Volume 200 — Massachusetts Reports

<p>Contract for salary alleged to be due to the plaintiff from the defendant, the first count being for $961.50, alleged to be due for the period from September 21, 1907, to and including November 30, 1907; and the second for $416.66, for a period from December 1, 1907, to and including December 31, 1907. Writ in the Superior Court for the county of Worcester dated February 8, 1908.</p> <p>There was a trial before G-asTcill, J., without a jury, who found for the plaintiff in the sum of $685; and the defendant alleged exceptions. The facts are stated in the opinion.</p> <p>The case was submitted on briefs.</p>

<p>Tort by the administrator of one who, while a passenger of the defendant, received injuries which resulted in his death. Writ in the Superior Court for the county of Worcester dated March 17, 1908.</p> <p>The declaration alleged that on September 24, 1906, at the request of the defendant, Ellen E. Brooks, the plaintiff’s intestate, boarded a car of the defendant in Fitchburg and became a passenger on said car, “ and thereupon it became the duty of the defendant to convey the said Ellen E. Brooks safely on said car; yet the defendant, not regarding its duty in that behalf, wholly neglected so to do, and by its agents and servants so negligently, carelessly and unskilfully managed said car, that the said Ellen E. Brooks, while in the act of boarding said car, by reason of said negligent and careless and unskilful management of said car by said defendant, its agents and servants, received injuries which resulted in her death on June 7, 1907; that said Ellen E. Brooks was at all times in the exercise of due care and diligence and was not in the employment or service of the defendant. That this action is brought under chapter 375, of the acts of 1907.”</p> <p>The defendant demurred on the following grounds:</p> <p>“ (1) The declaration purports to be against a street railway company under St. 1907, c. 375, and states no cause of action for the reason that said statute does not apply to street railway companies.</p> <p>“ (2) The injury alleged as a cause of action in plaintiff’s declaration occurred prior to the passage of said statute and does not fall within its provisions.</p> <p>“ (3) The injury set forth in plaintiff’s declaration is alleged to have occurred prior to the passage of said statute; hence so much of said statute as by amendment strikes out the word ‘gross’ from the statute amended cannot apply to injuries which occurred prior to the passage of said statute; and there is no allegation in said declaration that the negligence of the agents or servants which caused said injury was ‘gross’ negligence.</p> <p>“ (4) Plaintiff’s action was not commenced within one year of the alleged injury.”</p> <p>After a hearing before Richardson, J., the demurrer was sustained, judgment was ordered for the defendant and the plaintiff appealed.</p>

<p>Negligence, Employer’s liability-</p> <p>At the trial of an action of tort for personal injuries alleged to have been received by the plaintiff while in the defendant’s employ, by reason of the incompetence of a workman furnished by the defendant to work with him, there was evidence tending to show that it was the plaintiff’s duty to act as the superior one of two workmen in the operation of a large and complicated machine, that occasionally the machine would have to be stopped because of becoming clogged, when both he and his fellow workman would have to clean it out, and that it frequently was necessary for him to give directions to the fellow workman; that, half an hour before the accident occurred, the alleged incompetent fellow workman was sent by the defendant to work with the plaintiff, that he could • speak only French, while the plaintiff could speak only English, and that the plaintiff did not know that the fellow workman could not speak English ; that the machine, becoming clogged, was stopped and the plaintiff and the fellow workman were at work cleaning it out, when the fellow workman started it up a little and the plaintiff’s fingers became caught, that the plaintiff thereupon in English directed the fellow workman to turn off the power, but, instead, he turned it on, and the plaintiff lost his fingers; that, if the power had been turned off, the plaintiff could have extricated his fingers without injury. Held, that there was evidence warranting findings that, because he could not speak English, the fellow workman was incompetent for .the work to which the defendant assigned him; that the defendant knew he could not speak English; that the plaintiff’s injury resulted from such incompetence, and therefore that the defendant was liable.</p>

<p> Trespass. Damages. Way. Boundary. Deed. Municipal Corporations. Joint Tortfeasors. </p> <p>The owner of land abutting on a private way, who also owns the fee of the land to the centre of the way and maintains trees and shrubbery on the part of the way of which he owns the fee, although his right to maintain them there is subject to the right of the other abutters on the way to have them removed as obstructing their right of passage, is entitled to damages against a trespasser who removes the trees and shrubbery for interference with his qualified right. The trespasser can show in reduction of damages that the right which he invaded was a qualified and not an absolute one, but, if the removal of the trees and shrubs diminished the value of his property, the landowner is entitled to more than nominal damages, and in estimating his damages it is proper to consider whether and to what extent the other abutters would be likely to insist upon their right of way under the circumstances shown.</p> <p>A boundary line described in a deed as running in a certain direction by a private way includes the fee of the land to the centre of the private way, if it belongs to the grantor, unless the deed by explicit statement or necessary implication requires a different construction, and the fact that the monument at one end of the boundary on the way is stated to be in the line of the way does not require a different construction.</p> <p>A town is not liable for acts of trespass committed by the persons who are its selectmen and the persons who are its water commissioners in attempting to construct a street and to dig a trench for a water main in a private way which the town had undertaken to lay out as a public street by a vote which was illegal and void.</p> <p>If the persons who are the selectmen of a town commit acts of trespass on the land of a private person under the supposed authority of a vote of the town which is illegal and void, they are liable to the landowner for the damage caused to his property, and, being joint trespassers, each of them is liable for the whole damage. The same rule is applicable to similar acts committed without authority by the persons, who are the water commissioners of a town.</p>

Tort for personal injuries received by the plaintiff because of the giving way of a staging on which the plaintiff was at work for the defendants. Writ in the Superior Court for the county of Hampden dated August 16, 1907. There was a trial before Wait, J., and a verdict for the plaintiff. The defendants alleged exceptions. The facts are stated in the opinion.

<p>Negligence, Street Railway.</p> <p>At the trial of an action of tort against a street railway company, brought by a woman to recover for personal injuries alleged to have been received by her because, while she was entering a car of the defendant at the rear platform, the car was started so suddenly as to cause her to fall upon the platform, there was evidence tending to show that the car was a small, closed electric car, that the plaintiff, in the act of entering"the car, had one foot on the platform and was in the act of bringing the other foot from the step up to the platform, in the meantime having a good hold upon a brass rod which ran across a back windpw of the car immediately at her right, when, at a signal from the conductor to the motorman, the car was started so suddenly that her good hold was broken, she was thrown against an electric controller at the back of the platform, and then fell to the floor. Held, that there was evidence of negligence of the conductor in starting the car too soon, and of the motorman in starting it with too violent a jerk.</p>

<p>Contract, Validity. Fraud. Sale. Estoppel. Evidence, Extrinsic affecting writings. Practice, Civil, Exceptions.</p> <p>If upon the solicitation of a salesman a person signs two order blanks for goods, one retained by the signer and the other taken away by the salesman, he can show, when sued by the principal of the salesman on his alleged contract contained in the blank taken away by the salesman, that the salesman falsely and fraudulently represented to him that the blank taken away by the salesman and afterwards attached to the declaration was the same as the blank retained by the defendant and that the defendant signed the blank attached to the declaration relying on this false and fraudulent representation, and these facts if shown are a good defense to the action.</p> <p>In an action for the price of goods alleged to have been sold and delivered under the terms of a printed order blank signed by the defendant, in which the defense set up is that the defendant’s signature upon the order sued upon was obtained by false and fraudulent representations of the plaintiff’s salesman, if it appears that the defendant returned the goods sent to him by the plaintiff stating only that they were not what the plaintiff’s salesman had agreed to send, this is not inconsistent with the position that the defendant’s signature to the paper annexed to the plaintiff’s declaration was procured by fraud and therefore that the paper is not the contract really made between the parties.</p> <p>In an action for the price of goods alleged to have been sold and delivered under the terms of an order blank signed by the defendant, in which the defense set up is that the defendant’s signature to the instrument sued upon was obtained by fraud on the part of the plaintiff’s salesman, the defendant may show by oral evidence that a different agreement was made between him and the plaintiff’s salesman by word of mouth.</p> <p>In an action for the price of jewelry alleged to have been sold and delivered under the terms of an order blank signed by the defendant, it appeared that the signature of the defendant to the order blank was procured by a salesman of the plaintiff, who exhibited samples of the jewelry named in the order blank, and the plaintiff testified that the jewelry delivered to the defendant was up to the samples furnished by the plaintiff to the salesman who dealt with the defendant. The defendant offered evidence to contradict this testimony which was admitted by the judge against the objection and subject to the exception of the plaintiff. The order blank signed by the defendant contained a provision called a “ warranty and exchange obligation” clause, which terminated as follows: “The purchaser hereby waives all right to claim . . . that goods are not like sample . . . unless he has exhausted the terms of warranty and exchange.” It was admitted that the defendant had not exhausted the terms of that clause. The plaintiff asked the judge to instruct the jury that by force of this clause the fact that the jewelry was not up to sample was of no consequence, and the judge gave this instruction. Held, that, when the plaintiff, as a part of his original case introduced in evidence his testimony that the jewelry delivered was up to the sample shown to the defendant by his agent, he must be taken to have been proceeding at that time on the ground that the jewelry was up to sample, waiving his rights under the clause of the contract above described, and therefore that the plaintiff’s exception to the admission of the defendant’s evidence in contradiction was not well taken, and did not become good when the plaintiff changed his mind and asked for the instruction under the clause of the contract described above.</p>

<p>Equity Jurisdiction, Specific performance, Damages. Equity Pleading and Practice, Bill.</p> <p>The plaintiff in a hill in equity seeking specific performance of an agreement to sell and convey certain real estate does not have an absolute right to a decree ordering specific performance merely because the agreement was made by a defendant competent to make it, was sufficient upon its face and was not obtained by such fraud or misrepresentation as would give the defendant a right to avoid it; but the granting of such a decree rests in the sound discretion of the court, and, where the judge also finds facts tending to show that, in inducing the defendant to make the agreement, the plaintiff was guilty of unfair conduct or took any inequitable advantage of the defendant, he may refuse the decree, although the plaintiff was not under any fiduciary relation to the defendant.</p> <p>At the hearing of a suit in equity for specific performance of an agreement in writing by the defendant to convey certain real estate to the plaintiff, the judge found that the agreement was made by the defendant, who was legally competent to make it, that it was sufficient on its face, and that it was not obtained by such fraud or misrepresentation as would give the defendant a right to avoid it; but he also found that, because of unfair and inequitable conduct on the part of the plaintiff in procuring the agreement, specific performance should be refused, and dismissed the bill. The plaintiff appealed and contended that the suit should have been retained for the assessment of damages. There was no prayer for damages in the bill, and it did not appear that the plaintiff had requested that his damages be assessed. Held, that the appeal should be dismissed, since the court was not bound to retain the bill for the assessment of damages.</p>

<p>Three actions of contract by the same plaintiff respectively against three different insurance companies on policies insuring the plaintiff against loss by fire to a hotel in Quincy known as the Hotel Shelton and its contents, which were destroyed by fire shortly after midnight of December 2, 1903. Writs dated April 11 and 12, 1904.</p> <p>In the Superior Court the cases were heard by Wait, J., without a jury. In the first two cases the defendant asked the judge to rule as follows: “ Upon all the evidence the plaintiff is not entitled to recover. No statement in writing signed and sworn to by the insured was forthwith rendered to the company as required by the terms of the policy.” The judge refused to rule as requested and found for the plaintiff in each of these cases. The evidence in regard to the furnishing of the statement is described in the opinion.</p> <p>In the third case the judge found for the defendant on the ground that the policy was cancelled. The findings of the judge on this question were as follows: “ Crowell [the agent through whom the plaintiff procured the insurance] saw the plaintiff and told him of the demand for the Agricultural policy [for the purpose of cancellation]. When this was done was not clear, but I am satisfied it was some days before the fire, and that the plaintiff then determined to give up the policy and return it for cancellation intending to secure other insurance in its place, but I do not find he made the securing of such other insurance a condition of the surrender for cancellation. No written demand was made at any time on the plaintiff and no tender of return premiums was made to him by the company or by any one on its behalf; no tender of such premiums was made to Crowell by any one. The property insured was totally destroyed by fire shortly after midnight of December 2,1903. A special agent of the Agricultural Insurance Company, with knowledge of the fire, saw the plaintiff on December 3 at Worcester, and without telling him of the loss, asked whether the Agricultural policy was can-celled. The plaintiff said he understood that the policy was cancelled and that no liability attached to the company. He offered the policy to the special agent, who, however, suggested that it be sent to Mr. Crowell. The plaintiff, still ignorant of the loss, sent the policy to Crowell about noon time, and in Crowell’s office it was marked cancelled as of November 18, 1903, and was delivered to the special agent. Crowell knew of the loss at the time. I find that the plaintiff before the fire knew of and assented to the intended cancellation of the policy, and that, updn his actual surrender of the policy into Crowell’s hands for cancellation, he intended the surrender to become complete as of a date corresponding to the notice of the desire to cancel, which would be before the date of the fire.”</p> <p>The judge reported the three cases for determination by this court, raising only the questions which are mentioned above.</p>

<p>Two actions of tort for personal injuries alleged to have been received by the plaintiffs by being run into from behind, as they were alighting from a street car, by a team belonging to the defendant and driven by the defendant’s son. Writs in the Superior Court for the county of Worcester dated June 16, 1905.</p> <p>The cases were tried together before Wait, J. There was evidence tending to show that the car upon which the plaintiffs were passengers was an open car and was going in an easterly direction along Shrewsbury Street in Worcester to Seward Street, that, at some time before reaching Seward Street, the car passed the team driven by the defendant’s son and stopped at a point about seventy-five feet before it reached a white post which marked the regular stopping place of street cars going in that direction at that point, that cars usually ran to the white post before stopping for passengers who were to be let off in the vicinity of Seward Street, that the plaintiff McGourty had with him a bundle and a dinner pail, and the other plaintiff, O’Connor, being then about four years of age, was seated with him in company with his, O’Connor’s, mother; that, as the car stopped, McGourty rose from his seat, placed his dinner pail and bundle on the seat, and looked back toward the rear end of the car but was unable to see the street on account of passengers being on the running board; that, after the car had come to a full stop, he took the plaintiff O’Connor in his right arm, and, taking hold of the standard or handle of the car seat with his left hand, stepped off on to the ground, facing toward the front of the car, when they, the plaintiffs, were struck by the defendant’s team; that they did not see or hear the team until they were struck.</p> <p>It appeared from the evidence that it was from eight to ten feet from the street railway tracks to the sidewalk, that Shrews-bury Street was a much travelled thoroughfare in a thickly settled part of the city of Worcester and was the principal street leading to Lake Quinsigamond and Shrewsbury ; that there are two car tracks in said street, and that the plaintiff McGourty was familiar with these conditions.</p> <p>At the conclusion of the evidence, the defendant requested the presiding judge to direct a verdict for him, and to rule as follows: “ The driver of the team had a right to expect that the car would stop at or near the next white post, its regular stopping place; and until it had become manifest to him, by circumstances which ought to apprise a person using reasonable care that a passenger was about to get off the car, he was not bound to exercise the same precautions as he would when the car was slackening its speed at or near a regular stopping place, in reference to passengers on the car about to leave the car.” The court declined to rule as requested, but under instructions to which no exception was taken left it to the jury to say whether under all the circumstances the plaintiffs were using due care, and whether the defendant, through the act of his son, John De Marco, in driving as he did, was negligent. There were verdicts for the plaintiffs, and the defendant alleged exceptions.</p>

<p> Charity. Trust. Agency. Municipal Corporations. Constitutional Law. Burbank Hospital. Fitchburg. </p> <p>In this Commonwealth the Legislature have the power to control cities in their administration of public charities, especially with the formally expressed assent of the city by its acceptance of the statute making the provision, by prescribing who shall be the officers and agents to whom such administration shall be entrusted and the mode of their selection, where these matters are not provided for in the instrument creating the trust.</p> <p>Gardner S. Burbank by his will gave to the city of Fitchburg a fund for the founding and maintaining of a hospital. St. 1890, c. 422, which recited the fact of this gift and quoted in full the residuary clause of the will, created a corporation by the name of the Burbank Hospital “to enable the inhabitants of said city of Fitchburg to receive the benefits of said generous bequest of said testator and effectually to realize and meet the benevolent intentions expressed in his said will.” The statute provided for a board of trustees, who, with the exception of certain members ex officiis, should be self perpetuating, and who should report annually to the city council with an account of receipts and expenditures. Further provisions of the statute were as follows: “ This act shall take effect whenever it shall be accepted by a concurrent vote of the board of aldermen and common council of the city of Fitchburg. Nothing in this act contained shall be held to alter or impair any trust created by said will. And the corporation hereby created, acting through its trustees and proper officers, shall be deemed the agent of said city of Fitchburg for the proper execution of all trusts arising under the provisions of said will. And nothing in this act contained shall be construed as releasing the city of Fitchburg from any obligation arising from the acceptance of said bequest under said will, or from any condition made therein.” The city accepted the statute in the manner provided therein. Later the trustees under the will of the testator brought a bill for instructions as to whom they should pay over .the trust fund, making the hospital corporation and the city defendants. The city contended that the statute was unconstitutional as an attempt to exercise the judicial power, contrary to art. 30 of the Declaration of Rights, by removing one trustee and appointing another, and also that the hospital corporation could not be regarded as its agent against its consent and without power on its part to revoke the authority. Held, that the title of the city'to the charitable fund was not interfered with by the provisions of the statute, that the city, retaining the title to the property and its position as trustee, must act through some instrumentality, and that the Legislature had provided what they deemed to be a proper one for the purpose, which moreover had been accepted by the city, and that the city could not revoke the authority of the hospital corporation to act as its agent, as might be done between natural persons who are sui juris; therefore, that the plaintiffs should pay over the trust fund in their hands to the Burbank Hospital as the agent of the city of Fitchburg, upon its giving them proper acquittance and discharge therefor in the name of the city.</p>

<p>Pleading, Criminal, Indictment. Practice, Criminal. Perjury.</p> <p>In an indictment for perjury, containing one count charging the defendant with testifying falsely at the trial of a complaint for assaulting a certain person and throwing a stone in a public way in a town, and another count charging the defendant with testifying falsely at the trial of a complaint against the same person for hitting the person, alleged in the first count to have been assaulted, with a stone thrown at him, where there is no allegation that these are different descriptions of the same act, the two counts will be taken to charge separate offenses.</p> <p>At the trial of an indictment for perjury containing two counts, respectively charging the defendant with testifying falsely on two different issues at the trial of a complaint in a district court, a request of the defendant for an instruction to tile jury, that a certain fact in regard to which the defendant, testified in the district court was of no importance for their consideration and “ was not material to the issue presented in either count ” of the indictment, cannot be granted if the fact was material to the issue raised by one of the two counts.</p>

<p>Petition, filed in the Land Court on October 7, 1907, for the registration of certain land in Milford.</p> <p>There .was a hearing before Davis, J., who found that the land in question was conveyed in 1873 by one Flagg to Michael H. Ahern in trust, as stated in the opinion; that the trustee died in 1874 leaving his father, David Ahern, as his only heir; that no new trustee ever was appointed; that Ellen Ahern, wife of David, died in 1885, and thereafter David married the respondent Margaret, and died in 1907, leaving her surviving him; that at the time of the filing of the petition there were living children and grandchildren of David and Ellen, who were the petitioners, but that there never was any issue of David by his marriage with the respondent.</p> <p>The respondent in support of her contention argued that the words “ their heirs at law ” in the trust deed should be construed to mean “ his or her heirs at law ”; and that on the death of the trustee the real estate vested in his heir, David, and, on the death of Ellen, merged with the entire equitable estate.</p> <p>The judge ruled that the respondent had no interest in the premises, and the respondent appealed.</p> <p>The case was submitted on briefs.</p>

<p>Tort for personal injuries received by the plaintiff and alleged to have been caused by the negligent starting of machinery on premises of the defendant. Writ in the Superior Court for the county of Hampden dated May 11,1907.</p> <p>There was a trial before Wait, J. At the close of the plaintiff’s evidence, the presiding judge directed a verdict for the defendant, and the plaintiff alleged exceptions. The facts are stated in the opinion.</p>

<p>Water Rights. Tax, Assessment, Abatement. Conflict of Laws.</p> <p>Discussion by Knowlton, C. J"., of the development and the present condition of the law in this Commonwealth with regard to mill privileges.</p> <p>A Rhode Island corporation erected in Massachusetts a dam across the Blackstone River and constructed in connection therewith, upon land owned by it, canals, ponds and trenches in the town of Blackstone, but, without making any application of the water power in this Commonwealth, carried the water in a trench with a slight fall into Rhode Island, where it was used in a power house to generate electricity with which to run a mill in that State. This was the most valuable use to which the property in Blackstone could be put. The assessors of Blackstone taxed such of the property of the corporation as was in that town, including the dam, the pond, the canals and the trench, in reference to its value as a means of furnishing power at the corporation’s power house in Rhode Island, and the corporation petitioned to have the tax abated. Held, that it would have been improper to tax the value of the use of the power in Rhode Island separately as water power existing and applied there, but that the land owned by the corporation in Blackstone should be taxed there with all its elements of value, so much of the value of the water power in Rhode Island as was imputable to the real estate in Blackstone being considered, as well as the uses to which the power could be put in Blackstone.</p> <p>A list of a taxpayer’s estate liable to taxation, intended in good faith to be filed in accordance with R. L. c. 12, § 41, entitles the taxpayer to be heard upon a question of abatement under § 74, although the list contains unintentional omissions and inaccuracies.</p>

<p>Way, Relocation, Alteration. Municipal Corporations, Officers and agents.</p> <p>A petition, presented to the selectmen of a town which had not accepted R. L. c. 48, §§ 68-61, averred that “common convenience and necessity require the relocation of a certain way or road in said town ... for the purpose of establishing the boundary lines of said road or way, and making needed alterations in the location, grade, course and width thereof.” The prayer of the petition was that the selectmen “ proceed to relocate and lay out , . . and to establish the.boundary lines of said way and to fix the grades thereof.” In their order on the petition, made in 1905, the selectmen described it as a petition “ for the relocation or alteration of the ” way, and stated that they had " altered ” the way “so that the course thereof as altered, shall follow” a certain course, '“ which location as now altered is as follows,” describing it and giving the lines of a location of the way'as laid out by the selectmen of the town in 1787. Held, that the action sought by the petition and taken by the order of the selectmen was intended to be, not an alteration of the way under R. L. c. 48, § 66, but a relocation, which the selectmen had no power to order, the town not having accepted §§ 68-61 of that chapter.</p>

<p>jDevise and Legacy, Specific or general.</p> <p>The will of one, who, at the time it was made and at the time of his death, owned three hundred seventy-five shares of the capital stock of a certain corporation, contained the following provision: “ I give and bequeath to my steadfast friend . . . [P] . . . one hundred twenty-five shares of the capital stock of . . . [the corporation] . . . together with all the rights and privileges which now or hereafter appertain to the same.” Within a year after the death of the testator, dividends were declared and paid upon the three hundred seventy-five shares of stock in the hands of the executor and the portion thereof corresponding to the one hundred twenty-five shares was $825. The executor brought a bill in equity for instructions as to whether or not such $825 should be paid to P. Held, that the $825 should be paid to P., since the words, “ together with all the rights and privileges which now or hereafter appertain to the same,” indicated that the testator meant the legacy to be specific, and required that the 'one hundred twenty-five shares of stock should be set apart and, at the end of a year from the testator’s death, should be turned over to the legatee with any increment which had accrued upon them after the testator’s death.</p>

<p>Tort under R. L. c. 51, § 18, for injuries alleged to have been received by the plaintiff, while walking on Mechanic Street in the defendant town, by reason of an alleged defect in the street, as stated in the opinion. Writ in the Superior Court for the county of Worcester dated May 25, 1907.</p> <p>There was a trial before Gaskill, J., who directed a verdict for the defendant, and reported the case to this court. The facts are stated in the opinion.</p>

<p>Negligence, Employer’s liability. Street Railway.</p> <p>Negligence on the part of the car despatcher of a street railway company in the performance of his duties is negligence of an employee of such company who is intrusted with and exercising superintendence under R. L. c. 106, § 71, cl. 2, and such company is liable to its other employees for personal injuries caused by such negligence.</p> <p>At the trial of an action against a street railway company under R. L. c. 106, § 71, cl. 2, § 72, by the administrator of one alleged to have received injuries which resulted in his death in a collision between two electric street cars of the defendant, one of which the plaintiff’s intestate was. operating as motorman, there was evidence that the car which the plaintiff’s intestate was operating was being run under and in accordance with special orders and not as one of the cars upon the defendant’s regular schedule, and that the car which ran into it was running on the regular schedule; that it was a general custom of the defendant to notify ■ both the-conductor and the motorman of a regular car which was to wait for a special car, and also to post all orders for special cars which conflicted with the regular schedule on a certain bulletin board in the car barn; that, at a reception given to a retiring officer of the defendant the night before the accident, the plaintiff’s intestate and the conductor in charge of his car received their orders as to the special car orally from the car despatcher of the defendant, and at the same time the conductor of the regular car which ran into theirs received oral notice not to start from the car barn until the car, which the plaintiff’s intestate was running, had passed, but that the motorman of the regular car received no notice or order with regard to the special car, and that no notice was posted on the bulletin board. Held, that there was evidence warranting findings that the car despatcher was negligent in not giving to the motorman of the regular car, as well as to the conductor, orders to wait for the special car, and in not posting the order as to the special car on the bulletin board, and that such negligence was the cause of the collision.</p>

