Volume 197 — Massachusetts Reports

<p>Contract against the principal and sureties on a bond dated June 19, 1893, to ensure the performance of the .covenants contained in an agreement of the same date providing for the dissolution of the partnership theretofore existing between the plaintiff and the principal defendant and the purchase and taking over of the business of the firm by that defendant. Writ dated March 29, 1900.</p> <p>In the Superior Court the case was tried before Brown, J., without a jury. The material condition of the bond and the material covenant of the contract of dissolution are quoted in the opinion, where also the material facts are stated.</p> <p>The defendants asked the judge to make the following rulings:</p> <p>1. “ This being an action to compel the defendant, who the plaintiff alleges was his partner, to pay the plaintiff, the amount of a judgment recovered by one A. H. Whiting against both the plaintiff and the principal defendant for false representations in the sale of a bond (Whiting v. Price et al., 169 Mass. 576 and 172 Mass. 240) the plaintiff cannot recover because such a claim is not a legal debt or liability, and the parties if both are guilty of the false representations were in pari delicto.”</p> <p>2. “ The bond on which the plaintiff relies binds the defendant ‘to pay all the debts and liabilities of said firm as.the same shall fall due.’ The judgment of Whiting against Price a'ñd Parker for false representations in the sale of a bond is not such a debt or liability as called for in the bond in question. Under the bond Parker is only liable for the legal debts and liabilities incurred in the usual course of the business of the firm.”</p> <p>3. “ The case of Whiting v. Price et al. being for false representations, a judgment of itself shows a joint wrong, and Price being the party mulcted cannot demand payment, as both are equally in the wrong. Price must be presumed to have known that the representations were unlawful, and consequently this case comes within the cases of Jacobs v. Pollard, 10 Cush. 287, and Atkins v. Johnson, 43 Vt. 78.”</p> <p>The judge refused to make any of these rulings, and found for the plaintiff in the sum of $1,788.96. The defendants alleged exceptions.</p>

<p>Petition, filed on December 31, 1902, under St. 1890, as amended by St. 1901, c. 123, now P. L. c. Ill, §§ 149-160, for damages to land of the petitioners caused by the abolition of the grade crossing of Ferry Street in Fall Pi ver by the railroad of the Old Colony Pailroad Company, the change of grade having been made by the construction of a street upon an embankment supported by a retaining wall forty feet away from the land of the petitioners on the opposite side of the street.</p> <p>The first trial of the case was before Lawton, J., who ordered a verdict for the respondent and reported the case for determination by this court. This court, in a decision reported in 189 Mass. 439, ordered that the verdict be set aside on the ground that the petitioners were entitled to recover any special and peculiar damage which their land had suffered.</p> <p>There was a new trial in the Superior Court before White, J. The judge excluded certain questions put by the petitioners to an expert witness of the respondent on his cross-examination, after having allowed the questions which are described in the opinion to be put by the respondent to the expert witnesses of the petitioners.</p> <p>The questions excluded were as follows:</p> <p>“ What was the value of this property after these changes were made?”</p> <p>“ Have you considered what the value of this property would be if Ferry Street ran under the bridge just as it did before and was open to the water front ? ”</p> <p>“ Now I ask you, do you think it would make any difference to this property if the street had been left open and these structures built there ? ”</p> <p>The jury returned a verdict for the petitioners in the sum of $589; and the petitioners alleged exceptions.</p>

<p>Contract, with a declaration as follows: “ And the plaintiff says that he made an agreement with the defendant corporation to .work for it as a steamboat captain for the term of one year beginning the thirty-first day of May, 1905, at a salary of $1,500 per year ; that the defendant nevertheless refused to perform its said agreement and refused to employ the plaintiff or to pay him any part of his salary, and repudiated said agreement; that the plaintiff has always held himself in readiness to complete and perform his said agreement and has been unable to obtain any other employment; and that the defendant owes him the sum of $1,500 on account of said agreement and the breach thereof.” Writ dated March 28,1906.</p> <p>In the Superior Court the case was tried before Dana, J. The answer was a general denial. The defendant’s counsel in opening said that the plaintiff under the declaration could not recover, unless the jury found that there was a hiring of the plaintiff by the defendant for a year at a salary of $1,500 for such year; that there was no such hiring; that the hiring was for an indefinite period; that the defendant had the right to discharge the plaintiff at any time; that the defendant had discharged the plaintiff shortly after the time of the hiring; and that the plaintiff could recover under any form of declaration only for such services as were rendered by him up to the date of his discharge.</p> <p>The rulings of the judge in regard to the exclusion of certain evidence offered by the defendant are stated in the opinion.</p> <p>The judge, in the course of his charge to the jury, to which no exception was taken, gave the following instruction:</p> <p>“ I do not understand that there is any contention on the part of the defendant that no contract was made; I understand the defendant to admit that there was a contract between the plaintiff and the defendant, but the defendant says that the contract made between the plaintiff and the defendant was not the contract set out in the plaintiff’s declaration, and in order for the plaintiff to recover in this case you must find that the contract was the contract set out in the plaintiff’s declaration. By the terms of that declaration, as I have said, the plaintiff alleges that the contract was a hiring for a salary of $1,500 a year, and a hiring for a year. The defendant says that the term of service was indefinite; that there was no fixed time. If you find upon all the evidence that there was a contract for a fixed period, the plaintiff would be entitled to recover; and if you find, on the other hand, that there was no contract for a fixed period, then the plaintiff on this declaration would not be entitled to recover.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $1,275; and the defendant alleged exceptions.</p>

Contract for the sum of $100 in the hands of the defendant Cook collected by him as rents alleged to belong to the plaintiff under a deed of trust made by one Bridget Campbell. Writ dated August 24, 1906. The defendant Cook deposited in court the amount claimed in the declaration, and stated, under the statutes, that the money was claimed by Bridget Campbell, through her conservator, Thomas R. Burrill.

<p>Contract, Performance and breach. Sale.</p> <p>The owner of certain real estate made an agreement in writing to sell it to one who, as part of the agreement, made an advance payment to an agent of the owner, but who, later, but before the time agreed upon for delivery of the deed, for a reason in no way connected with the ability of the owner to convey a good title, declined to carry out the agreement. The owner brought an action of contract against the agent for the advance payment and, the person who made the payment claiming the money,, he was summoned in as a defendant. At the trial of the action, it appeared that the owner’s title was encumbered at the time when the agreement with the claimant was made, and the claimant contended that this excused him from performance. The presiding judge refused to direct a verdict for the claimant, but instructed the jury that, in order to entitle the plaintiff to recover, he was bound to show that he had tendered a deed or that the conduct of the claimant excused him from doing so. The jury found for the plaintiff. Held, that, in the absence of anything in the agreement to that effect, the vendor was not required to have a good title at the time when the agreement was entered into and from then until the time of performance, and that the ruling of the presiding judge was correct and the verdict of the jury warranted.</p>

<p>Bill in equity to restrain the foreclosure of a mortgage filed in the Superior Court for the county of Bristol, April 13, 1907.</p> <p>The case was referred to a master and was heard upon his report by Fox, J., who made a final decree enjoining the foreclosure, and the defendant appealed. The facts are stated in the opinion.</p>

<p>Arrest, On mesne process. Statute, Construction. Unlawful Arrest. False Imprisonment. Abuse of Legal Process. Pleading, Civil, Declaration. Damages.</p> <p>The provisions of R. L. c. 168, § 1, with regard to arrest on mesne process in an action of contract, are not to be extended by construction.</p> <p>A defendant must have been within the borders of the Commonwealth in order to have an intention “ to leave ” it within the meaning of R. L. c. 168, § 1, authorizing his arrest on mesne process if the plaintiff makes affidavit before a magistrate that the defendant “ intends to leave the Commonwealth, so that execution, if obtained, cannot be served upon him.”</p> <p>An affidavit, that a defendant is about to leave the Commonwealth so that execution, if obtained, cannot be served upon him, made before a magistrate under R. L. c. 168, § 1, for the purpose of procuring a certificate to be attached to a writ authorizing his arrest on mesne process in an action of contract, is false if, at the time when it is made, the defendant is not within the Commonwealth, although at that time he is on a journey hither and intends, after a stay of less than an hour, again to leave.</p> <p>At the trial of an action of tort for falsely procuring the plaintiff, a resident of another State, to come within this Commonwealth for the purpose of causing his arrest on mesne process in an action of contract, and then arresting him, there was.evidence tending to show that the defendant resided in Attleboro in this Commonwealth, and that the plaintiff and the defendant liad an appointment on a certain day in Providence in the State of Rhode Island; that, the day before the appointment, the defendant wrote to the plaintiff stating that he was ' ill and desired the plaintiff to meet him in Attleboro instead of in Providence and offering to pay the expenses which the plaintiff would incur in doing so ; that, on the day of the appointment, in a telephone communication, the defendant again urged the plaintiff to come to him in Attleboro because he was ill and unfit for travel and stated that the plaintiff could arrive on the train leaving Providence at 12.07 p. m. and leave Attleboro again at 12.54 p. m. ; that the plaintiff, for accommodation of the defendant, promised to do so; that the defendant, while the plaintiff was on his j ourney from Providence, made the affidavit and procured the certificate necessary, under it. L. c. 168, § 1, to authorize an arrest of the plaintiff on mesne process, and, after the plaintiff arrived in Attleboro, caused his arrest. The plaintiff testified that, at the time of the interview when the arrest was made, the defendant “ did not seem sick so far as he could see.” Held, that there was evidence warranting the submission of the case to the jury.</p> <p>An objection by a defendant that a declaration in a single count is bad for duplicity, made, not by demurrer, but after he has answered and gone to trial upon the merits, comes too late at the argument in this court upon exceptions taken to rulings upon other matters at the trial.</p> <p>Instructions to the jury, before whom was being tried an action for false imprisonment, that they were not to give exemplary damages but only fair and reasonable compensation, were held to be correct.</p>

<p>Agency, Double employment. Negligence, Employer’s liability.</p> <p>At the trial of an action for personal injuries alleged to have been received by the plaintiff while in the employ of the defendant in his cotton mill, there was evidence tending to show that the plaintiff was injured while cleaning a carding machine, that the carding machine was being set up in the defendant’s mill by one L. under an agreement whereby the defendant was required to furnish “usual laborer’s assistance,” that the plaintiff was set to work and kept at work on the machine by one acting as superintendent for the defendant and, by order of such superintendent, was instructed in his work by one who was in the employ of L., that the plaintiff did not know that he was working for any one other than the defendant and had never heard of L., and that he was' paid by the defendant. Held, that, in order to constitute the plaintiff the servant of L., there must have been such a change in his relations to the defendant that the defendant had ceased for the time being to have any direction over or control of him and that L. had become responsible for the discharge of those duties which a master owes to his servant in respect to matters affecting his safety; and that the question whether, at the time of the accident, such a change had occurred was for the jury.</p> <p>At the trial of an action by one employed in a cotton mill to recover for personal injuries alleged to have been received by the plaintiff by reason of a failure of the defendant to warn him of the dangerous character of a machine upon which he was working, there was evidence tending to show that the plaintiff had been set to work before the accident by a superintendent of the defendant at cleaning rapidly revolving cylinders of carding machines, no one of which had attached to it an appliance called a licker-in, that a licker-in was another smaller cylinder with teeth upon it, which revolved on a separate axis outside of and in the opposite direction from, but close to, the main cylinder which the plaintiff was cleaning; that just before the accident the plaintiff was set to work cleaning the cylinder of a machine which had a licker-in that was wrapped up so that he could see only the wrappings, thgt he never had seen a licker-in and did not know of its character; that the superintendent who set him to work upon the machine with the licker-in had not warned him of its character, but had delegated the duty of instructing him to one who was not in the employ of the defendant, and that such person had not warned him of the character of the licker-in ; that, while he was cleaning the main cylinder as he had been told to do, a stick that he was using slipped and his hand was drawn between the cylinders and was injured on the teeth of the licker-in. Held, that the questions, whether the plaintiff was in the exercise of due care, whether there was an obvious risk of injury or one which he assumed, and whether the defendant was negligent as alleged, were for the jury.</p>

<p>Negligence, Street railway, Causing death, Gross.</p> <p>At the trial of an action against a street railway company under R. L. c. Ill, § 267, to recover for the death of a woman which was alleged to have been, caused, while she was a passenger on a car of the defendant in an evening in early October, by reason of gross negligence on the part of the conductor of the car, there was evidence which tended to show that the plaintiff’s intestate, just before the accident, was sitting in a closed car near the front door, that there were not more than fourteen other passengers, that, after she and two others " had signalled for the car to stop, she remained in her seat until it came to a full stop, when, the other passengers leaving by the rear door, she, with bundles in her hands, pushed the front door open with her shoulder, passed out on to the front platform and was getting off the car when the conductor gave the starting signal, the car started and she was thrown, receiving injuries from which she afterwards died. The conductor all the time was at his place at the rear door. Held, that there was nothing to show such knowledge on the part of the conductor of the movements of the plaintiff’s intestate, or such failure on his part to perform his ordinary duties under the circumstances as to indicate the gross negligence which, by R. L. c. Ill, § 267, is made essential to the maintenance of the action.</p>

<p>Mortgage, Of personal property. Practice, Civil, Rulings.</p> <p>A mortgage of a greenhouse, including the plants then in it and after acquired property and giving the mortgagor the right to sell flowers and plants in the ordinary course of trade, where the mortgagee never has taken possession of the plants acquired after the delivery of the mortgage, gives him no title to such plants which can pass to a purchaser at a foreclosure sale under the mortgage.</p> <p>It is proper for a judge before whom a case is tried without a jury to refuse requests for rulings of law based on testimony which he is not bound to believe, especially if he does not believe it.</p>

<p>Assault. Practice, Civil, Specification of time.</p> <p>In an action for an assault and battery the plaintiff filed'a specification stating that the assault was committed “on or about” a day named. The plaintiff introduced evidence tending to show that the assault was committed on the day named. The jury disagreed, and there was a new trial, at which after the plaintiffs opening the defendant moved that the words “ or about ” should be stricken out of the specification filed by the plaintiff, and the judge, subject to the plaintiff’s exception, ordered that the words be stricken out. The plaintiff then made motions to amend her specifications in relation to the date in accordance with her understanding of the facts. These motions were denied by the judge. The plaintiff offered evidence to prove her case in all particulars except as to the date named in the specification and said that she could not prove that the assault was committed on that day". Thereupon the judge ordered a verdict for the defendant, and the plaintiff excepted. Held, that the order requiring the striking out of the words “ or about ” from the specifications was erroneous, and, with the denial of the plaintiff’s motions to amend her specification, was equivalent to an order forbidding her from .presenting the case relied upon and stated in her declaration and in the specification first filed, which, if her case was prosecuted honestly and in good faith, was a denial of justice and was not within the power of the court.</p> <p>At the second trial of an action for an assault the plaintiff is not estopped by the fact, that her evidence at the first trial tended to show that the assault was committed on a certain day, from showing at the second trial, under a proper specification of time, that the witnesses at the first trial were mistaken in that part of their testimony and that the assault was committed on a different day.</p>

<p>Negligence, Employer’s liability. Parent and Child.</p> <p>In an action under the employers’ liability act for personal injuries alleged to have been caused by the negligence of a superintendent of the defendant in failing to warn the plaintiff of the approach of a travelling crane which cut off the ends of two of the plaintiff’s fingers while he was standing on a narrow piece of iron and steadying himself by taking hold with one hand of the track of the crane, above a girder which he with another workman had been sent to strengthen by putting a bracket beneath it, it appeared that the fellow workman of the plaintiff went away temporarily and that a superintendent in charge of the work came up to take his place and stood in the same way that the plaintiff did, that the crane came over the track at irregular times, that the plaintiff’s back was toward the crane as it approached and that the superintendent was facing it. There was evidence on which it could have been found that it was part of the duty of the superintendent to warn workmen who were in exposed positions of the coming of the crane. There was testimony that he had given such warnings repeatedly during the progress of the work then going on, and also that he could have seen the crane as it was coming. It appeared that the place was very noisy, and that the plaintiff could not hear nor see the approach of the crane while he was working below the girder. Held, that the superintendent was not relieved from the obligation to use due care for the safety of the employees by temporarily taking the place of the plaintiff’s fellow workman to assist in putting up the bracket, and that it was a question for the jury whether the superintendent was negligent in failing to discover the approach of the crane and to warn the plaintiff of his danger; also that it was a question for the jury whether the plaintiff was in the exercise of due care.</p> <p>At common law an employee has no remedy for an injury caused by the negligence of a superintendent of his employer who is his fellow servant.</p> <p>The employers’ liability act gives no remedy to a father for expenses for medical attendance incurred by reason of injuries to his minor son for which the employer is liable to the son under the act.</p>

<p>Evidence, Presumptions and burden of proof. Practice, Civil,. Judge’s charge, New trial. Evidence, Hearsay in preliminary affidavit. Rules of Court.</p> <p>In a civil case the presiding judge in explaining the term “ burden of proof ” told the .jury that they could not find in accordance with a particular contention unless it was “ proved that it was so,” and added “ by proved that it was so I mean a balance of proof in favor of the theory. . . . The plaintiff must make his side heavier, stronger in favor of the proposition to your minds, than that of the defendant, because if your minds remain balanced you will have to give a verdict for the defendant.” In another place he said “ such damages as are proved by a fair preponderance of the evidence she is entitled to recover for, and those which she has not so proved she is not entitled to recover for.” Held, that from these instructions the jury must have understood the law upon the subject correctly, although the judge made further explanations which were not so clear.</p> <p>On an application for a new trial on the ground of newly discovered evidence, affidavits under Rule 31 of the Superior Court setting forth what a person other than the affiants has said showing his knowledge of important facts which were not known to the applicant at the time of the trial, should not be rejected because based on hearsay, if the affidavit of the witness who knows the facts cannot be obtained, and should be received and considered by the trial judge to whom the application is made, it being for him to say how much weight should be given to them.</p>

<p>Evidence, Extrinsic affecting writings, Admissions and confessions. Contract, Construction, Validity, Implied from conduct. Patent.</p> <p>In an action to recover royalties under a contract in writing granting the defendant a license to manufacture and sell “ automatic feed attachments ” under a certain patent, which by the plain meaning of its words covers only the manufacture and sale of attachments for which the patent was granted, it cannot be shown by oral evidence that the contract was intended to include automatic feed attachments which were not within the terms of the patent and were not protected by it.</p> <p>In an action on an agreement to pay royalties to a patentee upon the manufacture and sale of certain machines under his patent, if it appears that the question whether a certain machine manufactured and sold by the defendant was covered by the patent was doubtful and was being litigated, an agreement of the parties either express or shown by their conduct, that the machine was covered by the patent, is competent evidence of that fact.</p> <p>An agreement to pay a patentee a royalty for a license to manufacture and sell a particular machine, it being uncertain whether it is covered by the patent or not, is binding and will be enforced, although it turns out that the patent is invalid or that the machine is not covered by it, because the agreement is to pay for exemption from disturbance by the patentee and immunity from any claim under his patent.</p> <p>If a manufacturer has agreed to pay a royalty to a patentee on all machines manufactured and sold by him which are covered by the patent, and subsequently treats a certain machine which he is manufacturing as covered by the patent by making regular returns of his sales of the machines and paying royalties upon them at intervals of six months for four years, also advertising the machines extensively under the patent, and marking them patented, this is equivalent to an agreement that while this practice exists between the parties the machines shall be treated as covered by the patent, but it does not bind the manufacturer to continue the arrangement after he finds out that the patent is not valid or that the machines he is manufacturing are not covered by it.</p>

<p>Equity Jurisdiction, Remedy at law, Multiplicity of suits. Bond. Practice, Civil.</p> <p>A bill in equity for tbe cancellation of a bond given to the treasurer and receiver , general of the Commonwealth under St. 1905, c. 428, by the plaintiff, who is engaged in the business of selling steamship tickets for transportation to and from foreign countries and, in conjunction therewith, in the business of receiving deposits of money for the purpose of transmitting the same or equivalents thereof to foreign countries, which is conditioned upon the plaintiff faithfully holding and transmitting any money or the equivalent thereof delivered to him for transmission, cannot be maintained on allegations of unconstitutionality of the statute and of liability of the plaintiff to be subjected to a multiplicity of vexatious actions upon the bond which would be avoided by a decree in the equity suit declaring the statute unconstitutional, since the question of the constitutionality of the statute may be raised once for all in any action upon the bond, and a decision that the bond is invalid could be pleaded in bar to the prosecution of any and all other actions thereon, and, therefore, the plaintiff has a complete and adequate remedy at law.</p>

<p>Practice, Civil, Actions tried together, Conduct of trial. Way, Defect in highway.</p> <p>It is within the discretionary power of a judge of the Superior Court to order two actions of tort by the same plaintiff, one against a municipality under Pub. Sts. c. 52, now R. X. c. 51, for injuries alleged to be due to a defect in the highway and the other against a private individual for alleged maintenance of a nuisance, to be tried together where they depend upon the same state of facts.</p> <p>At the trial of two actions of tort for personal injuries due to the plaintiff’s tripping upon a pipe protruding in a highway, which were tried together, one action being against a city and the other against an individual who was constructing the street under contract with the city, the contractor testified in his own behalf and the defendant city requested the presiding judge to rule that none of his testimony could be used against it. The presiding judge refused to rule as requested, but instructed the jury that all of the witness’s testimony could be so used except his admissions, which could be used only against himself. Held, that the refusal to rule and the instructions given were correct.</p> <p>At the trial of an action against a city under Pub. Sts. c. 52, for injuries due to an alleged defect in a highway, there was evidence tending to show that the plaintiff, while rightfully upon the sidewalk of a highway on a dark night, stumbled upon a piece of iron piping protruding eight or nine inches above the sidewalk and two or three feet from the curb, and fell, sustaining the injuries complained of, that there were no lights or warnings against using the sidewalk, although tlie roadway of the street was closed by wooden horses because of construction work going on there, that, previous to the accident, the water department of the city had placed the pipe as it was when the plaintiff stumbled upon it and that it had remained in that condition. Held, that there was evidence from which the jury were warranted in finding for the plaintiff.</p>

<p>Devise and Legacy. Words, “Heirs at law,” “Then.”</p> <p>A testator in successive items in his will made elaborate provisions for different trust funds and directed the trustee in each instance to pay the income to named beneficiaries, who were in some cases children and in some grandchildren, and to their issue, and in each item closed with a clause similar to the following: “ But if the said . . . shall die leaving no children nor descendants living at the time of . . . death then to divide and distribute said estate among my heirs at law.” Held, that the word then ” was not used as an adverb, but as a conjunction, in the sense of “in that ease,” or “in that event,” and that there was no evidence of an intention on the part of the testator that the words “ heirs at law ” should have any other than their ordinary meaning of those who were heirs of the testator at the time of his death.</p> <p>An intention on the part of a testator to give to the words “ heirs at law ” a different meaning from the ordinary one of heirs of the testator at the time of his death is not to be inferred from the fact that, by the other provisions of the will, ample provision was made for those who were the heirs of the testator at the time of his death.</p>

<p>Contract for breach of an alleged oral agreement by the defendant that, in consideration of the plaintiff’s releasing him from liability on account of injuries received by the plaintiff while in his employ, he would pay a certain sum in cash, would pay the bill for medical attendance upon the plaintiff and would continue to employ the plaintiff as before. Writ in the Superior Court for the county of Norfolk dated May 23, 1906.</p> <p>The defendant filed an offer of judgment in the sum of $25.75. At the trial, which was before Hardy, J., it appeared that the plaintiff was injured while in the employ of the defendant who did business under the- name, Boston Gear Works, and received medical attendance, and that the defendant had. a policy in the JEtna Life Insurance Company “ assuring him from liability on account of any accident ” in his place of business. The policy was not in evidence and, except as stated above, neither its terms nor the agreements between the parties nor the authority given by the defendant to the insurance company, were shown.</p> <p>After the accident to the plaintiff, one Pierce, an “ adjuster and investigator ” of the insurance company, called upon the defendant and got the details of the accident and the address of the plaintiff, and then visited the plaintiff where, after a conversation, he gave the plaintiff a draft for $50 and the plaintiff signed in duplicate and delivered to him a release which was in evidence, and was as follows:</p> <p>“For the sole consideration of the sum of $50 and doctor’s bill not exceeding $25, this 15th day of February, 1906, received from Boston Gear Works, I do hereby acknowledge full satisfaction and discharge of all claims, accrued or to accrue in respect to all injuries or injurious results direct or indirect arising or to arise from an accident sustained by me on or about the 14th day of February, 1906, while in the employ of the above.</p> <p>“ $75.00 James Budro [seal.]</p> <p>“ Witness, James Hazen Pierce,</p> <p>address, 4 Liberty Square, Boston, Massachusetts.”</p> <p>One copy of this release was retained by the insurance company and the other was delivered to the defendant by Pierce.</p> <p>The plaintiff testified in his own behalf and, in order to prove the agreement declared on in the declaration, was asked to state the conversation he had with Pierce before the release was signed. The testimony was excluded and the plaintiff excepted. The plaintiff sought to introduce in evidence the same conversation in the testimony of Pierce, but, although he was allowed to state that he did not remember having had any conversation with the plaintiff with regard to his doctor’s bills or his future employment by the defendant, was not allowed to state what the conversation was, and the plaintiff excepted.</p> <p>Subject to exception by the plaintiff, the jury were directed to return a verdict in the amount of the defendant’s offer.</p>

<p>Tort for personal injuries alleged to have been received because of a defect in Merrimack Street, a public highway of the defendant. Writ in the Superior Court for the county of Essex dated September 28, 1903.</p> <p>At the close of the evidence introduced at the trial, which was befoi’e DeCourcy, J., the defendant requested the presiding judge to rule that on all the evidence the verdict should be for the defendant, and that there was no sufficient evidence of a condition amounting to a defect or want of repair in the public highway for which the defendant was liable. The requests were refused and the defendant excepted. The jury returned a verdict for the plaintiff.</p>

<p>Tobt with three counts, the first for assault and battery, the second for false imprisonment and the third for the alleged conversion of certain wood-working machinery and tools on the first floor of a building on Mill Street in the town of Hamilton. Writ dated May 28, 1904.</p> <p>In the Superior Court the case was tried before Fox, J. The material facts in evidence were as follows :</p> <p>On January 20,1904, one John F. Smith of Hamilton was adjudicated a bankrupt, and on February 29,1904, the defendant became the trustee in bankruptcy of his estate.</p> <p>Smith was an undertaker and a manufacturer of musical instruments and occupied as a shop the lower part of the building on Mill Street in Hamilton, in the upper part of which was a tenement occupied by Smith and his wife and children, the whole of the building and realty being owned by his wife, Bertha M. Smith.</p> <p>At the time of the bankruptcy of Smith, the plaintiff held a mortgage upon his goods and chattels made on May 28, 1900, and recorded in the office of the clerk of the town of Hamilton, covering the engine hereinafter referred to, of which there was a breach of condition by non-payment of principal and interest at the time of the bankruptcy. There was due upon the mortgage at the time of the trial the sum of $446.14, principal and interest.</p> <p>On February 29,1904, the defendant as trustee in bankruptcy took possession of the shop and its contents and put -a padlock on the door, to which he kept the key. The property in the shop consisted of various wood-working machines, a lot of tools which were admitted to be exempt and were thereafter set off to Smith by the bankruptcy court, and a shaft pump and the engine, which last named articles were included in the schedules filed by the bankrupt in the District Court of the United States, but by subsequent proceedings in the Superior Court were found to have been affixed to the realty and to be a part thereof and therefore to belong to Bertha M. Smith.</p> <p>On March 1, 1904, Bertha M. Smith by her attorney sent to the defendant a notice as follows:</p> <p>“ You are hereby notified that I am the owner of the premises on Mill street, Hamilton, where I reside, and also part of which has been used by my husband, John F. Smith, for a shop, wherein are fixtures belonging to said house, and as you have the possession of the same and put a padlock on the door of said premises, you are hereby notified to remove any property to which you are entitled by law, from my said premises and said padlock without delay, or I shall hold you liable as a trespasser and also liable for all injuries occasioned by your stopping the heat and water from my premises.”</p> <p>The defendant did not comply with this notice, but on April 22, 1904, took away all the unsold property except the bankrupt’s exemptions, the pump and the engine aforesaid.</p> <p>On March 2,1904, the plaintiff met the defendant by appointment. They came from the train together and went into the shop. One Walter Smith, who was with the defendant, remained outside by the door. After looking over and checking the property the plaintiff tried to go out from the shop, but found the door fastened, and was told by the defendant that the door was locked by his orders. The defendant stated to the plaintiff that he had the door locked because he “ didn’t know but. that the plaintiff would have a gang there.” Sharp words passed between the plaintiff and the defendant concerning the locking of the door. The defendant rapped on the window in the door, which immediately was unlocked by Walter Smith, and the plaintiff passed out of the shop. The defendant then relocked the door. The plaintiff testified that he suffered no injury nor damage whatsoever from this action of the defendant. This was all the evidence as to imprisonment.</p> <p>The plaintiff then went upstairs and saw Mrs. Smith and got permission from her' to enter the shop. He came down to the shop and finding the door thereof locked, broke it in and entered in the absence of the defendant, making a declaration that he intended to take possession and foreclose his mortgage. The defendant appearing later, objected and said he would try to put the plaintiff out of the shop. At once the plaintiff and the defendant wrestled with each other, and after some time the defendant, not being able to put the plaintiff out, left the premises. The plaintiff put on the door of the shop a padlock of his own and locked it. The plaintiff testified that he suffered no-injury nor damage whatsoever from this action of the defendant. This was all the evidence as to assault and battery.</p> <p>After the events narrated above the defendant filed a petition with the referee in bankruptcy for the district of Essex County, to whom the case of John F. Smith had been referred, and obtained from him an order restraining the plaintiff from interfering with the defendant’s possession of the goods and premises aforesaid, and from foreclosing his mortgage, and directing the plaintiff to deliver to the defendant forthwith sole possession-of the goods and premises. This restraining order was served on the plaintiff on March 2, 1904.</p> <p>The defendant on March 3, 1904, removed the padlock which had been put on by the plaintiff the day before. The defendant put on a padlock of his own and as trustee in bankruptcy had possession of the premises till April 22, 1904.</p> <p>On March 10,1904, the defendant as trustee filed a petition with the referee in bankruptcy praying for leave to sell all the assets of the bankrupt estate free from incumbrances, including the property mentioned in the mortgage of the plaintiff as hereinbefore stated, of which notice was given to the creditors, returnable on March 28,1904. On March 28,1904, the petition to sell the assets including the fixtures and the engine aforesaid, free from incumbrances, was granted by the referee after a hearing at which the plaintiff and the defendant were present and both were represented by counsel. The referee ordered the trustee to sell the property at private sale or public auction and file with the referee an accurate account of each article sold and the price received therefor and to whom sold. At the same time by order of the referee the lien of the plaintiff was found to be $390, and was transferred to the purchase money in the hands of the trustee.</p> <p>The defendant as trustee then sold a portion of the property according to the order .at a private sale upon the premises, but on April 5,1904, was enjoined by the Superior Court from selling the pump and engine aforesaid and the fixtures connected therewith as being part of the realty belonging to Bertha M. Smith, which injunction was made perpetual in a suit in equity which had been brought on April 4, 1904, by Bertha M. Smith against the defendant.</p> <p>On April 30, 1904, the defendant as trustee filed with the referee a petition, and on June 1, 1904, an amendment thereto, praying to have the order of sale and the order in relation to the lien of the plaintiff made on March 28, vacated, on the ground that these orders were granted with the understanding of the referee and all parties that the engine aforesaid formed a part of the bankrupt’s assets, that it had since been decided by the Superior Court that it did not belong to the bankrupt but to his wife, that the plaintiff still had a lien on the engine by virtue of his mortgage, that the value of the engine should be considered in fixing the amount of the lien of the plaintiff and should be deducted from the amount of the lien already found, that the order had been made under a mistake of fact, but that a portion of the property had been sold by the defendant as trustee for $145, by virtue of the order of sale and in good faith before any claim had come to his knowledge that the engine did not belong to the bankrupt’s estate, and the defendant asked to be protected for these sales.</p> <p>On June 29,1904, after a hearing of which due notice was given to the plaintiff, the referee granted the petition and the amendment thereto and vacated the orders made on March 28 as to the sale and the lien of the plaintiff, except as to the property already sold by the defendant as trustee, the sales of which he confirmed, and the referee ordered the defendant to turn over to the plaintiff the sum of $145 less $20 incurred for reasonable and necessary expenses in selling, preserving and moving the property, and all property of the bankrupt’s estate remaining unsold, and in case the plaintiff should not accept this, to hold the property and the sum of $125 subject to the further order of the bankruptcy court.</p> <p>Thereafter, the defendant and his counsel went to the plaintiff and tendered him $125 in cash and the unsold property in storage, both of which the plaintiff refused, stating that he wanted the amount of his mortgage.</p> <p>The judge found that the defendant had complied with all the orders of the referee in bankruptcy, and still held the unsold property and the sum of $125 subject to the further order of' the bankruptcy court.</p> <p>The laws of the United States relating to bankruptcy were put in evidence and the attention of the court was directed to § 67 which states that “Liens given or accepted in good faith and not in contemplation of or in fraud upon this act and for a present consideration, which have been recorded according to law, if record thereof was necessary in order to impart notice, shall not be affected by this act.”</p> <p>Upon the foregoing facts the judge ordered a verdict for the defendant upon all the counts in the declaration, and at the request of the plaintiff reported the case for determination by this court. If upon the foregoing evidence the plaintiff was entitled to recover upon the first or second count, judgment was to be entered upon such count for nominal damages, and, if the plaintiff was entitled to recover upon the third count, judgment was to be entered for 1446.14; otherwise judgment was to be entered for the defendant.</p>

