiding judge refused to grant the requests, and the defendant excepted. Other facts are stated in the opinion.</p>

<p>Equity Pleading and Practice, Exceptions to rulings, Exceptions to master’s report. Equity Jurisdiction, To enjoin foreclosure of mortgage, To cancel note given for illegal consideration. Bills and Notes, Consideration. Mortgage. Intoxicating Liquors. License.</p> <p>If, after an order for a decree by the judge presiding at the hearing of a suit in equity, a party aggrieved thereby resorts to a bill of exceptions instead of to an appeal, the only questions presented to this court by such exceptions are whether the presiding judge was right in such of his rulings of law as were excepted to.</p> <p>By a bill of exceptions filed in a suit in equity, it appeared that the case was referred. to a master under a rule directing him to “ find and report the facts with so much of the evidence as either party desired,” that the final draft of the master’s report contained a report of some but not of all the evidence introduced before him, that the defendant filed objections to the master’s report because the master, though requested by him, had refused to make certain findings of fact, that the defendant, upon the filing of the report, filed exceptions thereto, based, on his objections filed with the master, and that a motion to recommit the master’s report was denied and the exceptions thereto were overruled. Held, that, the entire evidence not having been reported, the master’s conclusions of fact must be treated as final and not open to review.</p> <p>The purchaser of a business of bottling intoxicating liquors was especially induced to buy it by an agreement of the vendor that he should have the privilege of selling such liquors on the premises under a fifth class license granted to the vendor in accordance with Pub. Sts. c. 100, § 10, as amended by St. 1891, c. 369. The use of such privilege by any one other than the licensee to whom it had been granted was illegal. The purchaser, with others as co-makers, gave to the vendor a promissory note covering the entire consideration for the transaction and, the note not being paid at maturity, the payee brought an action against the makers, one of whom, in compromise of the action, gave a new note for the same amount secured by a mortgage of real estate. Held, that the consideration of the first note was illegal and rendered it void, and, therefore, the action which was compromised by the giving of the second note and mortgage having been brought upon an illegal demand, there was no new or valid consideration for the second note, and that a suit in equity might be maintained to enjoin foreclosure of the mortgage and to cancel and discharge the mortgage and the note.</p>

<p>Watercourse. Equity Jurisdiction, To enforce riparian rights.</p> <p>Ordinarily the question whether the use of a natural stream by an upper riparian proprietor is reasonable is a question of fact, but the questions of fact which arise in determining whether such a use is reasonable are limited by certain rules of law.</p> <p>The discharge of noxious substances into a natural stream in such quantities as materially to affect the purity of the water as it reaches the land of a lower riparian proprietor, if it interferes with his use of the water, is an invasion of his right of property and as matter of law is unreasonable. Following Parker v. American Woolen Co. 195 Mass. 691.</p> <p>The owner of a farm through which flows a natural stream may maiútain a suit in • equity to restrain the owner of a mill above him on the stream from discharging oil, soap, soda, logwood, blue vitriol and other chemicals into the stream and thereby causing the plaintiff’s cows to refuse to drink the water.</p>