<p>Equity Jurisdiction, To enjoin unlawful interference with business. Unlawful Interference. Conspiracy. Labor Union, Coercion by threats of fines.</p> <p>A building contractor can maintain a suit in equity to enjoin the members of a labor union, who are engaged in a lawful strike for higher wages and shorter hours of work, from causing those of his day laborers who are members of the union to leave his employ by threatening to impose fines upon them under a by-law of the union. Following Martell v. White, 185 Mass. 255. Sheldon, J. & Knowlton, C. J., dissenting, on the ground that the fining of the members of a union, under a by-law previously adopted, for refusing to join in a justifiable strike is lawful and properly may be resorted to in trying to maintain the strike. Distinguishing the point actually decided in Martell v. White. Loring, J., concurring in the decision of the majority of the court, on the ground that the ■present case cannot be distinguished from Martell v. White and that, although the doctrine of that case is not to be extended, the purposes of justice do not require that that case should be overruled as to the point that the use of threats of fines to exert coercion is illegal.</p>

<p>Practice, Civil, New trial, Rehearing, Exceptions, Judge’s charge. Words, “ Against the law.”</p> <p>On a motion to set aside a verdict, alleging as reasons that it is against the law and against the evidence and the weight of the evidence, the trial judge may grant the motion and set aside the verdict “ on the ground of misdirection in law,” that being within the alleged reason that the verdict is “ against the law.”</p> <p>If after the granting of a motion to set aside a verdict and order a new trial, the party in whose favor the verdict was returned, files a motion for a rehearing, alleging only errors in the proceedings on the motion for a new trial, some of which might have been made the subject of exception in those proceedings under B. L. c. 173, § 106, it is within the discretion of the trial judge to entertain the motion or to decline to do so; but, if he sees fit to entertain the motion and to allow exceptions to his refusals to give certain rulings requested at the hearing upon it, his action gives the parties the same right to ask for rulings and to take exceptions to rulings made by him that they had when the same questions arose upon the original motion for a new trial.</p> <p>At the trial of an action where one of the defenses was that the defendant’s signature to the instrument relied on by the plaintiff was procured by fraud, and another of the defenses was that the defendant did not sign the paper, the judge in the last sentence of his charge to the jury said, “If you find the defendant did sign this agreement, if you find that he did put his signature to a paper, and if you find that the paper is the paper that is alleged here, then the plaintiff has made out his case, and is entitled to damage,” ignoring the other issue whether the defendant’s signature was procured by fraud. In other parts of the charge instructions were given on the issue of fraud, but some of these were not very clear. On a motion for a new trial, the trial judge set aside a verdict for the plaintiff on the ground that there was a misdirection in law. Held, that, while there appeared to be little doubt that the judge had a correct view of the law in his own mind, there was reason to fear that the jury were misled by the statement quoted above and that the charge in its effect, as understood by the jury, was incorrect and misleading, that the trial j udge, who had a much better opportunity than this court of forming a judgment on this question so decided, and there was no ground for finding error in his decision to grant a new trial.</p>

<p>Tort to recover for the death of the plaintiff’s intestate who, it was alleged, while he was working as a laborer in a street on June 22,1906, was run over and killed by a car of the defendant because of gross negligence on the part of the motorman. Writ in the Superior Court for the county of Worcester dated October 18,1906.</p> <p>There was a trial before Dana, J. At the close of the evidence introduced on behalf of the plaintiff, the presiding judge directed a verdict for the defendant, and the plaintiff excepted. The facts are stated in the opinion.</p>

<p> Constitutional Law. Municipal Corporations. Haverhill. </p> <p>Article 2 of the Articles of Amendment to the Constitution of the Commonwealth recognizes the right and duty of the General Court to determine what powers, privileges and immunities should he granted to any city for its regulation and government, and secures to the inhabitants the right to give or withhold their consent .to the establishment of a new municipal government, making it plain that different cities may be established with different kinds of government, different officers and different modes of electing them.</p> <p>St. 1908, c. 674, amending the charter of the city of Haverhill, is constitutional.</p> <p>St. 1908, c. 574, amending the charter of the city of Haverhill, is not unconstitutional or invalid because it restricts the printed names on the official ballot for the mayor, the aldermen and the members of the school committee of that city to the two highest candidates for each office as determined by a preliminary election for nominations, nor because it denies the right to have printed on the ballot the name of a candidate nominated by a caucus of a political party, nor because it denies the right to have printed on the ballot the name of a candidate nominated independently, nor because it denies the right to have printed on the ballot a specification of a candidate’s party or of the political principles which he represents, nor because it requires a candidate to sign and swear to a request that his name be printed as such candidate on the official ballot to be used at the preliminary election for nominations and to file a petition of qualified voters in which they certify that he is of good moral character and qualified to perform the duties of the office.</p> <p>St. 1908, c. 574, amending the charter of the city of Haverhill, is not unconstitutional or invalid because the officers elected thereunder are subject to removal by an election of the voters of the city called and held under the provisions of that act.</p> <p>St. 1908, c. 574, amending the charter of the city of Haverhill, is not unconstitutional because of its provision that it should not take effect until it was accepted by the voters of Haverhill.</p> <p>St. 1908, c. 574, amending the charter of the city of Haverhill, is not unconstitutional by reason of its provisions for the so called initiative and referendum in regard to the adoption of ordinances.</p> <p>The provisions of the Constitution which forbid the adoption of the so cai initiative and referendum in general legislation do not extend to the making by-laws and ordinances by towns and cities under the authority of the Legislatu in regard to matters of local concern.</p>

<p>Contract upon an account annexed. Writ in the Superior Court for the county of Hampden dated April 21, 1906.</p> <p>The account annexed to the declaration contained two items of “ coat stands ” variously described, three items of “ hat stands ” of different descriptions, one item of “ hooks,” and an item of “sundries cases” with a detailed description. Opposite each item was stated the amount to be paid for the goods contained therein. All the items but the last were dated February 7,1906. The last item was dated February 12,1906. The bill of exceptions stated that “ the goods described in the declaration and certain wall cases, not described in the declaration,” were ordered “on or about January 23, 1906.”</p> <p>The case was tried before Crosby, J., without a jury, who, as stated in the opinion, admitted de bene certain évidence which he afterwards excluded. He found for the plaintiff for the full amount claimed in the declaration; and the defendant alleged exceptions. The facts are stated in the opinion.</p> <p>The case was submitted on briefs.</p>

<p>Tort for the conversion of property of the plaintiff alleged to have been obtained from her by false and fraudulent representations made by the defendant. Writ dated April 6,1907.</p> <p>The defendant filed a motion for specifications, in answer to which the plaintiff filed an amendment, which in substance was a declaration for deceit, alleging that the defendant, in.order to induce the plaintiff to exchange a certain farm situated in the town of Dudley and the live stock thereon for certain mortgages, falsely and fraudulently represented to the plaintiff that the mortgages were first mortgages, and that the mortgagor had paid interest regularly on the notes secured by them, whereas in fact the defendant knew that they were not first mortgages and that the interest had not been paid on the notes; that the plaintiff relying on these statements and believing them to be true thereby was induced to exchange the farm and the live stock for the mortgages and the mortgage notes to her great damage, and that as soon as she became cognizant of the fraud practised upon her she immediately rescinded the exchange and offered to the defendant the assignment of the mortgages and the notes.</p> <p>In the Superior Court the case was tried before QasMll, J., who ordered a verdict for the defendant; and the plaintiff alleged exceptions. It was agreed at the time of the trial that the jury should decide whether the property had been obtained by the alleged false and fraudulent representations, and that, if the answer was in the affirmative, the case was to be sent to an assessor for assessment of the damages, whose decision as to the damages should be final.</p> <p>The case was submitted on briefs.</p>

<p>Tort for a libel alleged to have been caused by the defendant to be published in two newspapers in Westfield, The Valley Echo and The Westfield Daily Times. Writ in the Superior Court for the county of Hampden dated January 1, 1907.</p> <p>There was a trial .before Wait, J., and a verdict for the plaintiff. The defendant alleged exceptions. The facts are stated in the opinion.</p> <p>The case was submitted on briefs.</p>

<p>Moving of Buildings. Malicious Injury to Trees. Tree Warden. Words, “ Wantonly.”</p> <p>R. L. c. 52, § 13, providing that no person shall move a building in a way in a town without written permission from the selectmen or road commissioners, under R. L. c. 26, § 2, applies to cities as well as to towns.</p> <p>The removal through a street of a city of a building, which is five feet longer and about a foot and a half wider than the building described in the permit granted under R. L. c. 52, § 13, is unlawful.</p> <p>Under R. L. c. 51, § 10, a tree warden has no right to cut down trees or to cut off parts of trees standing on private land outside the boundary lines of a street.</p> <p>At the trial of an indictment against a tree warden under R. L. e. 208, § 100, as amended by St. 1902, c. 544, § 30, for wilfully, maliciously or wantonly injuring a tree standing for a useful purpose on the land of another, an instruction to the jury, stating in substance that a manifestly injurious act, done wilfully in reckless disregard of the rights of others, is done “ wantonly ” within the meaning of the statute, is correct.</p> <p>At the trial of an indictment against a tree warden under R. L. c. 208, § 100, as amended by St. 1902, c. 544, § 30, for wilfully, maliciously or wantonly injuring a tree standing for a useful purpose on the land of another, the judge instructed the jury that if the defendant, acting as a reasonable man, was justified in believing and honestly believed that he had the authority which he exercised he was not guilty, but that, if they found that, had the defendant taken any proper precaution to learn of his rights and duties as a tree warden, he would not have acted as he did, and if they found that he was grossly negligent in the performance of his duties as tree warden, they might find that he acted wantonly. Held, that the instruction was correct in substance.</p> <p>At the trial of an indictment against a tree warden under R. L. c. 208, § 100, as amended by St. 1902, c. 544, § 30, for wilfully, maliciously or wantonly injuring a tree standing for a useful purpose on the land of another, it appeared that the defendant was asked to cut off a part of a cherry tree by a person who had obtained a permit to move a building through the street, but that the building he undertook to move was longer and wider than the building described in the permit, so that its removal was not lawful, that its width was so great that it could not be taken through the street without cutting off branches and a part of the trunk of the cherry tree, that the owner of the tree refused to permit this to be done, and that the defendant, assuming to act under his authority as tree warden, did it against her protest. The defendant admitted on cross-examinatian that he had not at any time taken any steps to inform himself as to his powers, duties and authority as tree warden, except that he asked the mayor what he should do-and was told to lop off trees in the highway which would obstruct carriages or the apparatus of the fire department, that he never had read any of the statutes or other sources of information concerning his powers and duties, except that he looked once or twice in a book sent to him by the State forester, that he had not seen anything in that book concerning his duties in such a case as this, that after he was asked to cut off the parts of the cherry tree he took no steps to inform himself as to his powers, duties or authority, that he did not attempt to ascertain what the permit was or whether the building was of the dimensions given in the permit, that he made no inquiry of the mayor or the city clerk, and did not consult the city solicitor, although he knew that he had a right to ask the city solicitor about it. It also appeared that he began the cutting without saying anything to the owner of the tree and that, although the evening before the cutting he saw the husband of the owner and talked with him after he had viewed the premises and had made up his mind to cut the tree, he said nothing to the husband about it. There was testimony as to the way in which the tree was cut and as to the defendant’s having said that he was doing the mover of the house a favor. Held, that -there was evidence warranting a finding that the defendant in cutting the tree acted wantonly, and justifying the jury in returning a verdict of guilty.</p>

<p>Receiver. Equity Pleading and Practice, Decree, Report, Appeal, Reservation. Equity Jurisdiction, Receiver. Corporation, Foreign.</p> <p>A decree in a suit in equity brought against a foreign corporation by a creditor who also has been appointed receiver of the corporation by a court of the State of its incorporation, which appoints such creditor ancillary receiver to take possession of and collect accounts owing to the corporation in this Commonwealth and attached by creditors here, should direct the ancillary receiver so appointed not to transmit the Massachusetts assets to himself as receiver in the other State until provision has been made for attaching creditors here.</p> <p>The question as to whether certain evidence offered by the defendant at a hearing in a suit in equity properly was excluded by the judge is not before this court on an appeal from a decree made by the judge granting the prayer of the bill, no bill of exceptions having been filed, although, five months after the decree, the judge made a “ report of facts ” in which he stated that such evidence was offered and was excluded by him at the hearing.</p> <p>R seems, that the question as to whether a judge, before whom was heard a suit in equity, acted properly in ruling as to the admission or exclusion of evidence, can be presented to this court only by a bill of exceptions, if exceptions to the rulings were taken at the hearing, or by a reservation under R. L. c. 159, § 29.</p> <p>A bill in equity, praying for the appointment of a receiver of an insolvent corporation incorporated in another State, to be ancillary to a receiver appointed in such other State and to collect assets here and, after the rights of creditors attaching here have been safeguarded properly, to turn such assets over to the domiciliary receiver, may be maintained, although the corporation never had complied with St. 1903, c. 437, § 58, by appointing the commissioner of corporations to act as its attorney for receipt of service, and although the creditor petitioning here is the same person who on his own petition as a creditor was appointed domiciliary receiver and at that time was the attorney of the corporation, and made the application at the solicitation and with the consent -of the corporation.</p>

<p>Negligence, Employer’s liability. Practice, Civil, Conduct oí trial. Witness, Cross-examination.</p> <p>If the proprietor of an ice run orders a teamster who has been driving a pair of horses to change places with a man who is working on the run, and the change is made, or if without a direct order of the proprietor the change is made with the cognizance and approval of the proprietor’s superintendent who has full authority to represent the proprietor in the matter, the proprietor is liable to the teamster who left his horses to work on the ice run if while so working he is injured by reason of the negligence of the proprietor in furnishing an unsafe chain as part of the machinery of the run.</p> <p>A jury are not bound to believe testimony because it is uncontradicted.</p> <p>If a witness on his cross-examination gives an answer which is not strictly responsive to the question, but which is germane to the subject of the inquiry and is material and competent evidence, it is within the discretion of the presiding judge to refuse to strike out the answer as non-responsive.</p>

<p>Negligence, Employer’s liability. Evidence, Presumptions and burden of proof, Res ipso loquitur.</p> <p>At the trial of an action against a corporation operating a cotton mill by a woman who, while employed in the weaving room, received injuries alleged to have been caused by the sudden and automatic starting of a loom due to its defective condition, it appeared that the loom, which was constructed so as to be started and stopped by the use of a shipper which shifted a belt from a loose to a tight pulley, and was intended to be started in that way only, never before had started automatically, but there was evidence tending to show that it had been in use many years, that its shaft had become so worn that, some time before the accident, a new one had been substituted, and that the adjustment of the new shaft to the old loom was made in a manner which might have been foreseen by one familiar with the mechanism to make it likely that the belt would work from the loose to the tight pulley automatically and start the loom. Held, that there was evidence from which the jury would be warranted in finding that the cause of the automatic starting of the loom was a defect therein such as, under R. L. c. 106, § 71, cl. 1, rendered the defendant liable for the consequences of the plaintiff’s injury.</p> <p>A request of the defendant at the trial of an action of tort by an employee against his employer under R, L. c. 106, § 71, for a ruling that, since there was uncontradicted evidence introduced by the defendant that the injury to the plaintiff resulted from the act of a fellow servant, he could not recover, should not be given since the jury might disbelieve such testimony.</p> <p>At the trial of an action against a corporation operating a cotton mill by a woman, who, while employed in the weaving room, received injuries alleged to have been caused by the sudden and automatic starting of a loom due to its defective condition, it appeared that the loom, which was constructed to be started only by means of a shipper and should have remained at rest unless so started, never before had started automatically, but there was evidence tending to show that the loom was an old one and that some repairs had been made upon it within three months before the accident, and that the repairs were made in an improper way, so as to render automatic starting likely. The presiding judge in his charge to the j ury stated: “ If you are not satisfied as to what was the specific cause of the starting of the loom, but do find as a fact that it did start suddenly from a position of rest when it had been properly stopped, you may consider that fact as evidence to show that there was some defective condition in the loom and some negligence in connection with that defective condition, even though you cannot state specifically what the defective condition was.” Held, following Byrne v. Boston Woven Hose Co. 191 Mass. 40, that the instruction was proper.</p>

<p>Superior Court. Jurisdiction. Practice, Civil, Appeal, Amendment.</p> <p>The Superior Court has no power, after a civil action has been entered therein on appeal from a district court, the jurisdiction in which does not extend to actions where the ad damnum exceeds $1,000, to allow an amendment to the writ increasing the ad damnum from $1,000 to $2,000.</p> <p>It seems, that, on an appeal of a civil action from a police, district or municipal court or trial justice to the Superior Court, the case in the appellate court is a mere continuation of the original case and, although amendments may he allowed in the latter court under B. L. c. 173, §§ 23, 97, they must be such, so far at least as they affect the question of jurisdiction, as could have been made in the court whose judgment is appealed from.</p>

<p>Insurance, Life.</p> <p>The requirement of R. L. c. 118, § 73, that every policy of life insurance which contains a reference to the application of the insured must have attached to it a correct copy of the application, is complied with by attaching to the policy a copy of the application for insurance without including a copy of a proposal for insurance printed and written on the back of the same paper or a “ Memorandum for the solicitor to fill ” printed above the application for insurance on the same side of the paper consisting of the questions “ Amount of insurance now in force in this company ? ” and “ Amount now applied for 1 ”</p>

<p>Negligence, Employer’s liability. Elevator. Pleading, Civil, Declaration.</p> <p>At the trial of an action by an employee against his employer, to recover for per- ■ sonal injuries alleged to have been received by reason of the plaintiffs being crushed against a post in the defendant’s mill in Fall River by the sudden opening of doors in a floor to permit a freight elevator to come up, there was evidence tending to show that the plaintiff was in the exercise of due care and that he had not assumed the risk of the injury, and that the elevator was not - equipped, as required by R. L. c. 104, § 27, with “ a suitable device which" shall act as a danger signal to warn people ” of its approach, although no inspector, as provided by the statute, had approved of the use of the elevator without the device, and the nature of the business was not such that the necessity for the device would not warrant the expense. The presiding judge directed a verdict for the defendant. Held, that the case should have been submitted to the jury. At the trial of an action by an employee against his employer, to recover for personal injuries alleged to have been received by reason of the plaintiff’s being crushed against a post in the defendant’s mill by the sudden opening of doors in a floor to permit a freight elevator to come up, there was evidence tending to show that there were no signals to warn people of the elevator’s approach, that the plaintiff when injured was fifteen years of age and was mentally deficient, that he never had been warned of the danger attending the use of the elevator through the floor, that when injured he had been at work for the defendant but two days and, just before the accident, had been told to clean the elevator doors in the floor and was doing so when injured, and that his attention had not been called to the absence of warning signals. It did not appear that the absence of the warning signals could have been discovered by mere ocular inspection or in any other way than by observing that the only warning given was by the movement of the elevator ropes which came up through the floor or by the opening of the doors. Held, that there was evidence warranting a finding that the plaintiff was in the exercise of due care; also, that he had not assumed the risk of the injury as matter of law.</p> <p>In an action by an employee against his employer to recover for injuries due to a dangerous or defective condition of the surroundings in which or the machinery with which the plaintiff was directed to work, it is not necessary for the plaintiff, in order to rely upon the fact that he was mentally deficient, to allege such deficiency in his declaration.</p>

<p>Contract by the executrix of the will of Mary E. Howland, to recover money alleged to be in the possession of the defendants as trustees under a written instrument by the terms of which, on the death of the plaintiff’s testate, the fund was to be disposed of as by her last will she should direct. Writ in the Superior Court for the county of Bristol dated December 16 1907.</p> <p>The answer acknowledged possession of the money as alleged, but stated that one Barker C. Howland claimed it. The latter was summoned to appear under R. L. c. 173, § 37, and did appear and filed an answer as claimant.</p> <p>There was a trial before Raymond, J., without a jury, upon an agreed statement of facts. It appeared that Barker C. Howland was the husband of the plaintiff’s testate. On April 4, 1905, he and the plaintiff’s testate and the defendants executed an instrument by the terms of which he and the plaintiff’s testate agreed to live apart, and he paid to the defendants $6,000, of which $500 was to be received by them as entire payment for their services, and $5,500 was “ to be deposited in one or more banking institutions” and from the income and principal of such fund $250 was to be paid to the plaintiff’s testate semiannually. The instrument also provided as follows:</p> <p>“ That in the event of the death of said Mary E. Howland while these trusts remain in force, thereupon said trusts shall terminate and all said funds then held in trust shall be paid by said trustees to such persons, or disposed of in such manner, as the said Mary E. Howland shall by her last will direct. In the event of the said Mary E. Howland dying intestate the said fund shall then be paid to said Barker C. Howland.”</p> <p>On April 14, 1905, the will of the plaintiff’s testate was executed. It contained the following clauses:</p> <p>“ Seventh — After the payment of my just debts, expenses of funeral, cremation and burial and the administration of my estate and the delivery of the specific bequests hereinbefore given, the remainder of the money securities or deposits belonging to my estate, I ask shall be held in trust by my said Executrix during the lifetime of my cousin, Susan A. Gilbert, and during the continuance of said trust the net income received therefrom shall, from time to time, and at least semi-annually, be paid to my said cousin for her own personal use and free from all interference or control of her husband.</p> <p>“ Upon the decease of my said cousin, Susan A. Gilbert, said trust shall terminate, and said trust estate shall then revert to my general estate and be paid to my said sister, Jessie E. Corson, as hereinafter provided.</p> <p>“ Eighth — All articles of personal property belonging to me at my decease, which are not herein specifically bequeathed or designated to be held in trust, and all right, title and interest, if any, which I may have in any real estate at my decease, I give, devise and bequeath to my said sister, Jessie E. Corson, and upon the termination of said trust, the net amount then remaining of said trust estate shall also be delivered and paid to my said sister, who shall receive, hold, enjoy and dispose of the same as her own individual property, free from the control and interference of her husband, and shall hold the same to her and her heirs and assigns forever.”</p> <p>The first clause of the will gave directions with regard to the funeral of the testatrix. The second, fourth and sixth clauses gave back to the persons who had given them to the testatrix “ the various articles which ” she had received from them “ as gifts.” Also in the sixth clause was included a specific legacy of a diamond ring. The third clause was a specific devise of a burial lot. The fifth clause gave to Susan A. Gilbert “ as specific legacies, such articles of personal property belonging to me, not including money or articles of jewelry which may be upon the premises wherein she lives at my decease, and also my wearing apparel but not including articles of jewelry, wherever such apparel may be at my decease.”</p> <p>Other facts are stated in the opinion.</p>

<p>Contract, Construction, Assignment, Validity. Practice, Civil, Parties, Demurrer. Evidence, Extrinsic affecting writings. Assignment. Statute of Frauds. Wagering Contracts. Words, “Prorata,” “Jointly.”</p> <p>A contract in writing was made between an individual as the party of the first part, a corporation as the party of the second part, and seven “ other persons . . . designated as the guarantors, parties of the third part.” The contract provided, among other things, for the payment of $25,000 by the corporation to the party of the first part. The undertaking of the guarantors was stated as follows: “ The guarantors jointly guaranty the payment of said $25,000, or any part thereof, pro rata, and also that the corporation will fully and completely perform and fulfil the terms of the agreement with the party of the first part.” The corporation having failed to pay the $25,000, an action of contract was brought against one of the guarantors to recover one seventh of the $25,000, and he demurred to the declaration on the ground that the undertaking of the guarantors was a joint guaranty, and that the other guarantors should be joined as defendants. Held, that the demurrer should be sustained, since the undertaking of the guarantors was a joint guaranty, it not having been intended by the use of the words “ pro rata ” to change the whole character of the undertaking from what expressly was stated in the contract to be a joint guaranty to a several guaranty by each guarantor of only one seventh of the whole $25,000.</p> <p>By the terms of a contract in writing the party of the second part agreed to pay to the party of the first part $25,000, and seven individuals as parties of the third part agreed to “jointly guaranty the payment of said $25,000, or any part thereof, pro rata.” After the signing but before the delivery of the contract by F., one of the guarantors, he inquired of the party of the first part as to his liability thereunder, and the party of the first part wrote him a letter stating that he, the party of the first part, had submitted the paper to and had been informed by his attorney that the contract “ was a limited one, and not a joint and several agreement, that is to say, each one of the guarantors is liable only for one seventh of the total amount. ... I therefore advise you that said . . . contract is a pro rata one, and that you . . . are only liable for one seventh of the amount underwritten.” The party of the second part failed to perform the contract, and the party of the first part duly assigned his interest to one who brought an action for one seventh of $25,000 against F. alone. F. demurred. Held, that the letter of the party of the first part to F. did not purport to and did not make a change in the contract nor in any way affect the legal rights of any of the parties, it being merely an expression of opinion on the part of the party of the first part, and it not appearing that the party of the second part and the other six guarantors had any knowledge of it.</p> <p>A corporation as party of the second part made a contract in writing with an individual as party of the first part, whereby, upon another corporation being formed, the party of the first part agreed to acquire a certain amount of its stock and to sell it to the party of the second part for a stipulated price which the party of the second part agreed to pay. An individual joined in the contract as party of the third part, guaranteeing the performance on the part of the party of the second part. The party of the first part fully performed, but the party of the second part did not pay the amount agreed upon. Thereupon the party of the first part executed and delivered an instrument which purported to assign all his rights under the contract to one who in his own name brought an action thereon against the guarantor. The guarantor contended that the contract was not assignable. Held, that the contention was not well founded, since, all things necessary to create a liability of the second party to the first party having happened and been performed, the rights of the latter were assignable and the assignee properly brought an action in his own name in accordance with R. L. e. 173, § 4.</p> <p>A contract in writing by whose terms, upon the organization, later to be accomplished, of a certain corporation by “ certain persons ” under specified conditions and the acquirement of the title to a certain number of shares of its stock by the party of the first part, the latter agreed to sell and the party of the second.part agreed to buy such shares for a certain sum, and various individuals guaranteed that the party of the second part would pay the price agreed upon, is not within the provisions of R. L. c. 74, § 7, providing that a contract for the sale of stock in a corporation shall be void unless the person contracting to sell is, at the time of the making of the contract, the owner or assignee thereof or properly authorized by the owner or assignee or his agent to make such contract.</p>

<p>Petition to vacate a judgment entered in a writ of entry, as stated in the opinion. The petition was filed in the Superior Court for the county of Bristol August 22, 1907.</p> <p>There was a hearing before Bell, J., without a jury. The facts are stated in the opinion. At the close of the evidence, the petitioner requested the judge to rule that “ the judgment is void in law,” but he refused to do so and ordered that the petition be dismissed “as a matter of discretion.” The petitioner alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Equity Pleading and, Practice, Parties, Findings on master’s report. Partnership. Trust.</p> <p>In a suit in equity by a member of a partnership against a third person for an accounting, where it appeared that the plaintiff assigned to the defendant a mortgage worth $675 belonging to the plaintiff individually and $250 of money belonging to the partnership, both to be used by the defendant in paying the creditors of the firm, and the defendant admitted that the $250 was not applied by him to the payment of the debts of the firm, but contended that as the money belonged to the partnership it could be recovered only in a suit brought by all the members of the partnership, it was held, that the agreement between the plaintiff and the defendant, so far as it related to partnership property, was made by the plaintiff as trustee for the firm, and that the action was brought properly in the name of the trustee.</p> <p>Upon an appeal from a decree overruling exceptions to a master’s report in a suit in equity, this court may draw inferences of fact from the facts reported by the master, whether the master drew such inferences or not.</p>

Tort for injuries alleged to have been received by the plaintiff, while in the defendant’s employ, because a hook on a rope,, which was being used in the moving of a locomotive engine on a turntable, flew off when the rope was under tension and struck him. Writ in the Superior Court for the county of Bristol dated May 14, 1906.