<p>Contract against the administrator of the estate of John M. Gilmore, late of Beverly, to recover the amonnt standing in the name of the defendant’s intestate in the Salem Savings Bank after deducting the amount of debts of the deceased paid by the defendant as administrator, funeral expenses and charges of administration. Writ dated March 80, 1905.</p> <p>In the Superior Court Aiken, C. J., upon the facts stated in the opinion, ruled that the plaintiff was not entitled to recover, found for the. defendant, and reported the case for determination by this court. If upon the evidence the ruling was wrong, judgment was to be entered for the plaintiff for the balance of the money in the defendant’s possession according to the terms of a written agreement; if the ruling was right, judgment was to be entered for the defendant.</p>

<p>Tort by the administrator of the estate of Michael Legge against the New York, New Haven, and Hartford Railroad Company for causing the death of the plaintiff’s intestate from being struck by a locomotive engine of the defendant, with three counts, the first count alleging that the intestate was a traveller on Depot Street, a highway in Sharon, and was killed by reason of the failure of the defendant to give the signals required by law at a grade crossing of that highway, the second count alleging that the intestate was killed while he was a passenger of the defendant who had alighted from one of its trains and was attempting to leave its premises, and the third count, added by amendment, alleging that the intestate was killed when by permission and invitation of the defendant he rightfully was crossing the railroad of the defendant at Sharon a few feet south of the crossing by that railroad of Depot Street at grade and between such grade crossing and the Sharon station building of the defendant. Writ dated July 16, 1903.</p> <p>In the Superior Court the case was tried before Fessenden, J., who ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p> Parent and Child. Statute. </p> <p>An alien who has a domicil in this Commonwealth, and whose wife, also an alien, is living apart from him in this Commonwealth, can be convicted on a complaint under St. 1906, c. 601, for neglecting to provide for the support of his minor child, although the child never has been in this Commonwealth and was abandoned by the defendant in a foreign country seven years before the complaint.</p> <p>Whether, on a complaint under St. 1906, c. 501, for neglecting to provide for the support of a wife or a minor child, the domicil of the defendant as distinguished from a temporary residence is material, it here was not necessary to consider, because the facts warranted a finding that the defendant had a domicil in the city of this Commonwealth to the police court of which the complaint was made under § 5 of the statute.</p>

<p>Scire facias on a bail bond dated March 6,1901, executed by Maude Poole as principal and by John F. Reynolds and John F. Canning as sureties. Writ dated April 16, 1906.</p> <p>The condition of the bond sued upon was as follows:</p> <p>“ The condition of this obligation is such, that whereas the body of the above bounden Maude Poole is taken by force of a writ or process bearing date 4th day of March A. D. 1901, wherein William Gray Brooks is plaintiff, and the said Maude Poole of Detroit in the State of Michigan, commorant in Boston in the County of Suffolk, is defendant, returnable before the Justices of our Superior Court to be holden in Boston within and for our said County of Suffolk on . the first Monday of April next, to answer unto the said William Gray Brooks, to be heard and tried at our said Court as by the return of said writ of process will appear.</p> <p>“ If, therefore, the above bounden Maude Poole shall appear before the said Justices of said Court as aforesaid to answer to said William Gray Brooks in the action aforesaid and shall abide the final judgment thereon, and shall not avoid, then the above written obligation shall be null; - otherwise it shall remain in full force and virtue.”</p> <p>At the trial in the Superior Court before KitcTicoch, J., where the case was defended by the defendant Canning alone, the facts appeared which are stated in the opinion. The defendant Canning asked for seven rulings, all of which were refused by the judge, particularly the first and seventh, which were that upon all the evidence the plaintiff could not recover, and that upon all the evidence the defendant was entitled to a verdict. The judge ordered a verdict for the plaintiff; and the defendant Canning alleged exceptions.</p>

<p>Contract to recover the amount of a personal property tax alleged to have been illegally assessed and paid under protest. Writ in the First District Court for Eastern Middlesex dated December 17, 1904.</p> <p>On appeal to the Superior Court, the case was tried upon an agreed statement of facts before Fessenden, J., who found for the defendant, and the plaintiff appealed.</p>

<p>Insurance, Accident. Words, “ Event causing the injuiy."</p> <p>A policy of insurance provided for insurance “ against loss . . . caused by bodily injury effected exclusively by external, violent and accidental means, provided written notice of the injury, whether fatal or non-fafal ... be given by the insured or the beneficiary to the . . . company within ten days of the event causing such injury,” and stipulated for the payment of certain named sums in case of “ loss of life occurring within ninety days of the event causing the injury,” and in ease of other losses, specifying that each must occur “ within ninety days from the event causing the injury.” In an action by the beneficiary under the policy, the declaration alleged that the insured on July 7 met with an accident which was within the terms of the policy but “ did not consider ” it “ of any account,” that from August 7 he was confined to his bed until August 11, when he died as a result of the accident, that he had given no notice to the defendant but, within four days after his death, the plaintiff gave notice. The defendant demurred. Held, that the requirement that the insurer should be given notice within ten days of the event causing the injury is a condition precedent to the creation of liability under the policy, that the “ event causing the injury ” was the accident, and that, therefore, the requisite notice was not given and the demurrer must be sustained.</p>

<p>Complaint, taken out and sworn to in the Municipal Court of the City of-Boston December 4, 1906, charging the defendant and one Harris with carrying on the business of pawnbroking without a license.</p> <p>On appeal to the Superior Court the case was tried before G-ashill, J. It appeared that the defendant and a partner were licensed only to carry on the business of buying and selling second-hand articles on Salem Street in Boston, that the record on their books of the transaction with McKinnon, the testimony regarding which is stated in the opinion, was of a purchase by them, and that, the next day after the transaction, it was so reported by them to the police department in the regular course of their business. Other facts are stated in the opinion.</p> <p>At the close of the evidence, the presiding judge refused, as stated in the opinion, to grant requests of the defendant for rulings, the jury found the defendant guilty, and the defendant alleged exceptions.</p> <p>The third request, referred to in the next to the last paragraph of the opinion, was as follows: “ 3. The evidence does not warrant the jury in finding that the defendant was concerned as an actor in the carrying on of the alleged business of pawnbroking so as to make him a proper guilty defendant in this prosecution.”</p>

<p>Husband and Wife. Superior Court. Marriage and Divorce. Jurisdiction. Equity Jurisdiction, Equitable replevin, In divorce proceedings. Equity Pleading and Practice, Decree.</p> <p>A wife, with the knowledge and consent of her husband, signed in her own name with a dealer in furniture a lease or contract of conditional sale which purported to convey certain furniture' to her, and caused the furniture to be delivered by the dealer to her at the house occupied as a home by her and her husband, where it was used by them jointly. The instalments due under the contract were paid to the dealer, sometimes by her and sometimes by her husband, such payments as she made being in part from funds given to her by her husband, in part from money received from the letting of rooms in the house they jointly occupied, and in part from money which she herself earned. Subsequently the husband procured a divorce from the wife and refused to deliver the property to her. Held, that, in a suit in equity brought by the wife to gain possession of the property, a finding that the property was hers, apart from her husband, would be warranted.</p> <p>The Superior Court has no jurisdiction to entertain, in a divorce proceeding in which a husband is seeking a divorce on the ground of the wife’s adultery, a petition by the wife seeking to compel the husband to deliver to her personal property which she alleges to be hers, but which he refuses to deliver to her and prevents her from reaching by process of replevin or other process of law.</p> <p>The jurisdiction in equity in matters connected with libels for divorce when the course of proceeding is not specially prescribed, granted to the Superior Court by R. L. c. 152, § 29, includes only such controversies as are a part of, or incidental to, suits for divorce, and does not include a controversy between the libellant and the libellee in a divorce libel, involving the question as to which of them is entitled to certain personal property purchased by the wife in her own name with the knowledge and consent of her husband, used by them in their home and paid for from money of both of them, the dispute being one which has no direct connection with the proceedings for divorce nor with conditions resulting therefrom.</p> <p>R. L. c. 152, § 23, which, although it gives to the Superior Court power, when a divorce has been granted to a husband on the ground of his wife’s adultery, to make a provision from her sole and separate property for the maintenance of children in the custody of the husband and secures to her the remainder of her separate property, does not give the court jurisdiction to entertain a petition by the wife to compel the husband to deliver to her property which she alleges is hers but whicli he refuses to deliver to her.</p> <p>In divorce proceedings in which a husband sought a divorce on the ground of adultery of his wife, the wife filed a petition seeking to compel the husband to deliver to her certain personal property, alleging that the property was hers, that he refused to deliver it to her and that she could not reach it by a process of replevin or other process of law. There was a joinder of issue and, after the husband had been granted a divorce, there was a reference to a master who found that the property was the wife’s and that the husband should deliver it to her, and a decree of the Superior Court was made to that effect. On appeal by the respondent, it was held, that the decree should be reversed because the Superior Court in the divorce proceedings had no jurisdiction of the matter, but that the case should be remitted to the Superior Court to give the petitioner an opportunity to amend the petition into a bill in equity under R. L. c. 159, § 6.</p>

<p>Contract, Validity, Performance and breach, Waiver of condition. Waiver. Negligence. Telegraph. Damages, For failure to transmit telegraph message. Statute.</p> <p>A condition, imposed by a telegraph company and made a part of its contract with the sender of a message, that the company shall “ not be liable in any case ” for mistakes in the transmission or delivery or for non-delivery of the message “ where the claim is not presented in writing within sixty days after the filing of the message,” is reasonable and valid.</p> <p>In an action of contract or tort against a telegraph company for failure to deliver a message filed with It by the plaintiff in Boston on January 9 for delivery in Australia, it appeared that the defendant received the message subject to the condition, which was a part of its contract with the plaintiff, that it would not be liable upon any claim for damages resulting from non-delivery of the message “ where the claim ” was “ not presented in writing within sixty days after the filing of the message”; that the plaintiff first learned of the non-delivery of the message on February 23 and immediately interviewed the defendant’s general manager, seeking an explanation, and he wrote to the plaintiff the next day stating that he liad instituted an investigation and that a full report would he “ delayed some weeks.” Ten days later a representative of the defendant tendered to the plaintiff the amount of tolls he had paid for the message and the tender was refused. On April 4 the defendant wrote the plaintiff a letter stating that “ the full extent of ” its liability was the tolls which the plaintiff had paid. Thereafter, for the first time, the plaintiff consulted counsel who sent to the defendant on April 12 a written claim for damages, to which the defendant replied on May 14, saying that it had never received any claim from the plaintiff but had received an oral complaint, and renewed the offer to return the tolls. On June 1, the defendant wrote the plaintiff’s counsel stating that the.plaintiff had no legal or equitable claim against the defendant beyond the amount of the tolls. Held, that there was evidence for the jury on the question whether the defendant had waived its right to rely on the condition in the contract limiting the time within which the plaintiff’s claim should be presented in writing, as well as its right to rely on the provision to the same effect in R. L. c. 122, § 11, the provision in the statute being one which the defendant might waive since it was inserted solely for the benefit of telegraph companies.</p> <p>Where a telegraph company, for an additional charge equal to one quarter of its regular rate, gives to a person desiring to send a message an opportunity of insuring correct transmission by having the message repeated, a limitation of liability for non-delivery of, or mistakes in the transmission or delivery of, the message, imposed by it as a condition upon which it will accept an unrej jated message and made a part of its contract with the sender of 3'Qe’n message, is reasonable " áñcf precludes the sender from recovering damages for such non-delivery or mistakes occurring by reason of negligence of the company which does not amount to wilful misconduct or gross negligence.</p> <p>Whether anything less than a reckless and wanton disregard of known duties could he considered as amounting to the gross negligence which, on the part of a telegraph company, would render ineffectual a reasonable condition contained in its contract with the sender providing for a limitation of the liability for failure to transmit a message, quaere.</p> <p>Evidence tending to show that a telegraph company, with whom was filed in Boston a message in cipher to be delivered in Australia, the company previously having been informed that the sender, a regular customer, was a wool merchant and was likely to suffer financial loss if his messages were not delivered properly, and the sender stating to the company’s agent that the message in question was “ very important and must be transmitted correctly,” did not transmit the message beyond New York, is not sufficient to prove the gross negligence on the part of the company which is necessary to make ineffectual a valid limitation of its liability for non-delivery, which was made a part of its contract with the sender.</p> <p>In an action of contract or tort against a telegraph company for failure to transmit a message delivered to it for transmission by the plaintiff under a contract limiting the liability of the defendant for errors in transmission or non-delivery of such a message, the defendant by the provisions of R. L. c. 122, § 11, is deprived of the defence of such limitation as to damages not exceeding $100.</p> <p>The provisions of R. L. c. 122, § 11, with regard to the liability of a telegraph company for damages not exceeding one hundred dollars resulting from its negligence in the transmission of a message notwithstanding a limitation of liability in its contract with the sender, do not change the rule of the common law for ' estimating such damages, that, where there is nothing in the transaction with the sender to bring home to the company knowledge or information as to any particular damage which will be likely to result from a mistake in transmission of the message, the damages that can be recovered are only the expense of sending it.</p> <p>At the trial of an action of contract or tort against a telegraph company for failure to transmit a message filed with it by the plaintiff in Boston for transmission to Australia, there was evidence tending to show that, at different times before the filing of the message by the plaintiff, he had informed the defendant that he was a wool merchant and that mistakes and delays in sending his messages would cause him financial loss. It further appeared that the defendant would insure correct delivery of any message by repeating the message on payment of an extra charge of one quarter of the original charge, that the message in question was an unrepeated message and was in cipher and that, at the time it was delivered to the defendant’s agent, he was “ cautioned ” by the plaintiff “ that it was very important and must be transmitted correctly.” It was admitted that the message never was transmitted. Held, that there was nothing to show that the probability of special damages to the plaintiff as a result of a failure to transmit the message was within the contemplation of the parties when the message was received by the defendant for transmission, and that therefore the plaintiff was limited in his recovery to his expense in sending the message.</p>

<p>Practice, Civil, Appeal. Superior Court. Insolvent Estates of Deceased Persons.</p> <p>Since terms of court were abolished by St. 1885, c. 384, the first Monday in every month is the day for the entry of appeals in the Superior Court and the Supreme Judicial Court.</p> <p>The provision of R. L. c. 142, § 12, that an appeal to the Superior Court or the Supreme Judicial Court by a creditor of an insolvent estate of a deceased person from a decision of commissioners reported to the Probate Court disallowing a claim in whole or in part shall be entered on the first Monday of the calendar month next succeeding the expiration of thirty days after the return of the eom- , missioners, is complied with by an entry of the appeal, after giving the required notice, before the day designated by the statute, such premature entry when otherwise complete being treated as taking effect on the designated day.</p> <p>When an appeal to the Superior Court by a creditor of an insolvent estate of a deceased person from a decision of commissioners reported to the Probate Court has been entered on the day designated by the statute after giving the required notice, if upon the entry of his appeal the creditor failed to file a statement in writing of his claim as required by R. L. c. 142, § 13, a judge of the Superior Court may permit him to file the statement at any time afterwards.</p>

<p>Insurance. Insolvency. Corporation. Words, “Netassets,” “Claims for losses.”</p> <p>Upon an information by the insurance commissioner under R. L. c. 118, § 7, against a domestic insurance company praying for the appointment of a receiver to take possession of the property of the company and to settle its affairs, where it appears that at the date of the filing of the information the assets of the company exceeded its liabilities by about $40,000 if claims of $300,000 against the company were disregarded, and that these claims were based upon the alleged invalidity of a settlement which the company regarded as final but which was disputed by the policy holders with whom it was made, a master is not justified in finding that the defendant is solvent, a company with outstanding disputed claims exceeding its assets being insolvent as matter of law for the purpose of proceedings under the statute, according to the rule prescribed by R. L. c. 118, § 1, (re-enacted in St. 1907, c. 576, § 1,) requiring the "net assets” of an insurance company to be ascertained after deducting all “ claims for losses.”</p> <p>Under R. L. c. 118, § 7, which provides that if the insurance commissioner, upon examination, is of opinion that any domestic insurance company is insolvent, or that its condition is such as to render its further proceedings hazardous to the public or to its policy holders, he shall apply to the Supreme Judicial Court for an injunction restraining it in whole or in part from “ further proceeding with its business,” if it appears upon an information filed by the insurance commissioner that the defendant is insolvent for the purpose of this proceeding, having outstanding against it disputed claims exceeding its assets, and if the defendant consents to the issuing of an injunction against its writing new policies, a master is not justified in finding that the defendant’s condition is not such as to render its further proceedings for the purpose of winding up its aSairs hazardous to the policy holders, because the immediate settlement in full of the claims of some of the policy holders would be hazardous to the others, and the payment of losses constitutes an important part of the insurance business; and an absolute injunction should issue.</p>

<p>Commonwealth. Auditor. Superior Court. Statute. Words, “Hearing,” “In open court.”</p> <p>Under R. L. c. 201, as amended by St. 1905, c. 370, giving the Superior Court “ jurisdiction of all claims at law or in equity against the Commonwealth,” which provides that such cases “ shall be tried by the court without a jury and, if the amount claimed is more than $2,000, by three justices of said court,” and that “all hearings shall be in open court,” there is no authority to appoint an auditor.</p>

<p>Tort or contract, witli a declaration as stated below. Writ dated January 3, 1907.</p> <p>The plaintiff’s amended declaration alleged</p> <p>That the defendant made with the plaintiff a contract in writing as follows:</p> <p>“ April 14,1902.</p> <p>“In consideration of Twenty-five Dollars ($25.00), the receipt of which I hereby acknowledge, I hereby agree to sell to Seth T. Thatcher for the sum of Ten Thousand Dollars ($10,000), the estate on the westerly side of Cabot street, situated between Federal and Pond streets.</p> <p>“ This agreement to be null and void on or after January 1, 1903.</p> <p>“Mrs. Elizabeth D. Weston.”</p> <p>That on or before the thirty-first day of December, 1902, and within the time allowed by the terms of the contract, the plaintiff exercised his rights thereunder to purchase the property, and in accordance therewith the defendant conveyed to the appointee of the plaintiff the above described property for the consideration of the sum and payment of $10,000, and has done all things which were to be done to complete the transaction. That by the implied conditions and terms of the contract the defendant agreed and covenanted with the plaintiff that she would always hold herself in readiness to perform the contract and convey the property when called upon to do so and when tendered the purchase price by the plaintiff, and that she would refrain from the commission of any act which would prejudice or defeat the plaintiff in any way, or deprive him of the full benefit and enjoyment of his rights thereunder. That in pursuance of and in the exercise of the legal rights which the plaintiff acquired by virtue of the contract, the plaintiff advertised extensively and at great expense in the Beverly Evening Times the property for sale by auction on the twenty-ninth day of December, 1902, it being two days before the contract became void by its terms.</p> <p>That, being charged with full knowledge of the legal rights which the plaintiff acquired under the contract and that the plaintiff purposed and intended to sell the property and for a profit, the defendant, in violation of the conditions and duties which the defendant owed to the plaintiff, committed the following acts in breach of said contract, viz.:</p> <p>On the twenty-ninth day of December, 1902, when large numbers of people were present at the auction sale as appointed, in response to the plaintiff’s advertisements, and as a result of his efforts, one Boyden, acting as agent and attorney and under the authority of the defendant Weston, being present, called the attendants together and read to them, in their hearing, a certain document, and made a certain declaration to them, a copy of which is as follows:</p> <p>“In connection with the proposed sale of the Weston Real Estate, on the westerly side of Cabot street, Beverly, numbered 260-264,1 wish to say on behalf of Mrs. Elizabeth Weston that she did not authorize the statement made a little while ago in the Beverly Times that this property had changed hands; that such a statement was in fact false; that she has not authorized the recent advertisements announcing the auction sale of that property, and does not now consent to the sale ; that she has been and is to-day the sole owner of the real estate advertised to be sold.</p> <p>“ Further, upon a Bill of Complaint filed to-day by Mrs. Weston, an Order of Notice was granted this morning by Judge Wait of the Superior Court summoning S. Tracy Thacher before his Court tomorrow, at four o’clock, to show why an injunction should not be issued by that Court forbidding such a sale as this; that due service of this Order of Notice has been made on Mr. Thaeher, and both he and any intending purchaser are hereby notified of Mrs. Weston’s Bill of Complaint asking an injunction, and the Order of Notice issued on the same.</p> <p>“So far as Mrs. Weston is aware, the only claim of interest in this property by Mr. Thaeher, or any one except herself, is a document by which Mr. Thaeher may claim to hold an option of purchase. This document was drawn up wholly by Mrs. Weston, who has had no legal education or training, and is ignorant of the technical details necessary to make an agreement for the sale of land valid and binding. Mrs. Weston does not admit that this agreement is legally binding, and in this connection states that Mr. Thaeher has persistently refused to allow her, by her agent, to examine the copy which is in his possession, and is the only copy.</p> <p>“Mrs. Weston hereby announces that she reserves all her rights of any sort in connection with this property; that she will not convey the same unless legally bound to do so, and that any purchaser here buys at his peril, with due notice of the facts stated.”</p> <p>That Boyden, acting as agent and attorney of the defendant, expelled the attendants at the auction sale from the sidewalk in front of the premises, and pursuant to his demands the auction sale was held across the street.</p> <p>And the plaintiff further says that there were a large number of people present at the auction sale who were prepared to bid on the property and to buy it for a large sum of money, and were prepared to bid on the property and to buy it for a much larger sum of money than the amount of the purchase price as stated in the contract, and for a much larger price than the actual amount of the selling price. That in order to protect the plaintiff from a loss the property was bid in at the request of the plaintiff for the sum of $11,800, the property being sold therefor, at a large sacrifice, for several thousand dollars less than its actual worth and value, and for much less than it would have sold for had it not been for the acts of the defendant. That because of these acts contrary to the implied terms and conditions of the contract, the plaintiff’s benefits and profits were greatly injured, reduced and diminished to the value of several thousand dollars.</p> <p>The defendant demurred to the declaration, and as causes of demurrer alleged the following:</p> <p>1. It does not appear in the declaration that the plaintiff had any right in the premises which was infringed.</p> <p>2. It does not appear in the declaration that the plaintiff had any title to or ownership in the property therein described, of which he held himself to be owner, and which he advertised for sale as therein described, and he was therefore not injured by the alleged inadequacy of price at said sale.</p> <p>3. No contract on the part of the defendant can be implied from the contract set out and the attending circumstances, which would obligate the defendant not to take the action described in the declaration.</p> <p>4. It does not appear by the declaration that the plaintiff was damaged in his rights under the contract.</p> <p>5. The declaration states no legal cause of action.</p> <p>In the Superior Court the case was heard by Schofield, J., who sustained the demurrer on each of the grounds alleged by the defendant, and ordered that, unless the plaintiff should amend his declaration further before a certain day, judgment should be entered for the defendant. Judgment was so entered, and the plaintiff appealed.</p>

Tort for personal injuries incurred by the plaintiff while working in the quarry of the defendant as described in the opinion. Writ dated September 16, 1904. In the Superior Court Fox, J., ordered a verdict for the defendant ; and the plaintiff alleged exceptions.

<p>Bill in equity for specific performance of an agreement in •writing to convey real estate, filed in the Superior Court for the county of Suffolk, August 12, 1908.</p> <p>The history of the case is stated in the opinion. Fessenden, J., who presided at the various hearings, stated, as the ground for refusing specific performance of the agreement, that the defendants had conveyed to a bona fide purchaser. The finding of the master, referred to in the third paragraph of the opinion, was made under the following circumstances : He had found that the difference between the market value of the property at the time when the defendants should have conveyed and the sum which the plaintiffs had agreed to pay for it was $1,000, “ so that there is an apparent damage to the plaintiffs ... of $1,000; but,” he added, “from this there is to be deducted $150,” and, continuing with an explanation of why such sum should be deducted, he stated that, “under the terms of the agreement” sued on, “the plaintiffs were to hold $350 of the purchase money ‘to secure a right of way and certain other privileges from Michael Heffernan.’ The plaintiffs- ascertained that this ‘right of way and certain other privileges ’ referred to could not be purchased for $350-, whereupon they agreed and it w;as understood between the plaintiffs and the defendants Heffernan that whatever the plaintiffs should be called upon to pay for this right of way and other privileges should not be charged against the Heffernans at more than the $350 reserved by the terms of the agreement, and I find that they could not purchase the said ‘ right of way and certain other privileges ’ for $350 but could purchase the same for $500, an increased expense of $150, and it is conceded by the plaintiffs, and I find, that there should be deducted from the $1,000 above found as damages, this sum of $150, leaving the actual damage to the complainants $850; and I find that the plaintiffs are entitled to recover of the defendants the sum of $850 as damages, and the further sum of $100, the amount deposited by them with the defendants at the time of the signing of said agreement.”</p>

<p> Partition. </p> <p>At the trial of a petition for partition of real estate alleged to he held in common by the petitioner and the respondent, it appeared that, after the death of a former owner of the property, an assignment of dower was made to his widow of the lower part of a dwelling house upon the property, and that subsequently, under proper license, the administrator of the estate of the former owner sold and conveyed the property to the respondent’s predecessor in title, “ saving and reserving that part ... set oil to” the widow. Later the widow died and the heirs of the former owner conveyed to the petitioner’s predecessor in title all the “ right, title, interest and estate . . . which was set off to ” the widow. Before this petition was filed, the house had been removed. The petitioner contended that the land was assigned to the widow as dower, and that, not having been conveyed by the deed of the administrator, it had come to him by deed of the heirs on the termination of the dower estate, while the respondent contended that only an easement in the land had been assigned, and that the land had come to him by the administrator’s deed. Held, that the petition must be dismissed since, upon either contention, the estate was owned in severalty and not in common.</p>

<p>Contract upon two promissory notes. Writ in the Superior Court for the county of Norfolk dated March 8, 1906.</p> <p>An answer was filed containing a general denial, a denial of the genuineness of the signatures on the notes, and an allegation of payment. On the day of the trial the defendant, with the consent of the plaintiff, was allowed to file the following amendment to her answer: “ The defendant further answering says that the plaintiff’s intestate obtained the defendant’s signature to the notes declared upon in this action by deception and fraud, to wit: —by the false and fraudulent representations of the plaintiff’s intestate.”</p> <p>At the trial, which was before Hardy, J., it appeared that one of the notes was given in part settlement of the accounts between the plaintiff’s testator and the estate of Samuel G. Low, his father, and the defendant asked a witness for the plaintiff, “ Is n’t it true that Mr. Low represented and stated to Julia Low that the accounts as stated there were true, .and were all the accounts-and all the funds of the estates in order to induce her to sign this note.” The question was excluded by the presiding judge “under the form of pleadings,” and the defendant excepted. No further contention being made by the defendant, a verdict was directed for the plaintiff,</p>

<p>Negligence, In use of platform of railroad station. Carrier, Of passengers.</p> <p>At the trial of an action of tort against an express company to recover for personal injuries which the plaintiff received by being run into by a hand truck of the defendant as he was about to take a train in a railroad station, there was evidence warranting the jury in finding that the plaintiff intended to get upon the smoking car which he expected to find at the front of the train. There were thirteen cars on the train, and the smoking car was the fifth car from the rear and the eighth from the front of the train, but he passed it by without seeing it and went forward on the station platform, also passing some day coaches and Pullman and private cars, until he came to a series of baggage and express cars, when, without looking behind and without stepping out of his direct course, he leaned to the right to see where the smoking car was, and was run into from behind by the truck. The plaintiff testified that he knew “ that the smoking car is never ahead of the baggage cars,” that he knew that some of the cars had signs hung on them, and that he saw a number of trucks about which were' being unloaded on to the train. Held, that there was evidence warranting the jury in finding that the plaintiff was where he had a right to be, that he was in the exercise of due care, and that he was injured by negligence of the defendant’s employees; also that he was not as matter of law guilty of contributory negligence in not looking behind before he leaned over to look forward.</p> <p>Whether or not one, who is intending to take a train in a railroad station, is in the exercise of due care in the use of the platform between the trains, and is, in his relation to an express company using hand trucks on the same platform, within his rights as an invited person, or is a trespasser or a mere licensee, depends upon what use of the premises is reasonably necessary under the circumstances as they appear to him at the time, not under the circumstances as they are in fact.</p> <p>No exception lies to the refusal of the judge presiding at the trial of an action of tort against an express company for personal injuries received by the plaintiff by reason of his being run into by a hand truck of the defendant on the platform of a railroad station as he was about to take a train, to rule that “ there was obvious danger in the vicinity of the express and baggage ears by reason of the number of employees and trucks moving in both directions and handling baggage at a time shortly before the train was scheduled to start,” that being one of the matters for the jury to consider in passing upon the question whether the plaintiff was negligent.</p>

Contract upon an account annexed. Writ in the Municipal Court for the City of Boston dated April 12, 1906. There was a declaration in set-off, also upon an account annexed. On appeal to the Superior Court, there was a trial before Hardy, J., whose ruling with regard to the question asked in cross-examination of the plaintiff by the defendant was as follows : “ Statements made by a witness subsequent to a bringing of a suit are not competent, are they ? . . .