Writ of entry in the Land Court dated October 8, 1906, to recover a triangular strip of land occupied by the tenant, the adjoining premises of the demandant and the tenant at the corner of Stafford Road and Grinnell Street in Fall River both having been purchased in 1871 by one Nathan Law, who in July, 1875, sold to the tenant his lot, and later sold to one Winn the adjoining lot, which Winn sold to the demandant.

<p>Petition, filed on April 21, 1906, for the assessment of damages caused by the abolition of the grade crossing of Park Street in Attleborough by the railroad of the Boston and Providence Railroad Company.</p> <p>In the Superior Court the case was tried before White, J. The property of the petitioner was on the southerly side of Park Street next west of the railroad crossing. The decree of the Superior Court, confirming the report of the commissioners, changed the grade of Park Street so that it might be carried under the railroad, and contained the following paragraph:</p> <p>“ Park Street shall be graded to a width as shown on plans at the grades hereby established and the railroad shall be carried over it by a stone arched bridge sufficient for four tracks, with two spans each of forty (40) feet clear width, having a clearance of thirteen (13) feet from the crown of the street to the soffit of the arch on its centre line. Suitable curbstones, gutters, and sidewalks shall be built wherever they now exist or are necessary and the surface of the sidewalk shall be of brick, concrete or gravel, and the roadway shall have a macadam surface.”</p> <p>The work prescribed by the decree was done. The portion of Park Street within the grade lines shown on the commissioners’ report was cut down in front of the petitioners’ property as therein called for. A portion of the old sidewalk about nine or ten feet wide in front of the petitioners’ property was left unchanged; a new sidewalk was constructed farther out at the new grade, as called for by the decree; and a fence or guard rail was erected along the cut in the old sidewalk in front of the petitioners’ premises. The result was to leave the petitioners’ property in the condition described in the opinion.</p> <p>At the close of the evidence the petitioners asked the judge to make the following rulings :</p> <p>1. The petitioners have no right to use for building purposes any land in front of the slanting line shown on the grade crossing abolition plan as the southerly line of Park Street.</p> <p>2. The southerly line of Park Street is the line of the layout of 1884. The petitioners have no right to build upon any land north of that line.</p> <p>3. There has been no discontinuance or abandonment of any part of Park Street in front of the petitioners’ premises as laid out in 1884.</p> <p>4. The petitioners have no right to bring their building forward to the cut in the sidewalk.</p> <p>The judge refused to make these rulings, and also refused to make three other rulings requested by the petitioners, which this court found it unnecessary to consider. He instructed the jury ■in accordance with his ruling as stated in the opinion.</p> <p>The jury returned a verdict for the petitioners in an amount substantially less than that claimed by the petitioners, although more than that testified to by the respondent’s witnesses; and the petitioners alleged exceptions.</p>

<p>Death. Action. Contract, Implied, Performance and breach. Pleading, Civil, Declaration. Damages. Physicians and, Surgeons.</p> <p>It is settled law in this Commonwealth that unless a remedy is given by statute there can be no recovery for the death of a person wrongfully caused by another, and this rule, as to all elements of damage which arise solely from death, applies to actions of contract as well as to actions of tort.</p> <p>A husband cannot maintain an action of contract against a physician to recover damages caused by the death of the plaintiff's wife by reason of the defendant’s failure to perform his professional services with skill and care when employed by the plaintiff to attend her.</p> <p>A husband may maintain an action of contract against a physician for a breach of his implied contract to perform his professional services with skill and care when employed by the plaintiff to attend the plaintiff’s wife, which caused the plaintiff additional expenses for her nursing, care and treatment, and he js none the less entitled to recover the amount of such expenses because the breach of contract which caused them also caused his wife’s death.</p> <p>It is a general rule of pleading that a breach of contract may be assigned in the negative of the words of the contract. The exception is when such a negative does not show that there was such a breach.</p> <p>Under our practice act the ad damnum is a sufficient allegation of damage in actions of contract as well as in actions of tort in all cases in which special damages are not claimed.</p> <p>In an action by a husband against a physician for a breach of his implied contract to perform his professional services with skill and care when employed by the plaintiff to attend the plaintiff’s wife, where there was no averment of expenses incurred by the plaintiff by reason of the defendant’s breach of contract, and the declaration contained merely a statement of the contract and an allegation of the breach of it, the only allegation of damage being in the ad damnum, the court did not consider the question whether further averments would be necessary to entitle the plaintiff to recover more than nominal damages, the only question before the court being whether the plaintiff had a right of action for damages either nominal or substantial.</p>

<p>Evidence, Res gestae, Remoteness. Practice, Civil, Conduct o£ trial.</p> <p>In an action, by a boy nineteen years of age when injured, for personal injuries from being run into from behind by an automobile of the defendant as the plaintiff with two companions of about his own age was walking on a State highway on a very dark evening, there was evidence that as the three boys walked along they were taking precautions against anything coming from behind, and that they listened and in turn looked back. The plaintiff offered to show, as bearing on the question of his due care, that just before the accident one of his companions turned and looked back and said, “ There are two cars coming,” and then looked back a second time and said, “ Let’s hurry up, we can catch the second car at Reed’s Corner.” By other evidence it appeared that what they mistook for the second car was the automobile that ran down the plaintiff. The judge excluded the evidence offered by the plaintiff. Held, that this exclusion was error; that it was a question for the jury whether the plaintiff and his companions had not the right to rely upon each other, and that, if they were justified in relying upon each other, what one said to. the others as he turned and looked back was competent, in connection with other facts in the case, to show the circumstances under which the plaintiff acted.'</p> <p>In an action for personal injuries from being run into from behind by an automobile of the defendant as the plaintiff, with two companions, was walking on a State highway on a very dark evening, the plaintiff and one of his companions testified that they looked back and saw the defendant’s automobile approaching with only one light in front, which led them to think that it was an electric car which would pass them on the track by the side of which they were walking. The defendant called as a witness the chauffeur who was driving the automobile at the time of the accident. He testified that there were four lights on the car and that they all were lighted. On cross-examination he testified that he understood that the law required him to have the number of the machine on the lights or on any two lights in front. He was asked, “ Were there any numbers on either light 1 ” and answered “ No.” At the defendant’s request and against the plaintiff’s objection, the presiding judge struck out this answer and refused to allow the plaintiff to go into the matter. The plaintiff excepted. He contended that the testimony that there were no numbers on the lamps furnished a reason for not lighting the lamps and therefore would have tended to affect the weight to be given to the testimony of the chauffeur and to corroborate the evidence of the plaintiff that only one lamp was lighted on the automobile. Held, that the exception must be overruled, as the judge well might have thought that the connection between the absence of numbers on the lamps and the accident was so remote as to render the evidence of no value, and, if he thought so, its exclusion was proper.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action by a carpenter, employed by the defendant to build an addition to his planing mill, for having parts of two fingers cut off by a buzz planer, which he had been invited to use, and against which he fell when he had stumbled by reason of his foot catching on something on the floor which was covered with shavings, the plaintiff’s evidence showed that a week after the accident he went with another carpenter to the place where it occurred and found an old bent nail sticking up in the floor at the distance of about eighteen inches from the bottom of the planer “ where it came directly in the way of his right foot,” that it protruded above the floor from an inch to an inch and three quarters, that it was in a depression worn in the floor, that the depression looked old, that the nail looked old and was bent over and was worn and shiny, as if it had been trampled on, and there was evidence that the shavings on the floor had not been cleaned up between the time of the accident and the time that the plaintiff found the nail. Meld, that the evidence warranted the jury in finding that the nail found by the plaintiff a week after the accident was there before the accident and was the cause of it, and that on proper inspection it would have been found by the defendant. .</p> <p>A carpenter who in doing work which he has been employed to do has been invited to use a buzz planer, the floor surrounding which continuously is covered by shavings, and who is injured by falling against the buzz planer by reason of stumbling on an old nail protruding from the floor and hidden by the shavings, is not as matter of law negligent because he has walked to the buzz planer over the floor covered by shavings without sweeping them away and examining the condition of the floor, nor is the risk of injury from the nail, thus continuously covered, assumed by him, it not being an obvious one.</p>

<p>Charity, Administration cy pres. Trust.</p> <p>A testatrix bequeathed the residue of her estate, at the termination of a life interest, “to be given to the life saving station to be built and established in Marble-head or Nahant, not yet decided upon.” The residue amounted to about $6,000. When the will was made the testatrix knew of the intention of the United States government to establish a life saving station in the neighborhood of Nahant. At that time a life saving station had been completed at Nahant, although it did not go into commission until six months later. This statipn was about four or five miles from the nearest part of the shore of Marblehead. No life saving station has been established at Marblehead and no such establishment is contemplated. The treasurer of the United States filed in the case a disclaimer of any interest in the residue of the estate of the testatrix, by which it appeared that the United States declined the trust. Held, that the purpose of the testatrix in devoting her gift to the life saving station was not limited to the maintenance of the station itself, which was the specific object named in the will, but was a charitable wish to be helpful in the general saving of life and relief of suffering in cases of shipwreck in the vicinity of Nahant and Marblehead, and therefore that the gift created a public charity for a general charitable purpose, which, as its administration in the precise way stated in the will had become impossible, would be administered cy pres, under a scheme, to be devised by or under the direction of the Probate Court.</p>

<p>Cohtract against the executors of the will of William H. Goodnow, on an account annexed, for compensation for work and labor alleged to have been performed for the defendant’s testator from August 1, 1901, to June 15, 1904, at the rate of $12 a week. Writ dated August 27,1906.</p> <p>The answer was a general denial. At the trial in the Superior Court before Lawton, J., the jury returned a verdict for the plaintiff in the sum of $1,193 ; and the defendants alleged exceptions to the exclusion by the judge of certain evidence, which was offered by the defendants to contradict the testimony of a witness for the plaintiff as described in the opinion.</p>

<p> Taunton. Municipal Corporations. Sewer Commissioners. Statute. </p> <p>Section 3 of St. 1904, c. 384, an act relative to sewerage expenses, assessments and charges, and to the powers of the sewer commissioners in the city of Taunton, requires assessments to be made for completed sewers or sections of sewers upon the estates benefited thereby, as soon as in each case this reasonably can be done, so that the expense of construction may be borne in proper proportion by the general taxpayers and those who derive special benefits from the construction, and, if the sewer commissioners neglect to take any action in the matter and their delay becomes unreasonable, the mayor of Taunton may remove them under the power given to him by St. 1895, c. 219, § 4, re-enacted in St. 1904, c. 384, § 9, which makes the sewer commissioners of the city of Taunton “ subject to removal by the mayor for cause.”</p>

<p>Bill in equity, filed in the Superior Court on October 10, 1907, by the proprietor of a small store in Lawrence engaged in selling candies, soda water and small wares, against a corporation engaged in manufacturing soda water apparatus, to enjoin the defendant from removing a soda water fountain and its appurtenances from the plaintiff’s store on the alleged pretense that they were forfeited under the terms of a contract of conditional sale, whereas the plaintiff alleged that, owing to the fact that a carbonator furnished by the defendant was worthless and useless and that the defendant had made false and fraudulent representations in regard to the fitness of the carbonator on which the plaintiff had relied to her loss, the plaintiff owed nothing to the defendant, having returned the carbonator and having more than paid for the other parts of the apparatus.</p> <p>In the Superior Court the case was referred to Colver J. Stone, Esquire, as master. He made a report in which he found for the defendant and recommended that the plaintiff’s bill be dismissed. The plaintiff filed eleven objections to the master’s report and later filed eleven exceptions founded on the objections.</p> <p>The case was heard by Stevens, J., who made a final decree that the plaintiff’s bill be dismissed. The plaintiff appealed.</p> <p>It did not appear by the report of the appeal before this court that the judge made any order in regard to the plaintiff’s exceptions. In the brief for the defendant before this court there was the following statement, which is referred to in the opinion: “no evidence was offered except the master’s report. The plaintiff’s exceptions were all overruled and the court ordered that the plaintiff’s bill be dismissed.”</p>

<p>Negligence, Employer’s liability. Elevator.</p> <p>If a boy about fifteen years of age, who is employed in a shoe factory and whose duty it is to carry racks of shoes to and from a workman on the third floor of the factory and to use the elevator of the building for that purpose, goes by the elevator to the third floor and, after speaking a word or two with a workman, is seen walking backward toward the elevator well drawing a rack of shoes after him, and, the elevator having risen in the meantime to the next story and the gate being up, he falls down the well and is killed, his administrator cannot recover damages for his death from the boy’s employer under R. L. c. 106, as there is nothing to show that he was in the exercise of due care. Upon this issue it does not help the administrator to show that the gate of the elevator well had been repaired by nailing on an extra piece of wood, which made it heavier and caused it sometimes to stay up and sometimes to fall down of its own weight, if the gate was not connected automatically with the elevator and its position did not indicate where the elevator should be, and the boy knew this.</p>

<p>Libel and Slander. Agency, Scope of employment. Insurance. Corporation.</p> <p>At the trial of an action of tort against an insurance company to recover for slanders alleged to have been published concerning the plaintiff, an agent for another insurance company, by employees of the defendant whose duty it was to solicit business, the plaintiff offered to prove that slanderous words were published as alleged on October 2 and 10, that the plaintiff consulted an attorney at law who on October 29 and November 5 wrote to the “ superintendent of agencies ” of the defendant, complaining on the plaintiff’s behalf; that the superintendent replied asking for further details and stating that such methods were contrary to express orders of the defendant and that the defendant tried to avoid “ such things ” as much as possible; that, at the suggestion of the superintendent, on November 9 one who had charge for the defendant of the agents of the district in which the plaintiff did business interviewed the plaintiff’s attorney and said lie would report to the superintendent; tiiat early in December the plaintiff’s attorney had a conversation with the defendant’s superintendent of agencies in wiiich the latter told the attorney that he could do nothing for the plaintiff in the matter, that he “ had a thousand cases like this one of [the plaintiff] in his office if he wanted to push them ”; that further slanders of the same nature afterwards were published by the defendant’s employees on December 19 and January 1, 3, 8 and 10; and that because of the slanderous statements the plaintiff had lost business which the defendant had got the benefit of. The presiding judge, on the plaintiff’s offer of proof, directed a verdict for the defendant. Held, that the verdict was directed rightly, since the jury would not have been warranted, from the evidence offered, in finding that the persons who published the slanders had any actual authority from the defendant to do so or acted with its knowledge, or that their acts were ratified by the defendant, nor did the offer include any evidence tending to show that the agents of the defendant, in publishing the slanders, acted within the scope of their employment as soliciting agents.</p>

<p>Charity, For a specific purpose. Trust.</p> <p>A testatrix by her will, after giving certain legacies, provided as follows: “The remainder shall... be given to the town of Marblehead toward the erection of a building that shall be for the sick and poor, those without homes. I leave this in the hands of B., B. and R. of Marblehead.” The amount of the residue of the estate was about $8,000. The town of Marblehead at a meeting of the voters declined to accept the legacy. Held, that the gift constituted a public charity for a specific purpose, that it was given “ toward the erection of a building” by the town, and that the action of the town was equivalent to a refusal to erect such a building, that the purpose stated in the will thus having become impossible of execution, and there being nothing to indicate that the testatrix intended to make provision generally for the sick and poor of the town or for those without homes unless they could be provided with a home in a building to be erected for their use, the gift failed, and the residuary estate went to the next of kin of the testatrix.</p>

<p>Contract, Construction, Building contract. Practice, Civil, Exceptions.</p> <p>By a contract in writing a contractor agreed “ to provide all labor and materials required in the construction of one stationary coal hoisting tower, cable railroad, etc., on ” a certain wharf for its owner, “ in accordance with plans and specifications furnished by ” the contractor and made a part of the contract, “ and to the acceptance of the ” owner of the wharf. Held, that the provision that the plant should be constructed “ to the acceptance ” of the owner of the wharf meant, under the circumstances, only that the materials and the construction should be such that a reasonable man ought to be satisfied with the completed work as conforming to the requirements of the contract and specifications, although it might not perform all the work the owner desired of it.</p> <p>A contractor made with the owner of a wharf a contract in writing to “ provide all labor and materials required in the construction of one stationary coal hoisting tower, cable railroad, etc.,” on the wharf, in accordance with certain specifications and “ to the acceptance of the ” owner. In the specifications, which gave a detailed description of the appliances to be furnished, the contractor agreed “to furnish the plant complete, ready to discharge coal and to furnish engineers and other men, at the owner’s expense, to operate the same until the same has been thoroughly demonstrated that the plant is working successfully . . . the plant to work perfectly.” Held, that the contract required that the working of the plant should be successful and perfect when called upon to do the work of which such appliances and machinery as were described in ' detail in the specifications ought to be capable, and did not require the furnishing of a plant of sufficient capacity to do all the work that the owner might desire.</p> <p>No exception lies to the refusal of a judge presiding at a trial to grant a request for a ruling which correctly states a proposition of law applicable to the facts of the case, if in his charge to the jury he in substance states the proposition contained in the request, although in different words.</p>

<p>Negligence, Street railway, Imputed. Infant. Parent and Child.</p> <p>In an action by a woman against a street railway company for personal injuries alleged to have been received from being thrown from a buggy when it was run into by an electric car of the defendant, there was evidence tending to show that the buggy was a Goddard buggy and was the property of and was being driven by a son of the plaintiff, who was twenty years of age, that the plaintiff was in it on the invitation of her son, that it was being driven down a driveway to the street in front of her house on which the tracks of the defendant ran, that the top of the buggy was up and that there were obstructions which cut off her view of the street in the direction from which the car came. A third occupant of the buggy testified that at a suitable place the plaintiff looked in the direction from which the car came. There also was evidence tending to show that there was a noisy brook in the immediate neighborhood, that the car was behindhand, running fast, and that no warning signal was given as it approached. At the time of the trial the plaintiff was insane and unable to testify. Held, that there was evidence warranting a finding that the plaintiff was in the exercise of due care.</p> <p>At the trial of an action by a woman for personal injuries alleged to have been received from being thrown from a buggy because of a collision with an electric street car, there was evidence tending to show that the buggy was being driven, by the plaintiff’s son, whose negligence contributed to cause the accident, that-the son was twenty years old and owned the horse and buggy, that the plaintiff was with him at his invitation on a journey from her home to see a friend' of his, and that she did not exert any control over the manner in which her son drove. It also appeared that, after the journey had begun, upon the plaintiff’s discovering that she had left her glasses behind, the son drove back to get them for her. There was further evidence tending to show, and the jury in answer to a special question found, that the plaintiff did not rely solely on the care and diligence of her son in driving. The presiding judge refused to rule that the negligence of the son should be imputed to the plaintiff, and the defendant excepted. Held, that the exception must be overruled, since the mere existence of the relation of parent and child did not cause the negligence of the son to be imputed to the plaintiff as a matter of law, and that the jury had a right to find that no relation of principal and agent or of master and servant existed between the plaintiff and her son, but that she was merely his invited guest, not depending exclusively upon his care as a driver.</p> <p>Evidence that the motorman of an electric car, in approaching a driveway leading from a dwelling house directly upon the electric car tracks in the highway at a time which was not the car’s regular time, ran the car at an excessive rate of speed and without any warning signals, that when more than one hundred feet fvom the driveway he saw a carriage coming out on it, that he could have stopped his car within that distance, but, instead of doing so, although applying his brakes at first, he then put on the power and tried to get past the end of the driveway before the carriage reached the car tracks, and that the car ran into the carriage, will warrant a finding that the collision was caused by the motorman’s negligence.</p>

<p>Negligence, Employer’s liability.</p> <p>At the trial of an action of tort for personal injuries by an employee against his employer, who owned and operated a mill, it appeared that the plaintiff was injured by having his fingers caught between the rollers of a roller mill, that he was fifty-eight years old, experienced in the work of grinding and had been employed by the defendant in his mill for three years, and that the only grinding mills used by the defendant for about six months before the accident were such as he was injured upon; that some time before the accident the mill upon which the plaintiff was injured had been rendered defective by reason of a belt having been made too short, and that the plaintiff had known of the defect but had been told by the head miller almost two months before the accident that the head miller “ would have the belt man come as soon as ” he “ could get him and make that helt longer ”; that when injured the plaintiff was reaching his fingers between the rollers of the mill to perform a duty which would have been proper if the mill had been at rest, that he had just seen the head miller raise a counter shaft to stop the mill and had proceeded on the assumption that the mill had stopped, as it would have done if the shortness of the belt had been remedied, but that, it not having stopped, his fingers were caught and he was injured. It also appeared that the plaintiff knew that he could have learned whether the mill had stopped if he had looked at some belts and pulleys which were near at hand and in plain view, but that he did not look, although he did not know whether the defective belt had been repaired and knew the danger of doing as he did i£ the mill still were running. Held, that the plaintiff was not in the exercise of due care.</p>