<p>Unnatural and Lascivious Act. Words, “ Copulation.”</p> <p>A person who commits any unnatural and lascivious act with another person can be convicted under R. L. c. 212, § 27. Copulation is the natural act of coition and is not within the statute, the word being used inaccurately in the opinion in Commonwealth v. Dill, 160 Mass. 536, 537.</p>

<p>Insurance, Against liability.</p> <p>By a policy of insurance against liability for accidents, the insurer agreed that the insured was to be reimbursed for sums paid by him not exceeding $5,000 on judgments recovered after a trial founded on an accident described in the policy. An action was brought against the insured for injuries from an accident covered by the policy. The insurer defended the action under a provision in the policy that it should do so “at its own cost” and “in the name and on behalf of the insured.” The plaintiff in the action obtained a judgment for $5,000, and, against the remonstance of the insured, the insurer alleged exceptions which were overruled by this court, the necessary delay causing an increase in the interest on the amount of the verdict. Final judgment was entered for $5,420, made up of $5,000 for the amount of the verdict, $90 for taxable costs and $830 for interest on the amount of the verdict. The insurer paid $5,090, including the amount of the verdict and the taxable costs, but refused to pay the $330 for interest included in the judgment. Execution for this last named amount issued against the insured, who paid it, and sued the insurer for reimbursement under his policy. Held, that the plaintiff could not recover, the defendant having discharged fully its obligations under the policy; that the provision in the policy that the insurer should defend such an action against the insured “ at its own cost ” was not intended to extend the limit of its liability, and that the provision that the defence should be “in the name and behalf of the insured” did not mean that the insurer should regard the interest of the insured to the prejudice of its own interest if there was a conflict between them, such as occurred on the question of carrying the case to this court on exceptions; that the fact that the defendant had paid the amount of the taxable costs included in the judgment was immaterial and it was not necessary to consider whether the defendant was bound to pay these costs or not; that under the policy the limit of the defendant’s obligation was a judgment not exceeding $5,000 and the fact that the amount of the judgment in excess of that sum was made up of interest was immaterial.</p>

<p>Tort for personal injuries from being knocked down by a car of the defendant going “very fast,” “much faster than usual ” or “ twenty-five miles an hour ” while the plaintiff, following a path which led to the mill where she worked, was attempting to cross the track of the defendant on Bruce Street in Lawrence, at about twenty minutes after six o’clock in the morning of November 28,1904. Writ dated November 30,1904.</p> <p>At the trial in the Superior Court before Bell, J., the facts appeared which are stated in the opinion. At the close of the evidence the judge ruled that, while the evidence as to the negligence of the defendant was conflicting, there was not sufficient evidence of due care on the part of the plaintiff to warrant a submission of tbe case to the jury. He ordered a verdict for the • defendant; and the plaintiff alleged exceptions.</p>

<p> Negligence. Street Railway. Carrier. </p> <p>It is no evidence of negligence on the part of the conductor of a street car that under circumstances in no way unusual he gave the signal to start the car after a healthy and unincumbered woman passenger had got fully and fairly upon the car and was proceeding to walk to a seat.</p>

<p>Limitations, Statute of. Statute. Municipal Corporations. Constitutional Law: Words, “For,” “Injury to the person.”</p> <p>The provision of St. 1902, c. 406, that “actions of tort for injuries to the person against counties, cities and towns, shall be commenced within two years next’ after the cause of action accrues, is not restricted to actions for injuries to the person of the plaintiff, and includes an action at common law brought by a husband against a city for the loss of the services and society of his wife and the expenses for medical attendance resulting from injuries to her person caused by the negligence of employees of the water department of the defendant.</p> <p>It is a general rule in the construction of statutes that they are intended to operate prospectively and not retroactively, and therefore that in the absence of an express provision to that effect they do not relate back so as to affect existing rights of property, but, in the prospective operation of a statute dealing only with remedies and the enforcement of rights, the future procedure under the new legislation is as applicable to previously existing substantive rights as to those afterwards acquired.</p> <p>Statutes of limitation, where they contain no language clearly limiting their application to causes of action arising in the future, are construed to apply as well to causes of action which already have accrued as to those which may accrue afterwards, if sufficient time has been allowed between the passing of the act and the time fixed for the new limitation to take effect to afford full opportunity for all persons having such causes of action to bring their suits.</p> <p>St. 1902, c. 406, provides that “ actions of tort for injuries to the person against counties, cities and towns, shall be commenced within two years next after the cause of action accrues.” Under statutes previously in force such actions were barred only by the lapse of six years, and this statute took effect under the general law thirty days after its passage. Held, that, assuming that rights of action against counties, cities and towns for injuries to the person which had accrued at the time of the passage of the act were sufficiently rights of property to be entitled to protection under some of the provisions of the Declaration of Rights, the statute is not made unconstitutional by construing it to apply to such pending actions, because thirty days is not such an unreasonably short time for the bringing of suits in this Commonwealth on existing rights of action that the Legislature cannot prescribe that limit constitutionally.</p>

<p>Tort for a libel alleged to have been printed concerning the plaintiff by the defendant in a newspaper called the Boston Sunday Post. Writ in the Superior Court for the county of Essex, dated September 2, 1904.</p> <p>The material allegations of the first count of the declaration were that the plaintiff was the postmaster of Salem, and was “ the person referred to in the herein alleged libel as postmaster, W. H. Merrill, and Harvey Merrill, and brother of Sophie Merrill ”; that “ the matter hereinafter charged to be libellous was published by said defendant of and concerning the plaintiff, in conjunction with his sister also mentioned in said libellous publication.” The publication complained of was annexed to the first count and referred to therein as “ Exhibit A.” • Its first sentences were: “ Blood relatives and co-heirs, living together in the house jointly owned for over twenty years, and not having spoken to each other for over ten long years, is the strange story of Salem’s divided house, of which Miss Sophie Merrill, now out on bail in connection with thefts from the Salem post-office, is a member.</p> <p>“ She and her father, William H. Merrill, occupying and own-big half of the house 12 Liberty Street, and her cousin, John Barker, occupying and owning the other half, have lived under the same roof, used the same entrances and the same yard, have passed each other in the entries of the house day in and day out, and have never exchanged even a syllable in all that long ten years.”</p> <p>Then followed an account of how the plaintiff’s father and mother and sister Sophie came to own and occupy one half of the house, and John Barker and his mother came to own and occupy the other half, it being stated that they were all descendants of one Jonathan Merrill, and that, for a time after his death, the Barkers lived in New Hampshire, at which time “ Harvey Merrill, the present postmaster, and his sister Sophie, now a recluse, under the cloud of shame and disgrace, often visited their boy cousins on the New Hampshire farm, and fruits and vegetables were often shipped by the Barker boys to their Salem cousins ”; that, after the death of John Barker’s father, he and his mother moved to Salem and occupied the other side of the house from that occupied by the father, mother and sister of the plaintiff, that, while Mrs. Merrill and Mrs. Barker lived, “ everything was pleasant.” “ Both, however, died, and but a short time after the death of Mrs. Barker there began the ten years’ silence that up to the present time has never been broken, not even at the time of the latest family trouble, the sensational arrest last winter of Miss Sophie Merrill, the postmaster’s little old maid sister, for stealing letters.” . . . “Neither of the Barker brothers ever spoke or had anything at all to do with Sophie Merrill or her father, but were and are, nevertheless, on good terms with Postmaster Harvey Merrill and all his family, who live in South Salem.”</p> <p>There then followed an account of events with regard to some property in East Boston, owned jointly, as was the Salem house, by the Merrills and the Barkers, “ which, after the arrest of Miss Merrill, it was discovered had passed out of their [the Barkers’] hands unknowingly.” “After the death of Mrs. Barker it is claimed that Miss Merrill collected the rents, and that the Barker brothers were given to understand, from time to time, that the house was untenanted, that they received but a trivial amount of money after their mother’s death as their share of the income. After Miss Merrill’s arrest — in anticipation of a need for money — her brother is said to have proposed to his cousins selling the property in East Boston. They agreed, and then it was suddenly discovered that the house which they still supposed was theirs, had gone into other hands, having been sold for taxes, which they supposed had been paid all along. . . . The discovery of the passing of this property, and the subsequent discovery which it is elaimed they made that the property had not been untenanted for many years, is further said to have added intensity to the feud of this divided house. Ever since Miss Merrill, to the great surprise of all who knew her, was arrested, charged with the theft of mail matter from the post-office, of which her brother is the official head, many sensational stories have been afloat. . . . Since the arrest, and her subsequent self-imposed imprisonment in her home, which she has never left since the day of her arrest, some of those who comprised the small circle of this reticent little woman’s friends have deserted her in her hour of trouble and misfortune. The veil of mystery seems to surround the strange ease of Sophie Merrill, who, on an income of $900 a year, was, it is alleged, forced to steal in order to live. It has been predicted, hundreds of times, that Sophie Merrill, the little maiden woman, with worn face and large sympathetic eyes, who dressed shabbily, rather than as if she earned a good salary, would never be tried. Such a thing would surprise no one and would relieve many; for, while there are always people to raise an argument on both sides, and while she herself is little ■known, Postmaster Merrill’s friends are legion, and there is great sympathy for him, in view of what was to him a great and unexpected blow. After his sister’s arrest he or his wife, to whom the property belonged, sold five houses in South Salem at a sacrifice, for the same reason, it is said, that he desired to turn the East Boston house into cash. For a long time after his sister’s arrest Mr. Merrill called every day to see her, and, although John Barker, in passing in and out of his own half of the house, never spoke to the woman, whom he blames for the present curious condition of tenants who are living together as enemies, and have been for ten years, he always spoke to his cousin, the postmaster, in whose trouble he sympathized. At present this ‘ divided ’ house is indeed a veritable house of trouble. Even Postmaster Merrill, a man with a sunny disposition and an unusual number of friends, has enemies. He has lost a fortune in his lifetime, and is said to be heavily burdened with debt, besides which he is heavily weighed down by the crushing calamity that has fallen upon him. As for his sister, there is a wide diversity of sentiment regarding her unfortunate situation. Some look upon her as a woman who is mentally upset and thus did not realize what she was doing. Some do not hesitate to call her a ‘ martyr,’ a woman who placed herself in a compromising position in order that she might help.others, and there are always some who completely overlook the sentimental or the sympathetic side, and see only the naked facts. . . . How all this will end — the real story as to whether Sophie Merrill had or had not a clear and definite motive when she took the letters she did in the Salem post-office — is as much the mystery of Salem’s queer ‘ divided ’ house as the origin of that strange feud which for years has existed, all unsuspected, under the roof tree of one of the city’s most interesting houses.”</p> <p>The allegations in the second count were that the defendant published an article containing the statements set forth in the opinion, “contriving and maliciously designing to injure the plaintiff in his office as postmaster aforesaid and to disqualify him for and to imply misconduct by him in his office.”</p> <p>The third count alleged that the defendant caused to be published “ a false and malicious libel concerning the plaintiff in the following words, to wit: ‘ her gray-haired brother’ (meaning the plaintiff), the ‘ postmaster ’ (meaning the plaintiff), ‘ who ’ (meaning the plaintiff) ‘ used to be noted for his happy genial smile, his debonair little air, but who ’ (meaning the plaintiff) ‘ is now ill with disease ’ (meaning the infectious disorder and meaning the plaintiff) ‘and worn with care ’ (meaning the plaintiff).</p> <p>The defendant demurred to the declaration and the demurrer was sustained by Fox, J. Judgment was entered for the defendant, and the plaintiff appealed.</p>

<p>Quo Warranto. Corporation, Ultra vires acts. Attorney General. Equity Jurisdiction, To restrain corporations from transacting unauthorized business. Statute. Supreme Judicial Court. Railroad Commissioners. Railroad.</p> <p>It seems that, before the enactment of St. 1906, c. 372, giving to the Supreme Judicial Court jurisdiction, upon an information in equity in the name of the Attorney General at the relation of the commissioner of corporations, among other things to restrain any domestic corporation from assuming or exercising any franchise or privilege or transacting any kind of business not authorized by its charter, the Attorney General on his own initiative, by qüo warranto proceedings or by an information in equity in the nature of quo warranto, might have procured a judgment or decree ousting a domestic corporation from exercising powers or franchises without right, although the unauthorized acts of the corporation did not warrant, and he did not seek, a forfeiture of the charter of the corporation.</p> <p>A remedy by quo warranto will not be given where any other adequate relief is available.</p> <p>St. 1906, c. 372, giving to the Supreme Judicial Court jurisdiction, upon an information in equity in the name of the Attorney General at the relation of the commissioner of corporations, among other things to restrain any domestic corporation from assuming or exercising any franchise or privilege or transacting any kind of business not authorized by its charter, expressly covers all eases in which such assumption, exercise or transaction is not of so grave a character as, in the opinion of the Attorney General, to call for a forfeiture of the charter of the corporation ; and therefore, since adequate relief is given thereby, quo warranto cannot be maintained in such a case.</p> <p>St. 1906, c. 463, Part I. § 8, providing that if a railroad corporation or street rail- ■ way company, in the opinion of the board of railroad commissioners, has violated a law or neglects to comply with the terms of a statute, and continues to do so after notice from them, they shall present the facts to the Attorney General for ' his action, does not limit the authority of the Attorney General to bring independently proper proceedings to restrain unauthorized or illegal acts of such a corporation in any case where the interests of the public seem to him to require that he should do so.</p>

<p>Complaint, taken and sworn to in the Municipal Court of the City of Boston December 29, 1905, for obstructing Adams Square, a highway in Boston.</p> <p>On appeal to the Superior Court, the case was tried on agreed facts before Brown, J., upon whose refusal to direct a verdict of not guilty, the defendant submitted to a verdict of guilty, and the presiding judge reported the case for determination by this court.</p>

<p>Evidence, Likely to distract attention of jury, Relevancy and materiality, Presumptions and burden of proof, Of ownership. Agency, Scope of authority. Practice, Civil, Conduct of trial, Exceptions. Replevin. Estoppel.</p> <p>At the trial of an action of replevin for certain machines, it appeared that the machines were protected by letters patent, that they had been in the possession of one to whom the plaintiff had conveyed them under leases which recited that they were patented, and one of the terms of which was that the lessee should not transfer possession of the machines without the consent of the plaintiff. There had been a fire in the factory of the lessee and the machines had been damaged. The defendant contended and introduced evidence tending to show that there had been negotiations between the plaintiff and the lessee authorizing the lessee to sell the machines as junk, and that under that authority they had been sold to one who sold them to the defendant. The plaintiff introduced evidence tending to contradict that of the defendant, and offered the letters patent, thirty-eight in number, as evidence affecting the probability of his consenting to have the machines sold as j unk. Both parties throughout the trial assumed that the machines were patented and referred to the fact in their arguments. The letters patent were long, complicated and elaborate, included drawings and specifications, and were full of technical terms, and the presiding judge excluded them on the ground that they might mislead the jury more than they would aid them. Held, that, even if the evidence offered was competent, the plaintiff was not harmed by its exclusion, and that the ruling of the judge was warranted for the reason which he gave.</p> <p>At the trial of an action of replevin for certain machines, a question at issue was whether the plaintiff had given to one to whom he had leased the machines authority, after a fire in the lessee’s factory in which the machines were damaged, to sell them as junk, and there was evidence, introduced by the defendant but controverted by the plaintiff, tending to show that the lessee had a conversation with one W., in which he was told that, if one S., after examination of the machines on behalf of the plaintiff, told the lessee that they were worthless, the lessee might sell them as junk. The plaintiff was a corporation and W. was its assistant general manager. There was evidence that his “ duties were not prescribed,” but'were “looking after the general management of the business,” and there was testimony of W. and admissions of the plaintiff tending to show that he had authority from the plaintiff to do whatever he did in the transaction with the lessee. The defendant, after introducing evidence of S.’s examining the machines, was then allowed, subject to exception by the plaintiff, to show that S. said to the lessee that he. did not think that the machines were of any value, the presiding judge admitting the testimony “ only so far as it was within the scope of the authority given by W.” Held, that there was evidence that W. had authority to delegate authority to S., that he had done so, and that S. had acted within the authority thus delegated to him; and, therefore, that the evidence objected to was admissible.</p> <p>Where a plaintiff excepted to the admission of evidence at a trial, and, in his ruling admitting it, the presiding judge stated that it was a part of the history of the transaction between the parties and might be dealt with later in the trial by striking it out or by giving instructions with regard to it, and later in the trial a witness for the plaintiff in direct examination gave evidence of the same kind and was cross-examined fully upon the subject, and no motion was made by the plaintiff to strike out the evidence or for instructions regarding it, the exception was overruled.</p> <p>Rulings requested at the trial of a case which were inapplicable because the charge' to the jury removed from their consideration the subject to which the rulings referred were held rightly to have been refused.</p> <p>At the trial of an action of replevin for certain machines, it appeared that the plaintiff formerly had owned the machines and had leased them to one for use in his factory, and that the factory had burned and the machines been damaged. There was evidence tending to show that one háving authority to act for the plaintiff had told the lessee that, if a certain person should say that the machines were worthless, the lessee might sell them as junk, that the person designated did say that the machines were worthless, and that the lessee sold them as junk to one from whom the defendant purchased them in good faith. Held, that there was evidence to warrant a submission of the case to the jury and to warrant them in finding for the defendant.</p> <p>If one stands by and, without disclosing his ownership, allows his property to be sold to an innocent purchaser for value, he is estopped from claiming it afterwards.</p> <p>Where, at the trial of an action of replevin, the plaintiff introduces evidence from which the jury might draw inferences which would warrant them in finding for the plaintiff, but which, without such inferences, would not warrant a finding for the plaintiff, and the defendant introduces no evidence, the presiding judge rightly may refuse to rule that, as a matter of law, the plaintiff is entitled to the property replevied.</p> <p>At the trial of an action of replevin, the plaintiff introduced evidence from which the jury might draw- inferences which would warrant a verdict for the plaintiff. The defendant introduced no evidence. The presiding judge instructed the jury: “ The possession of the property by the defendant and exercising rights of ownership over it is evidence of ownership to consider.” Held, that the instruction was correct.</p>

<p>Bill in equity by amendment from an action at law allowed in the Superior Court for the county of Essex June 6,1906.</p> <p>There was a hearing before Aiken, C. J., who directed a decree dismissing the bill, and the plaintiff appealed. All the evidence was taken by a commissioner and appeared in the record. The facts appear in the opinion.</p>

<p>Petition, filed August 13, 1907, for a writ of mandamus directed to the police commissioner for the city of Boston, ordering him to allow the petitioner to inspect the records filed with the commissioner by pawnbrokers as required by the provisions of St. 1907, c. 211.</p> <p>The answer of the respondent alleged, among other things, that the records sent to him pursuant to St. 1907, c. 211, are not public records, but are confidential records kept for the convenience of the respondent and for the purpose of assisting the police department for the city of Boston in the conduct of its affairs, and in detecting crime and apprehending offenders where crime has been committed, and are not such records as are open to the inspection of the public.</p> <p>The case was heard by Hammond, J., upon the allegations of the petition and of the answer, and no testimony was offered by either party. The respondent waived any and all objections to the form of the proceeding and to the right of the petitioner to bring the petition. The justice ruled that the reports or records described in the petition, furnished to the respondent according to the provisions of St. 1907, c. 211, were not public records, and that upon the allegations of the petition the petitioner was not entitled, as a matter of law, to inspect the records. The justice ordered that the petition be dismissed; and the petitioner alleged exceptions.</p>

<p>Petition, filed in the Land Court on May 29, 1906, by four charitable corporations, for the registration of title to certain parcels of land in Manchester claimed by the petitioners under the will of Samuel Cheever, late of Manchester, the interest of Susan Hannah Cheever, widow of Samuel Cheever, in the land being alleged to have terminated upon her death on March 19, 1905.</p> <p>In the Land Court the case was tried before Davis, J. The material portion of the will of Samuel Cheever is quoted in full in the opinion. It was dated January 30, 1865. The testator then was fifty years of age. He died on July 9, 1892, at the age of seventy-eight years, leaving Susan Hannah Cheever as his widow and no children. The inventory of his estate showed real estate, consisting principally of the lands in question, to the value of $9,007.90 and personal property to the value of $2,883. Susan Hannah Cheever died on March 19,1905, leaving a will which was dated June 9, 1894. After disposing of certain personal effects, the only devises and legacies in her will were as follows:</p> <p>“ The remainder of my estate, both real and personal after payment of my debts and expenses of settling my estate, I desire to devise and. bequeath as follows: The income thereof I give to my brother Daniel W. Friend as long as he lives, and if in his judgment the income is insufficient to supply his needs then he can appropriate to his own use the whole or any part of my real and personal estate thus given as he deems proper and best, authority being hereby given him to sell and convey in his own name my real estate; and if any part of my real or personal estate remains at the decease of . my said brother Daniel W. Friend I give and devise the same to my nieces and nephew above-named (Lucy Ann Lufkin, Alinda F. Currier and Charles A. Staten) and their heirs and assigns forever equally.”</p> <p>Daniel W. Friend died on March 24, 1904, before his sister Susan H. Cheever, and the respondents named in the petition were the nephew and nieces named in the residuary clause of the will of Susan H. Cheever.</p> <p>On the foregoing facts the respondents asked the judge to rule, as matter of law, as follows:</p> <p>“ 1. That by the will of Samuel Cheever, late of Manchester, deceased, under which the several parties to this action claim title, no estate whatever was devised to the Baptist societies named therein, or either of them.</p> <p>“ 2. That by the will of Samuel Cheever, late of Manchester, deceased, under which the several parties to this action claim title, no estate whatever was devised to the petitioners.”</p> <p>The judge refused to rule as requested, and instead thereof ruled, as matter of law, as follows:</p> <p>“1. That under the second clause in the will of the said Samuel Cheever, his widow, Susan H. Cheever, took a life estate, coupled with a power of disposal of the entire estate of the testator in fee as she might think best for her interest and comfort, with remainder as to such of the testator’s estate as should not be so disposed of by said Hannah, to the Baptist societies therein designated.</p> <p>“ 2. That said power of disposal was not exercised by Mrs. Cheever under and by virtue of her will.</p> <p>“3. That title to the premises in question, subject to any existing rights of way therein, is in the petitioners in fee, under the will of said Samuel Cheever.”</p> <p>In accordance with these rulings the judge filed a decision ordering a decree for the petitioners, subject to any existing rights of way.</p> <p>To the refusals to rule and to the rulings made the respondents excepted, and, at the request of both parties, the judge reported the case for determination by this court. If the rulings were right, a final decree is to be entered for the petitioners as ordered; if either of the rulings was wrong, a final decree was to be entered of “Petition dismissed.”</p>

<p>Contract for the alleged breach of the covenants of warranty and quiet enjoyment contained in a deed from the defendant to the plaintiff of a parcel of land in Lawrence with the buildings thereon, dated September 16, 1902, Writ dated November 10, 1904.</p> <p>In the Superior Court the case was tried before Sherman, J. The deed described the land as being on the corner of a certain alleyway and contained the words “together with the right to use said alleyway on the East side of said tract.” These words were written in with a pen, the rest of the deed being typewritten. It appeared in evidence that the deed originally was drawn without these words, and when the deed was about to be delivered, the defendant was asked about the right of way and thereupon had the words inserted in the deed before delivery. The breach of covenant relied upon by the plaintiff was her eviction from the use of the alleyway. There was a two tenement house on the premises fronting on Tremont Street in the rear of and connected with which was a stable. The easterly line of the stable was within about six inches of the westerly line of the alleyway. The only entrance to the stable for horses was by a door which opened on the alleyway side in question. It appeared in evidence that the plaintiff’s husband kept a horse for his own use in the stable.</p> <p>The evidence showed that about a year after the purchase of the premises by the plaintiff, one Bergeron, who was the owner of a lot on the opposite side of the alleyway, attempted to stop the plaintiff from using the alleyway and began an action for trespass against her.</p> <p>This action for trespass first was tried in the Lawrence Police Court, and judgment there was rendered in favor of the defendant in trespass, Bichstein, from which judgment the plaintiff in trespass appealed, and in the Superior Court júdgment was rendered for the plaintiff in trespass, Bergeron, on October 3, 1904, in the sum of one dollar. The record in the case of Bergeron v. Richstein was introduced against the objection of the defendant, who excepted to its admission. The judge ruled, that if the defendant properly was tendered the defence of this action of Bergeron v. Richstein, then the judgment was conclusive against him, to which ruling the defendant excepted. Among the records was the deposition of one Prescott, which was read to the jury by the plaintiff’s counsel, and from which it appeared that Prescott testified that the alleyway always was fenced in at the northerly end, and that he, some time in May or June of 1890, put a fence across the entrance of the alleyway on Tremont Street; that upon looking up the records he found that it lacked a week or some few days of the time in which rights would be acquired in the use of the alleyway, and he put up the fence immediately ; that this fence closed the entrance to the passageway completely, that it remained up two or three days, and that at the time he put up the fence he was the owner of a part of the premises in the block fronting on Broadway; that he put up the fence because he was afraid people would acquire a right of passage there.</p> <p>Evidence then was introduced showing that the husband of the plaintiff, as the agent of his wife, saw the defendant after Bergeron had come out and stopped him driving in over the alleyway, which was before the action for trespass was brought, and told him, “ that there was trouble about the place, and that they wouldn’t let him drive in the barn and that it was for Welch to come down and see that party.” Shortly after, when Bergeron had brought the action against Mrs. Richstein, Mr. Richstein went again to see Welch. Mr. Richstein testified as follows: “ I had the writ with me, and I showed it to him. I says, ‘ My woman is sued for that passageway to drive in to the barn.’ He says, ‘ I don’t care whether she is sued or not. I have nothing to do with that place any more.’ I told him, I says, 4 It is for you to take care of it, not me or my woman.’ I says, ‘ Don’t you know that you gave her a warranty deed of that right of way to the barn ? ’ He says, 41 don’t know anything about it. I have nothing to do with it.’ ”</p> <p>The plaintiff testified that she went with her husband to see the defendant Welch and testified as follows: “When Mr. Richstein came in the yard, Welch came near the team and asked Mr. Richstein what you come, and he says,4 he has a note to go to court, — Mrs. Bergeron ’ — and to the question,4 Did you hear what they said ’ — she answered — 4 and he said, well, I have nothing to do with the case. I sold you the property and that is all I know.’ ”</p> <p>The defendant testified that before action was brought Rich-stein met him on the street and told him that the Bergerons were trying to stop him from using the alleyway but that Rich-stein and he never had any talk about a writ; that Richstein never came to him with a writ, and never asked him to take the trial of the case and never offered him the defence of the case of Bergeron v. Richstein. Evidence of the testimony at the trial of Bergeron v. Richstein then was introduced.</p> <p>It appeared in evidence that at the trial of the case of Bergeron v. Richstein in the Police Court, and also in the Superior Court, the defendant was present and that he was a witness in the Superior Court; that after the decision in the case in the Superior Court the Richsteins were notified by either the sheriff or Mrs. Bergeron not to go in the barn any more and that the next morning when Richstein went to the bam Mrs. Bergeron came out and said to hixn, 44 You cannot take anything from the barn,” and that she would n’t even let him open the barn, and that thereafter Mrs. Richstein had no use of the barn or alleyway whatever.</p> <p>It also appeared that after the action and after the Bergerons had stopped Bichstein from going into the barn, he went to see the defendant again and said to him, “ What are yon going to do ? ” and that he replied, “ I ain’t going to do anything. I have nothing to do with it. I have sold you this and that is all I am going to do.”</p> <p>It also appeared in evidence that at the trial of the case of Bergeron v. Bichstein a witness testified that the alleyway had been fenced up within twenty years ; that he kept a horse there, and one morning he came out to drive and could not and had to pull down the fence; that the clothes reel on the Bichstein house was there when Mrs. Bichstein bought the place, and it overhung the alleyway four and one-half feet, but was so high that it did not interfere with the passage of teams on the alleyway, and that the Bergerons ordered Bichstein to remove the clothes reel.</p> <p>There was no special finding in the case of Bergeron v. Bichstein which disclosed the ground on which judgment for the plaintiff was rendered, and no evidence other than that stated in the bill of exceptions was introduced to show whether the judgment was founded upon the ground that Bichstein had no title in the alleyway, or upon the grounds of the misuse and blocking of a common passageway.</p> <p>The defendant then introduced a chain of title, which he contended showed by the deeds put in evidence that the defendant had a right to use the alleyway and a right to convey the right to use the alleyway to the plaintiff when he conveyed to her by warranty deed.</p> <p>The defendant asked the judge to make the following rulings:</p> <p>1. If he, (the grantor,) sells land on an alleyway, it gives grantee a right to use it.</p> <p>2. The chain of title gives the defendant a right to use the passageway.</p> <p>8. The defendant’s record (apparently meaning the record of the action of Bergeron v. Richstein) is not competent at all.</p> <p>The defendant’s counsel began his argument, but had not finished at the adjournment of' court. The next morning the defendant’s attorney handed to the presiding judge fourteen requests for rulings.</p> <p>The judge said, “I cannot receive these requests, as they come too late.” The defendant’s counsel replied, “I know that; I do not expect them to "be received as requests, but only as suggestions.” Afterwards the counsel for the defendant attempted to read these requests to the jury, but this was not allowed by the judge.</p> <p>The judge in his instructions to the jury said among other things : “ The courts have decided that if a grantee with such a warranty goes to the grantor and says to him ‘ Now, I am sued; I want you to take and defend me; ’ gives him an opportunity to take and to defend the suit it controls the matter; if he does not do it, that binds him. The plaintiff offered some evidence — the husband of this plaintiff testified that he went to the defendant and gave him notice that he was threatened, and the defendant told him, * Go back, you have a right to use that alleyway, pay no attention to it; ’ and finally, after he received the summons from the Police Court, that he went to the defendant and said to him: ‘ I am sued. You have given me a warranty deed, and I want you to defend me.’ If the defendant had agreed that that was so, I should have said, that we have not to try this case over again to find where the title is, but that would end it, but the defendant denies that this is so, and objects to it, and I then said, ‘ Well, I will submit this to the jury, because-where there is a dispute about a fact I have to submit it to the jury; because you are the gentlemen who have to decide the facts. I try to decide the law, and if I am wrong I am corrected by a higher court; but you are the gentlemen who have to decide the facts, and so I am going to submit this question to you: c Did the defendant know that a suit was commenced by Bergeron v. Richstein, and was he requested by Richstein to take and defend the suit ? ’ ”</p> <p>The judge submitted to the jury the following special question : “ Did the defendant know that a suit was commenced by Bergeron against Richstein, and was he requested by Richstein, to take and assume the defence of that suit ? ” The jury answered this question in the affirmative.</p> <p>The judge then instructed them as follows : “ Gentleman, you having answered that question in the affirmative as you have, you have now to pass upon the question of damages between the parties; and the plaintiff is entitled to recover all reasonable expenses in defending that suit.”</p> <p>The jury then retired again, and returned a verdict for the plaintiff in the sum of f 710. The defendant alleged exceptions.</p>

<p>Bill in equity, filed in the Probate Court for the county of Suffolk on August 4,1906, by the executors of the will of Ednah Dow Cheney, late of Boston, for instructions.</p> <p>The testatrix, who was a widow without issue, died on November 19, 1904, leaving certain first cousins as her only-heirs at law and next of kin. Her will and a codicil thereto were proved on December 22, 1904, and the plaintiffs were appointed executors.</p> <p>After disposing by her will and codicil of a large part of her estate, the testatrix in the sixth clause of the codicil provided as follows:</p> <p>“ Sixth: I appoint Mary Cheney, Frank Cheney, Jr., Ednah D. Cheney, Mary B. Cheney, Harriet Cheney, Anna Cheney and Rosalie Goodman, or such of them as may survive me, trustees, and I give to them and their successors in trust the sum of three thousand dollars, to hold and dispose of the same in and upon the following trust, viz: to establish and maintain some suitable room or rooms in South Manchester, Connecticut, for the preservation and exhibition under such rules and regulations as said trustees may make, of all the pictures, books, manuscripts, and any other relics of Seth W. Cheney, Margaret S. Cheney and John Cheney, and any other objects of interest, with the exception of the personal gifts mentioned in my will to relatives ot friends. I desire that the crayon of S. W. Cheney by Kimberly shall be placed in this room, also the portrait of the old man, which I give to said trustees, and not, as in my will to Mrs. Emma L. Cheney. I also give to said trustees for said room all drawings, paintings, sculpture and other articles which in my will are given to Annie and Alice Cheney. In case of a vacancy among said trustees by death, or resignation, or any other reason, I give the remaining trustees power to fill said vacancy by a majority vote, and the new trustee shall have the same power and duties as if originally appointed, and this power to fill vacancies may be exercised from time to time as the same occurs. I desire that said trustees, whether original or substitute, may be exempt from giving a surety or sureties upon their bonds. I authorize said trustees to receive from other persons such gifts of money or objects for exhibition as may help to carry out the purpose of said trust. Said trustees, or their successors, may, at any time should they deem it wise to give up the same as an independent trust, surrender the same with all trust property to the Town of South Manchester, Connecticut, to become a part of a public library in said Town, but upon condition that the same shall never be removed from said Town' of South Manchester.”</p> <p>The residuary clause of the codicil was as follows:</p> <p>“ All the rest and residue of my estate of every character and description, I give to my Executors named in said will, in trust nevertheless to distribute the same among such charitable institutions, persons or objects, in such amounts, upon such terms, and for such purposes, as they decide to be most worthy, having regard, but in their sole discretion, to such as I have been interested in during my life.”</p> <p>The trustees named in the sixth clause declined to accept the trust. After satisfying the specific legacies, there were practically no pictures, books, manuscripts or other relics of Seth W. Cheney, Margaret S. Cheney or John Cheney and no other objects of interest to preserve or exhibit, and no good purpose would be served in establishing the room referred to.</p> <p>The income from the sum of $3,000 would be insufficient to defray the expenses of rent, light, heat and care of the room. There is no town of South Manchester, Connecticut. The village of South Manchester is a part of the town of Manchester, Connecticut, and there already is established in that village a library and reading room which amply accommodate the citizens, and there is no need of anything further of the kind there.</p> <p>After the payment of the bequests, debts, and charges of administration, there would remain in the hands of the plaintiffs for distribution, a balance exceeding $30,000.</p> <p>The bill prayed for instructions upon the following questions:</p> <p>“ Is the trust established in the sixth clause of the codicil a valid trust ?</p> <p>“If valid, is the trust, under the circumstances now existing, capable of practical enforcement ?</p> <p>“ If not, what disposition shall be made of the $3,000 given therein ?</p> <p>“ Is the residuary clause void ?</p> <p>“ Are the heirs at law and next of kin entitled to receive the residue of the estate, or is it to be distributed by the executors in charity ? ”</p> <p>In the Probate Court Grant, J., made a decree declaring that by the sixth clause of the codicil the testatrix created a valid charitable trust with a specific charitable intent, that it was impracticable to carry into effect the purpose of the testatrix, and that the trust had faffed, and ordering that the $3,000 trust fund be held by the executors as part of the residue of the estate; also declaring that, owing to the language employed by the testatrix in the residuary clause of the codicil, no valid charitable or private trust was created, and that an implied trust arose in favor of the heirs at law of the testatrix, ordering that the executors should distribute among the heirs at law and next of kin of the testatrix, to be ascertained as of the date of her death, that part of the residuary fund of the estate of the testatrix which should remain in their hands for distribution.</p> <p>The Attorney General appealed, stating as grounds of appeal that the sixth clause of the codicil created a valid public charitable trust, which it was not impracticable to carry into effect, and that by the residuary clause of the codicil the testatrix created a valid public charitable trust and that this clause manifested a general charitable intent.</p> <p>The appeal came on to be heard before Rugg, J., who by request of all the parties reserved it for determination by the full court, such order to be entered as justice might require.</p> <p>The case was argued at the bar in March, 1907, before Knowlton, C. J., Hammond, Loring, Sheldon, & Rugg, JJ., and after-wards was submitted on briefs to all the justices.</p> <p>D. Malone, Attorney General, F. T. Field, Assistant Attorney General, for the Attorney General.</p>