<p>Practice, Civil, Amendment, Conduct of trial, Ordering verdict. Negligence, Employer’s liability, Causing death. Employers' Liability Act, Notice.</p> <p>The declaration in an action of tort against an employer, brought by one describing himself as the administrator of the estate of an employee of the defendant, alleged in a first count that by reason of negligence on the part of the defendant the plaintiff’s intestate was “ mortally wounded and killed,” in a second count that he “ was greatly injured and died in consequence thereof,” and in the third and fourth counts that he was riding in an elevator which fell “ thereby inflicting great injury ... in consequence of which injury he died.” The notice which had been given to the defendant under R. L. c. 106, § 75, stated that the death was preceded by conscious suffering. Before the trial, the plaintiff moved to amend the writ and declaration so as clearly to set forth an action under R. L. c. 106, § 73, by the dependent next of kin of the deceased for death not preceded by conscious suffering. After a hearing, the motion was granted, the judge filing no memorandum. The defendant alleged an exception. Held, that on the record it must be assumed that, before allowing the amendment, the judge was satisfied that the cause of action intended by the plaintiff when the writ was issued was that set forth in the amendment; and that it could not be said as matter of law that the amendment introduced a cause of action not intended when the writ was issued. ‘</p> <p>While the giving of a sufficient statutory notice to an employer under R. L. c. 106, § 76, is a condition precedent to recovery by an employee, his administrator or his next of kin under §§ 71-73, such a notice is not to be construed with technical precision.</p> <p>The purpose of the notice to an employer by an employee, his administrator or his next of kin, which by R. L. c. 106, § 75, is required as a condition precedent to recovery under §§ 71-73, is to give to the employer information as to the time, place and cause of the employee’s injury, and not to advise him specifically as to its details or effects.</p> <p>A notice from an employee, his administrator or his next of kin to his employer under R. L. c. 106, § 75, which contains a statement of facts which is incorrect as to a subject matter not required to be stated, is not invalidated thereby if it also contains a sufficient statement of the time, place and cause of the employee’s injury.</p> <p>After a notice has been given to an employer by the administrator of an injured employee under E. L. c. 103, § 75, which states in sufficient detail the time, place and cause of the injury to the employee, and also that the employee “received personal injuries resulting in death preceded by conscious suffering,” the dependent next of kin of the employee are not precluded from bringing without a further notice an action under § 73 for death of the employee without conscious suffering.</p> <p>At the trial of an action by the next of kin of one who, while in the employ of the defendant, had received injuries which resulted in his death without conscious suffering, it appeared that the injuries resulted from the fall of an elevator, upon which the employee was riding, which was caused by a defective condition due to the defendant’s negligence. There was evidence that at the time of the accident there were thirteen persons in the elevator car, and that at some time previous to the accident there had been in the elevator a notice, signed by the defendant, that not more than ten persons at a time should ride thereon. There was evidence tending to show that no such notice was in the elevator at the time the employee boarded it, that there were not ten persons on board when she did so, and that the additional weight of three persons was not a contributing cause of the accident. Held, that a verdict for the plaintiff was warranted.</p> <p>Where the evidence introduced at a trial is conflicting and the jury would find for the plaintiff if they believed the evidence relied on by the plaintiff and disbelieved that relied on by the defendant, a request to direct a verdict for the defendant must he refused.</p> <p>It is proper for the judge presiding at a trial to refuse to grant a request for a ruling which deals with a particular phase or fragment of the testimony not decisive of the case.</p> <p>At the trial of an action against an employer to recover for the death of an employee, it appeared that the death resulted from the fall of an elevator due to its defective condition, and that it was the duty of the employee to report to the defendant any defect in the elevator. At the time of the accident, the employee was running the elevator. The defendant requested the presiding judge to rule that, “ if the elevator at the time of the accident was out of repair, the plaintiff could not recover.” The request was refused. Held, that the request was refused properly, since it omitted the necessary element that in the exercise of reasonable prudence it would have been possible for the employee to have discovered the want of repair.</p> <p>At the trial of an action against an employer to recover for the death of an employee, it appeared that the death resulted from the fall of an elevator due to its defective condition, that it was the duty of the employee to notify the defendant of any defect which might arise in the elevator, and that the employee was running the elevator at the time of the accident. The defendant requested the presiding judge to rule that, if the employee knew the defective condition of the elevator at the time of the accident, the action could not be maintained, and the request was refused. Held, that the request was refused properly, since such knowledge on the part of the employee would not preclude recovery unless he also appreciated the risk of running the elevator under such conditions.</p> <p>It is not as matter of law want of due care on the part of the assistant superintendent of a factory while running an elevator to refuse to heed a suggestion as to how to run the, elevator, made by an inferior who is not shown to have any knowledge as to elevators.</p>

<p>Equity Jurisdiction, To compel reconveyance of land obtained by fraud, Laches. Fraud. Real Action.</p> <p>A bill in equity alleged that the defendant by deceit and fraud induced the plaintiff’s father to execute and deliver to him in April, 1890, a conveyance of certain real estate and a mortgage of certain other real estate, that the plaintiff’s father died intestate in October, 1890, and that a brother of the plaintiff was appointed administrator of his estate, that thereafter in 1891 the mortgaged property was advertised for sale by the defendant for breach of condition in the . mortgage, that the plaintiff attended the sale and protested against it, declaring the mortgage to be fraudulent and to have been obtained by false pretenses by the defendant, that, after one adjournment of the sale, the mortgaged property was sold to one R., “ the subservient tool and confidential agent of the defendant ” for §3,000 after the plaintiff and the administrator of the estate of the father had bid $6,000, and was immediately conveyed by R. to the defendant. It also was alleged that the plaintiff was absent from this State from 1891 until the middle of 1902, that he was advised repeatedly by the administrator that his counsel and the defendant’s counsel were negotiating and in progress of effecting a settlement, that the two counsel “ were, tacitly if not actually, in harmony to postpone and prevent any settlement ”; that many portions of the land had been sold to persons who were not parties to the suit, and that in 1903 the plaintiff had obtained an assignment from the administrator of the right to bring the suit. The bill contained no offer to pay what might be found to be equitably due to the defendant from the estate of the plaintiff’s father. It was filed in October, 1006, and, except as above stated, contained no excuse for delay. The defendant demurred. Held, that the demurrer should be sustained because of loches of the plaintiff, because of lack of necessary parties, and because of lack of an offer of the plaintiff to pay to the defendant upon a reconveyance what might equitably be due him.</p> <p>Where the owner of certain land executed and delivered a mortgage of it and died intestate, and the mortgagee made a fraudulent alteration in the mortgage deed so that land not included in the deed as originally executed was included in the description in the deed as altered, and the land as described in the altered deed was sold at a foreclosure sale to a stranger who entered into possession of it, an heir of the mortgagor should enforce his right in the land so sold by writ of entry and not by a bill in equity.</p>

<p>Bill in equity, filed in the Superior Court for the county of Bristol on April 27, 1908, seeking specific performance of an agreement in writing whereby the plaintiff agreed to sell and convey to the defendants and the defendants agreed to receive a conveyance of and to pay for certain real estate.</p> <p>The case was heard on the bill and answers by White, J., who reserved it for determination by this court. The facts are stated in the opinion.</p> <p>The case was submitted on briefs.</p>

<p>Negligence, Street Railway. Carrier. Damages.</p> <p>The mere fact that an electric car becomes derailed because of negligence on the part of the street railway company operating it does not give to a passenger thereon a right of recovery in tort against the company, unless he suffered damage therefrom.</p> <p>Where, at the trial of an action of tort against a street railway company for damages alleged to have been received by a passenger by reason of the derailment of the car upon which he was riding, it is admitted by the defendant that the derailment was caused by its negligence and the plaintiff introduces evidence of damage resulting to him, nevertheless a verdict should not be directed for the plaintiff, since the jury are not bound to believe the evidence of the plaintiff as to damages.</p> <p>Where an electric car is derailed by reason of negligence on the part of the operating company, and a passenger thereon is thereby prevented from reaching his destination, the company is not necessarily liable for all of the consequences of the defendant’s failure to transport the passenger to his destination, since it would not be liable for such of the consequences as could have been avoided by the plaintiff’s conducting himself as a reasonable man would have done under the circumstances.</p> <p>The intention of one boarding an electric street car, to be transported through several towns to a city, which is not communicated to the company operating the car, the passenger paying a fare in each town, does not place the company under obligation to transport the passenger to his intended destination.</p> <p>At the trial of an action of tort against a street railway company by a passenger to recover for damages alleged to have been suffered by the plaintiff by reason of the derailment of the car upon which he was riding, the plaintiff alleged and introduced evidence tending to show that he waited three hours in the night while the car was being put back upon the track and, in consequence thereof, missed a car which would have taken him to his destination and was compelled to sleep in a car barn over night. Evidence introduced by the defendant tended to show that, shortly after the car left the track, an announcement was made near to the plaintiff by an employee of the defendant in a loud voice that the passengers by walking about a mile could reach another car which would seasonably take them to the destination which was the plaintiff’s, but that the plaintiff did not adopt the suggestion. The plaintiff testified that he did not hear the announcement. The derailment of the car was admitted to be due to negligence of the defendant, but the question of the defendant’s liability was left to the jury under instructions to the effect that, if they should find that the defendant as it contended properly notified the plaintiff and the other passengers and that the damages suffered by the plaintiff were due to his failure to conduct himself as a reasonable man should have under the circumstances, their verdict should be for the defendant. The jury found for the defendant. Held, that the charge was proper and that the finding of the jury was warranted.</p>

<p>Bill iít equity, filed in the Supreme Judicial Court on February 12,1908, by George R. Jewett, trustee under the will of Elizabeth Howes, late of Salem, for instructions.</p> <p>The case came on to be heard before JRugg, J., who, at the request of the parties, reserved it upon the pleadings and an agreed statement of facts for determination by the full court.</p> <p>The will of Elizabeth Howes was dated January 10, 1854, and, omitting the attesting clauses and the signatures of the testatrix and the witnesses, was as follows:</p> <p>“I, Elizabeth Howes, wife of Frederick Howes of Boston, make my will hereby as follows:</p> <p>“First. I give, devise and bequeath to my son William Burley Howes, one fourth part of all the property, or legal or equitable interest in property real and personal which I may be seized of, possess, have or be entitled to, in my right at the time of my decease whether immediately or in remainder or reversion or which I have or hereafter may have a right or authority to devise, bequeath or dispose of by will or by testamentary appointment in the nature of a will to have and to hold to him and his heirs and assigns. This devise and that of the other three quarters hereinafter made for my daughters are to be subject to the provisions subsequently made herein respecting the annuity to my brother Edward Burley and also respecting Abigail Waugh and Nancy Abbott.</p> <p>“ Second. I give, devise and bequeath the other three quarters of my property as the same is specified above to my said son, William Burley Howes, and to my son-in-law Joseph Sebastian Cabot, Esquire, to have and to hold to them and their heirs and assigns and their legally appointed substitutes and successors, and to the survivor of them or to either of them if one only shall accept the trust and his legally appointed substitutes and successors and his and their heirs and assigns, respectively, in trust for the uses and purposes hereinafterwards expressed, viz:</p> <p>“Firstly. In trust to hold, manage, lease, sell, mortgage, assign and dispose of said property, and receive the rents, interest and income thereof, and of the proceeds thereof for the purposes herein provided, and to invest and reinvest the proceeds thereof from time to time as they or the survivor of them or the trustee or trustees from time to time legally appointed in their stead may deem safe and advantageous, and best calculated to promote the objects of the provisions of this will.</p> <p>“ Secondly. In trust to pay over one-third part of the net rents, interest and income of said property at convenient times semi-annually or quarterly to each of my daughters, Susan Burley Cabot, wife of said Joseph Sebastian Cabot, Elizabeth Howes and Lucy Cabot Howes, during the life of each of my said daughters, respectively, on the order or receipt of each made at-the time of any such payment, independently of any husband either of them may have at the time, or to apply and expend a third part of said net rents, interest and income for the separate use and benefit of my said daughters respectively, independently of their husband, if any, at the time of any such payments and expenditures of such rents, interest and income, the said rents, interest and income not to be subject in any respect to the control, contracts, debt or liabilities of any such husbands.</p> <p>“ Thirdly. In trust on the decease of either of my said daughters to pay over one-third of such rents, interest and income to her descendants, if any, that shall be surviving from time during the continuance of said trust in the same proportions in which they would be entitled to share in a distribution of the personal estate of such daughter, at the time of any such payment, being a widow, at her decease. In case at any time when such rents, interest and income shall be payable, any female descendant of any of my said children entitled to share therein shall be a feme covert, the share belonging to her shall be paid over or expended and applied for her separate benefit and on her order or receipt made made at the time independently of her husband as before provided in respect to my said daughters.</p> <p>“ Fourthly. In trust in case during the continuance of said trust any of my said daughters shall have deceased, and there shall at any time during the continuance of the trust be a want or failure of descendants of hers, to pay over the third part of such rents, interest and income to which she would have been entitled if living, to her brother, if surviving and her then surviving sister or sisters, and as hereinafter provided, to the then surviving descendants of any of my then deceased children, and descendants of any child to be entitled by representation to the share to which he or she would have been entitled if living, the females, if any entitled to share in such rents, interest and income if femes covert at the time, to be entitled thereto independently of their husbands respectively as above provided in respect to my said daughters. In case the surviving descendants of any one of my said children that shall have deceased shall be entitled to participate instead of such child, in the share of the rents, interest and income devised to any one of my said daughters, who shall have died leaving no descendants, or whose descendants shall have failed and her share thus have fallen in, the descendants so entitled to participate shall share among themselves in the distribution in the same proportions in which they would be entitled respectively to share in the descent and distribution of the estate of the child whom they shall represent if he or she had died at the time of any such rents, interest and income being distributable.</p> <p>“ Fifthly. In trust on the decease of the last survivor of my said daughters to convey, assign, deliver and distribute the whole remaining trust property to the then surviving descendants of my said children respectively, the share to the descendants of each of my said daughters to be equal to that of the descendants of each other of them, and the share of the then surviving descendants of all of my said children to be in the same proportion in which they would at the time be entitled to share in the rents, interest and income of the trust property, and in case of there then being no surviving descendants of any of my said children, then the trust property is to go to my heirs and in either case the trust is to cease. Should my said son survive all his sisters he is to have such share as would otherwise as above provided go to his surviving descendants. I suppose the property I have in my own right includes one half of the Beverly farm left to me by my father and eight thousand dollars the proceeds of the sale of the estate in Federal street in Salem, and some shares in the New Market Manufacturing Company, besides any other property left by my father and by my sister, Susan Burley, my intention is hereby to devise and bequeath all the property or rights, and interests in property which I have in my own right, or shall have or be authorized to devise, and bequeath at my decease as hereinbefore stated, whether I may have the same in my own right notwithstanding my being married, or otherwise under any change of circumstances.</p> <p>“ I desire that the agreements and provisions heretofore made for an annuity of three thousand dollars to be paid to my brother .Edward Burley during his life may be fulfilled, respecting which I do not understand it be he requisite that I should make any provision in this will but I direct my executor and trustees to see that the same are complied with and contribute thereto out of the income of the property which I have in my own right, if this is obligatory upon me, or shall be necessary and the annuity cannot be satisfied out of other means.</p> <p>“ I further direct my executor to pay out of my property the sum of one hundred dollars towards making provision for the support of Abigail Waugh who attended my sister, Susan Burley, in her last illness, if the said Abigail shall survive me and if I shall not make such provision myself during my own life and direct my executor and trustees to see that she does not suffer by want.</p> <p>“ I further direct my executor and my trustees to, see that ¡Nancy Abbott of Beverly, formerly a domestic in my father’s family arid also in my own family shall not suffer from want, during her old age if she shall survive me and for that purpose to pay to her an annuity of sixty dollars a year during her life.</p> <p>“I direct that bonds shall not be required of either of my said trustees before named in the Probate Office for the execution of their trust.</p> <p>“ I appoint my said son, William Burley Howes, executor of this will.”</p> <p>There was a codicil to the will of Elizabeth Howes dated December 22, 1856, making only a modification of a small legacy. The will of Frederick Howes, the husband of Elizabeth Howes, was dated February 19, 1851. The provision of his will referred to in the opinion was as follows: “ The survivor of my children, if my only issue then living, may dispose by will of all the estate and property in trust for my descendants under this will.” A codicil to the last named will, dated March 28, 1851, contained the following provision: “ The last survivor of my children aforenamed, if he or she should be my only descendant then living, may dispose by will of all the property bequeathed in trust under this will. And I hereby give to such survivor full power and authority for this- purpose.” A second codicil, dated March 29, 1908, merely revoked a small annuity. Frederick Howes died on November 12, 1855, and his will was allowed in December, 1855. An indorsement on the back of his will, stating that notice of the petition for the allowance of the will and codicils was ^waived, was signed by his widow, Elizabeth Howes, and by their children. Elizabeth Howes died on April 13, 1859.</p>

<p>.Elections. False Counting and Reporting of Votes. Evidence. Jury and Jurors. Practice, Criminal, Separation of jurors, New trial.</p> <p>At the trial of an indictment under St. 1907, c. 560, § 410, against an election officer for wilfully performing contrary to law the duties imposed upon him by § 270 of the same chapter in making a false count of votes in an election and knowingly making a false report of the result of the canvass and count of votes, the official tally sheets kept by the defendant in the counting of the votes are competent and are the best evidence to show what the count kept by the defendant was.</p> <p>At the trial of an indictment under St. 1907, c. 560, § 410, against an election officer for wilfully performing contrary to law the duties imposed upon him by § 270 of the same chapter in making a false count of votes in an election and knowingly making a false report of the result of the canvass and count of votes, the testimony of bystanders, who observed the defendant’s conduct in keeping a false tally of the votes, is admissible to show the facts which they observed although they were not election officers and were interested in the election only as citizens.</p> <p>At the trial of an indictment under St. 1907, c. 560, § 410, against an election officer for wilfully performing contrary to law the duties imposed upon him by § 270 of the same chapter in making a false count of votes in an election and knowingly making a false report of the result of the canvass and count of votes, the Commonwealth, against the objection of the defendant, introduced the testimony of the registrars of voters to show that upon a recount by them it appeared that the ballots had not been counted and reported correctly, and the jury were allowed to inspect the sheets used by the registrars at the recount and used by them in testifying to refresh their recollections, the jury being instructed that those sheets were not evidence and could not he considered by them. The defendant contended that instead of this testimony the ballots themselves, being the best evidence, should have been produced for the jury to count. Held, that, assuming that tile production of the ballots could have been compelled, which was doubted, there being no question raised as to any irregularities appearing on the face of the ballots, the number of the ballots cast on one side and the other was a matter of computation, and that the computation could be testified to by any one who made it, and therefore, that the registrars, refreshing their recollections by referring to the sheets used b}' them at the recount, properly could testify as to the result of the recount so far as it related to the count and report made by the defendant, and that the jury properly were allowed to inspect the sheets for the purpose of assisting them in passing upon the credibility of the registrars.</p> <p>At the trial of an indictment under St. 1907, c. 560, § 410, against an election officer for wilfully performing contrary to law the duties imposed upon him by § 270 of the same chapter in making a false count of votes upon the question of the granting of licenses for the sale of intoxicating liquors in a city and in knowingly making a false report of the result of the canvass, there was evidence that the defendant made marks on a tally sheet as another election officer called off the answers on the ballots, for the purpose of keeping an account of the votes, that in doing so he marked twenty-one more votes for license, fifteen less votes against license and six less blanks than the other election officer called off to him and than afterwards appeared to be the true numbers upon a recount by the registrars of voters, and also that, when the defendant became aware that two bystanders were following the count, he kept the tally correctly. There was other evidence from which guilty knowledge on the part of the defendant could have been inferred. It further appeared that the defendant and the election officer who called off the answers to him signed the tally sheets thus marked by the defendant, and that these tally sheets were delivered to and received by those charged with the duty of declaring the results of the election as the reports of the results of the votes counted and canvassed by the defendant and the other election officer who signed them. Held, that there was evidence for the jury that the defendant wilfully made a false count and knowingly made a false report of the canvass of votes, that the count and canvass by the defendant and the election officer who called off the answers were none the less a count and canvass by the defendant because he merely marked the tally sheets while the other ■ handled the ballots, and that the tally sheets signed by the two constituted and were intended to constitute reports of the results of the votes counted by them.</p> <p>At the trial of a criminal case the jury retired to consider their verdict at about eleven o’clock in the morning. They all were taken to a midday dinner. At about seven o’clock in the evening the officer in charge of the jury asked them whether they cared for supper, and, upon being told that they did, made preparations accordingly. One juryman said that he did not feel well and did not care for supper and would stay and smoke. The other jurors were taken to supper by the officer and this juryman was left in the jury room, which was locked and remained locked until the rest of the jury returned. The jury deliberated all night, and did not reach a verdict until after breakfast the next morning, at about ten o’clock. When the jury were taken out to supper the court had adjourned, and therefore the matter of leaving the juror alone in the jury room was not brought to the attention of the judge at that time. The jury returned a verdict of guilty, and the defendant filed a motion for a new trial on the ground that the jury had been allowed to separate after the case had been submitted to them and before they had arrived at their verdict. The judge denied the motion, and in doing so found as matter of fact that the officer and the juror acted in good faith and that the reasons which the juror gave for not wanting to go to supper were true; that the juror remained locked in the jury room alone all the time the other jurors were absent; that he saw no one and spoke to no one; and that nothing occurred during their absence to influence his mind in arriving at a verdict. The judge also found that there was no talk among the other jurors at the supper table in regard to the case, and that, even if some of the jurors did talk about the case in going from and returning to the court house, what was said was of a casual and informal nature and could not reasonably be considered a part of the deliberations of the jury. He also found that, although the juror might have heard and might have been influenced by the remarks made by some of the jurors if he had been with them in going to and returning from supper, the matter was too unsubstantial to justify setting aside the verdict, and that the facts did not show a reasonable probability that the rights of the defendant had been violated. The judge ruled as matter of law that on the facts found by him the defendant was not entitled to a new trial, and denied the motion as a matter of discretion. Held, that it could not be said as matter of law that there was any error in the rulings or the findings of the judge.</p>

<p>Review of action of contract. The plaintiff in review was the defendant in the original action, which was for a balance alleged to be due to the plaintiffs therein, the defendants in review, under the circumstances stated in the opinion. Writ in the original action in the Second District Court of Bristol dated April 27,1906. Judgment was entered for the plaintiff therein on default of the defendants for $616.20. At the trial of the case in review in the same court, the judgment was reduced by $52.01.</p> <p>On appeal, the case in review in the Superior Court was referred to an auditor with the stipulation that his findings of fact should be final. The substance of his findings is stated in the opinion. At a hearing upon the auditor’s report, Dana, J., refused to rule that the original action was prematurely brought, or that judgment therein should be reversed, and the plaintiff in review appealed.</p>

<p>Tax. Corporation, Foreign.</p> <p>Under St. 1903, c. 437, § 71, which provides that every foreign corporation which is subject to the provisions of that act “shall be subject to taxation upon all real estate, machinery and merchandise owned by it and situated in this Commonwealth by the city or town in which such property is situated,” and providing further that “ the taxes authorized by the provisions of this section shall be assessed, collected and paid in accordance with the provisions of chapters twelve and thirteen of the Revised Laws,” machinery and merchandise belonging to a foreign corporation which is subject to the provisions of the act are subject to local taxation in the city or town where they are situated in the same way as the real estate belonging to such corporation, although the corporation does not hire or occupy a manufactory, store or shop in the city or town and therefore its machinery and merchandise are not taxable there under clause 1 of R. L. c. 12, § 23. This clause is inapplicable, the reference in St. 1903, c. 437, § 71, to the provisions of chapters twelve and thirteen of the Revised Laws being merely for the purpose of directing how the tax that is authorized shall be assessed and collected.</p>

<p>Practice, Civil, Agreed statement of facts. Insurance, Fire, Parol contract for. Contract, What constitutes.</p> <p>Where a case is tried upon an agreed statement of facts which contains no stipulation that the trial court may draw inferences of fact from the facts agreed upon, the plaintiff must fail unless among the facts contained in the agreed statement are included all the elements which the law requires to establish his claim.</p> <p>An action of contract, to recover from a fire insurance company the amount of damage by fire to certain stock and fixtures alleged to have been insured by the defendant, was heard upon an agreed statement of facts which contained no stipulation that the trial court might draw inferences of fact from the facts agreed upon. The right of the plaintiff to maintain the action if any agreement for insurance was made by the defendant was not disputed. The agreed facts were that the -owner of the stock and fixtures went on December 15 to one who was admitted to be an authorized agent of the defendant, but who also was agent for several other insurance companies, and requested the issuance of policies of insurance upon certain identified property to the amount of $3,000, the policies to be in the Massachusetts standard form and to be delivered by the agent at a later date. Nothing was said as to the companies by which the policies were to be written, as to the amount of insurance to be assumed by each company, as to the premium to be paid, the term for whicli the policies were to run, or as to how the insurance was to be apportioned between the stock and fixtures. The agent . wrote all the policies bearing date December 15 in four different companies, of which the defendant was one. Later, and before December 25, he decided that the companies which he represented should not assume the entire insurance and therefore got an agent for other companies to procure insurance for $2,000. No details of his acts were communicated to the owner, nor were the policies delivered to the owner before the fire, which occurred on December 25. Held, that the relations between the owner and the agent rested in negotiation and had not reached the finality of a contract.</p>