Tort, at common law, by a boy between seventeen and eighteen years of age when injured, for personal injuries incurred on May 6, 1903, while employed in a woolen mill of the defendant at Lawrence, alleging that the plaintiff was put to work in a place which was unsafe and dangerous by reason of the improper construction of a certain dyeing vat and the floor about it and the want of repair of a barrel near the vat from which it was alleged that soft soap leaked upon the floor…

<p>Tort under R. L. c. 51, § 18, for damage to the plaintiff’s automobile alleged to have been caused by a defect in Sandy Point Road in the defendant town, which the defendant was bound to keep in repair. Writ in the Superior Court for the county of Middlesex dated June 23,1906.</p> <p>There was a trial before Stevens, J. The facts in evidence are stated in the opinion.</p> <p>No evidence was introduced by the plaintiff or defendant • showing whether or not the plaintiff was licensed to operate an automobile upon the public highways, or whether his automobile was registered, according to the requirements of Sts. 1903, c. 473; 1905, c. 311.</p> <p>At the close of the evidence, the defendant requested the presiding judge to rule that on all the evidence the plaintiff was not entitled to recover; that there was no evidence which would warrant the jury in finding that the way was defective; that, “if the defect in the way was one wliieh would not be dangerous to ordinary vehicles, the plaintiff could not recover, even though the jury found it was a defect which was dangerous to the plaintiff’s automobile ”; and that, “ if the jury found that the road was reasonably safe for travel of the ordinary kinds they would not be warranted in finding it defective merely because it was not fit for the use of automobiles.” When making of these requests, for the first time, the defendant called the attention of the presiding judge to the lack of evidence of registration of the automobile or license of the plaintiff to operate it.</p> <p>The requests were refused, and in his charge the presiding judge gave the instructions set forth in the opinion, and the defendant excepted.</p>

<p>Bill in equity by the executors under the will of John Albro Little for instructions, filed in the Probate Court for the county of Middlesex September 26,1907.</p> <p>On appeal the case was heard in this court before Hammond, J., who reserved it for the consideration of the full court. The facts are stated in the opinion.</p>

<p>Petition to establish exceptions alleged to have been saved by the petitioner, who was the defendant in the case of Christian Feigenspan v. P. McDonnell, tried in the Superior Court-for the county of Suffolk. There had been a verdict for the defendant therein, and the plaintiff had filed a motion for a new trial. The exceptions herein considered were to refusals of the judge to grant requests for rulings made by the defendant at the hearing on the motion for new trial.</p> <p>There was a hearing on the question of the allowance of the exceptions before Stevens, J., before whom the case had been tried, and he ruled: “ The within exceptions, being immaterial, frivolous and intended for delay and only partially conformable to the truth, are disallowed.” On the filing of the petition in this court, a commissioner was appointed to hear the parties and their evidence, settle the truth of the exceptions and rejport to the court. Material parts of his report are as follows:</p> <p>“ Upon the hearing on the motion [of the plaintiff for a new trial], the plaintiff was not called upon to argue. After counsel for defendant had argued about an hour, he submitted to the presiding judge in writing nine requests for rulings. . . . Thereafter the hearing was adjourned, and at a subsequent time the defendant’s counsel finished his argument and the presiding judge began to render his decision on the motion for a new trial. Whereupon the counsel for defendant handed to him the requests for rulings set forth in his bill of exceptions immediately following the requests heretofore referred to. The presiding judge made no comment or ruling upon either set of requests, and sustained the plaintiff’s motion for a new trial without setting forth of record the reasons therefor or the grounds upon which same was granted.</p> <p>“I find that none of the requests for rulings were given to the presiding judge prior to the beginning of the argument of the motion for a new trial, and, if the latter part of Common Law Rule 45 of the Superior Court, providing that e requests for instructions or for rulings in trials with, or without jury shall be made in writing before the closing arguments unless special leave is given to present further requests later,’ applies, no special leave was given by the presiding judge to present the requests after the beginning of the argument. It does not appear that any ruling was made upon the requests or that such ruling was necessary for a proper determination of the question at issue, or that the rights of the petitioner were damaged by failure to give such rulings. It does not appear that the motion was not' granted on the ground that the verdict was against the weight of the evidence.</p> <p>“ I find that the judge' of the Superior Court properly disallowed the alleged exceptions of the petitioner.”</p> <p>On the coming in of the report of the commissioner, the plaintiff, Christian Feigenspan, moved that the petition be dismissed, and the motion was denied.</p>

<p>Evidence, Public documents. Practice, Civil, Exceptions, Conduct of trial. Words, “ Public records.”</p> <p>B. L. c. 35, § 5, which states what the words “ public records ” shall mean in construing the provision of that chapter, does not make the documents therein described public documents.</p> <p>At the trial of an action of tort in the nature of trespass quare clausumfregit in which one question in controversy was as to the width of a certain street in a city, the city engineer of the city in which the street was, called as a witness by the defendant, testified that “ it was customary ” to keep the note books, in which assistants in his office had made memoranda as to the bounds and courses of streets, as public records. He then was allowed, subject to exception by the plaintiff, to testify as to the contents of such a book, the memoranda in which had been made by one who was living at the time of the trial but who was not called as a witness. In effect, the measurements given from the memoranda were in accordance with those given by surveyors who testified for the plaintiff. Held, that, even if the note book were a public document, it was not admissible as evidence of the truth of the facts therein stated • but that, the plaintiff not being harmed by the admission of the evidence, the exception should be overruled.</p> <p>In his charge to the jury in an action of tort in the nature of trespass quare clausum fregit, in which the plaintiff contended that the defendant, an owner of adjoining land, had built about twelve inches over the line upon the plaintiff’s land, and in which the great preponderance of the evidence was in the plaintiff’s favor, the presiding judge, after commenting unfavorably upon actions of such a nature, stated “ I suggested to counsel yesterday, in the interest of public trials in the courts, and in the interests of the parties, that perhaps they would agree that, if the defendant were over the line, and the jury so found, you should assess all the damages by him for the value of the land and all the plaintiff has to suffer in consequence of it now and for all time, and have it' once for all settled. The defendant’s counsel said he was willing to do that, and the plaintiff’s counsel said no, and he had a right to say no, because his client would not agree to it; and whether he was stubborn or not is none of our business; he had the constitutional right to do just what he was doing, and it is our duty, whether we think it is proper or not, to give him a fair and impartial trial ”; and, at the end of the charge stated, “ Whether this is a suit, as it is said, for spite, or whether it is an unwise suit or not, you must take it and decide it. The plaintiff has a right to be here; he has a right to claim his inch of land if he has it, and the defendant has a right to come here and defend; and it is your duty to sit down, and decide this question as best you can between them, and do justice in the case.” At the conclusion of the charge, the plaintiff called the attention of the judge to the foregoing passages, but he refused to change the charge, stating that what he had already said as to the plaintiff’s standing upon his rights ought not to affect them, “ because he had a right to do just as he did.” Held, that the presiding judge erred in incorporating into his charge facts which were not in evidence and did not affect the merits of the case, and which, if they had been offered in evidence, should have been excluded, and were likely to and probably did distract the attention of the jury from the consideration of the true merits of the issue.</p>

<p> Bills and Notes. Lord’s Day. Payment. </p> <p>A cheek on a bank delivered on Sunday by the drawer to the payee in payment of a debt contracted by the drawer on a secular day and accepted by the payee as such payment is invalid and of no effect in the hands of the payee; but, if the payee receives payment of the check from the bank or value for it from one to whom he negotiates it, he cannot again collect the debt from the drawer.</p> <p>If the drawer of a check upon a bank delivers it to the payee on Sunday and the payee on a secular day negotiates it by indorsement for value to one who has no notice of the fact that it was delivered to the payee on Sunday, the check thereby becomes a valid cheek in the hands of the indorsee.</p> <p>At the trial of an action of contract for money alleged to have been lent to the defendant by the plaintiff, it appeared that the money was lent as alleged on a secular day, that the defendant, who was of Boston, drew a che.ck dated on a Saturday upon a Boston bank payable to the plaintiff, and on Sunday delivered it to the plaintiff, who was of Chelsea, in payment of the debt, and that the defendant accepted it as such payment and negotiated it on Monday to one from whom he received its full face value. No presentment of the check was made until Friday at a time after the bank upon which it was drawn had failed, it having failed on that day. The plaintiff thereupon returned to the person to whom he had negotiated the check the money he had received therefor. From the time when the check was drawn to the time when the bank failed, there were funds of the defendant in the bank sufficient to pay it. The plaintiff requested the presiding judge to rule, “If the check was delivered on Sunday, it was invalid and of no legal effect, and the plaintiff is entitled to recover on his count for money lent.” The presiding judge, refused to rule as requested and found for the defendant, and the plaintiff excepted. Held, that, since the presiding judge might have found either that the plaintiff had received the amount called for by the check, or that he might have received it but for his own neglect, he was not bound to give the ruling requested.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on February 8, 1907, to enforce the specific performance of a covenant of renewal in a certain lease as described in the opinion.</p> <p>The case came on to be heard before Itugg, J., who made certain findings of fact, and reserved the case upon such findings for determination by the full court. If the plaintiff was entitled to any relief, a decree w.as to be entered in its favor in such form as might be approved by a single justice; if it was not entitled to relief, the bill was to be dismissed.</p>

<p> Bankruptcy. Fraudulent Conveyance. Mortgage. Trust. </p> <p>In a suit in equity by a trustee in bankruptcy against the wife and the father o£ the bankrupt, to recover certain real estate conveyed by the bankrupt, about eleven months before his adjudication in bankruptcy, through a third person to his wife and mortgaged by her to the father of the bankrupt about two weeks before that adjudication, the judge who heard the case found that the conveyance was made by the bankrupt to his wife when he was insolvent with the intent on his part to hinder, delay and defraud his creditors, that the conveyance was a voluntary one without consideration, and that the mortgage by the wife to the father, purporting to secure the payment of a certain sum of money, also was made voluntarily either because the father held an unpaid debt against the bankrupt or for some other reason. The mortgage was not recorded until two days after the adjudication in bankruptcy. The judge found that the mortgagee did not participate in the bankrupt’s fraud and acted in good faith. Held, that the deed to the wife being intended by the grantor to defraud his creditors and being without consideration was voidable by his creditors when it was made and by the trustee in bankruptcy after his appointment, and that under R. L. c. 127, § 4, as the mortgage was not recorded at the time of the adjudication in bankruptcy, the land “ might have been levied upon and sold under judicial process ” by the bankrupt’s creditors as having been conveyed to his wife in fraud of creditors, and so under § 70 a, 5, of the bankruptcy act of 1898 it passed to the trustee in bankruptcy upon his appointment.</p> <p>The holder of an unrecorded mortgage of land cannot claim the land as against the trustee in bankruptcy of the mortgagor on the ground that the mortgage creates a trust, for, if it does, an unrecorded trust concerning land, under R. L. c. 147, §§ 1-3, is of no more effect than an unrecorded mortgage.</p>

<p>Bill in equity, filed in the Probate Court for the county of Middlesex on December 6, 1906, by the executor of the will of Isaac H. Burditt, for instructions.</p> <p>In the Probate Court the case was submitted to Mclntire, J., upon an agreed statement of facts. He made a decree ordering that the funds in the hands of the executor, amounting to $8,378.91, be distributed among certain persons named in the proportions there stated, as being the relatives of the deceased by right of representation under the statutes of this Commonwealth. Augusta Thornton, one of the respondents, appealed, stating, as her objection to the decree, that she was a niece of the testator and a legatee under his will, and that the distribution made by the decree gave her only one fourteenth part of the fund whereas she claimed one third of it. The distributees were twelve nephews and nieces of the testator and the issue of two other deceased nieces, all being the issue of two deceased sisters and a deceased brother of the testator. The appellant was the only child of one of the deceased sisters.</p> <p>The appeal came on to be heard before Morton, J., who, at the request of the parties, reserved and reported the case upon the petition, the reasons of appeal, the decree of the Probate Court and the agreed statement of facts for determination by the full court, such order to be made as justice might require.</p>

<p>Petition, filed on January 29,1907, to prove a claim against the receivers of the property of the Fitzpatrick Shoe Company, appointed in the suit of Pfister & Vogel Company v. Fitzpatrick Shoe Company, pending in the Supreme Judicial Court, asking for damages sufficient to restore to its former condition a two story building in Stoughton owned by the petitioner which had been hired and used by the shoe company in connection with its factory, and afterwards was used for a time by the receivers who paid rent at the rate of $15 a month up to January 15, 1907, when possession of the building was surrendered to the petitioner.</p> <p>There was a hearing upon the petition before Bráley, J., who refused to rule that the petitioner should be allowed to prove his claim, and made the findings stated at the beginning of the opinion. At the request of the petitioner he reported the case to the full court. If the ruling was wrong, by agreement of parties, the petitioner was to be allowed to prove his claim for the sum of f280 with costs; otherwise, his petition was to be dismissed.</p>

<p> Constitutional Law. Absentee. Limitations, Statute of. </p> <p>The provisions of R. L. c. 144, §§ 10, 11, that, after the property of an absentee has remained in the hands of a receiver appointed in accordance with the provisions of that chapter until fourteen years after the disappearance of the absentee, and within that time the absentee has not appeared and claimed the property, all the right, title and interest of such absentee in the property shall be barred and no action, suit or petition shall be commenced by him for or on account of the property, and that the court shall order the distribution of the unexpended balance of the property to the persons to whom and in the shares and proportions in which it would have been distributed if the absentee had died intestate on the day fourteen years after the date of his disappearance, are constitutional, this being a statute of limitation which the court cannot say is unreasonable.</p>

<p>Devise and Legacy, What estate. Tax, Collateral legacies and successions. Executor and Administrator.</p> <p>A testatrix, when she was sixty-five years of age, wrote a will in her own handwriting, which contained twenty-four clauses, fifteen of which described specific legacies for the most part of keepsakes and articles of adornment, eight described pecuniary legacies, and the first read, “I devise and bequeath to M. my cottage and all it contains at Nahant — to use for the term of five years or longer.” M. was not related to the testatrix. The will contained no residuary clause nor any general phrase expressive of a desire to distribute all her property, and real estate which she owned at Wakefield valued at $4,500 and at Stoneham valued at $1,500 was not mentioned. Other parts of the will showed that the testatrix knew how to make an absolute gift. Held, that by the clause quoted the testatrix did not intend to give a fee, but an estate for five years and as much longer as the donee might desire, which, translated into absolute terms by invoking the presumption that the most advantageous gift was intended, gave to the donee an estate for life in the cottage and the land about it and the furniture and chattels therein.</p> <p>A testator who died before January 5, 1904, by his will devised certain real estate and personal property for life to one who was not related to him, but made no disposition of the remainder. His heirs at law and next of kin at the time of his death were a brother and a nephew, the son of a deceased sister. The brother, after conveying his interest in the estate, died before the termination of the life estate. Held, that the life interest was subject to the tax on collateral legacies and successions under R. L. c. 16, § 1, to be assessed under § 16 of that chapter and to be paid by the administrator who then under § 5 could collect from the holder of the life estate so much as was due on the life interest; also, that tiie half of the remainder which vested in the brother was not subject to such a tax; and, also, that, by the provisions of R. L. c. 16, §§ 1, 4, and of St. 1902, c. 473, as amended by St. 1903, e. 276, the half of the remainder which vested in the nephew was subject to such a tax, to be paid by the nephew at the time when his estate vested in possession, and to be assessed upon the value of his estate at that time, except that at his option it might be paid at any time earlier upon a valuation then ascertained after deducting the Value of the life estate; but that, if the nephew had not given the bond prescribed by St. 1903, c. 276, conditioned upon the payment of the tax when his estate should become vested in possession, then the administrator, at the expiration of two years from the death of the testator, should pay so much of such tax as was assessed upon the value of the nephew’s interest in the personal property.</p>

<p>Tort for personal injuries received by tbe plaintiff and for damage to his wagon by reason of a collision with a car of the defendant at the junction of Main and Water Streets in Hing-ham. Writ in the Superior .Court for the county of Norfolk dated December 10, 1908.</p> <p>There was a trial before Hitchcock, J. It appeared that Main Street ran north and south; that Water Street ran in a northeasterly and southwesterly direction and entered Main Street on the easterly side, but did not cross it. Besides testifying as stated in the opinion, the plaintiff also stated that at the time of the accident he was driving with one horse an empty heavy coal wagon without cover, hood or awning of any kind; that on the same afternoon he had been to East Weymouth with the horse and wagon where he procured a load of coal which, shortly before the accident, he had. delivered to a customer in the neighborhood ; that it was a very hot day; that it was his habit to stop as he did before crossing a street car track; that he stopped five or six feet from the track and that, when he started up again, the horse, being slow by nature and having been working hard, started slowly; that the wagon made a noise when he was driving it; that, when the car struck the wagon, it broke both wheels, the tail board, the cross bar and the railings of the wagon and then passed on for more than its length before it was stopped.</p>

<p>Petitions for a writ of certiorari against the hoard of street commissioners of Boston to quash their proceedings in assessing betterments for the construction of Columbia Road, filed October 9,1907.</p> <p>Paragraphs ten to thirteen, inclusive, of the petitions contained allegations in support of the contention described in the fourth paragraph of the opinion. The respondents in their return stated that they had determined as the special benefit and advantage to all the estates abutting on Columbia Road the sum of $296,443.69, which they determined as the assessable cost, and which was much less than one half of the amount which the board itself knew had been expended for land damages, and that, therefore, it was immaterial, in their opinion, whether or not any part of the sum certified by the superintendent of streets to have been expended on construction had been illegally expended, and that they made no inquiries concerning the details of said expenditures, and were ignorant of the manner in which the work was done and of the truth or falsity of any of the matters set forth in paragraph ten of the petition. The petitioners filed a motion for a further return of the respondents with regard to paragraphs ten to thirteen of the petition. There was a hearing before Loving, J., who denied the motion, refused to admit evidence in support of paragraphs ten to thirteen of the petition and, the petitioners excepting, reserved the case for determination by the full court. '</p>

<p>Tort for personal injuries received by the plaintiff in a collision between an ice cart that he was driving and a train of the defendant at the Marble Ridge grade crossing in North Andover. Writ in the Superior Court for the county of Essex dated July 26, 1906.</p> <p>There was a trial before Bell, J. Besides testifying as stated in the opinion, the plaintiff in cross-examination stated that there were sides to his wagon and the seat was back so that the only view he had, without leaning out around the side, was straight ahead. He admitted, at first, that when he looked as he testified, twenty-five feet from the crossing, all he saw was the crossing straight ahead. He subsequently changed this and testified that when he was twenty-five feet from the crossing he looked around and saw the flagman coming behind him, and that he did not look for a train at that time. Still later he testified that when he was twenty-five feet, and again when he was four feet from the crossing, his looking consisted in simply, looking ahead on the crossing. But later still he testified that when he was twenty-five feet from the crossing he did- look up the track to see whether a train was coming, but he would not say that at that look he took in more than seventy-five or one hundred feet of track. He also testified that he would not say that, when twenty-five feet from .the crossing, he could not have seen seven hundred feet south on the track. He at first stated that at no time from the time he turned the corner at the fence did he lean out of his wagon and look up the track to see how far he could see or whether he could see a train, but later stated that he did look up the track particularly to see whether there was a train coming. He also stated that when, leaning out and looking back, he saw the flagman running after his team “ he thought it would be kind of nice to see him run to catch up with the team and jump on,” and that that was in his mind, although the train and his horses were in his mind too. '</p>

<p>Two ACTIONS OF TORT for personal injuries alleged to have been received by the plaintiff by reason of negligence of employees of both defendants whereby he was run over by a freight car propelled by the railroad company on a track of the petroleum company running along Water Street in Beverly. Writs in the Superior Court for the county of Essex dated November 21, 1904.</p> <p>There was a trial before Wait, J. The facts are stated in the opinion. At the close of the evidence by direction of the presiding judge a verdict was returned for the defendant in each case, and the plaintiff excepted.</p>

<p>Contract upon an instrument in writing dated July 14, 1898, wbicb is quoted in the opinion. Writ in the Municipal Court of tbe City of Boston dated January 7, 1905.</p> <p>The defendant in his answer, in addition to a general denial and an allegation of payment, set up the statute of limitations.</p> <p>On appeal to the Superior Court the case was heard by White, J., without a jury. The plaintiff introduced in evidence the agreement signed by the defendant which is quoted in the opinion and certain agreed facts which are. stated in the opinion. The defendant asked for a ruling that the statute of limitations began to run against the plaintiff’s claim on July 14, 1898, and that the action was barred by the statute of limitations.</p> <p>The judge refused to rule as requested, and found for the plaintiff in the sum of $287.07. The defendant alleged exceptions.</p>

<p>Way, Defect in highway. Negligence.</p> <p>In a little used back road of a country town, on which the town has made repairs within six years, the combination of a stone projecting six or eight inches above the surface close to a wheel rut and within a short distance a sharp stone jutting into the wheel rut, a place where a wheel is likely to get caught and a third stone against which the wheel of the wagon of a traveller strikes, throwing him out of the wagon, if this state of things is shown to have existed for two years, can be found to constitute a defect in the way making the town liable to the traveller thus injured.</p> <p>In an action by a woman against a town for an injury caused by an alleged defect in a little used country road, on which the defendant had made repairs within six years, having only three houses on it, in one of which the plaintiff lived, if there is evidence that the plaintiff knew of the existence of the defect but was obliged to use the road, as it was her only way of going to and from her home, and that being conscious of the danger she was trying to avoid it at the time of her injury, the question of her due care is for the jury.</p>

Four actions oe tort, all against, the New York, New Haven and Hartford Railroad Company, the Boston and Northern Street Railway Company and the Union Freight Railroad Company, the actions of Sarah Lindenbaum and Bessie Adelman being for personal injuries incurred on July 9, 1902; when they were passengers on a car of the Boston and Northern Street Railway Company, in the manner described in the opinion, and the other two actions being by their respective husbands for…

<p>Two actions, the first of tort and the second of contract, both by Albert C. Mentzer and Cora S. Mentzer, his wife, against the Hudson Savings Bank, the first action, with counts in the nature of trespass guare alausum and trover, being for an alleged unlawful eviction of the plaintiffs from a store on the first floor of the bank building of the defendant on Main Street in Hudson occupied by the plaintiffs as copartners in the millinery business, as tenants at will of the defendant, and the second action being for the alleged breach by the defendant of a contract to give the plaintiffs a lease of the store in question for a term of three years beginning on June 1,1905. Writs dated respectively August 21, 1905, and March 15, 1907.</p> <p>In the first action the defendant’s answer was a general denial. In the second action the defendant, in addition to a general denial, alleged that the contract set forth in the declaration was one for the sale of lands, tenements, hereditaments, or of some interest in or concerning them, and that there was no sufficient memorandum or note of the agreement in writing signed by the defendant or by any one thereunto by it lawfully authorized as required by R. L. c. 74.</p> <p>In the Superior Court the cases were tried together before Hitchcock, J.</p> <p>The plaintiff Albert testified that he and his wife had been co-partners in the millinery business since 1897, and in 1902 became tenants of the defendant at the premises in question, occupying them under an oral agreement and paying $50 rent on the first day of each month. The store was in a desirable situation in the centre of the business section of Hudson, and the net profits from the business for the year 1904 were $3,400. During the last week in April, 1905, damage occurred to the stock in trade of the plaintiffs by reason of water escaping from an office overhead, then occupied by a tenant of the defendant, and the plaintiffs rendered a bill to that tenant for the damage. On May 5 following, the plaintiffs received a letter from the defendant’s treasurer, saying, “ If you will make a bill to the Hudson Savings Bank for the damage done to hats by water and leave the damaged goods with the bank I will send you a check for the amount of your bill rendered to Mr. Boynton.”</p> <p>In consequence of this letter the plaintiffs submitted to the defendant a bill as requested, and on May 9 the plaintiff Albert was present by request at a meeting of the officers of the defendant bank, where there occurred some dispute as to the correctness of the bill rendered. The plaintiff Albert then returned to his store and on the same day received from the defendant a check for the amount of the damage claimed by him, together with the following notice:</p> <p>“ Hudson, Mass., May 9, 1905.</p> <p>“ A. C. and C. S. Mentzer</p> <p>“ You are hereby notified to quit and deliver up on the first day of July next the premises now held by you as tenant' of Hudson Savings Bank at No. 42 Main Street in this town.</p> <p>“ Hudson Savings Bank,</p> <p>“ By Daniel W. Stratton, Treas.”</p> <p>Four or five days after the delivery of the notice the plaintiff Albert went to the office of the defendant’s treasurer and had some talk with him with regard to the occupation of the premises.</p> <p>On May 29 the plaintiffs received a call from a representative of the defendant, one Cochrane. This was in' the store, and both plaintiffs were present. The plaintiff Albert testified, “ Mr. Cochrane said he had been chosen a committee of one to settle the matter. And during our conversation — which was leading to the damage, etc. — he said he was satisfied with the damage; that we could have a lease, and there would be no more trouble about it.”</p> <p>On May 31 the plaintiffs received a visit from Cochrane, who came to their store about 9 A. M., bringing with him two copies of a lease. The plaintiff Albert was alone in the store, the other plaintiff being ill. Cochrane then stated to that plaintiff that if the leases were signed by three o’clock in the afternoon it would be all right. That plaintiff replied that he could not have the leases signed at that time, as his wife was ill, and he could not get legal advice as to the meaning of the leases ; that he could not sign them before eight o’clock the next morning. Cochrane said, “ All right,” and went out, ieaving the two copies of the lease with that plaintiff, one of which was introduced in evidence. It was dated May 31, 1905, and provided for a term of three years from June 1, 1905, for the rent of $600 a year.</p> <p>The instrument in evidence was executed under seal by both of the plaintiffs. On the back was the following indorsement:</p> <p>“ Lease.</p> <p>“ Prom Hudson Savings Bank To Albert C. Mentzer et ux Dated May 31, 1905 Expires May 31, 1908 Reed from Mr. Cochrane at about 9.30 a. m.</p> <p>May 31 taken away in about 15 m Brought again at about 2.30 P. M. with instructions to sign before 3 P. M. or not good.”</p> <p>The plaintiff Albert testified that this indorsement on the top was on the instrument when it was delivered to him by Cochrane.</p> <p>In about twenty minutes Cochrane came back to the plaintiffs’ store and stated to the plaintiff Albert that the in vestment committee of the bank were to have a meeting that afternoon, and that he should like to take the leases to see if they would accept them. The plaintiff Albert asked him if he would return them to him so that he could have them by six o’clock that night, and Cochrane replied that he would. Cochrane then left the plaintiffs’ store, taking with him the leases. About 2.30 in the afternoon, Cochrane came back to the plaintiffs’ store bringing with him the two leases. He stated at that time that the investment committee of the bank had approved them, but that it wanted them signed by three o’clock or they would lease to other parties. The plaintiff Albert replied that it would be impossible for him to sign the leases without having legal advice, and he wished to have until eight o’clock on the following morning so that he could get advice on them and find out whether it was a right lease for him to sign or not. Cochrane then left the office. He returned at three o’clock and asked the plaintiff Albert, “ Are they signed ? ” That plaintiff replied that they were not signed and could not be before eight o’clock on the following morning, or until he, that plaintiff, could get advice. Cochrane stated that it would be too late, and started to leave the store, taking with him the envelope which had contained the leases. He noticed that there was but one lease in the envelope, and asked where the other lease was. The plaintiff Albert replied that he had sent it out to be examined. Cochrane made no further remark and left the store.</p> <p>On June 5 the plaintiffs wrote to the defendant the following letter:</p> <p>“ Hudson, Mass., June 5, 1905.</p> <p>“ Investment Committee of the Hudson Saving Bank Hudson Mass.</p> <p>“ Gentlemen</p> <p>“ After making several unsuccessful attempts to see Mr. Cochran on June 1 & 2, we have decided to write to the Investment Committee direct and say that after taking council and carefully considering the lease left with us May 31 at 2.30 P. m. by your committee Mr. Cochran, we have decided to sign the same, and wish to say that the one already in our possession is signed, and that we are ready to sign the one held by you at your earliest convenience.</p> <p>“ Yours Yery Truly</p> <p>“ A. C. & C. S. Mentzer.”</p> <p>They received in reply a letter or notice from the defendant as follows:</p> <p>“ Hudson, Mass., June 6, 1905.</p> <p>“ A. C. and C. S. Mentzer</p> <p>“ Your favor of June 5 duly received and was placed before the Committee of Investment this afternoon and they instructed me to notify you that a lease has been executed and delivered to other parties to take effect July 1, 1905 of the premises you now occupy and desire that the premises may be entirely vacated so that we can deliver the above to the new tenants on that day. By this you will see that the bank could not give you a lease if they wished and you should make your arrangements accordingly.</p> <p>“ Respectfully yours,</p> <p>“ Daniel W. Stratton, Treas.”</p> <p>The plaintiff Albert further testified that he was unable to consult his own counsel until about seven o’clock on the evening of May 31. The plaintiff Albert had no further conference or conversation with the defendant until July 3, when there was some talk between that plaintiff and Stratton, the treasurer of the bank, with regard to the removal of fixtures.</p> <p>It was agreed by counsel that the defendant executed and delivered a lease of the same premises to one French, dated July 1, 1905, for the term of three years thereafter and that French, acting under this lease, gave a sufficient notice to quit to the plaintiffs, who thereupon surrendered the premises to him on July 3, protesting to the defendant against the expulsion in a letter which was put in evidence.</p> <p>At the close of the plaintiffs’ evidence, including an agreed statement of facts, the judge ruled that upon the evidence presented the plaintiffs were not entitled to recover, and ordered a verdict for the defendant in each of the cases. The plaintiff alleged exceptions.</p>