<p>Two actions OE tort, by a motorman injured, while in the employ of the defendant in the first ease, by reason of the car which he was operating leaving a track, owned and maintained by the defendant in the second case, and crashing into a post forming a part of the bridge between the main part of Haverhill and that part of Haverhill called Bradford, owing to an alleged defect in the track. Writs dated October 12, 1903.</p> <p>In the Superior Court the cases were tried together before Sherman, J., who at the close of the plaintiff’s evidence ruled that the plaintiff was not entitled to recover, and ordered the jury to return a verdict for the defendant in each of the cases. The plaintiff excepted, and by agreement of the parties the judge reported the cases for determination by this court. If the ruling and direction of the judge were right, judgments were to be entered on the verdicts. If the ruling and direction of the judge were wrong in either case or in both cases, the verdict was to be set aside in either or both cases, as justice might require, and the case or cases were to stand for a new trial.</p>

<p>Negligence, Employer’s liability.</p> <p>If an inexperienced boy of nineteen, who is set at work in a box factory to cut pieces of wood for boxes upon a machine containing a circular saw revolving toward him, knows that a flat piece of metal, called a spreader, which is intended to enter the slit in the wood as the saw cuts it and prevent it from closing on the saw, owing to the screws that fasten it being loose, sometimes or “ real often ” fails to enter the slit and hits the wood, causing his hand to jump, it does not follow as matter of. law that the boy appreciates and assumes the risk of his hand being thrown forward upon the saw when it is made to jump by a piece of wood hitting the spreader, and, in an action against his employer for injuries thus incurred, it is for the jury to say, taking all the circumstances into account, whether he appreciated the danger and assumed the risk.</p> <p>In an action by a workman against his employer for personal injuries caused by a defect in a machine operated by the plaintiff, if the plaintiff testifies that he was operating the machine in the usual way when he was injured, this is evidence for the jury that he was in the exercise of due care.</p>

<p>Negligence, Of one owning or controlling real estate.</p> <p>It is not negligence on the part of one who owns a lot of land in a city, abutting upon a street with a considerable grade, to build thereon a four story block with two stores on the first floor opening upon the street with their entrance doors set back from it, and, between them, an entrance and hallway also set back from the street and leading to the upper floors of the building, and in so doing to leave the floor in front of the entrances open to the sidewalk and to make the floor of the entrance to the lower store three and a quarter inches lower than the floor of the entrance to the hall leading to the upper floors with a riser of that height between the two but with nothing to prevent persons from passing back and forth between the higher and lower portion of the flooring where the riser is, or to warn them of. any risk in so doing; and, if a customer in the lower store, in leaving it and attempting to walk from the lower portion of the entrance floor to the higher, stumbles upon the riser and is injured, he cannot maintain an action against such owner.</p>

<p>Indictment, found and returned in the Superior Court for the county of Suffolk on February 8, 1908, under R. L. c. 212, § 20, charging the defendant with selling a certain printed book' entitled “Three Weeks,” containing in and upon certain pages certain obscene, indecent and impure language, manifestly tending to corrupt the morals of youth, as set forth in specifications filed by the Commonwealth.</p> <p>In the Superior Court the defendant was tried before Brown, J. Before the jury were impanelled, the defendant filed a motion to quash the indictment, which is referred to in the opinion. The motion was denied by the judge, and the defendant excepted.</p> <p>The whole of the book was introduced in evidence by the Commonwealth, and the sale of the book was admitted by the defendant. The only other testimony introduced by the government was the reading of the portions of the book specified in the indictment and set forth in the Commonwealth’s specifications. The defendant introduced no evidence. At the close of the evidence the defendant asked the judge to rule and instruct the jury as follows :</p> <p>1. Upon all the evidence the jury should return a verdict of not guilty.</p> <p>2. Upon all the evidence the language of the parts of the book referred to in the indictment have not been shown to be obscene.</p> <p>3. The language of the parts of the book described in the indictment is not indecent.</p> <p>4. The language of the specified parts of the book in evidence is not impure.</p> <p>5. The portions of the book referred to in the indictment do not manifestly tend to the corruption of the morals of youth.</p> <p>6. The word “ manifestly ” as used in R. L. c. 212, § 20, means that the language complained of must be such as obviously, clearly and incontrovertibly would corrupt the morals of youth.</p> <p>7. The jury must be convinced beyond any reasonable doubt that the book is either obscene, indecent or impure, or manifestly tends to corrupt the morals of youth. If they are not so convinced they should return a verdict of not guilty.</p> <p>8. The jury should treat the book as a whole, and determine whether the book as a whole is obscene, indecent or impure, or manifestly tends to the corruption of youth.</p> <p>9. Language is not obscene unless it is calculated to deprave the morals of the ordinary reader or leads to impure purposes.</p> <p>10. It is not sufficient that the jury be satisfied that the book might seem obscene, indecent and impure to some persons. It is necessary that they be satisfied that it is obscene, indecent and impure to the mind of the ordinary reader into whose hands it would be likely to fall.</p> <p>12. Obscenity is such indecency as is calculated to promote the violation of the law and the general corruption of morals.</p> <p>13. Manifestly means that which is clear and requires no proof; that which is notorious.</p> <p>14. The word “ manifestly ” as used in the indictment means clear and requiring no proof, incontrovertible, admitting no dispute.</p> <p>15. The parts of the book referred to in the indictment do not “ manifestly tend to corrupt the morals of youth ” unless it is so apparent to the jury that it has that tendency as to require no explanation or proof.</p> <p>16. If the jury believe that there might well be an honest difference of opinion among reasonable men as to whether or not the language of the parts of the book referred to in the indictment tends to corrupt the morals of the youth, they cannot find that such language “ manifestly ” has that tendency.</p> <p>17. It is not enough that the jury find that the parts of the book referred to are indelicate or offensive to good taste, or do not agree with the sentiments of a majority of the people upon the question of morals.</p> <p>18. The parts of the book referred to in the indictment are not within the provisions of R. L. c. 212, § 20, merely because the jury may believe that they may be indelicate or offensive to the sentiments of a portion or even the whole of the community.</p> <p>19. The jury cannot find that the parts of the book referred to in the indictment violate the provisions of R. L. c. 212, § 20, merely because they in language or ideas do not accord with the standard of morals of a majority or the whole of the people.</p> <p>21. The jury have a right to consider the whole of the contents of the book in determining whether the parts specifically pointed out in the indictment come within the provisions of R. L. c. 212, § 20.</p> <p>22. The jury have a right to consider the apparent intent and purpose of the story as a whole in determining whether the parts referred to come within the description of the indictment.</p> <p>23. Whether the language referred to is such as is described in the indictment should be determined by consideration of the contents of the entire book.</p> <p>25. The jury have a right to consider whether the production as a whole is put forward as legitimate literature, and whether the story offers a fairly typical study of life. If they so find, then, even though it may contain episodes which, although within the description of the indictment, taken by themselves are subsidiary to the larger purpose of the book, their verdict should be not guilty.</p> <p>26. In determining whether the parts of the boob referred to in the indictment come within the provisions of R. L. c. 212, § 20, and their probable influence and effect upon the mind and morals of those into whose hands the book may fall, the jury have a right to take into consideration other works of literature, religious, historical, or fiction widely read in the community, the language thereof, and the subjects discussed and the scenes and incidents described therein.</p> <p>The judge refused to rule and to instruct the jury as requested, and instructed the jury as follows:</p> <p>“This defendant is charged with selling a certain printed book which contains, in the language of the indictment, certain obscene, indecent and impure language, manifestly tending to the corruption of the morals of youth. That is the charge upon which he is tried. The issue is very simple. It is for you to determine whether in your opinion this language is obscene, impure or indecent, and manifestly tends to the corruption of youth. The allegation in the indictment that the language is so bad that it ought not to be set out, is not to be considered by you at all, because you have the language itself, and it is from that you must form your conclusions. The language of the pleader is not to be considered by you at all.</p> <p>“ How, what does the statute mean ? This statute was intended to protect public morals, particularly the morals of that part of the public who, by reason of tender age or any other reason, have minds open, susceptible to influences of this sort. You are to determine from the language used, and from such other parts as are necessary to explain that language, whether that is obscene and impure, and whether it manifestly tends to the corruption of youth.</p> <p>“ How, language to be obscene — perhaps you know as well without my trying to explain it as you will afterwards — but obscenity means offensive to morality, to chastity, indecent, nasty. Impure explains itself. Language is offensive, impure and indecent when it manifestly tends to incite in the minds of people susceptible to such influences obscene thoughts, impure thoughts, indecent thoughts. Is it language which has a tendency in your opinion to incite impure thoughts in the minds of people into whose hands it may come ? Does it corrupt their morals ? Does it excite their sexual passions? How, the fact is not whether it tends to excite those feelings in your minds or not, but whether it has a tendency, a manifest tendency, to excite those feelings in the minds of youths into whose hands it might come. . . . Does it have that tendency ? Does it have a manifest tendency ? Are you able by taking the language and reading it to say that it manifestly tends to corrupt the morals of youth ? If you cannot say that, it makes no difference what anybody else thinks about it, and you must return a verdict of not guilty. If you have reasonable doubt about it you must return a verdict of hot guilty.</p> <p>“ It is entirely immaterial whether other books are as bad or worse or better than this. You cannot compare them in that way. You are not trying any book except this, and only such parts of this as the government complains of; and it makes no difference whether you think there are other books in circulation worse than this or not; you are only trying this one. It makes no difference what the object in writing this book was, or what its whole tone is, if these pages that are complained of, the language that is set out in the bill of particulars, is in your mind obscene, impure, indecent, and manifestly tending to the corruption of youth, then you must find a verdict of guilty. It is for you to say. You are to use your own experience and your judgment, acting under the responsibility of your oaths, and return such a verdict as you think you ought to. If you have any doubt, reasonable doubt, as to the effect of this language upon the minds of youth, or anybody else into whose hands it may come, then you must give the defendant the benefit of that doubt.”</p> <p>The jury returned a verdict of guilty, and the defendant was sentenced by the judge to pay a fine of $100 and to stand committed until the sentence was performed. On motion of the defendant, the judge filed a certificate that in his opinion there was reasonable doubt whether the sentence should stand, and ordered that the execution of the sentence be stayed until the further order of the court. The defendant alleged exceptions which were allowed by the judge.</p> <p>The case was submitted on briefs.</p>

Contract against the city of Lynn to recover certain sums paid to the defendant for deeds of two parcels of land held by it as purchaser at sales of the premises under St. 1888, c. 390, § 48, for the collection of taxes. Writ in the Superior Court for the county of Essex dated November 9, 1904. The case was heard by Fessenden, J., upon an agreed statement of facts.

<p>Equity Jurisdiction, Specific performance. Frauds, Statute of. Equity Pleading and Practice, Bill.</p> <p>It is not necessary for the plaintiff in a bill in equity, seeking specific performance of an agreement by the defendant to convey certain real estate to him, to allege that the defendant owned the real estate which he had agreed to convey.</p> <p>A bill in equity, for the specific performance of an alleged agreement by the defendant to convey to the plaintiff certain real estate described at length in the bill, set forth as memoranda of the agreement two receipts, one signed by an agent of the defendant for $100 “ on account of sale of the three houses belonging to the E. D. estate in Danvers,” and the other signed by the defendant for $25 “ on acct. of sale of the three houses & land that rightfully belongs thereto, in Danvers, belonging to the Dodge estate.” There was no allegation that the three houses referred to in the memoranda were the only ones owned by the E. D. estate in Danvers. The defendant demurred on the ground that the memoranda were not sufficient to satisfy the statute of frauds, B. L. c. 74, § 1, cl. 4, the demurrer was sustained and the plaintiff appealed. Held, that the demurrer was sustained rightly, since the descriptions contained in the memoranda were not sufficiently definite and there was no allegation in the bill to make them more so.</p>

<p>Tort under R. L. c. 106, § 71, cl. 2, for personal injuries alleged to have been received by the plaintiff while in the employ of the defendant and to have been caused by negligence on the part of a superintendent of the defendant. Writ in the Superior Court for the county of Worcester dated December 22, 1906.</p> <p>The case was tried before Dana, J. There was evidence tending to show that, when injured, the plaintiff was riding on the foot board running across the back of a narrow gouge switch engine owned and controlled by the defendant, his duties being those of a lookout; that as the engine was backing down a track at about ten o’clock at night, it came into collision with the end of a car which had been pushed back over a switch on to the track upon which the switch engine was approaching, and the plaintiff was injured; that the car was thus placed by orders of one Locks, whom the plaintiff contended was a superintendent of the defendant, and that Locks should have warned the plaintiff of the position of the car, but did not do so.</p> <p>There also was evidence tending to show that Locks and Locks only gave orders to the plaintiff and other men in the yard, generally about eight in number, that he got twenty-five cents a day more pay than the others, that he worked with his hands with the other men when he did not have anything else to look after, and that he received directions from Hartman, the “stock chaser,” written on a slip of paper, as to what material he should get and where he should deliver it.</p> <p>Other facts are stated in the opinion.</p> <p>At the close of the plaintiff’s evidence, the presiding judge ordered a verdict for the defendant; and the plaintiff alleged an exception.</p>

Tort for personal injuries sustained by the plaintiff from being run over by a private freight train of the defendant, consisting of an engine and two cars, while the plaintiff was travel-ling on a bicycle over a railroad crossing maintained by the defendant on Canal Street in Lawrence. Writ dated January 22, 1906.

Contract under R. L. c. 99, §§ 4-6, to recover money alleged to have been paid as margins upon wagering contracts for the purchase and sale of stocks. Writ dated October 8,1903. At the trial in the Superior Court before Bishop, J., the defense relied upon consisted of the releases signed by the plaintiff which are described in the opinion, where also the material portion of the instruction of the judge upon this subject is quoted.

<p>Sale, Implied terms of.</p> <p>An unqualified sale of goods by the person having possession of them includes an implied warranty of title or of the right to make the sale, and, if at the time of the sale the goods belonged to another who had not authorized their sale, the buyer may surrender the goods to their owner and recover the amount of the purchase money from the seller.</p>

Contract by the tax collector of Chelmsford to recover the amount of a tax assessed on the personal property of the defendant in 1904. Writ in the Superior Court for the county of Middlesex dated November 22,1906. The case was tried before Qrosby, J., without a jury. He found for the plaintiff; and the defendant alleged exceptions. The facts are stated in the opinion. The case was submitted on briefs.

<p>Contract, In writing. Evidence, Extrinsic afiecting writings. Bills and Notes. Equity Jurisdiction.</p> <p>In equity as well as at law an oral agreement, purporting to control the meaning and legal effect of a contract in writing which is to be made later between the same parties, cannot he enforced to contradict or vary the contract in writing when it is made, the effect of the writing being to merge and control all previous oral agreements inconsistent with it.</p> <p>An oral agreement by a trust company to discount notes for a certain person and to renew them from time to time, and to require payment only of such sums as the debtor may realize as profits from the sales of his real estate, cannot be enforced as a defense to an action by the trust company on the notes, either under an answer at law or as an equitable defense under R. L. c. 173, § 28; nor can the debtor maintain an action of contract against the trust company for a breach of its oral agreement in bringing an action to collect the notes in accordance with their terms.</p>

<p>Contract or tort, setting forth no contract and treated by the court as an action of tort only. Writ in the Superior Court for the county of Middlesex dated July 16, 1906.</p> <p>The declaration as amended was in one count, occupied six and one half pages of the printed record and contained in substance the following allegations:</p> <p>The defendant Florence Kitchen had been appointed administratrix of the estate of one Auguste Holland, who died on May 15, 1905, leaving no wife and as his only heir the said Kitchen. The defendant Stephen R. Jones was an attorney at law in Boston, a business adviser and a social and intimate friend of the defendant Kitchen. Auguste Holland was a man of large means and for ten years previous to his death had lived at the Hotel Thorndike in Boston. In July, 1895, he had sought and secured the companionship and assistance of the plaintiff, and in consideration of the services rendered and to be rendered and the sacrifices made and to be made for him by the plaintiff, Holland “ promised and agreed to leave to the plaintiff a sum of money sufficient for her support during life, in money, bonds, securities and stock in a sum not less than $30,000, and to leave to the plaintiff, by will, substantially his entire estate of which he should be seised or the owner of at the time of his decease and to leave to the plaintiff the property aforesaid, for her support and independent maintenance during her life, the same to be paid to her at the time of his death in the event that they were not sooner married, and that she should marry him at any time when the said Holland so desired.” The plaintiff performed the services and made the sacrifices required and during the remainder of Holland’s, life was his close and almost sole companion, but no marriage took place.</p> <p>In May, 1905, Holland made a will and also wrote some testamentary directions, both of which instruments were in his possession at the time of his death, in which he did as he had promised the plaintiff to do in making provision for her, “and the said Holland further left to this plaintiff stocks, bonds and money to a large amount for her own separate use, benefit and support, all of which belonged to and was the property of the plaintiff.”</p> <p>Learning of the last sickness of Holland, the defendants “ conferred together and then and there combining, confederating and conspiring for their own lucre, benefit and gain to injure and defraud the plaintiff, and so to arrange matters that the plaintiff should be deprived, refused and cut off from all advantages arising to her from a full and complete performance of her contract with the said Holland and to deprive her of any interest or right or gratuity or remuneration for her services rendered or otherwise and from all benefits resulting from the last wishes of the said Holland,” planned that the defendant Jones should take apartments near those of Holland at the hotel and that, immediately on Holland’s death, Jones “ was to enter the room where the deceased lay, seize, take and carry away all of the papers, documents, money, bonds, letters, notes and all written instruments and then and thereafter hold, secrete and conceal the same and thereafter to claim and maintain in pursuance of their said acts, conduct and purpose that there were no written instruments or documents as aforesaid, no stock, bonds, or money in said room, no bank account and only a very small estate, if any, and that this plaintiff had no rights as creditor or otherwise, although the said Jones and the said defendant Kitchen knew and had well known for many years up to the time of the said Holland’s decease the duties, relations and friendship and attachment between the said Holland and the plaintiff.” The plan was carried out.</p> <p>The defendants demurred on grounds both general and specific. The demurrers were sustained by Fox, J., judgment was entered for the defendants, and the plaintiff appealed.</p>

<p>Seventeen actions oe contract, by a corporation organized on May 1,1899, under the companies act of Great Britain, St. 25 & 26 Yict. c. 89, to recover certain sums of money alleged to be due from the several defendants on their respective subscriptions for ordinary shares of the plaintiff’s capital stock. Writs dated May 12, 1894.</p> <p>In the Superior Court these cases together with three others were sent to an auditor and later were tried before Hardy, J., who directed verdicts for the defendants, and reported the cases to this court for determination. In a decision, reported in 195 Mass. 242, it was ordered that the cases should stand for trial upon the second count of the declaration, which sought to hold the defendants as registered stockholders under the companies act of Great Britain.</p> <p>Seventeen of the cases accordingly were tried again before Gra&Mll, J., upon the second count and upon a fourth count added by amendment as explained in the opinion.</p> <p>At the close of the evidence, the judge, after conference with the parties, ordered a verdict for the plaintiff against the defendant Prince on the fourth count, a verdict for the plaintiff against the defendant Pope on the fourth count, verdicts for all the defendants on the second count and a pro forma verdict for each of the defendants except Pope and Prince on the fourth count. The defendants Pope and Prince excepted to the ordering of the verdicts against them, and the plaintiff excepted to the ordering of the verdicts in favor of the defendants on the second count and to the ordering of the verdicts in favor of the defendants except Pope and Prince on the fourth count. The verdicts were returned by the jury in accordance with these directions, and the judge reported the cases for determination by this court it being agreed by the parties that, if upon the competent evidence set forth in the report the ordering of the verdicts was correct, judgment was to be entered in accordance with such directions and verdicts. If, in any case, a different verdict should have been ordered or returned, this court might so order, and final judgment might be entered accordingly. If any of the verdicts should be set aside, then such order was to be made. The parties agreed that the determination of the English law, in law and in fact, was to be made by this court upon the competent evidence reported.</p>

Petition to establish a mechanic’s lien for labor performed and materials furnished under an entire contract in writing between the petitioner and the respondent Joseph I. Stewart. The petition was filed in the Superior Court for the county of Suffolk on May 17,1907. The contract was contained in a proposition in writing by the petitioner to Stewart and an acceptance in writing by Stewart.

<p> Negligence. Landlord and Tenant. </p> <p>At the trial of an action of tort for personal injuries alleged to have been received by the plaintiff by reason of negligence of the defendant or his employees, it appeared that the defendant leased to the plaintiff certain premises for use as a factory and made a contract to furnish to him, for a fixed price during the working hours of the factory, power for the running of it from a building across the street, it being agreed that, if the power was used beyond such working hours, an extra charge should be made. The power so furnished was carried across the street by means of a rope drive, and thence communicated by the plaintiff without the use of tight and loose pulleys to a counter shaft and thence to a main shaft in the factory. There was evidence tending to show that the failure of the plaintiff to use tight and loose pulleys was not improper, that the mechanical arrangements for starting and stopping the rope drive were in the building across the street from the plaintiff’s factory and entirely under the control of the defendant, that the working hours of the plaintiff’s factory were over at 6 p. h., that on the afternoon of the plaintiff’s injury the power had been turned off and the rope drive had ceased running, and that thereupon the plaintiff had begun to relace a belt which was out of repair on the counter shaft in a manner which the evidence tended to show was proper, when at 6.25 p. m. without warning the rope drive started up and the plaintiff was injured. There was no evidence to explain the starting of the rope drive. The presiding judge ordered a verdict for the defendant and reported the case. Held, that a verdict should not have been ordered for the defendant, since the jury might have found that the plaintiff was in the exercise of due care, that it was the duty of the defendant to exercise reasonable diligence not to start the rope drive without warning the plaintiff after it had been stopped at the close of the working hours, and, in the absence of any explanation from the defendant in whose exclusive control the starting and stopping apparatus was, that the starting of the rope drive was due to a failure on the part of the defendant to exercise such diligence.</p>

<p>Damages, For property taken or injured under statutory authority. Grade Crossing Acts. Way, Private. Evidence, Opinion: expert.</p> <p>A person whose property is injured by the obstruction or taking of a private way in the abolition of a grade crossing under St. 1890, c. 428, may recover damages under § 5 of that statute, such injury differing from that ordinarily caused by the discontinuance of a public way in being special and peculiar.</p> <p>On the question of the damaging effects upon a petitioner’s property of the obstruction of a private way in the abolition of a grade crossing, a witness may be found by the presiding judge to be qualified to testify as an expert if it appears that, in addition to a long experience as an auditor in this class of cases and as a former judge of the Superior Court, he is the owner of the legal title to and the manager of an estate adjoining the petitioner’s property and has been familiar with the neighborhood for many years, although he does not profess to have much knowledge of the market price of real estate there, he not being asked to state the damage in money but only the general effect of the change upon the petitioner’s estate and the percentage of value taken away.</p>

<p>Negligence, Employer’s liability, Railroad.</p> <p>One employed by a railroad corporation as a sealer of freight cars in a freight house, who in the ordinary course of his employment is standing on a ladder which rests on a narrow space between two railroad tracks, engaged in sealing the door of a car on one of the tracks, where a car cannot pass on the other track without hitting the ladder, and is thrown down and injured by reason of the ladder’s being knocked from under him by a switching engine running in on the other track, cannot recover from his employer for his injuries thus caused, the risk of such an accident being an obvious one assumed by him by continuing in his employment after its circumstances were known to him.</p>

<p>Mechanic’s Lien. Lis Pendens. Practice, Civil, Plea in abatement. Contract, Construction, Building contract.</p> <p>Although one, to whom there is due from the owner of real estate a debt of the kind described in R. L. c. 197, relating to mechanic’s liens, can have but one satisfaction of the debt, under § 33 of that chapter he may maintain against such owner at the same time an action of contract for the debt and a petition to enforce the lien to secure its payment.</p> <p>A building contract contained as successive paragraphs in one article a paragraph providing for the making by the contractor to the architect of monthly statements of the amount in value of labor and materials provided and used in the erection of the building, and for the issuing by the architect of certificates for the payment of a certain percentage of such amount or of so much thereof as the architect deemed best, a paragraph which read as follows: “ Pinal settlement to be made forty days after the full completion of said building and its acceptance by the architect,” and a paragraph which'read: “Provided, however, that in each of said cases, of payment, if required, the . . . [contractor] . . . shall present a certificate from the clerk of the office where liens are recorded, signed by said clerk, to the effect that the works and estate are, at the time said payments are due, free from all liens or claims chargeable to the said ” contractor. The contractor filed a petition under R. L. c. 197, to enforce a lien for the final payment alleged to be due him under the contract. The respondent filed an “answer in abatement,” setting forth the above provision of the contract, alleging that there were a number of liens filed against the property for claims chargeable to the contractor, petitions to enforce some of which were pending, and that the contractor had not presented the certificate as to liens called for by the contract, but containing no allegation that the certificate as to liens had been required by him. The petitioner demurred to the answer. Held, that the demurrer must be sustained, since the provision as to the certificate relating to liens did not have to do with the final payment, and since it did not appear that the owner had required the presentation of the certificate by the contractor.</p>

<p>Practice, Civil, New trial.</p> <p>An order of a trial judge setting aside a verdict as against the evidence, upon a m&tion in writing to set it aside for that reason, is final, and is in no wise invalidated or affected by further ordering the setting aside of certain specific findings of the jury on material issues submitted to them, as by the setting aside of the general verdict the whole case is reopened for a new trial, and the specific findings become void, whether any reference is made to them in the order or not.</p>

<p>Witness, Cross-examination, Impeachment. Evidence, Remoteness.</p> <p>The extent to which the cross-examination of a witness shall be permitted to be carried is within the discretion of the presiding judge, and in its exercise the judge may exclude questions addressed to a plaintiff on cross-examination relating to matters whose connection with the issues on trial is too attenuated and remote for consideration.</p> <p>In this Commonwealth it is settled law that, in the introduction of evidence affecting generally the credibility of a witness, the inquiry is limited to the reputation of the witness for truth and veracity, and, therefore, after a witness for a defendant has testified that he knows the reputation of the plaintiff for truth and veracity and that it is bad, it is proper for the presiding judge to refuse to allow the defendant to ask the witness whether he would believe the plaintiff under oath.</p>

<p>Pledge, Of mortgage. Trust. Mortgage, Of real estate.</p> <p>A pledgee of a mortgage of real estate, regularly assigned to him, may foreclose the mortgage for a breach of condition, if he deems such action to be best for the interests of himself and of the pledgor, and may exercise a power of sale contained in the mortgage and purchase the property at such sale if under the terms of the mortgage an assignee of the mortgage has a right to do so, but after such a purchase he holds the property as trustee for the pledgor and subject to redemption by him on payment of the debt which the mortgage was pledged to secure.</p>

CONTBACT to recover a balance alleged to be due for a quantity of steel beams, for the labor of cutting them and the expense of transporting them from Boston to East Everett. Writ dated November 17, 1902. In the Superior Court the case was tried before Holmes, J., without a jury. The plaintiffs’ claim was based on a proposal in writing and its acceptance as set forth in their declaration.

Tort under R. L. c. 106, § 71, cl. 3, § 73, by the widow of one Elwyn S. Skinner, who was alleged to have been instantly killed by being struck by a train coming from Boston while he was employed by the defendant at its Winter. Hill station in Somerville. Writ in the Superior Court for the county of Middlesex dated January 11, 1907.

<p>Tort by a riparian owner on the former course of Stony Brook in Boston against that city, with a first count for wrongfully diverting the waters of Stony Brook from the plaintiff’s land and a second count for constructing a sewer through the former bed of the brook. Writ dated July 26, 1902.</p> <p>In the Superior Court the case was tried before Pierce, J. Certain facts were agreed and the jury took a view of the premises. St. 1874, c. 196, and St. 1896, c. 530, were in evidence, and there also was evidence introduced by both parties upon the question of damages, which is immaterial to the question of law raised by the bill of exceptions. The facts which are material to that question are stated in the opinion.</p> <p>At the close of the evidence the judge ordered a verdict for the defendant on the second count, and no exception was taken to this ruling. The defendant, among other requests, asked the judge to rule that on all the evidence the verdict must be for the defendant on the first count. The judge refused to make this ruling and submitted the case to the jury on the first count. The jury returned a verdict for the plaintiff in the sum of $2,674.43; and the defendant alleged exceptions.</p>

<p>Replevin of a watch and chain. Writ in the Police Court of Lynn dated January 29,1906.</p> <p>On appeal the case was tried before Fox, J. It appeared that the watch and chain with five other articles of jewelry were included in the terms of a contract of conditional sale between the plaintiff and one Meyer Krasner. The contract, called a “ lease,” provided that the price of the articles therein described should be $160, which Krasner should pay by instalments, and, upon payment of the full amount by Krasner, the plaintiff agreed “ to give a bill of sale for said goods, and it is mutually understood that in no case shall the title of said goods pass from said Max Frisch, shall they be removed from the above address without written permission, until said amount has been paid and bill of sale given.”</p> <p>Krasner defaulted under his contract after he had paid $94. The plaintiff thereupon had him arrested on mesne process under R. L. c. 168, § 1, making affidavit that he believed that Krasner intended to leave the Commonwealth. The declaration which he annexed to the writ was in three counts, the first claiming $66 as “ balance due on . . . lease,” the third being upon an account annexed for the same balance, and the second setting forth in detail the terms of the contract and the breaches thereof by the defendant.</p> <p>Krasner was discharged by the judge of the Lynn Police Court upon his taking the oath as prescribed by R. L. c. 168, § 40, that he did not intend to leave the Commonwealth. The plaintiff did not enter that writ. Subsequently this writ of replevin was brought. The defendant is a deputy sheriff who had made an attachment of the watch and chain. The attachment had been discharged before this action was brought.</p> <p>On the foregoing facts the presiding judge ruled that the plaintiff by his proceedings for the recovery of the price of . the goods included in the lease had relinquished his right to reclaim the goods themselves, directed a verdict for the defendant, and at the request of the plaintiff, reported the case for determination by this court.</p> <p>The case was submitted on briefs.</p>

<p>Tort by the' administratrix of one Ervin S. Stevens, who was alleged, while an employee of the defendant, to have received injuries from which after conscious suffering he died. Writ in the Superior Court for the county of Essex dated February 6, 1905.</p> <p>The injury was alleged to have been received on July 25,1904. The action originally was brought by Ervin S. Stevens. Upon his death on September 10, 1907, and the appointment of the plaintiff as the administratrix of his estate, she was admitted to prosecute the action, and was allowed to amend the declaration by including counts under R. L. c. 106, § 72, seeking recovery for the death of the intestate after conscious suffering.*</p> <p>The amended declaration was in five counts, the first seeking recovery for conscious suffering of the plaintiff’s intestate, alleged to have been due to negligence of the defendant in failing to supply him with suitable tools and appliances. The second count alleged as the negligence of the defendant the placing of the plaintiff’s intestate at work “ upon a staging constructed improperly and composed of inadequate, defective and unsafe materials.” The negligence of the defendant alleged in the third count was placing the plaintiff’s intestate at work in a dangerous place. The fourth count was under R. L. c. 106, § 71, cl. 1, and § 72, for conscious suffering and death of the plaintiff’s intestate resulting from a defect in the ways, works or machinery of the defendant. The fifth count, under § 71, cl. 2, and § 72 of the same chapter, set forth as the cause of the injury and death negligence of some person in the service of the defendant intrusted with and exercising superintendence, whose sole or principal duty was that of superintendence.</p> <p>At the trial, which was before Sanderson, J., it appeared that the plaintiff’s intestate was a mason employed by the defendant, a contractor, in the building of the Burdett College building in Lynn, and that, while he and one Kallock and two colored men were engaged in putting in place a cap or ornamental stone, a staging upon which they were standing gave way and the stone fell upon the plaintiff, causing the injury which was the basis of this action.</p> <p>The superintendent in charge of the work was one Arthur L. Strout, the defendant’s brother. There was testimony of one Stanton tending to show that the superintendent told Kallock “to take Steve [the plaintiff’s intestate] and” two helpers “ and start on that corner . . . and after he had spoken to . . . [the superintendent] . . . something about some tools, [the superintendent] told him to go ahead with what he had, and he would get something, whatever it was they were talking about; Mr. Kallock turned around and simply said ‘ Come on, Steve.’ . . . Mr. Stevens asked how he was going to set the stone, and I do not just remember what Mr. Kallock answered, but they went to work directly afterwards to roll the stone up to the building. I saw Mr. Kallock say something to the two colored men. . . . They were all working together. . . . At the time I heard Mr. Strout say what he did to Mr. Kallock, I saw him go in the driveway between the Item building and the Burdett College building,” a place distant about thirty feet from where the men were working. “I did not see him again before the accident,” which occurred between a quarter and half an hour-later.</p> <p>Kallock, called by the plaintiff, testified in direct examination: “ I had a talk with . . . [the superintendent] ... in reference to laying the stone. He called me out, Mr. Stevens and I, about the work in front of the stone. We went out and looked at the stone and he showed what stone was going on the corner. I looked that over and I saw that it was a Lewis stone, and I made a remark to him we should have to have a derrick to set it with . . . and he said ‘ Do the best you can and I will try and get you one.’ He said ‘ Here is two laborers, good handy fellows, that will get you what you want to do with, bars, material, etc.’ ... I helped construct the staging. ... I did not see any crowbars about there. I did not see any horses. I could not say whether there were any jack screws there or not. I didn’t see any.” On cross-examination he testified: “ I had known Mr. Stevens for about five years. His occupation had been the same as mine, namely, mason and bricklayer. He only worked on one job with me before as mason and bricklayer. He worked under me when I was foreman for Mr. Butler. On this job I was paid fifty cents an hour just the same as the rest. . . . I was in no sense a boss. I had no authority to hire or discharge employees.”</p> <p>The superintendent Strout, called by the plaintiff, testified that the plaintiff’s intestate and Kallock were getting the same wages. “Kallock and Stevens had worked about three weeks on this building. They were both masons and bricklayers of long experience. Stevens had been in the habit of building staging for many years. I don’t know about Kallock. He never worked for me before. On the morning when this accident happened there was about that job a large amount of material provided for the construction of stagings, such as planks, horses, and barrels, etc., and nails. In the basement there was no floor. It was dirt. I don’t know whether Stevens had worked as a mason setting stone in my employ or not. I don’t remember. I left the building of any temporary stagings that might be necessary to the men themselves. Bricklayers and masons on small jobs usually build their own stagings. There were crowbars and jacks about the building.”</p> <p>An experienced mason and contractor, testifying on behalf of the plaintiff, stated that the method used by the workmen in raising the stone in question was not safe or suitable. “ Proper utensils to use in setting a stone under circumstances like those in this case would be skids and rollers and bars and pry it along on the sidewalk in the condition it existed until you got within a few feet of your landing place; and then prepare your staging or groundwork, or whatever was necessary to hold it to work it along in place. That would be one way. Another would be to have your derrick to hitch onto it, to drag it in with your derrick, and then set it in with your derrick. There are two or three ways you could handle that stone.”</p> <p>Other facts are stated in the opinion.</p> <p>At the close of the plaintiff’s evidence the presiding judge ordered a verdict" for the defendant; and the plaintiff alleged exceptions.</p>

<p> Bills and Notes. Assignment. Husband and Wife. </p> <p>The indorsement and delivery of a non-negotiable promissory note operate as an assignment of the note, and under R. L. c. 173, § 4, the indorsee can sue on the note in his own name as assignee.</p> <p>It is now settled law in this Commonwealth that the marriage of the maker of a valid promissory note to the payee does not extinguish the note or render it void.</p>

<p> Voluntary Association. </p> <p>The power of a majority of the members of a voluntary unincorporated society to control the rights or the action of the minority of the members is derived from and is dependent upon the provisions of the constitution and by-laws of the society.</p> <p>A voluntary unincorporated society had in its by-laws the following provision: “If several motions are made regarding the same question and no unanimous decision can be obtained, said question will be voted on, and the wish of the majority shall prevail, except in the purchase or the sale of real estate, in which case two thirds majority must be the settling vote.” The society owned an interest in certain real estate. At a meeting of its members, a majority of the members present voted 'to enter into union with another society, and at a subsequent meeting, by more than a two thirds vote, voted to transfer the society’s real estate to such other organization. A minority voted against both propositions and brought a bill in equity to enjoin the carrying out of the votes. The case was referred to a master, in whose report there was no finding as to the purpose for which the plaintiff’s society was organized. Held, that, in the absence of any statement as to the purpose for which the society was organized, the by-law above quoted did not authorize the action of the majority of the members objected to by the plaintiffs.</p>

<p>Tort, by the administrator of the estate of Hira W. Bates, for his death after conscious suffering alleged to have been caused by his being run over at a grade crossing of a highway by a train of' the defendant. Writ dated August 10, 1901.</p> <p>At the trial in the Superior Court before Harris, J., the following facts appeared by the evidence:</p> <p>The injury occurred on May 8,1901, on Cross Street in Hanover. The plaintiff’s intestate was a man seventy-one years of age, bright and active for his age, who for many years had lived near the place where he was injured. It was customary for the defendant to run a freight train over its track from Rockland to Hanover, passing Cross Street every week day.' The undisputed evidence showed that Cross Street was a public way, that the defendant’s tracks crossed it at grade, and that it was a crossing at which the defendant was obliged by law to maintain signs and to canse notice to be given of the approach of its trains by a bell or whistle as required by R. L. c. Ill, § 188. The defendant’s tracks, consisting of a main track and a side track, run nearly east and west where they cross the road at the place of the accident. Cross Street is forty feet in width, and both tracks are planked substantially the full width of the street. There are no gates at the crossing, but there is a flagman’s house on the northerly side of the railroad track and the westerly side of Cross Street.</p> <p>On the morning of May 8,1901, the freight train passed over the crossing at Cross Street, going toward the east. One or two cars were cut out from the middle of the train and were sent over the switch, and the rear portion of the train was stopped on the main track, so that the buggy, which was on the rear end of the rear section of the train, projected into Cross Street about three or four feet west of the easterly end of the planking on the crossing.</p> <p>The engine of the train, leaving the rear portion of the buggy thus projecting a little into Cross Street, proceeded with one car about one hundred and fifty feet east, and stopped opposite the door of the freight station where some freight was discharged from the car. It was after the discharging of this freight, and when the engine and car were going back to take on the rear portion of the train which it had left behind, that the accident happened. When the two parts of the train came together, the buggy was forced back upon the plaintiff’s intestate.</p> <p>The plaintiff’s intestate was seen approaching the crossing before the train passed, and, after it had passed and when the buggy was projecting as above stated, he started to cross the street. At that time, one Collamore, the conductor of the train, was standing on the rear platform of the buggy. He engaged the plaintiff’s intestate in conversation, and the intestate stood talking with Collamore for about four or five minutes, the intestate being between the rails of the defendant’s road and within a foot or two of the buggy’s platform on which Collamore was standing. The flagman was stationed on the northerly side of the track, about fifteen feet from the intestate, who was standing with his side toward the car and his back toward the flagman.</p> <p>One Bailey, the flagman, testified that, while the intestate was standing as above stated, the cars to which the buggy was attached were backed down; that the intestate was struck by the buggy, was knocked down and run over; that the intestate was in conversation with Collamore until he was so struck, and that Collamore stood on the platform when the intestate was struck. Bailey testified that he took no part in the conversation between Collamore and the intestate, but stood in the street with his flag, guarding the crossing at the time the accident happened. Bailey heard no signal of any kind given before the cars struck the intestate, and testified that neither he nor Collamore gave the intestate any warning of the starting of the train.</p> <p>One Mrs. Robbins testified that she saw the intestate standing at the rear of the buggy on the planking, and about one or two feet distant from the buggy; that he was about eighty feet distant from her; that she was standing in the door of her house, the engine being over a hundred feet distant; and that she heard no signal at or immediately previous to the time when the intestate was struck by the cars. The intestate was within the limits of the street when he was talking with Collamore, and he appeared to be talking with Collamore when he was struck.</p> <p>One Freidman testified that he was getting freight at the South Hanover station, and was near the locomotive of the train which ran over the plaintiff’s intestate; that he had been accustomed to get his freight there for three or four years, three or four times a week; that the train usually started ahead without backing, and that it was an unusual thing for the freight train to back across Cross Street; that on the morning of May 8, 1901, no signal was given when the train backed, except a whistle on the fingers given by some one of the trainmen; that at the time the engine and the forward part of the train backed there was a space of over twenty-five to forty feet between that section and the rear section to which the buggy was attached; that no bell was rung or whistle blown at the time the train backed. The train moved swiftly.</p> <p>The evidence showed that the intestate died at the Massachusetts General Hospital at about eleven o’clock in the forenoon of the day on which he was injured, from the injuries caused by being struck and run over by the cars of the defendant, and that he was conscious until a short time before his death.</p> <p>This was all the evidence material to the bill of exceptions.</p> <p>The defendant offered no evidence, and, at the close of the plaintiff’s case, asked the judge to rule that there was no evidence of due care on the part of the plaintiff’s intestate; that the provisions of R. L. c. Ill, § 268, did not apply to the case in question, and that, if they did, there was evidence of gross negligence on the part of the plaintiff’s intestate, and asked that a verdict be ordered for the defendant on the whole evidence. The judge ruled that there was not sufficient evidence to justify a verdict for the plaintiff, and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p> Negligence. Nuisance. </p> <p>If a woman, on going to a store where she often has transacted business, finds that repairs are going on and that a scaffolding has been built across the front, and enters by a new entrance through a narrow passageway, under the scaffolding, and through a doorway of half the ordinary size, which is reached by ascending two steps and which is open and leads into the store where business is going on, and notices as she goes in mortar or plaster upon the steps, some of which is dry and powdery as though it had been trampled on and spread around, and some of which is in lumps, so that she has to pick her way into the store, and if, after remaining in the store about five minutes, she comes out and slips on the steps, either on the powdery substance or upon a lump, and is injured, she is not negligent as matter of law in having entered the store which she was invited to enter in spite of her noticing the conditions which might cause her to slip, and, in an action against the proprietor of the store for her injuries, the question of her due care is for the jury.</p> <p>If the proprietor of a store on one of the principal streets of a large city provides, a temporary entrance for his customers, while repairs are going ón, and in doing so allows two smooth steps, made of cement and glass set in an iron framework, which lead from a narrow passageway under a scaffolding to a narrow doorway by which the store is entered, to become sprinkled with mortar or plaster, some of which is powdery and some in lumps, and it appears that mortar splashed upon the steps has dried and has been trodden into the store and upon the sidewalk by the feet of persons passing over it, and if owing to this condition of things one of his customers slips on the steps and is injured, in an action brought against him by such customer for the injuries thus caused, the question of the defendant’s negligence is for the jury, and there is evidence to warrant a finding that the situation had existed under such circumstances and for such a period of time that in the exercise of reasonable care for the safety of his customers the defendant ought to have known about it.</p>

<p> Negligence. </p> <p>If a cripple about sixty years of age, who walks with a crutch very slowly, while on his way home on a- bright clear evening and about to cross a well lighted and unobstructed street, sees, before leaving the sidewalk, a lighted electric car approaching from a considerable distance at the rate of from six to nine miles an hour, and thereupon, thinking that he has time to cross, without looking again toward the car and without heeding a loud warning cry from a person attempting to rescue him, walks in front of the car and is struck and injured, he is not in the exercise of due care.</p>

<p>Contract against Hugh Davitt and Donald J. Davitt, formerly copartners doing business under the name of Hugh Davitt, and Mary F. Davitt, doing business under the name of the Davitt Iron Foundry, for alleged breach of a contract in writing in failing to accept and pay for certain pig iron. Writ dated November 19, 1903.</p> <p>The declaration was amended during the trial by an amendment filed and allowed on June 14,1906.</p> <p>The amended declaration was as follows:</p> <p>“And the plaintiffs say that on or about July 25, 1902, they made a contract with one Hugh Davitt, a copy of which is annexed to their declaration and marked ‘ A ’ and made a part hereof; that at the time of the making of said contract said Hugh Davitt was the owner of a foundry at Springfield, Mass.; that subsequent thereto, to wit, on or about May 9, 1903, said Hugh Davitt sold and conveyed said foundry and the property and business therewith connected to the defendant, Mary F. Davitt; that in connection with the purchase of said business said defendant assumed all contracts connected therewith including said contract marked 6 A ’; that subsequent thereto and until the bringing of this suit said business has been carried on by the said Mary F. Davitt under the name and style of the Davitt Iron Foundry; that on or about July 9,1903, at which time no delivery had been made under and by virtue of said contract marked 6 A,’ a modification in writing .of said contract marked ‘A,’ was made between plaintiffs and defendant, a copy of which is annexed to said declaration marked ‘ B ’ and made a part hereof; that the defendant became obligated to the plaintiffs to keep and perform all the terms of said contract and the modification thereof; that the plaintiffs have kept and performed all the terms of said contract and said modification thereof upon their part to be performed and have ever been ready, able and willing and have repeatedly offered to complete, keep and perform all the terms of said contract and said modification thereof upon their part to be performed; that the said defendant has neglected and refused, though often requested, to keep and perform the terms of said contract and said modification thereof on her part to be performed and neglected and refused, though often requested, to receive the pig iron or any part thereof and pay therefor as provided in said contract and said modification thereof and still neglects and refuses so to do.”</p> <p>The copies “ A ” and “ B ” referred to in the amended declaration were as follows:</p> <p>“A”</p> <p>“ No. 313. Springfield, Mass., July 23, 1902.</p> <p>“ Have this day bought of F. D. Moffat & Co., five hundred tons of pig iron at twenty-three & 75/100 dollars per ton of 2240 lbs. Grade to be No. 2 X Saxton.</p> <p>“ Delivered at Furnace.</p> <p>“ Shipment to Springfield, Mass.</p> <p>“100 tons each Mo., Jan., Feb., Mar., Apr., May.</p> <p>“ Strikes, unavoidable delays and accidents at the furnace excepted.</p> <p>“ Terms cash 30 days, from arrival.</p> <p>“ Hugh Davitt. ”</p> <p>“B”</p> <p>“Springfield, Mass., July 9, 1903.</p> <p>“It is hereby understood and agreed to that the 500 ton contract we now have with Frank D. Moffat & Company for No. 2 X Saxton pig iron at 23.75 furnace that we pay cash in 30 days from arrival of each car with understanding the price is to be reduced to 21.75 f. o. b. furnace, same being a reduction of |2.00 per ton.</p> <p>“ The Davitt Iron Foundry,</p> <p>“ D. J. Davitt, Mgr.”</p> <p>“ Accepted:</p> <p>“ Frank D. Moffat & Co.</p> <p>“ 7-9-03. A. Fred Hammett, Mgr.”</p> <p>In the Superior Court the case was tried before Stevens, J. The plaintiffs were dealers in pig iron, with offices in New York and Boston, and had been selling pig iron to Hugh Davitt, who had an iron foundry in Springfield, Massachusetts, for some years previous to 1902. The defendant, Mary F. Davitt, purchased the iron foundry business from Hugh Davitt on May 9, 1903, and afterward conducted the business through her husband, Donald J. Davitt, as manager.</p> <p>At the close of the plaintiffs’ case, they discontinued the action against Hugh Davitt and Donald J. Davitt and amended their declaration, as stated above, making Mary F. Davitt the sole defendant. The defendant Mary F. Davitt demurred to the amended declaration. The judge overruled the demurrer, and the defendant filed an answer0 to the amended declaration containing a general denial. The defendant excepted to the overruling of her demurrer, alleging that it was overruled without giving her a hearing upon it.</p> <p>Saxton pig iron was manufactured exclusively by the Saxton Furnace Company at Saxton, Pennsylvania. “2 X” Saxton pig iron indicates the grade or quality, and the kind indicated contains a certain amount of silicon, — silicon being necessary in most castings and other iron foundry work.</p> <p>The plaintiffs offered in evidence some correspondence between themselves and Hugh Davitt previous to May 9, 1903. The defendant Mary F. Davitt objected to the admission of all such evidence at the time it was offered, and the judge admitted it de bene. At the close of all the evidence the defendant asked the judge to strike out this evidence, whereupon the judge excluded all the correspondence previous to May 9, 1903.</p> <p>At the close of the evidence, the defendant asked the judge to rule that upon the pleadings and the evidence the plaintiffs could not recover. The judge refused to make this ruling, and submitted the case to the jury. After having been out several hours, the jury returned for further instructions, whereupon the judge further instructed them as follows:</p> <p>“ I am asked, ‘ Can the jury consistently find damages for less than five hundred tons?’ This case was tried upon the issue of whether or not the contract was repudiated. If it was repudiated by the defendant, then the plaintiff would be entitled to damages for five hundred tons. Of course if the contract was not repudiated, the plaintiff would not be entitled to any damages at all.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $4,472.37; and the defendant alleged exceptions to certain admissions of evidence and refusals to exclude evidence, to the overruling of her demurrer without hearing the defendant, to the refusal to rule that upon the pleadings and the evidence the plaintiffs could not recover, and to the foregoing supplemental instruction to the jury in response to the jury’s request.</p>