<p>Tort, against Willie W. Morse and three others, copartners doing business under the firm name of Johnson and Company, and George Sanderson, for personal injuries incurred on October 27,1904, in the manner described in the opinion. Writ dated November 10,1904.</p> <p>At the trial in the Superior Court before Bond, J., the defendants constituting the firm of Johnson and Company asked the judge for twenty-six rulings, of which nineteen were refused by the judge. The rulings the exceptions to the refusal of which were argued by the defendant were as follows: '</p> <p>2. Upon all the evidence the plaintiff was not in the exercise of due care.</p> <p>3. Upon all the evidence the plaintiff assumed the risk of injury and cannot recover.</p> <p>4. There is no sufficient evidence to warrant the jury in finding the defendants constituting Johnson and Company are liable and the plaintiff cannot recover against them.</p> <p>6. On the pleadings and the proof the plaintiff cannot recover against the defendants constituting Johnson and Company.</p> <p>8. The plaintiff was guilty of contributory negligence and cannot recover.</p> <p>19. If the plaintiff knew the situation and the danger of being knocked off the bridge if the team started up against or backed against or was knocked against the wooden horse and voluntarily assumed the risk, then he cannot recover.</p> <p>21. Upon all the evidence the jury would not be warranted in finding the defendants constituting Johnson and Company liable and the plaintiff cannot recover against them.</p> <p>22. [There was a violation of the city ordinances in that there was no permit from the superintendent of streets in force at the time of the accident for the water department to open and occupy the street and maintain the bridge,] and the plaintiff was not an employee of the city rightfully on the bridge in the course of his duties as such employee.</p> <p>The part of 22 in brackets was given by the judge, only the last part being refused.</p> <p>24. The plaintiff voluntarily exposed himself to danger and cannot recover.</p> <p>25. If the jury find that the plaintiff knew or could by the use of due care have known of the condition of the bridge and the dangers incident to going on to the bridge where he did and the chances of being knocked off by Johnson and Company’s team knocking the wooden horse against him as was done here and voluntarily assumed the risk he cannot recover.</p> <p>The jury returned a verdict for the defendant Sanderson, and against the defendants constituting the firm of Johnson and Company returned a verdict for the plaintiff in the sum of $4,000. The defendants constituting Johnson and Company alleged exceptions.</p>

<p>Negligence, Matter of conjecture.</p> <p>At the trial of an action against an express company to recover for injuries alleged to have been caused to the plaintiff by reason of negligence on the part of an employee of the defendant when removing a trunk from a basement where the plaintiff was employed, it appeared that the trunk was a large one and heavily filled, and that, in removing it from the basement up a flight of stairs, the employee of the defendant used a tackle and fall, the tackle being fastened to a handle of the trunk, that, when the trunk was part way up the stairs, it caught, the handle broke, and the trunk fell upon the plaintiff. Although the plaintiff had as good an opportunity to observe the handle of the trunk as did the defendant’s employee, there was no evidence describing it or any tending to show that it was defective or worn or that there was any reason which could have been discovered upon inspection why it could not be used safely in connection with the tackle; nor did it appear how the trunk had caught in its ascent. Held, that there was no evidence of negligence on the part of the defendant or its employee which properly could be submitted to the jury, the cause of the accident being left wholly to conjecture.</p>

<p>Contract upon a promissory note. Writ in the Superior Court for the county of Norfolk dated May 12, 1905.</p> <p>There was a trial before Hardy, J., upon agreed facts. As stated in the opinion, the presiding judge refused to allow the defendants to prove further facts, which were offered by him, on the ground that they were immaterial, directed a verdict for the plaintiff, and the defendants excepted.</p>

<p>Bill in equity, filed in the Supreme Judicial Court for the county of Essex July 5, 1907, by trustees under the will of Artemas W. Stearns, for instructions.</p> <p>There was a hearing upon the bill, answers and an agreed statement of facts before Hammond, J., who reserved the case for determination by the full court.</p> <p>From the agreed statement the following facts appeared 'as to the relations of the members of the family of the testator to one another, mentioned in the third paragraph of the opinion. The testator at the time of his death was eighty years of age. He left a widow who was several years older than he and who had, for many years, been deaf and infirm, requiring constant care, attendance and companionship. No children were ever born of this marriage. Mary W. Truell, who was a first cousin of the testator, lived in his family over forty years, and Irene E. Fieles, who was a second cousin of the testator, had lived in the family continuously for twenty-four years, except for a year or so, and her daughter, Mary I., was born there. The testator engaged in the retail dry goods business in Lawrence for forty-two years, and, at the time of his death, Mary W. Truell with two others beside the testator were a partnership that was carrying on the business, the testator owning a seventy-six per cent interest and Mary W. Truell’s interest being worth $2,300. Mary W. Truell worked in the store from the time she came to Lawrence until she was admitted to the partnership, and Irene E. Fieles worked in the store for many years. Mary W. Truell, Irene E. Fieles and her daughter, the testator and his wife all lived together as one family, the entire expenses of the household, including the personal expenses of each member thereof, being borne by the testator. He maintained the family in a manner befitting a prudent man of his means and estate. The various members of the family were maintained as a whole without discrimination or difference. At the time of the death of the testator, Mary W. Truell was possessed of nothing except her interest in the partnership, and Irene E. Fieles was possessed of no money or estate whatever. For many years Mary W. Truell and Irene E. Fieles had devoted themselves to the care of the homestead and household and of the testator’s wife, and all this was done by them without compensation, except for their living as aforesaid. Mary W. Truell died after the testator and before this bill was filed.</p> <p>The will, after directing the payment of debts and funeral expenses and expenses of administration, and making provision for a monument, placed the entire residue of the testator’s property in trust, the first direction to the trustees being that mentioned in the opinion.</p>

<p>Statute of Limitations. Evidence, Of payment. Bills and Notes. Payment.</p> <p>At the trial of an action upon a promissory note by the payee against the maker, the defence relied upon was that the period of limitation had passed. Upon the back of the .note was indorsed a payment with a date within a time less than the statutory period before the action was brought, and the plaintiff, subject to exception by the defendant, testified that the indorsement was written upon the note by him in the presence of the defendant, who saw it made and who at the same time paid to the plaintiff the amount stated in the indorsement to have been paid. The defendant contended that the case was within the provisions of R. L. c. 202, § 13, that no indorsement of a payment of the principal or interest of a note, written on the note by the party to whom such payment had been made, should be sufficient proof of the payment to take the case out of the provision of the statute of limitations. Held, that, there being other evidence sufficient to prove the payment besides the indorsement, the statute did not apply.</p>

<p>Tort for personal injuries received by the plaintiff while a passenger on the Intercolonial Railway of Canada at Moncton, New Brunswick. Writ in the Superior Court for the county of Suffolk, dated January 18,1907.</p> <p>Several corporations and one individual were summoned as trustees, who answered that they had in their possession effects and credits belonging to the Intercolonial Railway, which they would hold subject to the process served upon them if the court should be of opinion that it had jurisdiction to entertain the action. In each answer was included a copy of a letter of Messrs. Russell and Russell to the trustees stating that the funds held by the trustee to the credit of the Intercolonial Railway were “ funds of the British Government and therefore in no way attachable or subject to detention by process of any court in this country.”</p> <p>There also was filed a paper entitled “ Appearance, Suggestion and Motion to dismiss Action,” which in part read as follows:</p> <p>“ And now comes Arthur H. Russell, counsellor at law, and a member of the bar of this court, and in the above entitled cause respectfully shows to the court that there exists no such body corporate as is described under the name and title of the Inter-colonial Railway of Canada, as defendant in this action; and further, he respectfully suggests and shows to the court that the line of railway described in the writ and declaration in this action as the Intercolonial Railway of Canada is in fact the property of the British Crown and is owned and operated by His Britannic Majesty in the right of his government of Canada; . . . wherefore the said Arthur H. Russell respectfully suggests to the court that it is in derogation of the sovereignty and independence of His Britannic Majesty and contrary to the law and comity of nations that funds belonging'to His Britannic Majesty should be withheld by a process of this court or that this court should take jurisdiction of this action, and he moves that the said action be forthwith dismissed.”</p> <p>There was a hearing before Fessenden, J., who made an order in the following language: “ Motion allowed after hearing and action ordered dismissed.” The plaintiff appealed.</p>

<p>Tort by a fire insurance company for deceit, to recover back tbe suip of $844.90 paid to the defendant on a loss of household furniture and other articles of personal property under a policy issued by tbe plaintiff when tbe property described in it was in a frame apartment house with stores underneath on the easterly side of Ocean Avenue in "Revere known as the Irving Cottage. Writ in the Municipal Court of the City of Boston dated September 19, 1905.</p> <p>On appeal to the Superior Court the case was tried before Hitchcock, J. It was agreed that the policy was in the Massachusetts standard form and had attached to it the rider which is quoted in the opinion, and that the property described in the policy was destroyed by fire on June 4, 1905.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions, raising certain questions, of which those that are material are stated in the opinion.</p>

<p>Commonwealth. Massachusetts School for the Feeble-minded. Contract, Construction. Words, “Owner.”</p> <p>The provision of R. L. c. 6, § 77, that “ Officers or agents who contract in behalf of the Commonwealth for the construction or repair of public buildings or other public works shall obtain sufficient security, by bond or otherwise, for payment . by the contractor and sub-contractors for labor performed or furnished and for materials used in such construction or repair ” applies to a contract made by the Massachusetts School for the Feeble-Minded under statutory authority for- the construction of a boys’ and girls’ home on land of the Commonwealth to be paid for by money furnished by the Commonwealth, the Massachusetts School for the Feeble-Minded being a corporation, through which the Commonwealth carries on charitable work, which in making such a contract acts as an agent contracting in behalf of the Commonwealth within the meaning of the statute.</p> <p>The Massachusetts School for the Feeble-Minded under statutory authority made a contract in behalf of the Commonwealth for the construction of a boys’ and girls’ home on land of the Commonwealth, and as a compliance with the requirement of R. L. c. 6, § 77, inserted in the contract the following provision: “ If at any time there shaT be evidence of any lien or claim for which, if established, the owner of said premises might become liable and which is chargeable to the contractor, the owner shall have the right to retain out of any payment then due or thereafter to become due an amount sufficient to completely indemnify him against such lien or claim.” Under this clause the Commonwealth retained a sum equal to twenty per cent of the amount due to the contractor for labor and materials furnished under the contract, and sworn statements of claims against this fund were filed within sixty days after the completion of the work as required by the' statute. The trustee in.'bankruptcy of the contractor brought an action against the Massachusetts School for the Feeble-Minded for the money thus retained, contending that, as the Commonwealth was the “ owner ” of the premises, no lien or claim had been or could be established against it, to bring the claims within the clause of the contract. Held, that the word “ owner ” was used in'the sense of “ an ordinary owner” and that the claims referred to were those “for which, if established, an ordinary owner of said premises might become liable,” thus giving the provision of the contract effect and enforcing the statute.</p> <p>A contract made with an officer or agent of the Commonwealth for; the construction or repair of public buildings or other public works, which in compliance with the requirement of R. L. c. 6, § 77, provides security for the payment by the contractor for labor and materials by the retention of a certain proportion of any payment due to the contractor, gives to a person, who has furnished such labor or materials and has filed a sworn statement of his claim within sixty days after the completion of the work, an equitable interest in the fund held by the agent of the Commonwealth as security.</p>

<p>Practice, Civil, Election between counts. Trespass. Mortgage, Of personal property.</p> <p>In an action of tort by a purchaser of personal property from a trustee in bankruptcy against one who held a chattel mortgage on the property, which he had attempted to foreclose after the adjudication in bankruptcy, there were two counts, the first in the nature of trover and the second in the nature of trespass quare clausum fregit. There was evidence that the plaintiff was in possession of the property, and had forbidden the defendant to enter his premises to take the property covered by the mortgage until he came with a writ of replevin, that the defendant came without such a writ, and, in removing a partition which he claimed under the mortgage, injured certain goods, and also took and carried away certain property which was not covered by the mortgage. The defendant excepted to a refusal of the judge to require the plaintiff to elect upon which count he would proceed. Held, that, assuming for the purpose of decision that the matter of election was one of right and not within the discretion of the presiding judge, as it probably was, the ruling of the judge was correct, because, if the jury should find that the entry was lawful.but that some of the goods taken belonged to the plaintiff, the count in the nature of trover would be necessary,although, if the jury should find that the entry was unlawful, the plaintiff might recover additional damages for the conversion of these goods under the count in the nature of trespass quare clausum., under proper instructions not to duplicate damages.</p> <p>A mortgagee of personal property, who has the right to the possession of the property on account of a breach of condition, has no right to enter the close of another person for the purpose of taking the property.</p>

<p>Tort, by a boy about ten years of age when injured, for personal injuries incurred in the afternoon of July 31, 1906, on Ashley Street in Boston, under the circumstances described in' the opinion, through the alleged negligence of a servant of the defendant. Writ in the Municipal Court of the City of Boston dated August 18, 1906.</p> <p>On appeal to the Superior Court the case was tried before White, J., who instructed the jury that upon all the evidence the plaintiff was not entitled to recover, and ordered a verdict for the defendant. The plaintiff alleged exceptions, it being agreed that, if the ruling of the judge was right, judgment should be entered on the verdict for the defendant; and that, if the ruling was wrong, there should be no new trial but that judgment should be entered for the plaintiff in the sum of $200.</p>

<p>Tort for personal injuries incurred on the evening of August 31, 1904, when the plaintiff was a passenger on a short four wheeled box car of the defendant on Dorchester Street in that part of Boston called South Boston. Writ dated October 20, 1904.</p> <p>In the Superior Court the case was tried before Sblmes, J. It appeared that the car in which the plaintiff was a passenger contained about twenty-five passengers and was not crowded. The accident occurred at or near a certain disused railroad bridge of the New York, New Haven, and Hartford Railroad Company, near the corner of Newman Street and Dorchester Street. For some months before and after this accident, the street department of the city of Boston had been cutting down the grade of Dorchester Street at this point, and for a considerable distance on either side of this point. The steam railroad formerly went under Dorchester Street, and the flooring of the steam railroad bridge represented the former level of Dorchester Street at its highest point, from which it sloped off in either direction; but at the time of the accident all but a small portion of Dorchester Street had been cut down to the level on which the steam railroad formerly ran, leaving a strip of Dorchester Street on its original level, consisting of a sidewalk and a roadway on which remained one of the defendant’s tracks; the roadway and tracks passing over one end of the old steam railroad bridge, the level of the bridge being about eight or nine feet above the new level of Dorchester Street. This strip of Dorchester Street gradually rose from a point a considerable distance back of the bridge to the bridge and then sloped away again on the other side of the bridge, and terminated on its outer edge throughout its entire course in a fairly steep bank, which represented the limit of the advancing excavation. During the course of the work, the defendant had run its cars over the track on the strip of roadway and was running them there on the evening of the accident; and the rail of the track nearer the edge of the bank was about a foot from that edge. The portion of the street occupied by the track was paved and the paving extended out to the edge of the bank.</p> <p>The car in which the plaintiff was being transported left the rails and went over the bank at a point some feet beyond the bridge, and at a place where the bank was about seven feet high; the car turned over on its side in the street below; and the plaintiff, who was in the exercise of due care throughout, was injured.</p> <p>Before the trial, namely on August 22, 1906, the plaintiff under the statute had filed sixteen written interrogatories to William A. Bancroft, the president of the defendant. The questions, refusals to answer and answers, which are referred to in the opinion, were as follows:</p> <p>“ Int. 4. For how long a time prior to August 31,1904, had the motorman in charge of said car at the time of the accident been in the service or employ of the defendant company in the capacity of motorman ?</p> <p>“ Ans. 4. I am advised by counsel that there is nothing in the plaintiff’s claim as set out in her declaration rendering such a question as this relevant or in any way material, and that for that reason I am not obliged to answer it. I must, therefore, decline to answer this interrogatory unless ordered by the court so to do.</p> <p>“ Int. 5. For how long a time prior to August 31, 1904, had the conductor of said car been in the service or employ of the defendant company in the capacity of conductor ?</p> <p>“ Ans. 5. I must decline to answer this interrogatory for the reasons stated in my answer to Interrogatory 4.</p> <p>“ Int. 6. On August 31, 1904, was not said motorman employed merely as a ‘ spare’ motorman, or as an ‘extra’ motorman?</p> <p>“Ans. 6. I must decline to answer this interrogatory for the ■reasons stated in my answer to Interrogatory 4.</p> <p>“ Int. 7. On August 31, 1904, was said conductor employed merely as a ‘ spare ’ conductor, or as an ‘ extra ’ conductor ?</p> <p>“ Ans. 7. I must decline to answer this interrogatory for the reasons stated in my answer to Interrogatory 4.”</p> <p>“Int. 10. Was any examination made of said car by the defendant corporation on said August 31, 1904, or shortly before, or shortly afterwards ?</p> <p>“Ans. 10. Yes, the car was, of course, inspected from time to time before the accident, and it was carefully examined by employees of this company for the purpose of reporting upon its condition after the accident.</p> <p>“ Int. 11. If so, state fully what examination was made of same, where and by whom, and what was the condition of the car and its appliances at the time of said examination or examinations ?</p> <p>“Ans. 11. See answer to Interrogatory 10. I am advised by counsel that the statute expressly exempts me from the obligation of giving the names of the witnesses who made this examination, and for that reason I must decline to give their names before the trial. The condition of the car after the accident was as stated in Interrogatory 8. . The wheels, axles, truck, frame, springs, journal boxes, and brake mechanism were found to be in perfect condition after the accident.”</p> <p>The interrogatories numbered 4, 5, 6 and 7 and the refusals of the defendant’s president to answer them were read to the jury against the objection and exception of the defendant.</p> <p>In arguing to the jury, the counsel for the defendant attempted to defend the witness’s refusals to answer these interrogatories and the counsel for the plaintiff commented in his argument upon the refusals to answer which he had been permitted to read as indicating a desire on the part of the defendant not to disclose material evidence which it could disclose.</p> <p>At the close of the evidence the defendant asked the judge to order a verdict for the defendant, which the judge refused to do. The defendant then asked for certain rulings, among which were the following:</p> <p>“ 9. The court instructs the jury that they cannot find a verdict'against the defendant unless they are satisfied that the accident was due to some negligence on the part of the.defendant, or of its servants or agents, and jthat they are not entitled to guess or speculate as to the nature of such negligence, but that they must be able to determine in their own minds on the evidence and with reasonable certainty what the negligence was that caused the accident, if it was caused by negligence.</p> <p>“ 10. The court instructs the jury that they cannot find a verdict against the defendant unless they are satisfied by a fair preponderance of the evidence that the derailment of the car was due to some negligence on the part of the defendant, or of some-of its servants or agents; and the jury in that case is not entitled to find such negligence from the mere happening of the accident without more; but they must be able to reach some conclusion as to what the negligence was.</p> <p>“ 11. The court instructs the jury that unless the plaintiff has pi’oved by a fair preponderance of the evidence that the derailment and overturning of the car were due to some negligence on the part of the defendant, or of its servants or agents, as alleged in the declaration, the plaintiff is not entitled to recover; and in determining this question the jury is not entitled to guess or speculate as to the existence of such negligence ; but the jury must be satisfied by a fair preponderance of the evidence as to the existence and nature of some particular negligence before they can find a verdict, for the plaintiff.”</p> <p>“17. The court instructs the jury that there is no evidence from which they would be warranted in finding any negligence on the part of the defendant, or of its servants or agents, in the inspection of the car prior to the accident.”</p> <p>“ 20. The court instructs the jury that there is no evidence from which they would' be warranted in finding the existence of any defect in the car or its apparatus at the time of the accident.”</p> <p>The judge refused to make any of these rulings. The jury returned a verdict for the plaintiff in the sum of $7,112; and the defendant alleged exceptions, which after the death of Holmes, J., were allowed by Brown, J., under R. L. c. 173, § 108, the truth of the exceptions having been agreed to by the counsel for the parties.</p>

Tort. Writ in the Superior Court for the county of Plymouth dated April 6, 1903.

<p>Contract or tort to recover the value of goods of the plaintiff alleged to have been lost by the defendants who, being engaged in business under the name of “ Sawin’s Express,” accepted them for transportation to the plaintiff. Writ in the Municipal Court of the City of Boston dated April 9,1906.</p> <p>On appeal to the Superior Court, after hearings before Schofield, J., Fessenden, J., and Fox, J., with regard to answers to interrogatories to the defendants filed by the plaintiff, the case was tried before Schofield, J., without a jury, who ruled and refused to rule as stated in the opinion, and found for the plaintiff; and the defendants alleged exceptions.</p> <p>As to exceptions by the defendants to rulings of the various judges with regard to the answers to interrogatories, the record did not disclose that any bill containing such exceptions was filed, but the only bill of exceptions which was in the record was allowed by Schofield, J., and it set forth the interrogatory in question, with all the successive answers to it and the rulings of the various judges as to such answers.</p>

<p>Devise and Legacy, What estate. Practice, Civil, Exceptions.</p> <p>At the hearing on a petition for registration of the title to land, it appeared that the real estate in question formerly had belonged to a testator, a clause in whose will read as follows: “ I give and devise also to said S. my homestead estate . . . To have and to hold the same to him during his life or until he shall have married, and whenever he shall marry, and likewise in case he shall either be married or have issue at my decease, said estate shall vest in him in fee simple, and as his absolute property ”; that the petitioner was married to S. after the death of the testator, that there were no children of the marriage, that S. had died, and that by his will the land was devised to the petitioner. The respondents were heirs at law of the testator and contended that the will gave to S. a life estate only. Held, that the language employed by the testator admitted of but one reasonable construction, namely, that S. should have the land in fee upon his marriage.</p>

<p> Release. Fraud. </p> <p>A release in writing of a cause of action is not invalidated, in the absence of fraud on the part of the person procuring it, merely by the facts that the party signing it did not read it and did not understand its contents.</p> <p>A mere concealment of the contents of a release of a cause of action on the part of the person benefiting by the terms of the release, even if there be an attempt to defraud, is not in itself enough to avoid the release. The true rule is that, where the person to whom the release is given undertakes to state its contents and conceals a material part of them, a fraudulent misrepresentation which invalidates the release is made out.</p> <p>At the trial of an action of tort against a street railway company to recover for personal injuries alleged to have been received by the plaintiff, a woman, while a passenger upon a car of the defendant, the defendant relied in defence upon a release under seal. The plaintiff admitted that she signed the release but contended that when she did so she did not have legal competency to act, and that she was induced to sign by fraud on the part of the defendant’s agent. There was evidence tending to show that, after the accident, the plaintiff was “ in a very weak, hurt condition,” that she travelled to within a short distance of her home by other street cars, making two transfers on the journey, and walked the remainder of the distance unattended, that then she went upstairs and lay down for a time when, in answer to a summons by the door bell, she came down stairs,- “ almost collapsed because of the effort,” rested a moment and then opened the door, and admitted the agent of the defendant. Her account of her interview with the agent was intelligent and, among other things, it appeared that the interview lasted from four o’clock to fifteen minutes after four, that the agent either told her that he had been to the houses of other passengers and “ all the ladies had signed,” or that he had been to all the houses “ and they signed,” that the agent urged her to sign and that she, at first saying that she could not tell whether she was going • to “ sue the road ” or not until she had seen her doctor, and protesting that she physically was unable to sign, finally did sign the release, and that, thereafter, in response to a question by him, she told the agent that the physician whom she was going to see was her family physician, that the agent thereupon handed her $5 and, she asking “ What is this for ? ”, he stated “ That will pay the doctor.” There was further testimony that, after the agent left, the plaintiff was “ in a very weak condition,” and, within an hour “ was hysterical”in conversation with her husband and “ unable to give a clear story of the accident,” hut that, within another hour she told the story of the accident to her physician. The plaintiff testified that she could not remember whether the agent read the release over to her or explained it to her. There was no evidence that the agent’s statement as to the other passengers having “ signed the paper ” was false. Held, that there was no evidence from which a jury would he warranted in finding either that the signature of the plaintiff to the release was procured by fraud or that, when she signed, she did not have legal competency to act; and that therefore the release was a bar to the action.</p>

<p>Assignment, Of wages. Statute. Constitutional Law.</p> <p>Under St. 1905, c. 308, whieh provided that “ no assignment of future earnings, ' whether made by the assignor in person or by his attorney, shall be valid unless executed in writing, for a period not exceeding two years from the date of said assignment or of any power of attorney under which said assignment is made,” an assignment made February 23,1906, of wages to be earned by a wage earner up to April 20, 1907, purporting to be executed in behalf of the wage earner by one acting pursuant to authority assumed to have been conferred by a power of attorney to do so which was executed by the wage earner on December 5; 1901, was invalid because it purported to assign earnings for a period exceeding two years from the date of the power of attorney.</p> <p>There is no doubt as to the constitutionality of St. 1905, c. 308, with regard to the invalidity of certain assignments of future earnings.</p>

<p>Tort under R. L. c. 106, § 73, by the widow of Edward J. Rowley for causing the death of Rowley without conscious suffering on September 15, 1903, while he was in the employ of the defendant. Writ dated October 31, 1903.</p> <p>In the Superior Court the case was tried before Holmes, J. The plaintiff introduced evidence tending to prove, among others, the following facts:</p> <p>At the time of the accident which caused the death of Rowley, and for some time before, the defendant owned or leased and operated four farms in Middlesex County, one situated at West Newton, one near Oak Hill in Newton, another at Kendall Green in Weston, called the Kendall Green farm, and a fourth near the Weston and Wayland boundary line, called the Bigelow farm. These farms comprised in all an acreage of over one thousand acres.</p> <p>The defendant operated the farms as milk and dairy farms. In addition he was the principal stockholder and managing official of a large printing and publishing business in Boston. He employed one Van Norman as superintendent over all the farms above mentioned. This superintendent had general oversight and direction of all the farms and the work done thereon. The defendant himself directed the work on all the farms and left the details to the superintendent. The superintendent saw that his employer’s general orders were executed, giving his orders to the foremen of the different farms and seeing that the work was carried out in accordance with these orders. On each farm was a foreman, who had charge of the men and who received orders from Van Norman, directed the labor of the farm hands in executing the orders and supervised the farm work under Van Norman’s direction. Van Norman visited each farm at least once a day. The farms all were connected by telephone and orders frequently were given by Van Norman by that means. Van Norman had his headquarters at the West Newton farm.</p> <p>Rowley was the foreman at the Kendall Green farm. He first was employed by the defendant in 1895 as foreman of a farm in Concord, Massachusetts, then owned and operated by the defendant. Rowley remained at Concord until 1900 when he went to Weston as foreman of one of the farms. In 1901 he went to Kendall Green and remained there as foreman until the time of his death. The number of farm hands on this farm varied with the seasons. In the winter, when there were fewest, there were from six to eight men, and in the summer the number was doubled. At the time he was killed there were sixteen or eighteen men under him.</p> <p>He received a salary of $35 per month. Before Rowley was employed by the defendant he had worked about cattle and understood their care, as the defendant knew. While employed by the defendant he had charge of the care of a large number of cows on the farm of which he was foreman. He was not a mechanic.</p> <p>Beginning some time in September of each year, a part of the work on each farm was the cutting of ensilage and storing it in a silo. This was done in the following manner: The growing corn first was cut and then was carried to a cutting machine, which was set up on the farm. In this machine the corn stalks were cut into small pieces of about one half an inch in length. This corn, so cut, then was deposited immediately in the silo, which was a cylindrical receptacle, built of wood, with hoops, about thirty feet high and twelve or fifteen feet in diameter. The cutting machine was about five or six feet high and fifteen or twenty feet long. The cutting was done by knives set in a cylindrical shaft, which revolved. This shaft was driven by a belt connecting it with the engine which supplied the power.</p> <p>In operating the machine a bundle of corn stalks first was laid lengthwise in the feed box. The moving belt in the feed box carried the corn stalks toward the knife. As they neared the revolving knife, a carrier from above pressed the stalks flat and carried them over rollers to the knife. The chopped material fell from the knife into a small carrier on the other side which deposited it upon an inclined carrier, which in turn conveyed it to the top of the silo. The knife was turned by a belt which ran from a pulley on the knife shaft to the engine. The other moving parts of the machine all were operated by a shaft, which received its power from the shaft revolving the knife. The power was communicated from the shaft last named to the shaft turning the belt, rollers and carriers by means of an endless chain, formed of detachable links which passed over two sprocket wheels, one fixed on each shaft. The sprocket wheel fixed on the knife shaft was one third or one fourth as large as the other one and was called the high speed sprocket. These sprocket wheels had teeth or cogs, each tooth of which fitted into the opening of a link in the sprocket chain. The sprocket wheels were made of cast iron, the chain of malleable iron. When in operation the small sprocket made about six hundred revolutions per minute. The proper place for the person feeding the corn into the machine was alongside the feed box on the same side as the sprocket chain. The sprocket chain had no covering.</p> <p>The accident occurred on Tuesday, September 15, 1903. On the Friday or Saturday preceding, Van Norman was ordered by the defendant to begin the cutting of ensilage. Van Norman directed Rowley to get out the cutting machine, which was stored in the barn at Kendall Green. The machine was taken to the Bigelow farm, which was two or three miles distant, and set up in the corn field. A portable steam engine was sent out from Boston and connected with the cutting machine. On Tuesday, September 15, the machine was ready to run and was started up for trial and was run a few minutes without anything in it. Then some “loose stuff” was put through the machine, which ran apparently all right. There were present Rowley, one Foster, a teamster, one Garnis, another teamster, who had been sent over to the Bigelow farm that morning by Van Norman, one Jones, the engineer in charge of the engine, and eight or ten Italian laborers, who had been hired temporarily by the defendant.</p> <p>After the machine had. been tried for a few minutes, as described, a load of corn stalks came on the wagon of Garnis. Rowley was standing at the side of the feed box, on a platform provided for that purpose, on the side of the sprocket chain, and was showing the Italians how to feed the corn into the box. Corn was being fed into the box and was being cut, when the sprocket chain broke with great violence, and a piece of the chain composed of three links hit Rowley on the top of the head, cutting it open and exposing the brain. He fell to the ground unconscious and was carried to the Waltham Hospital, where he died a short time afterwards on the same day, without regaining consciousness.</p> <p>At the time he was injured the cutting machine had been in operation not more than five minutes. It was running at an ordinary and proper rate of speed and the proper and usual quantity of corn was being fed into it; there was no more than the usual strain upon the machine and engine, and nothing had got into the machine to stop or clog it.</p> <p>The machine was purchased by the defendant in 1897 from Joseph Breck and Sons of Boston. It was a Ross machine, first class when new. It was set up in 1897 at Kendall Green by one Parker, an employee of Breck and Sons, in the presence of the defendant and Van Norman, who assisted Parker. It had been used every year since that on all the farms above described for all the ensilage cutting, having been moved from farm to farm. In 1902, Rowley had been confined to the house by illness during all the time the cutting machine was in use. One of the links which struck Rowley was produced at the trial, identified and introduced in evidence. The hook end of the link was twisted and half broken off. There was other evidence in regard to the cause of the accident, the findings warranted by which are stated at the beginning of the opinion.</p> <p>At the close of the evidence the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions, which, after the death of Holmes, J., were allowed, with the consent of counsel, by De Courcy, J.</p>

<p>Two actions OE TORT, by the assignee in insolvency of the joint and several estates of Henry A. Davis of Malden and Henry C. Hathaway of New Bedford, copartners under the firm name of H. A. Davis and Company, respectively against John Davenport and Joseph H. Morrill, for the value of certain goods and certain sums of money alleged to have been delivered and paid to the defendants as fraudulent preferences. Writs dated respectively October 1, 1897, and May 26, 1897.</p> <p>These two cases, together with a third case against one Antonio F. Rico, by order of the Superior Court were sent to an auditor, and, after the filing of his report, were tried together before Stevens, J., without a jury. He found for the defendant in each of the cases, and the plaintiff alleged exceptions. The exceptions in the case against Rico were overruled, but those in the cases against Davenport and Morrill were sustained, in a decision reported in 191 Mass. 415.</p> <p>The cases against Davenport and Morrill were tried again before Hitchcock, J., without a jury. The material facts are stated in the opinion. The judge found for the defendant in each of the cases; and the plaintiff alleged exceptions, raising the questions which are stated in the opinion.</p>