<p>Contract or tort. Writ in the Superior Court for the county of Suffolk dated September 19, 1907.</p> <p>The first count in the declaration was on an account annexed containing charges for various quantities of glue, and, accompanying each such charge, an item, “ 2-|- % for buying.”</p> <p>The second count, “ for the same cause of action as count one,” alleged that the arrangement described in the first paragraph of the opinion was made by the plaintiffs with the defendant through its agent, one Cummings, and that the plaintiffs sought recovery according to the account annexed to the first count.</p> <p>The third count was for interest.</p> <p>The fourth count was in tort, and alleged that the defendant converted to its own use certain lots of glue described in the previous counts, the property of the plaintiffs. Subsequent counts in tort alleged separately the conversion of each of such lots of glue.</p> <p>The case was tried in the Superior Court before Aiken, C. J., without a jury. Besides the facts stated in the opinion, the evidence introduced by the plaintiffs tended to show that certain qualities of glue could not be purchased by the defendant directly from the manufacturers, since manufacturers sold only to consumers of glue and the defendant was a dealer in glue; that Cummings, a glue broker and jobber, induced the plaintiffs, who were electrical contractors, to allow him to use their firm name for the purchase of glue to be resold by them to the defendant ; that the plaintiffs were to sell only to the defendant; that Cummings procured the lots of glue which were the basis of the action from the manufacturers and they were invoiced to the plaintiffs; that the plaintiffs then, at the request of Cummings, indorsed the bills of lading to the defendant and delivered them to Cummings, at the same time mailing to the defendant a bill for glue, a duplicate of which was given to Cummings; that such lots of glue were received by the defendant on March 15, 18, April 27, May 1, and 8, 1907, the plaintiffs’ instructions to Cummings being that they should be sold on sixty days’ time; that on May 11, 1907, Cummings delivered to the plaintiffs a check of the defendant payable to him and by him indorsed to them, the amount of which exactly corresponded to the price of the first two lots of glue, and that no other payment for any of the glue was made to them .excepting a payment on June 22, 1907, which was made after a controversy had arisen between the plaintiffs and the defendant, and was for the last lot of glue received by the defendant on May 8,1907, for which it admitted it had received a bill from the plaintiffs at the time of delivery. In the direct examination of the plaintiff Deane, the presiding judge asked him, “ Now, the question is, who made the collections?”, to which he made answer “ George W. Cummings.”</p> <p>The defendant’s evidence tended to show that no bill had been received by it from the plaintiffs for any of the glue excepting the last lot, that the invoices which it received were in the name of Cummings himself, that none of its officers or agents had any knowledge or means of knowing that Cummings was acting for the plaintiffs in the transaction, that other checks had been given by it to Cummings on March 18 and May 7, and, further, that Cummings was indebted to it in a sum greater than that which the plaintiffs sought to recover.</p> <p>At the close of the evidence the plaintiffs requested the judge to rule as follows:</p> <p>1. On all the evidence the plaintiffs are entitled to recover.</p> <p>2. The title to the property alleged to have been converted never passed to the American Glue Company, but remained in the plaintiffs if they were induced to part with the bills of lading by the fraudulent representations of Cummings.</p> <p>3. The acts of Cummings in making the alleged sales of the property to the American Glue Company gave that company no rights in the property against the plaintiff.</p> <p>4. The acts of the American Glue Company in receiving the property from the railroads and selling it were acts of conversion.</p> <p>5. No demand by the plaintiffs on the defendant was necessary in this case before bringing action.</p> <p>6. If the plaintiffs in fact honestly and in good faith dealt with Cummings and regarded him as the agent or employee of the defendant, the facts in the case show that the plaintiffs were justified in giving credit to the defendant, and the latter are liable for all the goods sold.</p> <p>The judge refused so to rule, and found generally for the defendant. The plaintiffs alleged exceptions.</p>

<p>Tort against the Franklin Square House, a corporation organized under Pub. Sts. c. 115, for personal injuries sustained by the plaintiff on February 9, 1904, by reason of the falling of a fire escape attached to the defendant’s building, the plaintiff, who was lodging and boarding with the defendant for hire, having resorted to the fire escape when a part of the building was on fire. Writ dated November 5,1904.</p> <p>At the trial in the Superior Court Bond, J., at the close of the evidence ordered a verdict for the defendant on the ground that it was a charitable corporation. The plaintiff alleged exceptions.</p>

<p>Complaint, filed in the Superior Court for the county of Middlesex under R. L. c. 12, § 78, against the refusal of the assessors of taxes of the city of Lowell to abate a tax assessed on May 1, 1907, upon certain real estate.</p> <p>At the trial in the Superior Court before Bond, J., it appeared that one Brown, who was the plaintiff in Brown v. Wright, 194 Mass. 540, held the real estate in question on May 1,1907, as trustee under a will, that, after the issuing of the rescript in that case, a single justice of this court on May 21,1907, entered a decree directing a sale of the land, which sale was consummated on July 19, 1907, the complainant being the purchaser. Brown had not applied for any abatement of the tax. The complainant applied for such abatement on October 7,1907, but the assessors refused to recognize his application.</p> <p>The presiding judge dismissed the complaint; and the complainant alleged exceptions.</p>

<p>Negligence, In use of highway. Practice, Civil, Judge’s charge.</p> <p>In an action against a coal company for personal injuries from falling down a coal hole in the sidewalk of a city street, which was negligently left open and unguarded by the servants of the defendant, there was evidence that the accident happened late in a snowy afternoon in the month of January, when it was very dark, that the plaintiff saw the defendant’s coal team at the sidewalk and supposed that coal was being delivered from it into a coal hole, that he went into the street to go around the horses’ heads, but, finding the street slushy, returned to the sidewalk, that he walked close to the side of the building and could not see any coal, that he saw something black on the sidewalk close to the rear of the team and a man poking a few pieces of coal left in the cart and thought that the delivery of the coal was finished and that the coal hole was closed, that, while thus going close to the building so that his shoulder was four or five inches from it, he fell into the coal hole, which was rectangular and measured twenty-two inches by thirty-four inches, whereas the ordinary coal hole is circular and is from twelve to fifteen inches in diameter. On cross-examination the plaintiff testified that he went around the team to avoid disaster, that “the disaster might have been a coal heap,” and that he did not look to see whether any coal hole was there. Held, that there was evidence for the jury that the plaintiff was in the exercise of due care; that the fact that the plaintiff did not look for the coal hole might have been due to the darkness being so dense that looking would not have disclosed its situation, and that his statement, elicited on cross-examination, that he went into the street to avoid disaster, and then, on finding it slushy, returned to the sidewalk, did not as matter of law show knowledge of the danger and appreciation of its extent.</p> <p>The provision of R. L. c. 173, § 80, that “ the courts shall not charge juries with respect to matters of fact,” does not make it improper for the presiding judge, in charging the jury in an action against a coal company for personal injuries from falling into a coal hole alleged to have been left open and unguarded by the servants of the defendant, upon the question whether a warning given to the plaintiff by the driver of the defendant’s coal team, if given at all, was given too late, to use the illustration of a “ scorcher ” bicycle rider who said to a man just as he ran over him “ Look out! ” Whereupon the man said “ Eor heaven's sake, are you coming back again?”</p>

<p>Petition, filed on June 15, 1908, for a writ of mandamus addressed to the persons constituting the board of health of the city of Cambridge, commanding them to issue to the petitioner a license as an undertaker.</p> <p>The case came on to be heard before Knowlton^ C. J., who reserved it for determination by the full court in the following report: “ After a hearing, and by agreement of parties, the questions of law arising upon the petition and answer and agreed statement of facts, in this case are reported for the consideration of the full court. If the refusal of the respondents to grant the petitioner a license as an undertaker solely for the reason that he is not licensed as an embalmer is unwarranted, improper, and illegal, a writ of mandamus is to issue; if it is legal and properly authorized under the law and constitution the petition is to be dismissed.”</p>

<p>Assignment, Of wages. Constitutional Law, Police power, Equal protection of the laws, Unconstitutionality of part of statute. Small Loans Act. Husband and Wife. Wages.</p> <p>St. 1908, c. 605, § 7, providing that no assignment of or order for wages to be earned in the future, to secure a loan of less than $200, shall be valid against the employer of the assignor until such assignment or order is accepted in writing by the employer, and § 8 of the same chapter, providing that no such assignment or order, when made by a married man, shall be valid unless the written consent of his wife is attached thereto, are constitutional as a proper exercise of the police power in legislating for the public welfare.</p> <p>The provisions of St. 1908, c. 605, §§ 7, 8, that no assignment of or order for wages to be earned in the future, to secure a loan of less than $200, shall be valid against the employer of the assignor until such assignment or order is accepted in writing by. the employer, and that no such assignment or order, when made by a married man, shall be valid unless the written consent of his wife is attached thereto, are not unconstitutional in making a distinction between assignments to secure loans, of money and assignments as security for necessaries or other property furnished or to be furnished.</p> <p>The provisions of St. 1908, c. 605, §§ 7,8, that no assignment of or order for wages to be earned in the future, to secure a loan of less than $200, shall be valid against the employer of the assignor until such assignment or order is accepted in writing by the employer, and that no such assignment or order, when made by a married man, shall be valid unless the written consent of his wife is attached thereto, are not made unconstitutional by the provision of § 6 of the same chapter excepting from the operation of the statute “ national banks, all banking institutions under the supervision of the bank commissioner, and loan companies and loan associations established by special charter and placed under said supervision.”</p> <p>The provisions of St. 1908, c. 605, §§ 7, 8, that no assignment of or order for wages to be earned in the future, to secure a loan of less than $200, shall be valid against the employer of the assignor until such assignment or order is accepted in writing by the employer, and that no such assignment or order, when made by a married man, shall be valid unless the written consent of his wife is attached thereto, are so far separable from the provisions contained in the sectians of the same statute preceding § 6, that it may be assumed that the Legislature would have enacted them even if they had thought that the sections preceding § 6 would be held to be of no effect, and are constitutional whether such preceding sections are constitutional or not, no opinion in regard to the constitutionality of such preceding sections being intimated.</p>

<p>Appeal from, a decree of the Probate Court disallowing the will of William H. Weston late of Boston.</p> <p>The case was tried in the Supreme Judicial Court before Rugg, J., upon the following issue framed for the jury : “ Was William H. Weston of sound and disposing mind and memory at the time of the execution of the instrument offered for probate as his last will and testament ? ”</p> <p>There were upon the record two contestants to the allowance of the will: Henry E. Weston, a brother and next of kin of the testator, and Marland L. Pratt, a creditor. At the trial Henry E. Weston was represented by A. Berenson, Esquire, as his attorney, who called no witnesses, relying upon the evidence introduced by others, and took no part in the trial except to ask a question or two of the witnesses for the petitioner, and to assist in the preparation, and, by conference with other counsel, in the trial of the case. Marland L. Pratt was represented by L. D. Brandéis, Esquire, and E. A. Wilkie, Esquire, as attorneys, caused to be taken and read the depositions of Dr. MacDonald and W. E. Heakes, hereinafter referred to, and caused to be called all the witnesses who were examined on behalf of the contestants, and his counsel, in his behalf, made the opening and closing address to the jury, and in opening said to the jury that he appeared for Mr. Pratt, who contested as a creditor.</p> <p>It appeared that the will was executed on April 25, 1905, and that the testator died on May 20, 1905. It was contended by the respondents that the testator was of unsound mind as the result of general paresis and alcoholism and cigarette smoking. The single justice fixed January 1, 1901, as the reasonable limit of time as to which evidence of the condition of the testator could be introduced.</p> <p>The contestant Pratt testified in his own behalf and identified the following four telegrams:</p> <p>“ Sherbrooke, N. S. January 1,190 . To H. Harris Phinney, 540 Tremont Building, Boston. Have good report — send notice — close — keep water out — wait until letter tomorrow mail — forward Marly news — answer immediately. W. H. Weston.”</p> <p>“ Sherbrooke, N. S. January 1,1901. • To H. Harris Phinney, 540 Tremont Building, Boston. Have discovered snag why I ran behind— writing tomorrow. W. H. Weston.”</p> <p>“ Sherbrooke, N. S. Jan. 3, 1901. To H. Harris Phinney, 540 Tremont Building, Boston. Case of mesmerism by Dr. Ellis -—you come or send some one to Sherbrooke, to McDaniel’s Hotel — this is explanation —answer. W. H. Weston.”</p> <p>“Antigonish, N. S. February 20, 1901. Mr. M. L. Pratt, Boston A. A. Think Weston insane, but keep my opinion from him — have him see specialist — would suggest Putnam. W. Huntley MacDonald.”</p> <p>The witness testified that he first saw the telegrams about January 5,1901, and later talked with the testator about them. The telegrams then were offered in evidence as statements bearing on the testator’s mental condition at that time, and, subject to the petitioner’s objection as too remote, and to his exception, were admitted to prove a progressive disease of general paresis.</p> <p>The testimony of the witness Heakes, objected to by the petitioner, was contained in a deposition, from which it appeared that the witness saw the testator daily for a period from some time in 1901 until he left Nova Scotia. In answer to the interrogatory, “Did you observe in your association with said. William H. Weston any incoherence in the talk and conversation of said Weston?” he aswered “ Yes,” and to the interrogatory, “ If so, please state as many instances of such as you can recall,” subject to the petitioner’s exception, he answered, “ Sometimes in consulting him on matters which he tried to superintend it was impossible to get any intelligent information; he seemed to want to do it, but could not concentrate his thoughts.” To the interrogatory, “ If within your knowledge he used any of these [intoxicants, drugs, or tobacco] please state which, to what extent, and whether his use of such articles, or any of them, increased or decreased during the time of your association with the said Weston,” the answer was “ From the time I first saw Weston until he left Nova Scotia he was addicted to the use of liquor. These habits never changed, but seemed rather to have a fuller mastery.” The petitioner objected to the last words of the answer, “ but seemed rather to have a fuller mastery,” but the same were admitted subject to his exception. In answer to the interrogatory “ Please state whether or not, within the time you knew him intimately, said Weston failed mentally or physically,” he answered, “ Yes, both ”; and to the interrogatory “ If so, please state, as far as you remember, any particular instances or details from which said knowledge has been acquired,” he answered, “ On one occasion the placing of a large order for general mining supplies with Mr. Percy Austin of Halifax, after-wards denying it, supplies being returned to shipper. The deliberate act of scaring horses driven by me in the middle of the night, causing me the slight inconvenience of a broken arm and a few broken ribs; although Weston was present at the scene which followed, it was not until the following day that he came to say he had just heard of my accident.” To the last paragraph of this answer, beginning with “ deliberate act of scaring horses,” the petitioner objected, but it was admitted subject to his exception.</p> <p>The deposition of W. Huntley MacDonald of Antigonish, Nova Scotia, was read, from which it appeared that he was a physician and had been practising for twelve years; that he knew the testator professionally at Antigonish from January 8 to February 19, 1901, and rendered him medical attendance ; that he was acquainted with his habits and manner of living; that his habits were irregular; that he was a hard drinker of alcoholic liquors; that he was an inveterate cigarette smoker; that in the deponent’s opinion the continuation of such habits would render him a physical and mental wreck. To the interrogatory “ At the time you knew him did you consider Mr. Weston to be of sound and disposing mind and memory ? ” the deponent answered, “ At the time I knew Mr. Weston I did not consider Mr. Weston to be of sound mind ”; and to the next interrogatory, “If not, please state concisely, briefly, and in particular the circumstances, if any, upon which you base your opinion to interrogatory 9 ”; he answered, “ He was not apparently aware of his physical and mental condition, and I could not impress upon him the necessity of his giving up his habits of living. He did not give intelligent answers to all my questions, and seemed reckless as to the state of physical or mental health he might attain, and seemed dull in both comprehending and answering questions I asked him, — and seemed to have an inane and silly manner in understanding and answering questions. He was also a sufferer from alcoholic neuritis.” To the answers to both of the last two interrogatories the petitioner objected on the sole ground that they were too remote.</p> <p>At the close of the testimony the petitioner asked the presiding justice to rule and instruct the jury as follows :</p> <p>1. Upon all the evidence the respondent Marland L. Pratt has no standing to object to the allowance of the will of May 2,1905.</p> <p>2. The allowance of the will in question, dated May 2, 1905, will not affect the rights of Marland L. Pratt adversely.</p> <p>3. A written contract to make a will in favor of a certain person is binding, and gives the party with whom the contract is made the rights of a creditor in case the contract is not kept.</p> <p>The rulings were refused by the presiding justice, the jury answered the question put to them in the negative; and the petitioner alleged exceptions.</p>

<p>Petition, filed in the Probate Court for the county of Middlesex by the widow of George F. Boardman late of Melrose, seeking a revocation of a decree of that court allowing the will of Boardman.</p> <p>The petition was dismissed in the Probate Court by Lawton, J. On appeal to the Supreme Judicial Court, the case was heard by Morton, J., who dismissed the petition and reported the facts for the determination by the full court as to the correctness of his ruling. The facts are stated in the opinion.</p>

<p>Devise and Legacy, What estate. Trust, Alienability of interest of beneficiary. Assignment, Equity Jurisdiction, To reach and apply equitable interest. Equity Pleading and Practice, Costs.</p> <p>Where one undivided third of certain real estate is devised to a trustee “ the net income ... to pay to my son E. during his life, or to permit him to occupy and enjoy the use of said property in common with his brothers as he may prefer,” the right of E. to one third of the income is an equitable interest which can-be reached by his creditors by a bill in equity at any time when he chooses to receive such income rather than to avail himself of the permission given him to occupy the property in common with his brothers; but, while he is availing himself of the privilege of such occupation, he has no right which his creditors can reach, since such privilege is personal to him and unassignable and inalienable.</p> <p>By the provisions of a will an undivided one third interest in certain real estate was devised to a trustee “ the net income ... to pay to ... E. during his life.” E. made an agreement in writing for a" good consideration that his life interest “ shall remain so held in trust, but if at any time any of said properties shall be sold, the value of the life interest of E. in the proceeds shall be computed .. . and shall be ” applied by E. or the trustee in payment of certain debts due other parties to the agreement, “ or if the said trustee shall prefer he may invest E.’s share of such proceeds and pay or apply the income thereof during the life of E. upon such ” debts. A creditor of E. who was not a party to the agreement sought by a bill in equity to reach and apply the interest of E. under the will, and contended that he was not affected by the agreement because it was not recorded under R. L. c. 127, § 4, as a conveyance of real estate, and because he had no notice of it as a trust, as required by R. L. c. 147, § 3. A single justice ruled that the creditor could reach and apply in satisfaction of his debt only E.’s interest in the trust subject to the agreement, and the creditor appealed. Held, that the ruling of the single justice was correct, since no recording or notice of the agreement was necessary because it did not purport to convey any interest in the realty, but only in E.’s share of the proceeds in case of a sale during his lifetime.</p> <p>In a suit in equity by a creditor to reach and apply in satisfaction of a debt due to the plaintiff from the principal defendant equitable assets of the principal defendant in the possession of a second defendant, where it is determined that the principal defendant owes the plaintiff as alleged, a decree, that a sale of the principal defendant’s interest in the equitable assets be made and that from the proceeds there shall be paid among other items “ taxable costs ” to the second defendant, is not objectionable in failing to award to the second defendant costs “ as between solicitor and client” since the determination of costs is a matter within the discretion of the presiding justice and nothing appears to show that such discretion was not exercised properly.</p>

<p>Tout for injuries received by the plaintiff while in the employ of the defendant, the proprietor of a teaming business, and alleged to have been caused by negligence of the defendant in caring for, or of his foreman in handling, a gun in the defendant’s stable in Chelsea. Writ in the Superior Court for the county of Suffolk dated November 24, 1905.</p> <p>At the trial before Bell, J., the foreman, Wiley, who also was the defendant’s grandson, testified that on the morning of the accident he had brought the gun to the stable with him, intending to take it to Cape Cod for duck shooting; that the defendant asked him to leave the gun with a loaded shell in the office, as the defendant “desired to shoot at a cat that was stealing pigeons from the barn ”; that he left one shell with the defendant and placed the gun, unloaded, behind the desk in the office; that later in the day he talked with the defendant on the telephone and the defendant told him he had used the gun during the day and had shot the cat; that, returning to the stable in the evening, he picked up the gun to take it apart so as to take it away; that it had nothing but an empty shell in it; that he was showing it to one Johnson, a fellow employee, and had placed a loaded shell in it and had snapped the lock so as to eject the empty shell, and that, while he was doing so, his thumb, which was wet, slipped from the trigger and the loaded shell exploded, and the plaintiff was shot.</p> <p>Johnson testified that Wiley showed him the gun and told him what kind of a gun it was; that Wiley “ snapped the breach up and that threw the empty shell out and then snapped it up again and I couldn’t say then what did happen, but heard the gun go off ” ; that he was in a position to see if Wiley put any shell in the gun, but that he did not see him do so; that he did not have to,,as the witness understood that the gun “was one of those loaded from a magazine ” ; that, on the way to the hospital with him and the plaintiff, Wiley had said to him that he “ didn’t realize there was another shell in there loaded.”</p> <p>The presiding judge directed a verdict for the defendant, and the plaintiff alleged an exception.</p>

<p>Negligence, Employer’s liability.</p> <p>At the trial of an action against a contractor to recover for personal injuries, received by the plaintiff while employed by the defendant in the erection of a building of many stories of steel construction with granite walls, alleged in one count of the declaration under R. L. c. 106, § 71, cl. 2, to have been caused by the negligence of a superintendent of the defendant, and alleged in another count to have been caused by the negligence of the defendant in failing to furnish the plaintiff with a suitable place in which to work, it appeared that the tenth floor of the building had been laid in terra cotta, and that many planks had been placed thereon, resting on the iron beams and the terra cotta, chiefly for the protection of the floor but also for the support of stones being used in the construction of the walls of the next story of the building and for a convenient way for workmen to walk upon. A runway of planks was so constructed along the side of the wall, upon which the masons stood as they worked and along which the plaintiff and others passed in carrying stones to be placed upon the wall. All the planks were placed in position by the workmen as they were needed and were not fastened down. There were boles left in the terra cotta flooring between the beams for wires or pipes to be placed in. There was uncontradicted testimony by the plaintiff and others that this method of laying planks and leaving holes in the terra cotta was usual and proper. While carrying a stone along the runway with another workman whom he was following, the plaintiff stepped upon the end of a plank which did not rest upon a beam but was over a hole in the terra cotta, the end went down and the plaintiff fell and was injured. It did not appear how the end of the plank happened to be so placed, but the condition of the plank before the accident was obvious. The plaintiff had been accustomed to work upon buildings of this kind for six years. Held, that as a matter of law the plaintiff had assumed the risk of the injury ; also, that there was no evidence of negligence of the defendant; and, also, that there was no evidence of negligence of the superintendent, since to require a constant inspection of the planks where they were placed over the holes would be imposing upon the builder an unreasonable responsibility.</p>

<p>Insurance, Life.</p> <p>The insured under a policy of life insurance, on which a premium of $125.25 was payable annually in advance, at the time when one of the premiums became due, instead of paying it, made a cash payment of $31.25 and gave a note for the balance of $94, payable in six months. The note stated that it was accepted by the insurance company at the request of the maker, together with $31.25 in cash, upon an express agreement there set forth, “that if this note is paid on or before the date it becomes due, such payment, together with said cash, will then be accepted by said company as payment of said premium, and all rights under said policy shall thereupon be the same as if said premium had been paid when due; that if this note is not paid on or before the day it becomes due, it shall thereupon automatically cease to be a claim against the maker, and said company shall retain said cash as part compensation for the rights and privileges hereby granted, and all rights under said policy shall be the same as if said cash had not been paid nor this agreement made.” The insured failed to pay the note at maturity, and thereafter died without having paid it. Held, that the assured was bound by the agreement contained in the note which he had signed and that accordingly the policy had become void on non-payment of the note at maturity.</p>

<p>Two ACTIONS OE TORT, the first by a married woman for ersonal injuries received by her at about seven o’clock in the evening of October 17, 1903, from one of the steps leading to a house on Hillside Avenue in Revere, which her husband had hired from the defendant’s intestate, giving way when the plaintiff stepped on it as she was going to take a car for Chelsea in company with her brother, and the second by the husband of the plaintiff in the first case for the loss of her services in consequence of her injuries. Writs dated December 19, 1904.</p> <p>At the first trial of the first case in the Superior Court before Bell, J., the jury returned a verdict for the plaintiff, and the defendant alleged exceptions, which were sustained in a decision of this court, reported in 196 Mass. 431. Afterwards both cases were tried together before Crosby, J., who in each of the cases ordered a verdict for the defendant. The plaintiffs alleged exceptions, raising the questions which are considered in the opinion.</p>

<p>Practice, Civil, Application for rehearing before full court. Judgment, Entry of. Superior Court. Supreme Judicial Court.</p> <p>A judge of the Superior Court in the exercise of his discretion may order judgment to be entered in accordance with a rescript issued by this court, although an application for a rehearing on account of a supposed error of law in the decision of the case by the full court has been sent to the Chief Justice of this court and the receipt of it has been acknowledged with a statement that it will be considered by the justices at their next meeting for consultation, the time for which has not arrived.</p> <p>If, after the receipt of an application for a rehearing in a case which has been decided by this court, the justices do not recall the rescript or otherwise suggest a postponement of action by the lower court, the action of that court should be governed by the rule stated in Shannon v. Shannon, 10 Allen, 249, which leaves the question of postponing the entering of judgment for the purpose of affording the unsuccessful party an opportunity for a re-argument before this court to be determined by the trial judge in the exercise of his discretion, and his refusal of an application for such a postponement furnishes no ground for exception.</p>