<p>Negligence, Employer’s liability. Evidence, Res gestae, Admissions and confessions. Agency.</p> <p>In an action by an engineer in a wire cord factory against bis employerfor personal injuries, it appeared that the plaintiff had worked as an engineer for eighteen or nineteen years and had been employed as an engineer in the defendant’s factory for about eighteen months and at times had served as a helper to the superintendent, that the superintendent sent him to get something from a storeroom in the basement of the factory, which was low, dimly lighted and very noisy from machinery both there and on the floor above, that in order to go to the storeroom he had to stoop to pass under the shaft of a blower which was two and a half or three feet from the ground, that, when he passed under the shaft, it was not in motion, that on his return from the storeroom he attempted to pass under the shaft in the same way, but it had been started, by the superintendent who sent him to the basement, and was making three hundred and twenty revolutions a minute, that the light was so dim and the noise so great that the plaintiff did not see or hear that the shaft was in motion, and had heard no signal of its starting given by a bell or orally, and as he stooped to go under the shaft two set screws in the coupling of the shaft caught the clothing at the hack of his neck and he was whirled around the shaft and was injured. There was a regulation that this shafting should not be started without a signal being given by an electric bell or orally, but the plaintiff testified that while he was in the basement he was not within hearing distance of the bell. It appeared that the blower was used to heat the factory, and that the accident happened in midwinter. The plaintiff testified that while the blower was in use, through the cold weather, he had to go down into that part of the basement half a dozen times a day to change the steam, that he oiled the bearing on the blower sometimes once a day and sometimes once in two or three days, that the blower was about twelve feet from the shaft, that he knew the shaft was there, but never had been close to it and had no knowledge that there was a coupling on it that had projecting set screws. Held, that as matter of law the plaintiff could not recover, the dim light and the noise in the basement and the set screws in the coupling of the shaft being permanent and obvious conditions of his employment, with which he was or might have been familiar, and of which he accepted the risk; moreover, that there was no evidence of negligence on the part of the superintendent in starting the shafting of the blower when he had sent the plaintiff to the basement, as he reasonably could not have been expected to foresee that an experienced employee so often in this part of the basement would not be guided by his usual experience at this season of the year as to finding the blower shaft in motion; and that whether the signal by electric bell or orally was given or not was immaterial, as the plaintiff could not have relied on the absence of the signal, knowing that he was where he could not hear it if given.</p> <p>In an action by an engineer in a factory against his employer for personal injuries alleged to have been caused by the negligence of a superintendent of the defendant in starting a blower with a revolving shaft in the basement of the factory, after he had sent the plaintiff there on an errand which compelled him to pass under the revolving shaft by stooping, in doing which he was caught by fixed screws on the shaft and was injured, the plaintiff’s wife testified that, immediately after the injury to her husband and before he was removed from the factory she had a conversation with the defendant’s superintendent, and the plaintiff offered to show that the superintendent then stated to the witness that if he, the superintendent, had not been so lazy the accident never would have occurred. The statement did not tend to contradict any testimony of the superintendent. The judge excluded the evidence. Held, that the exclusion was right; that the statement was not a part of the res gestae, being a mere narration of a past event, and was not admissible as an admission because it was not within the scope of the authority of the superintendent.</p>

<p>Damages, For property taken or injured under statutory authority. Tax, Assessment of betterments. Way, Public. Words, “Estimate of damages.”</p> <p>An order for the laying out and widening of “a street, made by a city council under the law authorizing the assessment of betterments, after complying with the provisions of R. L. c. 48 in regard to notice, which takes part of the land of an abutter without allowing any damages to him or to the other persons whose lands are taken, making no declaration on the subject, is an adjudication that none of these persons is entitled to any damages, which is an “ estimate of damages,” and after such adjudication it is too late for the abutter to elect to surrender the whole of his land under R. L. e. 50, § 4, in order that the city council may take it if tliey adjudge that the public convenience and necessity require the taking of the whole of suoh abutting estate, as this section requires the abutter to give notice in writing of his election to surrender his land “ before the estimate of damages is made.”</p>

<p>Contract against Joseph H. Robinson as surety on a bond given by Joseph D. Waters to prosecute a writ of review in the First District Court of Eastern Middlesex. Writ in the First District Court of Eastern Middlesex dated August 5, 1904.</p> <p>The original declaration was as follows :</p> <p>“ And the plaintiff says that the defendant executed to him a bond, a copy of which is annexed to the original declaration marked A;</p> <p>“ And the plaintiff further says that the Joseph D. Waters mentioned in said bond has failed to satisfy the judgment originally entered and all costs accrued on the execution issued thereon ; that all rights to a writ of review or further continuance of said writ against Joseph D. Waters have expired ; that an execution duly issued from the First District Court of Eastern Middlesex on the twenty-fourth day of June, 1904; that the plaintiff has been unable to have a personal demand made on said Waters but has made a formal demand by letter for the payment of said execution on said Waters’ attorney; wherefor the plaintiff says the defendant owes him the amount of said bond.”</p> <p>The bond, as set forth in the copy marked A, was in the penal' sum of $100, recited that the plaintiff on June 6, 1902, had obtained a judgment in the First District Court of Eastern Middlesex against Joseph D. Waters for $50 damages and $14.82 costs, and that Waters had entered his petition in the same court for a review of that judgment, and then contained the following condition:</p> <p>“Now if the said Joseph D. Waters shall satisfy the judgment, originally entered and all costs-accrued on any execution issued thereon if a writ of review is not granted on said petition, and if a writ of review is granted on said petition he shall forthwith prosecute a review to final judgment and shall satisfy such execution as may be issued against him on the review, or in case a special judgment shall be entered against him in accordance with Section 26 of Chapter 177 of the Revised Laws of the Commonwealth of Massachusetts, if he shall pay to the plaintiff within thirty days after the entry of such judgment the amount for which such judgment shall be entered, then this bond shall be void; otherwise the same shall remain in full force.”</p> <p>The defendants demurred, and answered in abatement on the ground of the non-joinder of Waters, the principal on the bond. The district court sustained the defendants’ plea in abatement.</p> <p>On the same day the plaintiff filed a motion in that court “ that the judgment this day entered be vacated ” and that the writ be amended by adding Joseph D. Waters as a defendant and that process issue to summon Waters into court. Afterwards on the same day- the plaintiff filed another motion that the case be continued for judgment and the right of appeal be extended until the court had passed upon the motion to amend. Both of these motions were allowed by the court and process was issued ordering Waters to appear and answer.</p> <p>This process was made returnable on January 14, 1905. On that day the plaintiff filed another declaration against Joseph H. Robinson and Joseph D. Waters as defendants. The defendants contended that this never was allowed by the court as an amendment to the declaration already on file. The defendant Waters filed a plea in abatement setting forth that the original action brought against the defendant Robinson had gone to judgment, and consequently that he ought not to be obliged to answer to the plaintiff’s writ and declaration, and also filed a demurrer. This demurrer and the demurrer of Robinson were overruled and judgment was entered for the plaintiff.</p> <p>The defendants appealed to the Superior Court. Both demurrers were overruled in the Superior Court, and both defendants appealed. The case then was tried in the Superior Court before Hardy, J. Before the trial the defendant Robinson filed a motion to dismiss, for the reason that judgment had been entered in the First District Court of Eastern Middlesex on the plea in abatement filed by him, and that that judgment never had been vacated. The judge overruled the motion to dismiss and the case was tried. The jury returned a verdict for the plaintiff, and the judge ordered that judgment be entered for the plaintiff in the sum of §100, that being the penal sum of the bond, and that execution issue for the sum of $79.41. Judgment was entered, and both defendants appealed.</p>

<p>Negligence, Street Railway, In use of highway. Custom.</p> <p>At the trial of an action of tort against a street railway company to recover for injuries received by the plaintiff from being run into by a street car of the defendant, it appeared that the plaintiff, when run into, was at work in the street where the car ran and was in the employ of a contractor who was placing crushed stone on the surface of the street from the curbing of the sidewalk to within eighteen inches of the car track, that the car of the defendant did not overhang the street from the track eighteen inches, that cars approaching could be seen for.over.two hundred feet from the place where the plaintiff was standing, that the plaintiff neither saw nor heard the car before it struck him and was not thinking at all whether he was so near the track that a car might hit him, that, when struck, he was facing in a direction away from the car but could not tell whether he was walking toward the track or away from it, and that the accident happened at about noon on a bright summer day. The plaintiff testified that he had noticed “ it was customary for cars to ring their gongs when men were near the track, but that for hours at a time he would not notice whether the cars rang their gongs or not, but that when he did notice, they did so when men were near the track.” Held, that there was no evidence that the plaintiff was in the exercise of due care; and also, that the evidence fell far short of indicating any established custom on the part of the employees of the defendant as to the ringing of gongs, and of showing any excuse for the failure of the plaintiff to use his own senses for his protection.</p>

<p>Petition for disbarment filed in the Superior Court for the county of Suffolk January 11, 1907.</p> <p>After the petition was filed, Arthur D. Hill, a member of the bar, was authorized by the presiding judge .to prosecute the inquiry and proceedings in relation to it.</p> <p>The specific allegations of the petition with regard to misconduct on the part of the respondent were as follows:</p> <p>“ 3. In or about the year 1904, at some time not precisely known to your petitioner, one Gertrude S. Brackett, wife of one Arthur L. Brackett, employed the respondent to represent her as an attorney at law in divorce proceedings which she was then contemplating taking against her said husband.</p> <p>“ 4. On or about April 12, 1906, a libel for divorce was filed in the Superior Court for the county of Suffolk by said Gertrude S. Brackett. The said libel was not contested and, after hearing by the court, a decree nisi was entered therein on or about May 18, 1906, which decree became absolute on or about November 18, 1906. The respondent appeared as attorney at law for the libellant in the said proceedings, including the hearing therein. Your petitioner is informed and believes that certain facts, which, if known to the court, would have prevented the granting of a divorce to the said Gertrude S. Brackett, were known to the respondent at the time of and prior to the hearing on the said libel, and that the respondent, contrary to his duty as an attorney at law, neglected to inform the court of such facts and concealed their existence from the court, thereby practising a fraud upon the court and obtaining for the said Gertrude S. Brackett a decree of divorce to which she was not legally entitled</p> <p>“ 5. On or about April 13, 1906, immediately after the filing of the libel in the said divorce proceedings, a written agreement was made between the said Arthur L. Brackett, one Walter M. Brackett, his father, and the said Gertrude S. Brackett. . . . On the same day the sum of $1,700 was paid to the said Gertrude S. Brackett by the said Walter M. Brackett or by some other member of the family of the said Arthur L. Brackett on account of alimony. From this sum the said Gertrude S. Brackett then paid $1,000 to the respondent on account of services and expenses. On or about the same date, the respondent procured and persuaded the said Gertrude S. Brackett to sign two other papers, one a promissory note for $3,100, payable to the respondent with interest at four per cent; the other an assignment of the $6,000, referred to in the said agreement, as security for the payment of the said promissory note. The said Gertrude S. Brackett was a woman unfamiliar with business and inexperienced in the conduct of business affair^, and the respondent did not properly explain to her the nature and the legal force and effect of the papers signed by her and wilfully left her in ignorance of what she had done. Your petitioner is informed and believes that in so doing the respondent acted with the fraudulent intent of obtaining money from her under the pretence that the same was due him for services and expenses in the said cause.</p> <p>“ 6. Subsequently the respondent, in pursuance of the fraudulent intent stated in the last section of this complaint, collected and received the said $6,000 and interest thereon, which, together with the said sum amounted to $6,142, by means of the said note and assignment, and procured and applied the sum of $3,174.36 from the same to the payment of the said note and the assignment under the pretence that same was due him for professional services and expenses in the said divorce proceedings, whereas, in truth and in fact, no sum was then so due him, or, if any sum was so due, it was much less than the amount which he so applied from the moneys so collected and secured by him.</p> <p>“7. In or about the month of November, 1906, the said Gertrude S. Brackett made complaint of the conduct of the respondent to Charles E. Shattuck, Esq., then the secretary of the grievance committee of your petitioner, of which complaint the respondent then or shortly afterward had notice. The respondent, in order to prevent the said Gertrude S. Brackett from taking any further proceedings against him before the grievance committee of your petitioner, caused or attempted to cause the said Gertrude S. Brackett to be notified that if she proceeded farther with her complaint against him before the grievance committee and unless she abandoned the same, that he would cause certain alleged misconduct of her, the said Gertrude S. Brackett, to be made public and would thereby injure her character and reputation in the opinion of persons known to her.”</p> <p>There was a hearing upon the petition before Fessenden, J. The following facts were undisputed: In the fall of 1904 Gertrude S. Brackett, wife of Arthur L. Brackett, asked Herbert T. Lane, Esquire, if he knew the respondent, and he said that he knew him and that he knew nothing whatever against him. She therefore consulted the respondent and employed him to procure for her either separate maintenance or a divorce from her husband. It.was necessary to employ several detectives to watch Brackett, and it was not until March 23,1906, that evidence was discovered upon which a divorce libel was brought, adultery being alleged. Brackett was a man of no means, but his father had property, and, by contending that the father had alienated Brackett’s affections from his wife, the respondent induced the father and Brackett to sign an agreement on April 13, 1906, by the terms of which $1,700 was paid forthwith to the respondent for his client, provision Was made as to the custody and maintenance of two children, and it was agreed that some furniture should be delivered to her and that $6,000 should be deposited in a bank in Manchester, New Hampshire, of which the respondent’s brother was vice-president, to be paid to Mrs. Brackett upon her procuring a decree absolute of divorce. This agreement was signed in the office of the attorney of Brackett and his father, and immediately thereafter Mrs. Brackett had an interview with the respondent in his office at which she signed a note payable to his order for $3,100, and an assignment of the sum in the bank as security for the note, and paid him out of the $1,700 just received by him $1,000 on account of services and to cover disbursements amounting to $500 made by him in her behalf. (The testimony with regard to this interview will be given in more detail below.) A decree absolute of divorce was granted to Mrs. Brackett on November 19, 1906. On the following day the respondent wrote to her: “ Your divorce became absolute yesterday and the deposit of $6,000 was sent me with interest, $6,142.00, and I am ready to turn over the balance to you after satisfying my note, or to retain your part as an investment for you if you wish.”</p> <p>On November 23, Mrs. Brackett made to Charles E. Shattuck, Esquire, sécretary of the grievance committee of the petitioner, a complaint against the respondent. Mr. Shattuck communicated with the respondent on November 24, which was Saturday, and on that same day the respondent went to the office of Mr. Lane and had an interview with him. The respondent’s testimony with regard to that interview was as follows: “ I went to Mr. Lane’s office and went into his private office and said to him, ‘ Mr. Lane, as a friend of Mrs. Brackett I want you to take a messege to her from me.’ He said, ‘ I am not a friend of Mrs. Brackett; my wife is a friend of Mrs. Brackett.’ I said,‘ Well, possibly you know of a complaint that she has made to the Bar Association of me.’ He said he did not. He asked me what I had charged Mrs. Brackett and what she got out of her case. I told him that I could not tell him that. I then said, ‘I have come here to ask you just one thing. I want you to say to her that, if she insists upon her complaint, statements will have to be made which will embarrass her and her friends,’ and he said ‘ What statements ? Statements reflecting upon her character ? ’ and I said, ‘Yes.’ He said, ‘What friends?’ I said, ‘I cannot state that to you, sir.’ He said, ‘ Why not ? On account of her privilege ? ’ I said, ‘ There are other excellent reasons why I cannot state that to you and I have come to you.’ He said, ‘ How can you prove this ? ’ He asked if I had any writings or letters or anything. I said, ‘ I have a letter which would substantiate much of what I might say, perhaps.’ He then asked me again if I would state to him what the facts were, and I told him it was impossible for me to do so. He said he doubted whether he could take that message because he was not a friend of hers himself, and it might be a little embarrassing. I said, ‘ Very well, she will understand it if you care to take it and I do it for her benefit.’”</p> <p>On the following Monday, November 26, the respondent wrote to Mrs. Brackett: “I have delayed sending you cheque for the balance of $6,142.00 in my hands pursuant to our settlement only because I thought you might wish to leave the money in my hands for investment as you thought likely last spring.,</p> <p>“Your complaint to the Bar Ass’n, (made known to me Sat; 24th. Nov.) affords no reason why I should delay sending this balance $2,967.64 stated below.</p> <p>“ I requested Mr. Lane Saturday, to inform you that if you do not retract your false statement to Mr. Shattuck to the effect substantially that I obtained your note and assignment by fraud I shall make statement • of the increased difficulties I had in handling your affairs owing to your own misconduct so frequently the subject of consultation as you know. I hesitated to do so Saturday because I do not desire to embarrass others; but if you do not correct <your false charges, I shall not leave Mr'; Shattuck in any doubt as to you nor without explanation of the size of my fee.”</p> <p>The statement accompanying the letter was as follows :</p> <p>“ Deposit $6000 with int. $6142.</p> <p>Note April 13th, ’06 $3100.00</p> <p>Int. same to Nov. 19th</p> <p>4% 74.36</p> <p>Cheque herewith, 2967.64</p> <p>6142.00 $6142.00 ”</p> <p>On the same day the respondent wroté to Mr. Shattuck a letter containing the statement that he had sent Mrs. Brackett the balance of $2,967.64, and had written her “that if she does not retract her false charges as to the note and assignment I shall state the increased difficulty I had in the matter owing to her own misconduct, not leaving you in doubt as to her nor without explanation of the size of my fee.”</p> <p>There was a hearing before the grievance committee of the petitioner on the complaint made by Mrs. Brackett, as to which hearing Mr. Shattuck testified in substance: The respondent was asked whether the misconduct mentioned in the foregoing letter to the secretary of the committee was of a kind which would be material in the divorce suit, and he said, after a pause, undoubtedly it was. He then was asked, “ Did you tell this to the court or disclose it to the court ? ” and he said “ No.” He then was asked why he didn’t, and he said that he saw no reason for doing so, and he made further statements to the effect that he had never practised law with the idea that it was necessary to disclose in an uncontested suit such things, and had never understood from other lawyers that there was any such obligation. A little later he was asked this question: “Did you understand when the matter came before the court that Mrs. Brackett was or was not entitled to a divorce ? ” and he said, “ I think I ought not to answer that question now, and perhaps never.” It was stated to him by a member of the committee that, as his client had made a complaint against him, his privilege would be waived, and that the committee would hear what he had to say about it, and he said he would like to consult counsel. The committee said “ Very well. Let us know if after consulting counsel you desire to make any further statement.”</p> <p>On December 21 the respondent wrote to the grievance committee a letter containing the following: “ In explaining at the hearing December 17 what was characterized as my change of mind in refusing to make the statement of facts as to Mrs. Brackett as suggested in my letters to her and to your secretary, I said that the written complaint differed essentially from the complaint as I understood it from the oral statement of your secretary, that the time for such statement had not yet come, and that I should make it only as a last resort, because I did not wish to embarrass Mrs. Brackett and other parties, one of whom was a member of the bar and entirely innocent. I adhere to that determination. ... If your committee has been told that I knew of facts which I was required to state to the court, I am entitled to know it before you proceed further. When such statement is made, I shall be ready to meet it, whatever it may be, and to make such further answer to your inquiries above referred to as may be necessary or proper.”</p> <p>The respondent, in his testimony with regard to his statements at the hearing before the grievance committee, agreed with Mr. Shattuck in every particular except that, when asked if he recalled being asked by .the committee “ Did you understand, when the matter came before the court, that she was or was not entitled to the divorce ? ” he replied, “ I don’t recall that; what is the answer?” He then being told that Mr. Shattuck had stated that his answer was “I think I ought not to answer that question now, and perhaps never,” said “I don’t recall that question. I don’t recall. I did not hear Mr. Shattuck’s testimony about that. Really, I did not hear that this morning [at the trial] and I don’t now. I really don’t recall that question, and I don’t recall that answer now. I am rather surprised at it. To the best of my recollection I did not testify that way before the committee. I think if I made such answer as that, I must have misunderstood the question.” He then was asked “ When this case came before the court, the divorce court, did you understand that Mrs. Brackett was or was not entitled to a divorce,” and replied “ I understood she was entitled to a divorce, and believe so now.” “ Then you did not understand that there was anything in her conduct of any kind which would disentitle her to a divorce?” “ Certainly not.” “ And if you had understood that such was the case, you would have felt called upon to call it to the attention of the court? ” “I would not. I would not act for the woman; I should refuse to make any statement to the court.”</p> <p>It was agreed that the respondent suffered from deafness at the time of the trial and also of the hearing before the grievance committee to such an extent as to make it difficult for him to hear the testimony of other witnesses and the questions of attorneys.</p> <p>The testimony of Mrs. Brackett with regard to the extent of the services rendered her by the respondent and the amount to be paid him therefor was that, from October 20,1904, until the following July, she probably saw the respondent at his office once a week on the average, and from the fall of 1905 until March 23, 1906, she saw him probably twice a week, that various detectives were employed to watch Brackett, who was hard to watch because, being an artist with no studio, he had no regular habits. After March 23, 1906, she saw the respondent every day until the settlement on April 13. When she first went to the respondent she had some talk with him about his charges, but there was no definite arrangement made. Subsequently, when the question of settlement came up, the respondent told her that if the case was settled on the basis of a settlement of $5,000, he should claim $1,000 of it and his expenses. She then remarked that she thought that was quite exorbitant, and he said that it was usual when a case was taken in the way that was. Afterwards he said that he should claim just one half.</p> <p>The testimony of the respondent with regard to the extent of his services and the amount to be paid him therefor was that Mrs. Brackett came to him in the middle of August, 1904, that he kept track of the amount of time he gave to her case; that he spent on it in all one hundred and fifty-four days of six hours each, that he had one hundred and twenty-five or one hundred and fifty interviews with her, most of them lengthy, and a still greater number with detectives and other persons who were working on the case, from whom he had between five hundred and six hundred pages of written reports; that the first time that he had any talk with Mrs. Brackett regarding his charge was on the day before the settlement was made, when he drew up a paper showing that his charge was to be $3,600, and handed it to her, stating: “I will take such portion of this $1,700 [which had just been paid him by Brackett’s counsel] as you feel you care to let me have. I certainly must have my expenses and something over, and I will draw' a note for the balance. I will draw an assignment of the bank account as collateral to the note,” and that she said, “Very well.” He further testified: “ She said as to the amount of the charge, I understood (if I heard it correctly) that she only said it was rather large. She thought it was rather large. I do not recall that phrase. I do recall that she said this. She asked if I could not let her have $400 more, making an even $4,000 instead of $3,600 which she would get. I said to her, ‘ It seems to me I have made a reasonable charge here. I took all the responsibility. You have had an income of $250 a year out of your trust fund, and yet you have not turned any of it over to me. If I hadn’t secured this result, I would have got no compensation that would have been at all adequate, and it seems to me that you ought not in fairness to ask me to take less than I think is fair and reasonable.’ She said she was satisfied with that sum, and from that day to the present time has never made any complaint of any sort or kind to me.”</p> <p>It was undisputed that Mrs. Brackett paid nothing to the respondent on account of expenses or otherwise before April 13, 1906, but that she deposited with him as security on October 20, 1904, jewelry worth $250. The disbursements made by the respondent were more than $500.</p> <p>Mrs. Brackett’s testimony with regard to the interview with the respondent on April 13, when she signed the note for $3,100 and the assignment of the money in the bank to secure it, was that, after an interview of half an hour in the office of Brackett’s counsel, when the settlement agreement was signed, the respondent asked her to step into his office, saying he had a little business to transact, that she objected, saying that she was very tired, and not able to transact any more business that night, that he said he would like to see her, and so she went into his office; that he presented the papers for her to sign. “ I asked him to be excused from signing them that night, as I was very tired, and did not fully understand them; thought I would like to have an opportunity of examining them before I did sign. He replied that he would like me to sign those papers that night, as it was better business; more legal to have all papers of even date in the case. I exclaimed a little on the size of the fee, said I thought it was rather large. I don’t remember that I said anything more. Mr. Hale claimed that it was a perfectly just charge on account of the difficulties of the case.”</p> <p>Besides his testimony hereinbefore stated as to his interview with Mrs. Brackett on April 12, the respondent testified that on April 13 she did not state to him that she was tired but appeared entirely calm and showed no excitement.</p> <p>The respondent testified that the “ misconduct ” on the part of Mrs. Brackett that he referred to in his letters to her and to Mr. Shattuck were her habits of drinking intoxicating liquors and “ frequenting or visiting questionable places,” stating that she had mentioned Winter Place Hotel and Tomfohrde’s restaurant, that he certainly never had seen her the “ worse for liquor ” but once, and he hardly could say she was intoxicated then; that the reason that he had asked Mr. Lane to deliver the message to Mrs. Brackett that he did, was because he did not want the names of other persons, among them Mrs. Lane, to be brought out at the hearing, as they would have to be in order for him fully to explain the reason why his charge for services was so large as it was, namely, because the fact that he had to keep urging Mrs. Brackett not to drink and resort to questionable places, and to guard against her doing so, made his conduct of her case much more difficult.</p> <p>Mrs. Brackett denied that she ever had told the respondent that she had been to the Winter Place Hotel or to Tomfohrde’s restaurant with Mrs. Lane, and testified that she had no “ special habits ” with regard to the use of liquor, and never had been intoxicated.</p> <p>At the close of the evidence, the respondent requested the presiding judge to rule as follows:</p> <p>“ 1. Upon all the evidence in the case as a matter of law the petition cannot be maintained and should be dismissed.</p> <p>“ 2. An attorney is not guilty of unprofessional conduct, who notifies his client, after disbarment proceedings instituted at her request, that if she does not retract her charges he will be compelled to make a statement of misconduct on her part which would be injurious to her and to other persons.</p> <p>“ 3. There is no evidence in the case to warrant a finding that the respondent caused, or attempted to cause, Mrs. Gertrude S. Brackett to be notified that, if she proceeded with her complaint against him before the grievance committee, he would cause certain alleged misconduct on her part to be made public and would thereby injure her character and reputation in the opinion of persons known to her.</p> <p>“ 4. There is no evidence in the case to warrant the finding that the respondent’s charges for his services and 'disbursements were excessive or unreasonable.</p> <p>“ 5. A libellant may be guilty of misconduct, which is not sufficient to be a cause for, or a bar to a divorce, but may be material on the issues of separate maintenance, alimony, or the custody of minor children, provided those issues are heard and tried by the court.”</p> <p>The presiding judge refused the rulings requested and made a finding of fact as follows:</p> <p>“ The court finds as to the charge set forth in paragraph four of the petition that the respondent did not know of the facts set forth in said paragraph and was guilty of no concealment and did not practise any fraud upon the court in the divorce proceedings.</p> <p>“ Upon the charge contained in paragraph five, the court finds that the respondent did not commit the acts therein stated, and did not act with the fraudulent intent therein set forth.</p> <p>“ As to the charge contained in paragraph six, the court finds that the sum which the respondent charged and retained from the amount received by him was excessive and unreasonable.</p> <p>“As to the charge contained in paragraph seven, the court finds that, after Gertrude S. Brackett therein named had made her complaint to the secretary of the grievance committee of the petitioner, and after the respondent had had notice of such complaint, he, in order to prevent, the said Gertrude from further proceedings against him before the grievance committee, caused her to be informed that, if she proceeded further with her complaint against him before the grievance committee, and unless she abandoned the same, he would cause írtain misconduct of hers (meaning sexual immorality) to be m de public, and would thereby injure her character and reputation in the opinion of persons known to her, and that he stated to the said grievance committee that he was in possession of evidence of misconduct on her part which was material to the divorce proceedings stated in the petition in this suit, intending to have the said committee understand that she had been guilty of sexual immoralities.</p> <p>“ In fact, he had no such evidence, and the court finds on the evidence before it that there was no such misconduct.”</p> <p>The presiding judge therefore ordered that the respondent be suspended from the office of attorney at law in the courts of this Commonwealth for the term of one year; and the respondent alleged exceptions.</p>

<p>Negligence, Street Railway, In use of highway, Due care of plaintiff.</p> <p>A girl nine years of age, in crossing a street in which there was a double line of street railway tracks, which she had been accustomed to cross at that point frequently every day for two years, saw a car standing on the track nearer her and a car rapidly approaching on the farther track, and, with an opportunity continually to see the car on the farther track and having it in mind, she attempted to cross in front of it after the car nearer her had moved on, thinking that she had time to get across, if she hurried, and meaning to run if she had to. She was run into and injured. Her parents often had told her not to take the risk that she did take. Held, that she could not be said to be in the exercise of any care.</p>

<p>Contract to enforce an alleged liability of the defendant as a shareholder of the Minnesota Thresher Manufacturing Company. Writ in the Superior Court of the county of Suffolk dated August 7, 1908.</p> <p>There was a hearing before Fox, J., without a jury, upon an agreed statement of facts.</p> <p>In 1874 a corporation was organized under the laws of Minnesota by the name of Seymour, Sabin and Company for the purpose of carrying on the business of general manufacturing, merchandising and lumber. It acquired and possessed at Stillwater, Washington County, Minnesota, a manufacturing establishment and plant, and manufactured and sold threshing machines and other farm and agricultural machinery and implements. In 1882 it sold all its property and plant to the Northwestern Manufacturing and Car Company, a corporation organized for the “manufacture, building, and sale of steam engines of all kinds, . . . of all kinds of cars, and the fixtures and attachments thereto belonging, ... of farm implements and machinery of all kinds, and ... of all articles, implements, and machinery of which wood and iron form the principal component parts, and the manufacture of the materials therein used,” and which had preferred and common stock. This Northwestern Manufacturing and Car Company continued the manufacturing business at Stillwater, carrying on the same in the manner in which it had been carried on by its predecessor so far as it related to the manufacturing of threshing machines, agricultural machinery and implements, and added thereto the business of manufacturing cars. Subsequently it became embarrassed and unable to meet its obligations, and in 1884 a receiver was appointed by the District Court of Washington County in the State of Minnesota, who took possession of all its property. A meeting of the creditors .of the corporation was held and a new corporation was organized under a statute of Minnesota entitled “ An act relating to manufacturing corporations,” and named Minnesota Thresher Manufacturing Company, the articles of association stating: “ The objects for which this corporation is formed are the purchase of the capital stock, evidences of indebtedness issued by it and the assets of the Northwestern Manufacturing and Car Company, a corporation existing under the laws of the State of Minnesota, or any portion of said capital stock, evidences of indebtedness or assets, and the manufacture and sale of steam engines of all kinds, farm implements and machinery of all kinds, and the manufacture and sale of all articles, implements and machinery of which wood and iron or either of them form the principal component parts, and the manufacture of the materials therein used.”</p> <p>In the letter of the incorporators to the creditors of the Northwestern Manufacturing and Car Company, seeking that they subscribe for the stock of the new company in return for the debts owed them by the old, was the statement, “ No individual liability attaches to a subscription, and the stock when issued will be full paid and non-assessable.”</p> <p>There were two classes of capital stock of the new corporation, preferred and common. The preferred stock was issued to creditors of the Northwestern Manufacturing and Car Company in return for a cancellation of their claims against that company, and the common stock was issued to holders of preferred stock of that company in return for their stock. The new corporation did nothing from the time of its organization until it purchased the assets of the Northwestern Manufacturing and Car Company, except to issue its stock according to the plan of reorganization and borrow certain sums of money for the necessary expenses of such organization and issue of stock. In 1888, after a sale by the receiver of the Northwestern Manufacturing and Car Company, all the assets of that corporation were conveyed to the new corporation, which thereupon began to transact business, and continued to do so until in December, 1900, when the Massachusetts Loan and Trust Company instituted in the United States Circuit Court for the District of Minnesota proceedings to foreclose a mortgage which it held upon the entire property of the corporation. A receiver was appointed, and, under proper proceedings, a sale was made by him of all the property of the corporation.</p> <p>In 1901 the Merchants National Bank of Saint Paul, Minnesota, recovered a judgment against the Minnesota Thresher and Manufacturing Company in the District Court for Bamsey County, Minnesota, and, executions having been issued and returned unsatisfied by sheriffs of that and of Washington County, the bank in August, 1901, filed an action in the District Court of' Washington County, a State court of record and of general jurisdiction, in which it set forth its judgment, the fact that the corporation had no property, the amount and classes of its outstanding capital stock, and averred that it and all the other creditors of the corporation were without remedy to secure their claims, except through the appointment of a receiver of the corporation who should have authority to sue for and enforce the liability of the shareholders of the corporation created by the constitution and laws of the State of Minnesota, and prayed for the appointment of such a receiver.</p> <p>A citation was issued by the court summoning the corporation and requiring it to answer and to serve a copy of its answer upon the bank’s attorneys within twenty days. On August 15, 1901, this citation was served upon E. D. Buffington, alleged by the officer who served it to be the secretary of the company. Buffington at once handed the summons to S. Blair McBeath, an attorney at law practising in the courts of the State of Minnesota, and requested him to appear for the corporation in the case.</p> <p>On August 16, 1901, a decree was entered reciting that it appeared to the court that due notice was given by serving the same upon the defendant and upon S. Blair McBeath, its attorney, and “ the parties hereto having duly appeared, . . . and the evidence having been taken . . . and the court having duly considered the matter,” decreed that the property of the corporation be sequestrated and appointed Theodore B. Converse (the plaintiff in this action) receiver “ with full authority to sue for, collect, recover, compromise, and settle any and all stockholders’ liability that may exist under the constitution and laws of the State of Minnesota or otherwise, and to prosecute and sue for the amount of such liability or any assessments that may be made by this court on account thereof for the satisfaction of the claims of the creditors of said defendant, and of the expenses of the administration of this trust, including the fees, allowances, and expenses of said receiver and his counsel, . . . either in the courts of the State of Minnesota or the courts of any other State or territory of the United States, . . . and, in general, to do and perform all acts that in the opinion of said receiver, or that he may be advised, are needful or proper for the enforcement and collection of such assessments and stockholders’ liability in any of the courts of the United States or of the various States and territories of the United States.”</p> <p>Buffington, upon whom the citation above mentioned was served, was elected secretary and a director of the corporation at its annual meeting in 1892. That was the last annual meeting held before the citation was served. He did not notify any of the board of directors that the process had been served upon him or that the suit had been brought. The by-laws of the corporation provided for an election at each annual meeting of a secretary of the corporation, who should hold his office for one year or during the pleasure of the board of directors or until his successor was “ duly elected and qualified.” They also provided that the “government and management of the affairs of this corporation shall be vested in a board of directors.”</p> <p>Before the foreclosure proceedings instituted by the Massachusetts Loan and Trust Company, Buffington had also been chosen as the general manager of the corporation. There was no evidence of what his duties as such general manager were. In those proceedings he had employed Mr. McBeath, to whom also he handed the citation in the receivership proceedings instituted by the Merchants National Bank. Mr. McBeath had no other authority to represent the corporation.</p> <p>Buffington was, beside being an officer, a creditor of the corporation in the sum of $65,725.50.</p> <p>The defendant in this action had been a holder of preferred stock of the Northwestern Manufacturing and Car Company, and, as such, subscribed and became the owner of twenty-eight shares of the common stock of the Minnesota Thresher Manufacturing Company at its organization. This stock he held at the time of the institution of the receivership proceedings against the latter corporation and at the time of the commencement and trial of this action. He.never was a resident of Minnesota and was not a party to and did not have any notice or knowledge in fact of the above described proceedings for a receiver or of the ordering of the assessment hereinafter described.</p> <p>The following provision of the constitution of Minnesota, art. 10, § 8, was in force throughout all the proceedings herein described: “ Each stockholder in any corporation, excepting those organized for the purpose of carrying on any kind of manufacturing or mechanical business, shall be liable to the amount of stock held or owned by him ”; and the only method of enforcing such liability at the time when the defendant became a shareholder in the Minnesota Thresher Manufacturing Company and at all the times when the liabilities, to satisfy which the assessment upon the stockholders hereinafter described was made, arose, was under the sections of Gen., Sts. of Minnesota of 1894, c. 76, which are summarized in the opinion.</p> <p>By a decision of the Supreme Court of Minnesota, rendered December 16, 1896, in the case of Minneapolis Baseball Co. v. City Bank, 66 Minn. 441, that court decided that, under the statutes as they then existed, the shareholder’s liability provided by the constitution could not be enforced by a receiver appointed under the sections of Gen. Sts. 1894, c. 76, referred to, and stated in their opinion that it “ must be enforced on the application of the creditors . . . except in cases where the statute otherwise provides.”</p> <p>On April 18,1899, Gen. Laws, c. 272, was enacted by the Legislature of Minnesota. It was entitled an “Act to provide for the better enforcement of the liability of stockholders of corporations,” and its provisions, so far as applicable to this case, were that, whenever a receiver for a Minnesota corporation was appointed by a District Court of the State, and he petitioned for a hearing upon the question of an assessment of the stockholders, the court, after a prescribed notice “ by publication or otherwise as the court in its discretion may deem proper,” should appoint a hearing, hear evidence, determine whether and to what extent the condition of the assets of the corporation rendered an assessment of the stockholders necessary in order that the debts of the corporation and the expenses of the receivership be paid, how much, in view of the probable ability of the various stockholders to respond to the assessment, should be assessed per share, and, if it determined that an assessment was necessary, it was provided in § 3 of the act, “ the said court shall thereupon by order direct and levy a ratable assessment upon all parties liable as stockholders, or upon or on account of any stock or shares of said corporation, for such amount, proportion or percentage of the liability upon or on account of each share of said stock as the court in its discretion may deem proper (taking into account the probable solvency or insolvency of stockholders and the probable expenses of collecting the assessment) ; and shall direct the payment of the amount so assessed against each share of said stock to the assignee or receiver within such time thereafter as said court may specify in said order.” Such order was to direct the receiver to collect the amount of the assessment from the parties liable therefor and, if necessary, to prosecute actions “ wherever such party may be found, whether in this State or elsewhere.” It was provided by § 5: “ Said order and the assessment thereby levied shall be conclusive upon and against all parties liable upon or on account of any stock or shares of said corporation, whether appearing or represented at said hearing or having notice thereof or not, as to all matters relating to the amount of and the propriety of and necessity for the said assessment.” By § 11 it was provided that, if, “ after the payment of all the. expenses of such assignment or receivership, and all indebtedness of and claims against said corporation proved or allowed in said proceedings, there shall remain any surplus money or property in the hands of the receiver, the same shall be distributed, under the direction of said court and in such a manner as may be just and equitable, among those stockholders who have paid the assessments levied against their stock as herein provided.” ■</p> <p>On April 16,1902, the receiver of the Minnesota Thresher Manufacturing Company filed in the court which appointed him a petition which averred that that corporation, by reason of the foreclosure of its mortgage by the Massachusetts Loan and Trust Company, was “ wholly without assets or property of any sort or nature out of which the claims of the creditors of the said defendant or any part of such claims can be paid, collected or realized,” set forth in detail the condition of the stock of the corporation, and averred that he had “ already incurred a very considerable expense in conducting the examination necessary to properly advise” the court “ as to the situation regarding said stockholders and their solvency, and that it is impossible at the present time to determine the expense of administering this trust and collecting the liability of the stockholders for the benefit of the creditors herein, but your petitioner avers that owing to the fact that legal proceedings will have to be instituted in many different States and in many different counties of the different States and against so large a number of stockholders, and in view of the fact that the amount involved in such litigation is large and the responsibility of the same is great, that in considering the amount for which assessment should he levied a very considerable sum must necessarily be added for the expense of collection and administration,” and he therefore prayed “that for the purpose of providing funds for the payment of the expenses of this receivership in the enforcement of such stock liability, and for the payment of the indebtedness of said defendant, as the same may be proved and allowed in this action and proceeding, this court, by its order herein, may direct and levy a ratable assessment upon all parties liable as stockholders of said corporation, or upon or on account of any shares of stock of said corporation for such amount, proportion, or percentage of-the liability for or on account of each share of stock, as the court shall deem proper after hearing, as by law provided, and to that end your petitioner prays that this court, by its order,’ may appoint a time for hearing this petition and the application herein contained, and direct such notice of such hearing to be given as to the court may seem proper.”</p> <p>A proper notice of the hearing on the petition was given and certain stockholders from New England, of whom the defendant in this case was not one, represented by C. P. Searle and J. H. Benton, Jr., Esquires, among other counsel, contested the levying and ordering of the assessment. But the court on December 22, 1902, ordered an assessment of $18 per share on the capital stock of the corporation and that, “ in case any person . . . liable as a stockholder . . . shall fail to pay the amount hereby assessed against the share or shares of stock held or owned by such stockholder, . . . within the time hereinbefore specified, said receiver is hereby directed and authorized to forthwith institute and prosecute such action or actions or other proceedings against such person ... in any court having jurisdiction, whether in this State or elsewhere, which said receiver may deem necessary or proper for the recovery of the amount due . . . under the terms of this order.”</p> <p>The contesting stockholders appealed to the Supreme Court of the State, who, by a decision reported as Merchants’ National Bank v. Minnesota Thresher Manuf. Co. 90 Minn. 144, dismissed the appeal, holding that, in determining whether the corporation was one of those excepted from the terms of art. 10, § 3, of the Minnesota constitution, it was “ immaterial that” it “ was organized under the statute providing for organizing manufacturing corporations or what the actual intention of the incorporators was, or that the corporation in fact carried on only a manufacturing business, but its articles of incorporation are ■the sole criterion as to such intention and the purposes for which the corporation was organized ” ; and that, as to the corporation in question, of the two purposes stated in its articles, the first, “the purchase of the capital stock, evidence of indebtedness and assets ” of the Northwestern Manufacturing Car Company, appeared to be independent of the second one, the manufacture of certain things, “nor does it fairly appear, expressly or by necessary implication, from the language of these articles, that such stock and assets were to be purchased only as a necessary incident to the declared purpose of manufacturing all articles which are made of wood or iron, or either of them.”</p> <p>Thereupon the receiver brought this action. The presiding judge on the foregoing facts found for the defendant, and the plaintiff appealed.</p>

<p>Deceit. Conspiracy. Pleading, Civil, Declaration. Sale. Practice, Civil, Exceptions, Conduct of trial.</p> <p>The declaration in an action of tort against three persons alleged that each of the three defendants separately made false and fraudulent representations of facts to the plaintiff, knowing them to be false, that he, being ignorant of their falsity, relied thereon and consequently was damaged, contained in its last paragraph the allegation that the representations “ were made by the defendants upon an understanding between themselves as a conspiracy for the sole purpose of deceiving the plaintiff,” and concluded with the statement, “ For which the plaintiff brings this action against the defendants as conspirators to recover his money back.” Held, that the allegations of conspiracy were not the gist of the action, but that the right of the plaintiff to recover rested upon the damage wrongfully inflicted upon him by the tortious acts of the defendants.</p> <p>In an action of tort for deceit against three persons, there was evidence tending to show that each defendant made false representations of facts to the plaintiff, knowing them to be false and intending that the plaintiff should act upon them, that the plaintiff, not knowing the representations to be false, did so act and consequently was damaged. There was a verdict against all three defendants, one of whom alone excepted to a refusal by the presiding judge to direct a verdict • in his favor because of a lack of evidence of a conspiracy among the defendants. Held, that, the representations of the excepting defendant being actionable, the plaintiff was entitled to recover against him quite apart from any joint plan to defraud on the part of all the defendants.</p> <p>Representations by one who is a subscriber to the stock of a corporation organized for the purpose of manufacturing and selling a patented invention, that he himself had invested $2,000 in the stock, that the investment was paying him twelve per cent, that the corporation already was on a paying basis and owned real estate, and that its treasurer was a man of wealth, ability and character, if they are false, are known to the person making them to be false, and are made to a woman who did not know them to be false and for the purpose of inducing her to buy stock in the same corporation, are actionable if the woman, relying upon them, buys the stock and it proves to be of no value, since they are false representations of facts and not mere seller’s or promoter’s talk or representations of something to be done in the future.</p> <p>An action of tort for deceit against three defendants was tried with an action against one of the three of the same nature, brought by the same plaintiff and arising out of the same state of facts, and there was evidence introduced which it was proper for the jury to consider against all three defendants if there was a conspiracy or combination among them to defraud the plaintiff, but which it was improper for them to consider if there was no conspiracy or combination. The presiding judge refused to rule at the request of one of the defendants that there was no evidence of such conspiracy or combination which included him and left the matter to the jury to determine under appropriate instructions. There was a verdict for the plaintiff against all the defendants. The defendant who made the request excepted to the refusal of the presiding judge to grant it. There was evidence tending to show that the plaintiff, a dressmaker, upon going to one of the other defendants on other business, on that defendant’s own motion was advised to invest in the stock of a certain corporation, and to see the treasurer of the corporation, (another of the defendants but not the one excepting) and that, in giving the advice, the first defendant made various representations of fact with regard to the treasurer and the company and accompanied the plaintiff to him ; that, at a later interview, the same defendant suggested that the plaintiff go to the excepting defendant, an oculist, for treatment for her son, stating that such defendant had invested in the stock of the corporation; that the plaintiff went to see the excepting defendant as suggested and he, on finding out from whom she came, while treating her son, strongly urged the plaintiff to invest in the stock of the corporation; that the plaintiff had several interviews, first with one defendant and then with another, that all of the defendants were subscribers for the stock of the corporation which was in need of working capital, all were well acquainted with one another, and that all of them made practically the same representations to her, which were false. Held, that there was evidence warranting a finding that there was a conspiracy or combination among the defendants to defraud the plaintiff.</p> <p>An exception to a refusal by the judge presiding at a trial to give a ruling in the language requested will not be sustained where the instructions given on the subject to which the request related were full, correct and appropriate.</p>

<p>Tort for personal injuries alleged to have been caused by a defect in the concrete sidewalk of Main Street, a highway of the defendant, between eight and nine o’clock in the evening of October 31,1903, when the plaintiff, a girl fifteen years of age, who had been doing some shopping, was on her way home with her sister and another companion. Writ dated February 1, 1904.</p> <p>In the Superior Court the case was tried before Hitchcock, J. The evidence in regard to the alleged defect is described in the opinion. The judge refused to order a verdict for the defendant, and submitted the case to the jury. The jury returned a verdict for the plaintiff in the sum of $1,000; and the defendant alleged exceptions.</p>

<p>Contract, What constitutes, Implied: common counts. Putnam Free School.</p> <p>The Trustees of the Putnam Free School, a corporation established under St. 1838, e. 85, to maintain a free school in Newburyport, having an income from a fund bequeathed to it for that purpose, made an agreement of co-operation with the city of Newburyport in connection with the high school of that city, whereby the corporation furnished the school building at a fixed annual rent to be paid by the city and agreed to maintain and heat the building and keep it in repair, and the teachers of the high school appointed respectively by the school committee of the city and the trustees of the corporation were subject to approval by the other board, so that they became the choice of botli bodies. The corporation agreed to pay the salaries of those teachers other than the principal which were appointed primarily by its trustees, and to contribute toward the salary of the principal, if he was satisfactory to the trustees, all above a certain sum not exceeding a maximum amount. A principal was re-elected by the school committee to serve for an ensuing school year, whereupon the trustees of the corporation voted “ neither to approve nor disapprove ” of his election. The school committee stood by its action and the principal accepted the election and served during the year. He was paid $1,600 by the citj’, and sued the corporation for $400 in an action of contract, with two counts, the first count alleging an express contract to pay him that sum for his services during the school year, and the second count being upon an account annexed. It appeared that, shortly after the plaintiff’s election by the school committee, the trustees of the defendant notified the committee that they declined to “ pay any portion of the principal’s salary for the ensuing year.” There was evidence on which it could be found that the plaintiff first had been elected a number of years before at a salary of $2,000, which he understood had not been changed during the succeeding years, although he knew that $1,600 was the amount paid to him by the city and that the remaining $400, until the last year, had been paid to him regularly by the defendant. It did not appear that the plaintiff had any knowledge of the contents of the agreement of co-operation between the city and the defendant, or that he ever received from the trustees of the defendant any notice of their official action in refusing to pay his salary. He knew of a meeting of the school committee at which the matter was discussed and at which the defendant was represented, but his information of the meeting included the statement that the city solicitor, who was present, gave the advice, that under the vote of the trustees the plaintiff’s election as principal must be considered valid. The plaintiff testified that he never had been aware of any dissatisfaction on the part of the trustees as a body and possessed no direct information of their official action. After the school opened it was conducted in the usual way. Pupils belonging exclusively to the defendant’s school were in attendance and received the usual instruction, and some of the defendant’s trustees, including the secretary, were present in the school from time to time. At the close of the school year the plaintiff, as principal of the school, in the presence of the defendant’s secretary, signed and presented the diplomas of the graduating class, which bore also the signatures of the trustees. Held, that on the first count the plaintiff could not recover, there being no evidence of an express contract, but that the plaintiff was entitled to go to the jury on his second count on the ground of an implied contract, there being evidence on which it could be found that the defendant accepted the benefit of the plaintiff’s services, without which its school could not have been conducted, knowing that they were not intended to be gratuitous, without giving the plaintiff any express notice that he must be content with what the city paid or else resign.</p>

<p>Practice, Civil, Motion to dismiss. Jurisdiction. Survival of Suits. Husband, and Wife. Words, “ Damage to the person.”</p> <p>A motion to dismiss an action of tort against an executor, on the ground that the defendant’s testator died before the action was brought and that under R. L.. c. 171, § 1, the action did not survive, may be made at any stage of the case, because if the allegations are true the court is deprived of all jurisdiction.</p> <p>An action of tort by a husband for consequential damages incurred by reason of personal injuries to his wife does not survive under R. L. c. 171, § 1, not being an action for “ damage to the person ” within the meaning of that statute.</p>

<p>Tort under R. L. c. 106, §§ 73, 74, by tbe widow of Charles W. R. Pembroke, to recover for the instantaneous death of her husband while in the defendant’s employ as a lineman. "Writ dated November 15, 1905.</p> <p>In the Superior Court the case was tried before Pierce, J. It was admitted that the plaintiff was the widow of Pembroke, who was instantly killed on August 28, 1905, while working upon a wire belonging to the defendant, attached to a pole on Massachusetts Avenue near Martin Street in Cambridge. Notice of the time, place and cause of the injury was given, and no question was raised as to the notice. At the time of the injury the deceased was about forty-five feet above the ground, standing upon a cross arm on the pole, and was engaged in the work of tying in a new wire upon a glass insulator which was attached to a pin in the cross arm immediately above the one upon which he was standing. The cause of the accident is described in the opinion.</p> <p>At the close of the plaintiff’s evidence, the defendant asked the judge to rule that upon the evidence/the plaintiff could not recover. The judge said, “ I am inclined to think that this condition, was a condition which was obvious to all these linemen at the time of their employment; consequently, I shall direct a verdict for the defendant.” He ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tort under R. L. c. 51, § 17, by the administratrix of the estate of Thomas H. Hadden to recover for his death by reason of an alleged defect in Washington Street in the city of Somerville. Writ dated April 29,1904.</p> <p>In the Superior Court the case was tried before Sherman, J. The following facts appeared from the evidence at the trial. Washington Street at the time of the accident was a public way, extending from Cambridge through Somerville to Boston, and at the place of the alleged defect was fifty-five feet in width between the edgestones of the sidewalks. Two lines of street railway tracks occupied fourteen feet in the centre of the street. There was much snow and ice at the sides of the roadway. On the right hand side going toward Boston was k catch basin for receiving surface water from the street. It was situated beneath the sidewalk and had an opening through the lower part of the edgestone. In front of the opening a hole had been dug through the snow and ice for the purpose of allowing the surface water to enter the catch basin. This hole constituted the alleged defect or want of repair complained of. There was evidence from which the jury could find that it was there for a day or two before the accident. It was about four feet in length along the edgestone and about one and a half feet in depth, and extended about one and one half feet from the edgestone. The catch basin was connected with the general sewerage system of th'e city in order to allow the surface water to pass away but it was not constructed or maintained for the benefit of the sewerage system. No revenue or assessments accrued to the city in connection with the construction or maintenance of the catch basin.</p> <p>The plaintiff’s intestate at the time of the accident was driving in the daytime toward Boston in the car tracks on Washington Street in a two horse covered wagon. The horses became frightened at a heap of steaming manure on the left hand side of the street and shied toward the right. There was evidence from which the jury could find that the plaintiff’s intestate was in the exercise of due care, that the wheels of the wagon entered the hole at the catch basin, that the wagon tipped over and that he thereby received injuries from which he died. Due notice of the time, place and cause of the injury was given to the defendant.</p> <p>The foregoing was all the material evidence in the case.</p> <p>At the close of the evidence, the defendant asked the judge to rule that upon all the evidence the plaintiff was not entitled to recover. He refused to make this ruling, but privately informed counsel for both the parties that in his opinion the plaintiff was not entitled to recover, but that he would submit the case to the jury, and if a verdict should be given in favor of the plaintiff he would order the verdict set aside and report the case. The jury returned a. verdict for the plaintiff, and the judge reported the case for determination by this court. By agreement of .the parties, if upon the foregoing evidence the plaintiff was entitled to recover, judgment was to be entered for the plaintiff in the sum of |900; otherwise, judgment was to be entered for the defendant.</p>

<p>Landlord and Tenant, Deposit to secure payment of rent, Ouster, Termination of lease. Bankruptcy.</p> <p>The lessee under a lease in writing of a building carried on a retail confectionery business upon the premises and conveyed his stock in trade and fixtures to the lessor in mortgage to secure the payment of the rest. The terms of the mortgage were that, upon default, the lessor, after ten days’ notice in writing and three weeks’ publication, might sell the property mortgaged at public auction, that, until default, the lessee might remain in possession, but that, upon default, the lessor might take immediate possession of the mortgaged property. The lessee sublet portions of the premises. Rent was due under the lease on the first of the month. Before the expiration of the lease, the rent not having been paid on the first day of a certain month, the lessor three days thereafter entered under the mortgage, took possession of the personal property and of the business of the lessee, sold the property at private sale in the regular course of the retail business, collected rent from the lessee’s subtenants, and continued thus in possession for over a month, when he gave to the lessee a notice in writing that he had terminated the lease and taken possession of the premises. Held, that the acts of the lessor constituted a complete ouster of the lessee.</p> <p>By the terras of a lease in writing of a building, the lessee was to pay the rent and an amount “ on account of taxes ” in advance on the first day of each month, and he deposited with the lessor a sum of money, which was less than the amount of the payment due each month, to secure the monthly payments. Nothing having been paid on the first day of a certain month, the lessor ousted the lessee on the fourth day of the month. The lessee thereupon brought an action of contract against the lessor to recover the amount deposited with him. The lessor contended that the whole of the monthly payment became due on the first of the month, and that consequently he had a right to apply the deposit toward its payment. Held, that the rent could not be apportioned, and, the consideration of a month’s rent and a monthly instalment of the taxes being a month’s use of the premises, that that consideration failed upon the lessor’s interruption of the use; and that therefore there was nothing due to the lessor which would warrant him in refusing to return the deposit.</p> <p>One who was lessee under separate leases of two different buildings deposited with the lessor a sum of money to secure to him the payment of the rent, and then assigned his lease of one of the buildings to a partnership of which he was a member. Rent was payable under both leases in advance on the first day of each month, and, it not having been paid under either lease on the first day of a certain month, the lessor gave proper notice to the partnership and entered upon the premises then held by them, but ousted the lessee from the other building on the fourth day of the month. On the twelfth day of the month the lessee filed a petition in bankruptcy under the bankruptcy act of 1898, and a trustee subsequently was appointed. Thereafter the partnership paid the rent due under the lease assigned to them, and the trustee in bankruptcy brought an action to recover the amount of the deposit made with the lessor by the lessee. Held, that the trustee in bankruptcy on his appointment became vested with the right, which was the lessee’s at the time he filed his petition in bankruptcy, to enforce repayment of the deposit when all instalments of rent whose payment it secured were paid.</p>

<p>Negligence, Elevated railway, In care of station.</p> <p>It is the duty of an electric railway company which maintains a station in a subway in a city to keep the stairways by which passengers enter and leave the station in a reasonably safe condition for travel.</p> <p>Evidence tending to show that a stairway in a station of an electric railway in a subway in a city, which was used by passengers as a means of exit from the ' station, was equipped with a suitable tread, but was allowed by employees of the company operating the railway and maintaining the station to become muddy and slippery, and that a passenger in leaving the station slipped upon the mud and was injured, will warrant a verdict for the plaintiff in an action of tort by such passenger against the railway company to recover for the injuries received by reason of the fall, because it would warrant a finding that the defendant did not maintain the stairway in a reasonably safe condition.</p>

<p>Pleading, Civil, Declaration. Contract, What constitutes, Performance and breach.</p> <p>A declaration alleged that the defendant requested the plaintiff to submit an estimate and to make an offer of the amount for which he would erect a building for the defendant according to certain plans and specifications, and promised that, if the plaintiff’s offer of a price was accepted, he, the defendant, would give to the plaintiff a bond conditioned upon the performance by the defendant of a contract for the erection of the building; that the plaintiff submitted an estimate and made an offer which the defendant accepted, and that the defendant promised to pay to the plaintiff a certain amount for tile erection of the building from time to time as the work progressed, and to give the bond above mentioned; that the plaintiff had always been ready and willing to carry out the contract, but that the defendant refused to execute and deliver the bond. The defendant demurred. Held, that the demurrer must be overruled, since, although the principal purpose of the parties to the contract was the erection of the building, the giving of the bond was intended to be concurrent with the making of the contract and a condition precedent to performance by the plaintiff, and therefore there properly was alleged a contract which was broken by the defendant.</p>

<p>Practice, Civil, Conduct of trial, Judge’s charge.</p> <p>It is not a violation of the requirement of R. L. c. 173, § 80, that “ the courts shall not charge juries with respect to matters of fact, but they may state the testimony and the law,” for a judge in his charge to elucidate the proper application of the legal principles involved in the case before him by illustrations drawn from common experience or by reference to cases where similar questions have been decided, or to define the degree of weight which the law attaches to a whole class .of testimony; and if, by an unbiased analytical statement of the testimony and of the law, he distinctly indicates to the jury the party who is entitled to prevail, and a verdict is rendered for such party, the defeated party has no just reason to complain, especially if, a question being raised as to whether or not the charge was argumentative, the judge in full and unexceptionable language instructs the jury that what he had said by way of comment was only to make plain the issues, which were solely for their determination.</p>

<p>Bill in equity, filed in the Superior Court for the county of Suffolk, December 31, 1901, between partners for an accounting as to partnership affairs, and seeking that certain wool which was alleged to have been transferred in pledge by the defendant William S. Henry, Jr., to other defendants, be applied in payment of a sum alleged to be due the plaintiff from the defendant.</p> <p>Anna E. Henry filed a “petition for leave to join in said action as claimant,” alleging that she was the wife of the defendant William S. Henry, Jr., that the wool in question had been purchased by her when doing business on her own account and was hers and not her husband’s. The petition was “ allowed,” but no amendment to the bill was made.</p> <p>The case was referred to a master. The following findings in his report are material; Anna E. Henry at the suggestion of her husband, William E. Henry, Jr., in 1891 began importing and selling Castile soap on her own account, her husband attending to the buying, importing and selling, while she personally kept the books and received all the profits. The place of business was in Boston. The business was profitable and continued through 1901. In 1895 she filed with the city clerk in Boston a certificate in accordance with Pub. Sts. c. 147; § 11, stating that she proposed to do business on her own account under the style of Henry and Company at 158 Federal Street, Boston, and that the nature of the business was “ importing and dealing in Castile soaps, etc.” Her husband’s place of business was 158 Federal Street, Boston.</p> <p>On December 5, 1895, four months before the formation of either of the partnerships as to which the plaintiff’s bill relates, Anna E. Henry, at the suggestion of her husband, began buying and selling wool on her own account. As her dealings in wool increased, her soap business became of less and less importance. She kept her own books of account showing her various business transactions, but, outside of keeping the books, her husband conducted the business. The fact that she, as Henry and Company, was making purchases and sales of wool was well known to the plaintiff and to his brother, another member of the partnership and a defendant in this suit. Henry and Company as such had no place of business and no sign. Mrs. Henry used printed letter and bill heads which indicated only that Henry and Company dealt in Castile soap.</p> <p>On January 8, 1902, after the equitable attachments were made in this suit, Mrs. Henry filed a certificate in the office of the clerk of the city of Boston in accordance with R. L. c. 158, §10, stating that she proposed to do business on her own account as an importer of and dealer in Castile soap, oils and wools, under the name of Henry and Company at 186 Summer Street, Boston.</p> <p>The report continued: “ The claimant contends first that she was not doing a wool business within the meaning of R. L. c. 153, § 10, and, second, that, if she was doing a wool business within the meaning of the statute, the plaintiff is estopped by reason of his knowledge of her transactions and his business dealings with her from taking advantage of the statute.</p> <p>“ As to her first contention, I find that she was doing a wool business within the meaning of the statute.</p> <p>“ Her second contention presents a question of law to be determined in connection with the facts found as above stated. . . . Both Charles C. and William E. Parsons [a brother of the plaintiff and the plaintiff, who were partners] knew the fact that Mrs. Henry was doing business on her own account; they were not deceived or misled by what she had done or was doing; they were partners of her husband and knew what recourses he employed in the business in which they were jointly interested and as a result of which their claims against him arise; they not only did not object to her transactions in wool, but borrowed money from her on various occasions and paid it back to her, and finally they sold or had transferred to her most if not all of the very wool which they now seek to hold as the property of her husband. I rule therefore in accordance with the claimant’s second contention that the plaintiffs are estopped in equity, by reason of the facts above stated, from taking advantage of the statute.”</p> <p>The master also found, on the accounting, that a certain sum of money was due to the plaintiff from the defendant William S. Henry, Jr.</p> <p>The claimant, Anna E. Henry, filed objections and exceptions to the findings of the master that at the times stated in the report she was engaged “ in the wool business or in any business ■requiring her to file a married woman’s certificate under the statutes,” and to the finding “ that the property owned by her was subject to attachment by her husband’s creditors save and except for the other facts found by ” the master “ relieving said property from said attachment.” The plaintiff filed an objection and exception to the report “because on the facts found and stated the master ruled that ” the plaintiff “ was estopped in equity from taking advantage of R. L. c. 153, § 10.” The defendant Charles C. Parsons also filed an objection and exception substantially the same as that of the plaintiff.</p> <p>The case was heard upon the master’s report and exceptions thereto before Fessenden, J., and on August 3, 1906, an interlocutory decree was entered as follows: “This cause came on to be heard at this sitting upon the master’s report and the exceptions of the plaintiff and the defendants thereto and was argued by counsel and thereupon it is ordered and decreed that the exceptions of each of the parties be and hereby are overruled.” From this decree the plaintiff and the defendant Charles C. Parsons appealed. On January 16, 1907, a final decree was entered, which read “This cause came on to be heard . . . upon the exceptions of the plaintiff and both defendants to the master’s report, and was argued by counsel, and upon consideration thereof, it is ordered, adjudged and decreed, (1) that all said exceptions be, and hereby are, overruled; (2) that the master’s report be, and hereby is, confirmed.” From this decree the claimant filed the following appeal: “ And now comes Anna E. Henry, claimant in the above entitled cause, and appeals from the first and second paragraphs of the final decree entered herein, in so far as said paragraph 1 overrules her exceptions to that part of the master’s report which finds that she was doing a wool business within the meaning of R. L. c. 153, § 10, and in so far as said paragraph 2 confirms that said portion of the master’s report which finds that she was doing a wool business within the meaning of R. L. c. 153, § 10, and the appellant says that she was not doing a wool business within the meaning of said statute, and prays that this her appeal may be allowed.” The plaintiff and the defendant Charles C. Parsons also appealed from the final decree.</p>

<p>Damages, Mental suffering.</p> <p>The mental suffering for which damages can be recovered in an action for personal injuries is limited to that whicli results to the person injured as the necessary or natural consequence of the physical injury.</p> <p>In an action by a married woman for personal injuries, resulting in an extremely nervous condition on her part which might cause the premature birth of a child, she cannot recover damages for her mental suffering on account of the death of a child who was conceived by her seven months after her injuries and was born prematurely seven months later.</p>

<p>Evidence, Admissions and confessions. Practice, Civil, New trial, Death of judge.</p> <p>In an action of contract for a balance alleged to be due for remodelling a barn into a dwelling house, where two sets of specifications have been put in evidence, one by the plaintiff and the other by the defendant, each contending that his set and not the other was the foundation of the contract between the parties, the plaintiff may show that the defendant took the set of specifications put in evidence by the plaintiff to a co-operative bank for the purpose of procuring a mortgage, this being evidence of an admission by conduct on the part of the defendant.</p> <p>If the judge who presided at a trial dies after a motion for a new trial has been filed hut before it has been passed upon by him, the motion for a new trial is not to be granted as a matter of right by reason of the death of the judge before whom the case was tried, but, on the contrary, another judge of the same court at a hearing on the motion has the same discretionary power to grant or deny it that the deceased judge had.</p>

<p>Negligence, Employer’s liability, Voluntarily incurring danger.</p> <p>In an action by a boy against his employer for personal injuries from having his hand crushed between the moving platen and the die of a power press used for cutting out cardboard for boxes, which he was operating, it appeared that the plaintiff had had an experience of nearly four years in the use of such amachine, that it was his duty to feed in the sheets of cardboard, taking out the completed form as the platen moved back from the die and placing a fresh sheet in position, that this was done once every three seconds, that the machine could be stopped whenever the operator wished by shifting a belt and applying a brake, that on the occasion of the accident a piece of cardboard had got into a place in the machine where it ought not to be, when the plaintiff, without attempting to stop the machine either wholly or partially, which he said in his testimony could have been done easily, attempted to remove the piece of cardboard while the machine was running at full speed, saying in his testimony that there was no need of stopping the machine. Held, that the plaintiff could not recover, as his injury was the result of his exposing himself unnecessarily to an obvious danger, and that the fact, that he thought there was time to make the experiment safely, or possibly to repeat what he had done before without harm, did not relieve him from the consequences of voluntarily incurring the obvious peril.</p>

<p>Will, Soundness of mind, Undue influence. Evidence, Opinion: experts, Admissions and confessions. Witness, Contradiction and impeachment. Practice, Civil, New trial.</p> <p>On the issue of the soundness of mind of a testatrix, witnesses other than the attesting witnesses of the will and the family physician of the testatrix, who are neither alienists nor physicians but who knew the testatrix intimately for a considerable period of time extending sufficiently near to the time of the execution of the will to make their observation of facts competent, may be asked by the executor, expecting a negative answer, whether they ever saw the testatrix do or heard her say anything that indicated anything singular or unusual respecting her mental condition.</p> <p>Upon the trial of the issue of undue influence in proving a will, a declaration by the person charged with having procured the execution of the will by undue influence, that he did exercise such influence, is not evidence of that fact as against other parties in interest.</p> <p>It is proper to exclude evidence of a previous declaration of a witness, which is offered to contradict his testimony, if the testimony sought to be contradicted has been corrected by the witness himself in his later testimony, so that the declaration offered is not in contradiction of his corrected testimony.</p> <p>To impeach the credibility of a witness, evidence is admissible of a previous declaration made by him which contradicts his testimony in any material matter.</p> <p>Upon the trial of the issue of undue influence in proving the will of a testatrix, if the person charged with having procured the execution of the will by undue influence has testified that he never advised or talked with the testatrix about her will or had anything to do with the making of it, it may be shown, for the purpose of impeaching his credibility as a witness, that at another time and place he made a statement that the will was as he told the testatrix to make it.</p> <p>Where in the trial of issues framed for a jury in proving a will, there has been error in the exclusion of evidence which should have been admitted in the trial of the issue of undue influence, but the other issues have been tried without error, a new trial will be granted upon the issue of undue influence only, and the verdict of the jury on the other issues will stand.</p>

<p>Tort for personal injuries incurred on March 17,1904, from stepping into a coal hole in the sidewalk near No. 865 on Washington Street in Boston, alleged to have been left open, and unguarded through the negligence of a servant of the defendant. Writ dated July 15, 1904.</p> <p>In the Superior Court the case was tried before Stevens, J. The plaintiff testified on direct examination: “I am sixty-five years of age ; on March 17 I was living in Dorchester; I came into town to see the parade ; after the parade I started to take a car; I strolled up the street, watching for the cars ; I was on Washington Street, nearly opposite No. 865 ; there was a crowd of people; the hole was open and I stepped into it with my right leg; my leg went down to my waist; two gentlemen came and helped me out; the hole was in the sidewalk, about two feet from the door of the store.” On cross-examination, he testified: “ I was walking along slowly, and, when I got near the place where I was hurt, there was a coal team in the street, outside the gutter; I saw it several yards before I came near it; I couldn’t say how many yards, — eight or ten, perhaps; there was a workman near it; he was in the gutter; he was shovelling coal; he was taking np coal in a shovel; he was facing toward, the building; I do not know what he did with the coal; I do not know how much coal there was there; the back of the wagon was toward the building; the wagon was empty; there was only a little coal that was scattered after the man unloaded the cart; the workman was standing in the street; he was about the length or half the length of his shovel from the curbstone; when I saw him standing there shovelling coal out of the gutter, I didn’t look toward the building; I looked straight ahead of me; I didn’t look down; I didn’t see the hole; there was a crowd coming both ways; I couldn't tell how near the people were in front of me; .there may have been no one within two or three feet; this was between three and four o’clock; it was a clear day; I have seen very few coal holes since I have been in Boston; they did not have coal holes in the sidewalk in Charlottetown, Prince Edward Island, where I lived until three years ago.”</p> <p>One Hall, called by the plaintiff, testified on direct examination : “ I keep a store, at 865 Washington Street, known as ‘ Hall’s Beehive ’; on the day of the accident I was in the store ; I did not see the accident; I saw Mr. Wakefield afterwards in the store; I bought the coal from the Boston Coal Company; I had been buying coal from them for two or three years; it was the Boston Coal Company’s wagon and their driver; I had no arrangement or agreement with the coal company whereby I should furnish somebody to watch the open hole.” On cross-examination, he testified, among other things, that all he did about the coal was to send an order to the Boston Coal Company ; he did not know who opened the coal hole; sometimes the coal hole was opened by the driver, sometimes by one of his employees. On redirect examination, he testified that his employee, one Howard, usually removed the stick underneath the coal hole cover, and the driver pried up the cover.</p> <p>One Keefe, called by the defendant, testified on direct examination : “ In 1904 I was driving for the Boston Coal Company, and on March 17th I was delivering coal at Hall’s Beehive; I had ten bags for Hall’s Beehive; it was stove coal; I unloaded my bags from the wagon on to the curbstone and waited for the parade to pass; after the parade passed by I went into the store and gave my tickets to the office; I said I had a half a ton of coal and they told me to put it in the coal hole; I went into the office in the store and then I went out and took up the coal hole cover; I used the shovel to cover the hole; I emptied the hags of coal into the hole, first removing the shovel and putting.it back after I had emptied each bag; I was picking up some loose pieces of coal in my hand; I turned around and saw a man holding on to his ankle.” On cross-examination, he testified: “I had delivered coal there before; it wasn’t necessary for a man to tell me to put the coal in the coal hole, it was customary to say that. When I first arrived there I jumped off the team and took my tickets in and told them I had half a ton of coal in bags from the Boston, meaning the Boston Coal Company; I laid the tickets down and he says, put it in the coal hole, he didn’t want me to carry it in the store, I suppose.”</p> <p>There was other testimony on both sides. At the close of the evidence the defendant asked the judge to give the following instructions:</p> <p>1. On all the evidence the plaintiff cannot recover.</p> <p>2. If the occupants of the store where the coal was being delivered had the right to direct or control the mode or manner of the delivery, then this action cannot be maintained.</p> <p>3. If the occupants of the store, No. 865 Washington Street, had the right to direct or control the mode or manner of delivery of the coal, then I instruct you that the teamster would be the servant of the occupants so as to render them liable for injuries occasioned by his negligence or carelessness in the delivery of the coal, although at that time he was in the general employ of the Boston Coal Company.</p> <p>The judge refused to give these instructions, but instructed the jury that they must determine whether the driver was acting under the control and direction of Hall or under the control and direction of the Boston Coal Company. The jury returned a verdict for the plaintiff in the sum of $1,500; and the defendant alleged exceptions.</p>

<p>Petition, filed in the Land Court January 16,1906, for registration of the title to certain land in Milton bounding in part on Lincoln Street, which the petitioners alleged to be a private way, the use and benefit of the whole of which, in common with other adjoining owners, belonged to them. The respondent contended that Lincoln Street was a highway duly laid out by the selectmen and accepted by vote of the town.</p> <p>There was a hearing before Davis, J. There was no question but that Lincoln Street was a private way unless it had been properly laid out and accepted as a street by the town. The presiding judge filed a memorandum containing the following findings of fact: “The selectmen had a hearing on the matter of laying out Lincoln Street on February 16, 1900, and on February 23,1900, voted to lay out Lincoln Street in accordance with ” a certain plan. “ The warrant for the town meeting of March 5,1900, contained, as article 52, the following: ‘To see if the town will .vote to accept Lincoln Street as laid out by the selectmen under the acts authorizing the assessment of betterments, and appropriate money for the same.’ At that meeting it was voted, in regard to article 52, ‘ To indefinitely postpone.’ The warrant for the town meeting of March 4, 1901, contained, as article 35, the same language as article 52 of the warrant for the meeting of 1900, and the meeting voted ‘ To accept Lincoln Street as laid out by the selectmen under the act authorizing the assessment of betterments, and that the sum of nine hundred dollars be appropriated therefor.’ No further or other layout was made by the selectmen than that of February 23, 1900.” The presiding judge accordingly ruled: “ That the vote of the town in 1900 to indefinitely postpone action on the layout by the selectmen was a final action by the town on the layout, and that the' attempted acceptance by the town at the meeting of 1901 was therefore invalid,” and ordered a decree for the petitioners, determining Lincoln Street to be a private way; and the respondent alleged exceptions.</p>

<p>Negligence, Of street railway in disposal of snow, Imputed. Street Railway.</p> <p>At the trial of an action of tort against a street railway company to recover for injuries received by the plaintiff, while she was riding in a sleigh driven by another person, because the horse ran away owing to the fact that, when the sleigh was being driven between the street railway tracks, one of its runners became caught in a switch, there was evidence tending to show that, at the time of the accident, because of the way in which snow was thrown by the defendant from its tracks into the roadway at the sides of the tracks, driving and passing in the roadway were very difficult and the tracks instead of the roadway were being used by travellers upon the highway with vehicles, that, after the sleigh became caught in the switch, two of the occupants other than the plaintiff sought to loosen it, the horse became restless because of their efforts and ran away, and the plaintiff was thrown out and injured. There also was evidence tending to show that there had been snow storms of unusual frequency and severity and cold weather very nearly continuously. Held, that there was evidence from which the jury would be warranted in finding that the accident happened by reason of negligence of the defendant, and that the plaintiff’s injuries resulted therefrom.</p> <p>At the trial of an action of tort for injuries caused to the plaintiff, a young woman, - because of negligence of the defendant which caused a horse, which was drawing a sleigh in which the plaintiff was, to run away, there was evidence tending to show that the driver of the sleigh was negligent, and a material question was, whether his negligence, if any, would bar the plaintiff from recovering. The defendant requested the presiding judge to rule that, if the jury should find that the plaintiff entrusted the care and management of the horse and sleigh to the driver and relied solely upon him for safety, then, in order to recover, she must show that the driver was, at the time of the accident, exercising due care in the management of the horse and sleigh. The ruling was refused and the judge charged the jury that, if the plaintiff had authority or control over the driver, and negligence on his part contributed to her injury, or if, by reason of a condition of things which she observed, she was under a duty to warn him or had reason to suppose a want of care or skill on his part, and did not warn him and such failure to warn contributed t© cause the accident, then she could not recover ; but that, if she had no authority or control over him, if there was no duty to warn him, and if she had no reason to suppose any want of care or skill on his part, then, if the defendant’s negligence caused the injury, she could recover notwithstanding the fact that negligence of the driver contributed to cause it. Held, that the ruling requested was refused rightly and that the charge given was correct and sufficient.</p>

<p>Bill in equity filed in the Superior Court for the county of Plymouth May 11, 1907, to compel performance of a contract, contained in a lease, to sell the leased premises to the plaintiffs; also</p> <p>Contract by the defendant trustees in the suit in equity against the plaintiffs therein, for rent due under the lease, the writ being in the same court, dated March 2,1907 ; also Summary process under R. L. c. 181, by a lessee under a lease in writing from the defendant trustees in the suit in equity to obtain possession of the .premises from the plaintiffs therein. Writ in the Police Court of the city of Brockton dated March 30,1907.</p> <p>The bill in equity was heard before Fessenden, J., and a commissioner was appointed to take the testimony under Equity Rule 35. The presiding judge ordered a decree that the bill he dismissed, and the plaintiffs appealed.</p> <p>The actions of contract and of summary process, the latter on appeal, were heard-before Sherman, J., on agreed statements of fact. He found for the plaintiffs in both cases, and the defendants appealed.</p>

<p>Negligence, Employer’s liability.</p> <p>Where the employees of a painter constructed a staging, for use on a certain job, from blocks, falls, ropes and ladders furnished by him for permanent use on that and other jobs, the mere fact that the method of using the parts was that, after having been used on a job, they were separated and not reassembled until again needed for a staging, does not make the staging so temporary a structure as not to be a part of the ways, works and machinery of the employer within the meaning of R. L. c. 106, § 71, cl. 1.</p> <p>The declaration in an action of tort by an employee against his employer to recover for personal injuries contained counts under R. L. c. 106, § 71, cl. 1, 2, alleging defects in the ways, works and machinery used by the defendant and negligent superintendence, and counts at common law alleging defective appliances and failure to instruct and warn the plaintiff thereof. At the trial it appeared that the plaintiff's injury was due to the falling of a staging upon which he was working as a painter. The defendant made his stagings from blocks, falls, ropes and ladders which he kept for that use, the parts being assembled when needed for a job and taken apart when the job was finished and kept in his shop until again needed. The plaintiff had been instructed that blocks and falls to be used were hung on pegs in a certain room, and that defective ones were marked as condemned and kept in a pile on the floor. The plaintiff and a fellow workman were directed by the defendant’s superintendent, who had general charge of its business, to procure three blocks and falls of a certain length for the staging in question and, going to the room where blocks and falls were kept, found only three of the required length hanging on pegs, although there also were three others of greater length upon the pegs, and delivered the three of the required length to the superintendent who sent them to the place where the work was to be done, but did not go himself. The assembling of the parts and the construction of the staging were done by the plaintiff and his fellow workmen. There was testimony by an expert that the staging fell because a rope strap on one of the blocks broke due to its being worn or chafed inside and its fibres having become somewhat “ weathered ” or rotten by chafing where they came in contact with the block. Held, that there was evidence for the jury from which they would have been warranted in finding for the plaintiff, either on the ground that there was a defective condition of the ways, works and machinery, or appliances of the defendant due to his negligence, or on the ground that there was negligence on the part of the superintendent for which the defendant was liable; and also that it could not be said as a matter of law either that the plaintiff was negligent or that he assumed the risk of the injury.</p>

<p>Landlord and Tenant, Covenant against subletting. Lodger. Words, “ Occupy or improve.”</p> <p>A covenant by the lessee, in a lease of a part of a building owned by the lessor, not to “ lease, nor underlet, nor permit any other person or persons to occupy or improve the same, or make or suffer to be made any alteration therein but with the approbation of the lessor thereto in writing,” is not broken by the lessee if he allows a lodger to occupy one of the rooms included in the lease under a contract by which the lodger pays a certain price per week for the room and its furnishings and care provided by the lessee.</p>

<p> Public Service Corporation. Gas and Electric Light Company. Electric Light Company. </p> <p>A public service corporation cannot sell its property and franchises to another corporation in such a way as to part with the power to perform its public duties.</p> <p>In regard to gas and electric lighting companies this Commonwealth has adopted legislative regulation and control rather than the encouragement of competition for protection against the evil effects of a monopoly.</p> <p>An electric light or gas company, which has a franchise covering a city or town in which another company has a like franchise, if the public interest is not affected injuriously thereby, lawfully can arrange with the other company to extend its lines into one part of new territory that is being developed and to leave the other company to extend its lines into another part of such territory, so that neither company will duplicate lines in streets where the other is serving the public, this being a detail of administration which is not an illegal parting with a portion of its franchise; and such an arrangement may be upheld although certain streets in which both companies previously have run lines are included in the arrangement.</p>

<p>Contract for $32, on an account annexed, with two items, the first being for one month’s wages, $15, and the second for steamship fare from Savannah, Georgia, to Boston, Massachusetts, $17. Later the plaintiff added by amendment two special counts, one alleging his discharge by the defendant without cause and a refusal to pay him a month’s wages of $15, and the other alleging a failure of the defendant, after unlawfully discharging the plaintiff, to return him to Boston, his port of shipment, and the plaintiff’s consequent expenditure of $17 for travelling expenses in returning to the port of Boston. Writ in the Municipal Court of the City of Boston dated February 16, 1906. . n _</p> <p>_ On appeal to the Superior Court the case was tried before HitehcoeJc, J. The evidence is' described in the opinion.</p> <p>At the close of the evidence the defendant asked the judge to make the following rulings, also asking for another ruling numbered 2 which was made by the judge :</p> <p>1. Upon the whole evidence in the ease the plaintiff is not entitled to recover and the verdict must be for the defendant.</p> <p>3. The plaintiff after his discharge, having received and receipted for his wages in full, is bound by such receipt and is not entitled to recover in this action.</p> <p>4. There is no evidence in the case which entitles the plaintiff to recover the item of $17 as set out in the second item of the account annexed in the original declaration and in the second count of the amended declaration.</p> <p>5. There is no evidence in the case that the plaintiff was not discharged from the vessel by his own consent and under such circumstances he cannot recover in this action.</p> <p>The judge refused to make any of these rulings and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $33.79. The defendant alleged exceptions.</p>

<p>Tax, Sale.</p> <p>In a sale of land for non-payment of taxes, if the notice of the sale describes the property as the whole of one lot and parts of two other lots shown on a plan on file in the registry of deeds, but no boundaries or divisional proportions are given of the parts of the subdivided lots that are to be sold, and the plan fails to show any subdivision of these lots, the notice is bad and the sale is illegal, and no title can be acquired by a collector’s deed given in pursuance of such sale.</p>

<p> Watercourse. </p> <p>If an ancient ditch or waterway, connecting two parts of a winding river, was constructed in 1652 or 1653 in pursuance of a vote of a town, and then ran in a part or all of its course through common land, and if when the ditch was cut the water of the river flowed through it without artificial aid and thereafter there was water in it a part or all of the time in every year, until it was dammed, it having at times a large‘flow, the stream running through such ditch can be found to have acquired the character of a natural watercourse, so that one who owns land on the river below the upper opening of the ditch, whose land is flooded, because of the damming of the outlet through the ditch, has a remedy in tort against the constructor of the dam.</p> <p>If the land of a riparian owner- is injured by the obstruction of a stream which he has a right to have kept open as a watercourse, his remedy by an action of tort against the obstructor is not taken away or diminished by showing that the land of all the other riparian proprietors in a like position on the river suffered similar damage from the same cause.</p> <p>A riparian owner who alleges that his land has been injured by the obstruction of a stream which he has a right to have kept open as a watercourse, in order to maintain an action of tort for the alleged injury, need not show actual damage in his present use of the land. It is enough if it appears that an injurious effect is produced upon his property by the maintenance of the obstruction such as to diminish its value if the obstructor by lapse of time should acquire a right to maintain the obstruction.</p>

<p> Boston Elevated Railway Company. Cambridge. Statute. </p> <p>Under St. 1906, c. 520, authorizing the Boston Elevated Railway Company to construct a subway or subways in the city of Cambridge, the mayor of Cambridge has no part in determining the number of stations in the subway. His only authority in regard to stations is given by § 13 of the act, which provides for his approval of locations of the “subway stations at convenient points, with suitable exits and approaches to and from the streets and such stations,” referring only to tlie exact location and manner of construction of the stations which are to be built under a plan of the railway company which has received the approval of the railroad commissioners, and the determination of the mayor in regard to the matters which are to be approved by him being made subject by § 14 to revision by the railroad commissioners “if such determination when made is not satisfactory to the company.”</p>

<p>Tort under R. L. c. Ill, § 267, to recover for the death of the plaintiff’s intestate alleged to have been caused by gross negligence on the part of a servant of the defendant. Writ in the Superior Court for the county of Barnstable dated March 8, 1905.</p> <p>There had been a previous trial of the case at which the jury-returned a verdict for the plaintiff. Exceptions taken by the defendant at that trial were sustained by this court in a decision reported in 192 Mass. 20. According to the bill of exceptions before this court at that time, the witness Yelkin, mentioned in the opinion, had testified in direct examination that the plaintiff’s intestate, for whom he worked, brought a heavy machine to the freight agent of the defendant at West Barnstable to be shipped to Boston, that, under directions of the freight agent, they attempted to load the machine into a car with the assistance of an employee of the defendant named Cook, Cook standing in the car and pulling on a rope attached to the machine to steady it as it stood upon rollers or skids running to the car from the wagon from which it was being unloaded, that Cook “ started to jump, and dance and whistle, and stopped pulling the machine,” and Yelkin told him not to play with the rope, but to “keep the rope good,” that “for three or four minutes the machine went, and then it fell down.” “After I said ‘Stop, John,’ I started moving the machine and the next thing that happened, the machine fell.” And that in cross-examination he testified as follows: “ Q. And what did he do then, when you said ‘Stop, John,’ did he stop? A. He stopped this time.”</p> <p>There was a retrial of the case before Fessenden, J. The evidence introduced on behalf of the plaintiff, excepting the testimony of Yelkin, was substantially the same as that reported in the bill of exceptions when the case was before this court before. Yelkin’s testimony with regard to the conduct of Cook was, in direct examination, as follows: “ Cook held the rope and started dancing and whistling, the rollers were not under the machine, and he jerked the rope like that [indicating]. I say, ‘John, stop whistling and dance and hold the rope pretty good.’ Well, we started moving the machine from the tipcart about a few inches and they started fixing the rollers,. Hiller [the freight agent] did, and then Cook started to whistle- and dance, and we started the machine and gone four or five-inches this time and I said ‘You keep still your whistle and dance.’ Just before the machine fell he started to whistle and dance and jerk the rope. The machine fell right off.” In cross-examination, on the same subject, he testified: “ The machine was still in the tipcart and Cook was in the car holding the rope and started to dance and whistle and jerked the rope. I said * Stop John. Hold the rope good,’ and he stopped this time. Then Hiller lifted up the machine to put the rollers under. Then the machine was moved along a little bit, and Cook started again to whistle and dance and jerk the rope. I spoke to Cook and told him to stop and hold the rope good, and he stopped. He think it was funny. Hiller put the second roller under the machine. Pearlstein was standing back of me on the one side, and Hiller and Crocker on the other, Cook was standing in the car with the rope. The rope was not round an iron rod, Cook held it in his hand. There was no pushing this time because Hiller was putting the rollers underneath the machine aiid I was holding it on one side. We now had two rollers under the machine and I was pushing; the machine had two pieces of joist on each side fastened on each leg, a little wider than the skids about five or six inches. The machine was about five or six inches wider than the skids. We had been working on the machine five or six minutes before we got it two feet out of the cart. Hiller kept fixing the rollers until finally the machine was entirely out of the cart and was on the skids and it was on even and Cook was holding the rope. . . . We started moving the machine just a little bit, four or five inches, and it moved a little, and he began to whistle and dance, and I said ‘ Keep still and hold the rope ’ and by this time the machine came down.” In re-direct examination he stated: Q. “Just before the machine fell what was Cook doing?” A. “ He was dancing and whistling and jerking the rope.” — Q. “ Just before the machine fell what was he doing with the rope ? ” A. “ He was starting to dance and whistle and jerking the rope. I told him ‘ Keep still, John. You hold the rope and stop your whistle and dance,’ and this time fell the machine.”</p> <p>The presiding judge refused to direct a verdict for the defendant and also refused to rule that there was no evidence for the jury of gross negligence on the part of Cook, there was a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Tort against a corporation maintaining coal sheds in Haverhill, by an employee therein, to recover for personal injuries caused by a wheelbarrow loaded with coal falling upon him, which was alleged to be due to a defect in a runway. Writ in the .Superior Court for the county of Essex dated January 20, 1905.</p> <p>There was a trial before Sherman, J. It appeared that the shed in which the accident happened was one hundred and seventy feet long, stood between a railroad and the Merrimae River, and contained nine bins. Three runways ran across the top of the bins, and coal was transported by wheelbarrows along the runways and placed in the proper bins. The wheelbarrow which struck the plaintiff in the manner described in the opinion was of iron, had two wheels and measured four feet and eight inches in width from hub to hub. The width between the wheels was about four feet, and the diameter of the wheels was about forty-two inches. Other facts are stated in the opinion.</p> <p>At the close of the evidence, the defendant requested that a verdict in its favor be directed, but the presiding judge refused the request, and the defendant excepted.</p>

<p>Contract on a promissory note. Writ in the Municipal Court of the City of Boston, dated January 20, 1904.</p> <p>On appeal to the Superior Court the case was tried before Bell, J. The defendant did not deny the execution and delivery of the note, but relied solely on the contention that the facts showed a payment, and filed twelve requests which in various forms asked for rulings to that effect. The presiding judge refused to rule as requested, but ruled that no defence was made out by the defendant and directed a verdict for the' plaintiff; and the defendant alleged exceptions.</p>

<p>Tort for conscious suffering and death of the plaintiff’s intestate alleged to have resulted from an injury received by him while in the defendant’s employ. Writ in the Superior Court for the county of Norfolk dated October 7, 1905.</p> <p>The declaration contained six counts, the first and second alleging causes of action under R. L. c. 106, § 71, cl. 1, and § 73; and the third and fourth alleging causes of action under R. L. c. 106, § 71, cl. 2, and § 73. The fifth and sixth counts alleged causes of action at common law, but at the trial the plaintiff elected to proceed upon the first four counts only.</p> <p>At the trial, which was before Hardy, J., the plaintiff introduced the following, upon which she relied to prove the notice required by R. L. c. 106, § 75:</p> <p>“ March 20, 1905.</p> <p>“ On Jan. 23d last, a little after eleven o’clock A. M., Matti Jarveta, alias Matti Yarneta H 253, was killed in your ship yard while he was employed by your company, and while he was engaged, under the orders of one of your superintendents, in helping to roll a large smoke stack or other similar mechanism. So far as is now known the cause of his injury and death was by being crushed under said smoke stack from one of the causes for which a right of action against your company is given in Oh. 106, Sec. 71, clause first or second, of the Revised Laws of this commonwealth. Mr. Jarveta died in about 15 or 20 minutes after his injury, and this notice is given by me in his behalf at this time because no administrator has yet been appointed for him.</p> <p>“ Signed, Charles Allen Taber.</p> <p>“To the President or other official of the Fore River Shipbuilding Co.”</p> <p>It was not disputed that the signer of the notice was an attorney at law and, when he signed it, was the attorney of Kristina Lukkonen, who knew and approved of his signing and sending it; that the latter was the sister of Jarveta, whose mother was living, and that on May 15,1905, with the assent of the mother, she was appointed administratrix of the estate of Jarveta.</p> <p>At the close of the plaintiff’s evidence, the defendant rested, and the presiding judge ruled that there was no evidence to support the first two counts of the declaration, but “ that there was evidence for the jury that the deceased was in the exercise of due care and was injured by the negligence of the defend-ant ” ; that the notice in evidence “ sufficiently stated the time, place and cause of the injury, and that it was received by the defendant within sixty days of the date of the injury,” but that it “ did not show a compliance with the requirements of R. L. c. 106, § 75.” He therefore directed a “general verdict for the defendant on the first two counts, and a special verdict for the defendant on the third and fourth counts . . . because the notice . . . was not signed by any person who had a right under ” R. L. c. 106, § 75, “to give such notice so as to maintain an action thereon”; and the plaintiff alleged exceptions.</p>

<p>Petition filed in the Superior Court for the county of Suffolk September 18, 1906, for partition of fourteen parcels of land in Rockport and one in Boston. The land formerly belonged to one Leander Miller Haskins. The petitioner and the respondent were adopted daughters of his and were his only heirs at law. Haskins left a will, but the petitioner contended that he died intestate as to the land described in the petition, while the respondent contended that that land passed by the residuary clause of his will.</p> <p>The case was tried upon agreed facts before Wait, J., without a jury. The will of Haskins was written by himself upon a printed form. The first clause created a trust fund of $65,000 to continue for fifteen years. Clause “ A ” of this paragraph provided that the respondent and her children should receive the income of $25,000 of the trust fund, and eventually that amount of the principal. Clause “ B ” made a like provision for the benefit of the petitioner and her children with regard to $5,000 of the trust fund. Clause “ C ” provided for the payment of the income of $5,000 of the trust fund to a sister for her life, and closed with “ At her death this portion shall revert to my General Estate.” Clause “ D ” provided for the payment of the income from $10,000 of the trust fund to a brother, and. “ in the event of his death before distribution, the income of $5,000 shall be paid to his widow if she survive and the remaining $5,000 shall revert to my General Estate. In the event of the death of both . . . this whole portion shall revert to my General Estate.” By clause “ E ” a nephew was given the benefit of $5,000 of the trust fund, and the clause closed with “ In the event of his death before distribution this portion to revert to my General Estate.” Clause “ F ” gave a sister in law the benefit of $2,000 of the trust fund and closed “ At her death this portion to revert to my General Estate.” Clause “ G ” gave a cousin the enjoyment for life of the income from $5,000 of the trust fund, and closed, “At his death this portion shall revert to my General Estate,” and clause “H,” containing a direction to pay the income from $5,000, and eventually that part of the principal of the trust fund to a son of the respondent, closed “ In the event of death before distribution this portion to revert to my General Estate.” Clause “ J ” gave as public bequests the income of $8,000, and eventually that portion of the principal.</p> <p>The second, third and fourth paragraphs of the will made various pecuniary bequests. The fifth and sixth paragraphs are described in the opinion, where all other material facts are stated.</p> <p>The judge found for the respondent and dismissed the petition; and the petitioner alleged exceptions.</p>

<p>Bills and Notes. Municipal Corporations. Agency. Insurance, Life. Contract, Implied. Interest.</p> <p>One who receives the cheek of a city in payment of an individual debt of its city treasurer has notice on the face of the transaction that in the absence of express authority the check is invalid, and this is so irrespective of the existence of an ordinance prohibiting such an act.</p> <p>In an action by a city against a life insurance company for money had and received by the defendant in successive annual payments of premiums, upon an individual life insurance policy of the treasurer of the city, made with checks of the city drawn by the treasurer, if it appears that the checks were made payable to the cashier of the defendant, who received them knowing that the insured was the treasurer of the city and indorsed and deposited them to the credit of the defendant in the ordinary course of business, this shows actual knowledge by the cashier that the checks were invalid, and is the knowledge of the defendant, whose alleged right to hold the payments is based on the ratification of its cashier’s acts, so that the provision of R. L. c. 73, § 73, that the holder of a negotiable instrument to be chargeable with notice of a defect in the title of the person negotiating it must have had actual knowledge of such infirmity, does not help the defendant.</p> <p>In an action by a city against a life insurance company for money had and received by the defendant in successive annual payments of premiums, upon an individual life insurance policy of the treasurer of the city, made with checks of the city drawn by the treasurer, the transaction showing that the defendant had actual knowledge that the checks were invalid, if it appears that the wrongful payments were a part of an extensive scheme of embezzlement carried on successfully by the city treasurer for six years, the failure of the auditing oflicers of the plaintiff to detect the embezzlement, even if they were negligent, is no defense to the action.</p> <p>In an action by a city against a life insurance company, to recover the amount of premiums paid annually in six successive years on an individual life insurance policy of the city treasurer by checks of the city wrongfully drawn by the treasurer and payable to the defendant, it is no defense that the defendant is a mutual company and that before the action was brought it in good faith distributed the money received as premiums among its policy holders, and has on hand no money received from the plaintiff.</p> <p>In an action by a city against a life insurance company, to recover the amount of premiums paid annually in successive years on an individual life insurance policy of the city treasurer by cheeks wrongfully drawn by the treasurer and payable by the defendant, where the receipt of the checks by the defendant shows actual notice of their invalidity, evidence offered by the defendant as bearing upon the question of constructive notice properly is excluded as immaterial.</p> <p>In an action by a city against a life insurance company, to recover the amount of premiums paid annually in successive years on an individual life insurance policy of the city treasurer by checks wrongfully drawn by the treasurer and payable to the defendant, where the receipt of the checks by the defendant shows actual notice of their invalidity, it is no defense to the action “ that if the defendant should attempt to inquire into all checks .which are received by it from the holders of policies for the payment of premiums, which are not issued in the name of the insured, it could not carry on its business, as such inquiry was a practical impossibility,” and evidence offered to prove the truth of such a statement should be excluded.</p> <p>In an action by a city against a life insurance company to recover the amount of premiums paid annually for six successive years on an individual life insurance policy of the city treasurer by checks of the city wrongfully drawn by the' treasurer and payable to the defendant, the plaintiff on proving such knowingly wrongful receipts of its money shows a duty on the part of the defendant to return the amount of each payment as soon as made and without a demand by the plaintiff, and the plaintiff is entitled to interest from the date of each payment.</p>