<p>Negligence, Employer’s liability. Evidence, Opinion: experts.</p> <p>The common law rule, that where a master has provided a sufficient supply of proper temporary appliances for the use of his servants he is not liable for an injury to one of his servants caused by the choice of a defective appliance by another of them, has no application to an action under R. L. c. 106, § 71, by a workman against his employer for injuries caused by the choice or use of a defective appliance by one intrusted with and exercising superintendence.</p> <p>A stevedore is liable for personal injuries sustained by a longshoreman in his employ by reason of the falling of a staging, when it was being lowered from the side of a ship under the direction of his superintendent, owing to the breaking of one of the rope slings by which the staging was suspended, if the accident was caused either by the employer’s furnishing a defective rope, or by a rope which was sound when furnished having become defective by age or wear under such circumstances that the employer by the exercise of reasonable diligence would have known its condition.</p> <p>In an action for personal injuries caused by the breaking of a rope, if the plaintiff shows that the rope when in good.condition was of ample strength to have sustained the load which was upon it at the time it broke, and nothing further appears in regard to the condition of the rope, the jury from their common experience can find that the accident would not have happened unless the rope in some way had become unsound.</p> <p>In an action by a longshoreman against a stevedore by whom he was employed, for personal injuries caused by the falling of a staging which was being lowered from the side of a ship where it had been hoisted into position about five hours earlier, it appeared that the work of placing the staging in position on the ship and of removing it at the end of the day was done under the personal supervision ‘ of one who could have been found to have been acting as a superintendent of the defendant, that the falling of the staging was due to the breaking of one of the rope slings by which it was suspended while being lowered, that, after the staging had been hoisted into place five hours earlier, this rope was unhooked from the falls and was left hanging between the side of the ship and the staging in such a way that as the ship rose and fell with the tide the staging would move or chafe on the ship and the rope would be worn, and that the appearance of the rope immediately after the breaking was described as torn or unravelled with each strand longer than the other and as ragged and “kind of burned.” It further appeared that the rope was an inch and a half thick, and when in proper condition was of ample strength to have sustained the load. Evidence was offered by the plaintiff to show that the superintendent made no examination of the rope before directing or permitting its use in lowering the staging. This evidence was excluded by the presiding judge, who ordered a verdict for the defendant. Held, that it was a question for the jury whether the defendant’s superintendent by using reasonable care should have known from inspectian that the sling either was unsuitable when first used or had become weakened by chafing to such an extent as to be unsafe, and that, if the superintendent should have had such knowledge, his failure to take proper precautions which might have averted the accident was evidence of negligence in superintendence for which the defendant would be liable. Held, also, that the evidence that the superintendent made no examination of the sling before directing or permitting its use was plainly admissible and its exclusion was erroneous.</p> <p>In an action by a longshoreman against a stevedore by whom he was employed for personal injuries, caused by the falling of a staging when being lowered from the side of a ship, upon which it had been hoisted into place five hours earlier, by reason of the breaking of one of the rope slings by which it was suspended while being lowered, where the plaintiff contends that the rope when in proper condition was of ample strength to have sustained the load, and that it was weakened so as to be made unsafe by being chafed between the side of the ship and the staging by the oscillation of the ship as she rose and fell with the tide, the weakening effect upon the rope of the chafing caused by the movement of the ship and also the fact that a physical examination of the rope would have shown the wear caused by its former use are matters of common knowledge on which the opinion of experts is not admissible, but the opinion of experts is competent to show what strain or load a rope of the diameter of that which broke would carry ordinarily when in good condition.</p>

<p>Practice, Civil, Interrogatories, Qualification of expert, Conduct of trial. Interrogatories. Negligence, Bes ipso loquitur, Street railway. Street Railway. Evidence, Opinion: experts, Presumptions and burden of proof. Canier, Of passengers.</p> <p>In an action against a corporation operating a street railway for personal injuries caused by the derailment of a car of the defendant in which the plaintiff' was a passenger, the plaintiff filed interrogatories under R. L. c. 173, § 61, addressed to the president of the defendant, containing the following question: “ State whether or not the defendant company made an investigation as to the cause of said accident, and if your answer be ‘ Yes/ state what facts were discovered as a result of said investigation.” The president answered as follows: “ The defendant company investigated the accident referred to in the declaration in this case, but declines to state the result of its investigations, on the ground that in so doing it would disclose its evidence and the manner in which it proposes to prove its case.” Held, that under R. L. c. 173, § 63, the answer was a proper one, and that a motion of the plaintiff that the defendant’s president should be ordered to answer the interrogatory further should be denied.</p> <p>The exclusion of the testimony of a witness, offered as that of a medical expert, on the ground that the witness has not had sufficient medical experience to qualify him as such an expert, is a matter within the discretion of the presiding judge.</p> <p>In an action for personal injuries alleged to have been caused by the defendant’s negligence, the exclusion of evidence offered by the plaintiff upon the question of damages is made immaterial by a verdict for the defendant on the issue of negligence.</p> <p>The exclusion of a letter, written by a person who has testified as a witness for the opposing party, which is offered to show his bias against the party offering the letter in evidence, but which contains only by remote inference, if at all, any possible allusion to the party offering it in evidence, is a matter-within the discretion of the presiding judge.</p> <p>In an action against a corporation operating a street railway for personal injuries caused by the derailment of a car of the defendant in which the plaintiff was a passenger, alleged to have been due to a broken and defective switch, the defendant, without objection or exception on the part of the plaintiff, put a hypothetical question to an expert asking for his opinion as to the causes by which the car might have been derailed, the defendant previously having laid a proper foundation upon which to rest the assumption of facts in the question. The witness assumed in his answer, in accordance with the assumption in the question, that the car track and the switch at which the car partially left the track were apparently in good condition as well after as before the accident, and then proceeded to give his opinion that, if these conditions were found to have existed at tii» time, the tongue of the switch might have been moved a little when the forward trucks passed over, and that, if this occurred, the rear trucks as they followed might be caught, causing the car partially to leave the track. In further explanation of the way in which such an accident might happen, he stated that, if dirt had worked into the switch, the tongue might have been pushed out from the rail on which the car was travelling, causing it to run oft the track, or, if the switch tongue had become slightly worn, that it would be a little low, causing the tread of the wheel to lift from the rail as it passed over. The plaintiff asked the judge to exclude the answer on the ground that it assumed the existence of facts not in evidence which the jury fairly could not find to have been true. The judge refused to exclude the answer. Held, that the refusal was right; that the possibilities testified to by the expert might be regarded either as additional reasons for his opinion derived from experience or as other possible consistent explanations of the cause of the accident falling within the scope of the inquiry.</p> <p>A presiding judge properly may refuse to single out a portion of the evidence for comment, although the comment requested may be a correct one. .</p> <p>A common carrier of passengers is required to exercise toward them only the highest degree of care which is consistent with the transaction of its business, and a street railway corporation is not to be held liable for an accident caused to one of its passengers by a defect in a switch merely because greater care in the examination of the condition of the switch would have prevented the accident, if the corporation exercised as much care in examining the switch as was consistent with the practical operation of its railway.</p> <p>In an action against a corporation operating a street railway for personal injuries caused by the derailment of a car in which the plaintiff was a passenger, alleged to have been due to a broken and defective switch, the plaintiff, after showing that he was in the exercise of due care, can establish aprima facie case by proving .the derailment, but the defendant can rebut this presumption of fact by showing that it was not negligent, and the burden of proving the defendant's negligence remains upon the plaintiff as before. If the defendant introduces evidence from which the jury can find thatit used due care in the construction, equipment and maintenance of its railway, this is sufficient to warrant a verdict in-its favor without its accounting for the accident.</p>

<p>Negligence, Street railway. Carrier, Of passengers. Proximate Cause. Practice, Civil, Conduct of trial. Evidence, Expert: opinion. Witness.</p> <p>At the trial of an action against a street railway company to recover for injuries alleged to have been received by the plaintiff while he was a passenger upon an open electric car of the defendant and to have resulted from the car’s negligently having been caused to come in collision with a wagon in the street, there was evidence tending to show that the plaintiff and a companion signalled from the sidewalk of a crowded street for the car to stop and, the motorman having inclined his head, started from the sidewalk, passed behind a wagon and, the car having stopped, got upon the running board; that the wagon, which the plaintiff and his companion had passed behind to reach the car, continued on ahead of and in close proximity to the car and that both the conductor and the motorman saw it, that on a signal from the conductor, who had seen the plaintiff getting upon the car, the car proceeded before the plaintiff could take a seat, and the wagon struck the plaintiff’s companion and knocked him against the plaintiff, who in the act of taking a seat had one foot on the car floor and one on the running board, and caused him to fall into the street. Subject to exceptions by the defendant, the presiding judge submitted the case to the jury, who found for the plaintiff. Held, that the exceptions must be overruled, since there was evidence from which the jury were warranted in finding that the plaintiff had been accepted by the defendant as a passenger and was in the exercise of due care, that the motorman and the conductor were negligent and that their negligence, in causing the plaintiff’s companion to be knocked against him and thus to throw him from the car, was the proximate cause of the plaintiff’s injury.</p> <p>One, who has been accepted as a passenger upon an open electric car in a crowded street in a city and who is passing from the running board to a seat, has a right to assume that, while he is doing so, the car will not be started until all danger of its running so near to teams in the street as to injure him has passed."</p> <p>The principle, applicable to railroad companies whose trains stop only at fixed stations, that they hold themselves out as carriers offering transportation only to such persons as present themselves in the usual way at stations, has not been applied to street railways whose operating companies iiave not promulgated a rule that passengers will not be taken on except at designated places.</p> <p>The mere facts, that one boarded an open electric car while it was moving slowly and at a point between two of the regular stopping places of the car on a street crowded with traffic, will not preclude such person from recovering from the street railway company for injuries received by him by reason of the car’s negligently being caused to run into too close proximity to a wagon in the street, if it also appears that he had been accepted as a passenger.</p> <p>In determining whether or not an exception to a designated portion of a charge to a jury should be sustained, the charge should be considered as a whole, and, if as a whole it is legally correct and not likely to mislead the jury, the exception will be overruled although the portion objected to is open to deserved criticism.</p> <p>One, who had been called to testify as a medical expert on behalf of the defendant at the trial of an action of tort for personal injuries, after having stated that he had examined the plaintiff just before the trial and had found that he was suffering from a marked case of nervous prostration, and that such a condition was a very unusual one after an accident, was asked by the defendant’s counsel “ What do you base your opinion on ? ” and replied, “ In a long series of investigations made by me ... I found that, outside of cases where there was litigation, accident produced nervous prostration in only about one half of one per cent.” On motion of the plaintiff, that portion of the answer relating to litigation was struck out, and the defendant excepted. Held, that the exception must be overruled, since the witness could not, under the guise of reasons for his opinion, indirectly testify that the nervous prostration from which the plaintiff was suffering was due to his being the plaintiff in litigation seeking recovery for his injuries.</p> <p>At the trial of an action against a street railway company for personal injuries suffered by the plaintiff while he was a passenger on a car of the defendant, a material question in issue was, whether the car was moving when the plaintiff boarded it. A witness for the defendant testified in direct examination that the car had stopped at a crossing before the point where the plaintiff had boarded it and had not stopped again until after the accident, and he identified a statement which he had received in blank from the defendant “ afterwards ” with a request to fill it out and mail it to the defendant. In cross-examination he stated that he was reading a newspaper at the time of the accident and did not think he noticed whether the car stopped or not after the crossing designated. In redirect examination, “ as bearing on the question as to how soon his attention ” was called to the matter after the accident, the defendant asked “ And when you received that blank . . .. were you asked to state whether the car was moving or standing when ”... [the sentence was not completed.] The question was excluded and the defendant excepted. Held, that the exception must be overruled.</p>

Tort for personal injuries alleged to have been received by the plaintiff, while he was in the defendant’s employ in his factory and planing a board upon a buzz planer, by reason of a defect in the planer. The declaration contained a count at common law alleging a failure of the defendant to furnish suitable machinery and to keep it in proper condition, and a count under R. L. c. 106, § 71, cl. 1, alleging a defect in the ways, works or machinery of the defendant.

<p>Evidence, Remoteness. Probate Court, Appeal. Practice, Civil, Conduct of trial.</p> <p>It is within the discretion of a single justice, before whom is being tried on appeal from the Probate Court an issue as to the sanity of a testator at the time of the execution of an alleged will, to designate a limited period of time, evidence as to acts and events within which bearing on the issue would be admitted and other evidence excluded as remote; and it is not an unreasonable exercise of such discretion, at the trial of such an issue regarding a will executed by a woman sixty-two years of age, whom those objecting to the proof of the will contended was suffering from congenital insanity, to set as such limit a time six years before the time when the will was executed.</p>

<p>Negligence, Employer’s "liability. Boston Elevated Railway Company. Railroad. Words, “ Railroad.”</p> <p>The means used for the transportation of passengers by the Boston Elevated Railway Company in the subway in Boston on February 13,1905, did not constitute a “ railroad ” within the provisions of R. L. c. 106, § 71, cl. 3, and therefore an employee of that corporation, who on that day was injured by reason of the negligence of a person in the employ oi the company and in charge and control of a signal used for the starting and stopping of trains at the Scollay Square station in the subway, could not recover under such clause of the statute.</p> <p>St. 1908, c. 420, which amended R. L. c. 106, § 71, cl. 3, by adding provisions as to elevated railways so that the wording of its provision imposing upon an employer a liability for an injury to an employee caused by “ the negligence of a person in the service of the employer who was in charge or control of a signal, switch, locomotive engine or train upon a railroad ” was so changed as to make an employer liable for such an injury caused by " the negligence of a person in the service of the employer who was in charge or control of a signal, switch, locomotive engine, elevated train or train upon a railroad or elevated railway,” is not declaratory of the law as it existed under the Revised Laws, but imposes upon elevated railway companies a burden to which they had not been subject under the Revised Laws.</p>

<p>Contract, Construction, Performance and breach.</p> <p>A manufacturer of boots and shoes at Worcester advertised for a salesman for certain western territory, and a salesman, who was a stranger to him and to whom the manufacturer was a stranger, answered the advertisement and furnished references. The salesman and the manufacturer thereupon on January 5 signed the following “ memorandum of agreement ”: “T. [the salesman] to sell goods for C. [the manufacturer] exclusively and under his direction in the States of Indiana — Illinois — Michigan and Wisconsin and such other territory as may be mutually agreed upon. C. agrees to advance T. $75 to cover his first weeks salary and legitimate travelling expenses . . . and thereafter $50 each week for such time as T. shall be travelling in [C.’s] exclusive interest and under his direction. If T. shall complete a full year’s service in the exclusive interest of C., and his accepted orders shall have been filled and payment received by C. in excess of $48,000,” T. was to receive “ an additional sum equal to five per cent,” of such excess. Held, that the contract was a hiring by the week at most and not by the year or for a year.</p> <p>If, according to the provisions of a contract in writing for employment, payments are to be made weekly to the person employed, this circumstance, while it is of but little if any weight where other language in the contract expressly or impliedly describes the term of service to be longer than a week, nevertheless, in the absence of such other evidence, is of great weight in showing that the employment is by the week.</p>

Contract for the amount of a promissory note for $2,000, which the plaintiff had. indorsed after the defendant, and had been compelled to pay. Writ dated May 29, 1905. The defendant did not demur, but filed an answer. In the Superior Court the case was tried before Crosby, J. The note declared upon was as follows: “ $2000. Boston, Jan. 7, 1905. “ Four months after date the Bay Side Coal Co. promises to pay to the order of the Bay Side Coal Co., two thousand dollars.

<p>Replevin. Judgment. Practice, Civil, Appeal.</p> <p>In an action of replevin for five articles, where the declaration contains but a single count, if it appears that the plaintiff owns four of the articles and is entitled to their possession, but that he does not own the fifth article and is not entitled to its possession, two judgments must be entered, as if there were two separate counts, one in favor of the plaintiff for four of the articles, and the other for the defendant directing a return of the fifth article, and each judgment may include costs.</p> <p>If in an action of replevin brought in a police court for a bitch and four pups, the court enters a judgment for the defendant directing the return of one of the pups, describing it, and makes no order as to the bitch and the other three pups, an appeal by the plaintiff to the Superior Court from the judgment carries up the whole case, and should be interpreted as an appeal not only from the judgment for the return of the pup described but also from the failure to enter a decree in the proper form as to the other four dogs.</p> <p>In an action of replevin brought in a police court for a bitch and four pups, the court entered a judgment directing the return of one of the pups, describing it, but failed to make any order as to the bitch and the other three pups. The plaintiff appealed to the Superior Court from the decree and claimed a trial by jury. The record of the Superior Court showed simply that in answer to the question “ Did the pup in question belong to the plaintiff 1 ” the jury said “ No,” and there was no record of any general verdict either for the plaintiff or the defendant or of any finding of the jury in regard to the bitch and the other three pups. The record contained a “Finding ” as follows : “Judgment is to be entered for the plaintiff for one Boston terrier bitch and three pups, with costs; judgment for defendant for return of one bitch pup with costs.” From the judgment entered in accordance with this finding the defendant appealed, contending that the question of the title to the Boston terrier bitch and the three pups decided to belong to the plaintiff was not before the Superior Court and that the judge of that court erred in undertaking to include them in the judgment. Held, that the appeal from the judgment of the police court brought up the whole case to the Superior Court, and that it could be assumed from the order of the judge of that court entitled “Finding ” that, apart from the single issue left to the jury, the parties were content to submit all other questions to the judge rather than to the jury, and that upon such submission the judge, either upon evidence or upon statements of the parties, found that the four dogs other than the one whose ownership was passed upon by the jury were the property of the plaintiflj and, having so found, ordered judgment for the plaintiff on such findings and for the defendant on the finding of the jury; and therefore that the judgment was supported by the record and should be affirmed.</p>

Two actions op TORT between the same parties and arising out of the same accident; the first under R. L. c. 106, § 72, for the death of the plaintiff’s intestate, and the second at common law for the conscious suffering of the plaintiff’s intestate before his death. Writs dated May 18,1907.

<p>Contract for $105.84 had and received to the plaintiff’s use. Writ in the Municipal Court of the City of Boston dated July 17,1906.</p> <p>The defendant filed an answer containing a general denial and an allegation of payment and also filed a declaration in set-off claiming $151.31 according to an account annexed.</p> <p>On appeal to the Superior Court the case was tried before Richardson, J., on February 21, 1908, on which day the jury returned a verdict for the plaintiff in the sum of $81.61. On March 2, 1908, the defendant filed a suggestion of bankruptcy, alleging" that on December 20, 1906, the defendant was adjudicated a bankrupt in the District Court of the United States for the District of Massachusetts under the provisions of the bankruptcy act of 1898, and acts in amendment thereto, and that on July 9,1907, he was discharged from all debts and claims, in-eluding the plaintiff’s claim against the defendant, which were provable against his estate in bankruptcy, the plaintiff having had full knowledge of the bankruptcy, and moving that the action might be continued for judgment.</p> <p>On March 3, 1908, the defendant filed a motion to amend his answer by adding thereto the following: “ And further answering, the defendant says that since said action was commenced, to wit, on the 20th day of December, 1906, he was duly adjudicated a bankrupt in the District Court of the United States for the District of Massachusetts, and that thereafter, on the 9 th day of July, 1906, he was duly discharged from all debts, including the plaintiff’s, which were provable against his estate.” On March 30, 1908, the judge denied the motion to amend.</p> <p>On March 31,1908, the plaintiff moved that judgment be entered for the plaintiff in the sum of $81.61 in accordance with the verdict. On April 7,1908, the judge filed the following memorandum of decision:</p> <p>“ At the hearing on April 6,1908, on the motion of the plaintiff for judgment on the verdict (rendered February 21, 1908), it appeared that no suggestion was made to the court of the defendant’s bankruptcy proceedings until March 2, 1908, which was after the verdict of the jury (February 21, 1908), though in the defendant’s suggestion of bankruptcy it is alleged that the discharge had been granted on July 9,1907, — see 182 Mass. 360. It did not appear at the hearing that the discharge would have been a bar to the action if it had been pleaded.</p> <p>“ Motion for judgment allowed.”</p> <p>The defendant appealed from the order denying the defendant’s motion to be allowed to file a supplemental answer and from the order allowing the plaintiff’s motion for the entry of judgment.</p>

<p>Two actions of tobt by the same plaintiff, the first against the Coffin Valve Company and the second against the Fitch-burg Steam Engine Company, each of the defendants being a corporation, for personal injuries received by the plaintiff on April 21, 1904. Writs dated October 3, 1904.</p> <p>In the Superior Court the cases were tried together before Richardson, J. From the evidence it appeared that the plaintiff entered the employ of the Coffin Valve Company on or about April 10, 1904. The plaintiff testified as follows: “ That he was á steamfitter’s helper and that on or about April 21, 1904, he was working for the Coffin Valve Company as a machinist’s helper, or a general man helping the worker, and that his foreman was one Masters, who was also employed by the Coffin Valve Company, and that he took his orders from Masters; that on the morning of the accident one Chadbourne, the general manager of the Coffin Valve Company, took the plaintiff from Masters and gave him to a man called Daniels, and Chadbourne told the plaintiff to help this man, whatever he wanted the plaintiff to do under his charge; that the plaintiff went with Daniels to the engine room of the Coffin Valve Company and that an engine was sitting there on the base and a few fixings which the plaintiff did not know much about; that they put skids under the engine and levelled it up; that the plaintiff took his orders from Daniels; that Daniels gave all the orders to the rest of the men there; that Daniels ordered the plaintiff and other men to go after a set of chain falls and that after-wards the plaintiff helped in rigging them up, as much as he knew, and that Daniels was in charge of all the men in the gang and that so far as plaintiff knew no one else gave instructions as to the way and manner the engine was to be set up except Daniels; that the plaintiff was put to work by Daniels to help a man on the falls, the falls being hitched to the casting or half of the fly wheel, that was to go in the pit; that the falls were used to raise the casting on its bearing -by pulling on the pulley and that would lift this casting up; that the casting consisted of half the fly wheel, and that it was to be put over and turned the other side from which it was sitting and it was to run in the pit; that the casting was seven feet in diameter and the weight was from two thousand to twenty-three hundred pounds.” The plaintiff further testified “ that the falls were set so as to swing the casting nearly over to the place where it was to be set up; that then it would be lowered down and the falls would be taken off it before we would take hold of it by our hands, as I understood it, but that the plaintiff did not know much about it at that time; that when the casting was lifted it was not evident to his mind that it was going to swing, he having worked at that kind of business only three days; that Daniels directed one McAvinnay and the plaintiff to lift this piece of casting; that Daniels fastened a rope to the fly wheel or casting and put it out through a window and sent one Wilburt to hold the rope against the corner of the window to prevent the fly wheel from coming forward too quickly when it was raised off the skids; that the plaintiff and McAvinnay were pulling on the falls, by the direction of Daniels, about ten feet from the casting and facing it, and when we were directed to pull, as it raised off, I understood Daniels to say to Wilburt outside, to slacken away on the rope through the window, and, as he slackened away, the casting came so swiftly that it caught my leg; that it swung so swiftly that it was impossible for me to clear the casting coming; that I tried to get out of the way but could not»; that it caught my ankle causing the injuries complained off and that this was the first half of the fly wheel that they were putting in position.” There was other testimony regarding the accident given by the plaintiff and by other witnesses.</p> <p>The plaintiff offered as an expert one Masters who testified that he had been employed as foreman by the Coffin Valve Company for twenty-five years, and that as such he had superintended the lifting of similar weights almost daily in his place of business and had rigged pulleys for the purpose of lifting them and had attached ropes to the weights to hold them from moving while suspended in air, in a way similar to that in which the work was being done at the time the plaintiff was injured.</p> <p>The counsel for the plaintiff then asked the following question : “ Assuming that you have got a load here which is a half of a fly wheel, which weighs between two thousand and twenty-three hundred pounds, assuming that this is within eight or ten feet from a perpendicular line drawn to a point overhead some ten feet, and that there is a chain that is attached to the centre of that portion of the fly wheel—or, if there is any question of where it was attached, we will say it was attached to that portion of the fly wheel, and that the line was drawn directly up overhead of where the plumb line would be on the ground, and that there was attached to that casting here a rope which went out some twenty feet to a window and the distance is about twenty feet to where the window was and that the man was standing there, with a rope attached to the casting, getting out of the window some five feet outside, and has no other way of holding that casting when it leaves the ground except by his hand, hanging on to the rope against the jamb of the window and after the casting leaves the ground, two or three inches above the skids, would the man, using no other method, be able to hold that weight from going towards the centre ? ” This question was objected to, and the judge said, “ If you can estimate the strength required in horse power, you may do it.” To this ruling the plaintiff excepted.</p> <p>When the plaintiff rested his case the defendant Coffin Valve Company also rested on the evidence offered by the plaintiff.</p> <p>The defendant Fitchburg Steam Engine Company introduced in evidence a contract in writing between the Fitchburg Steam Engine Company and the Coffin Valve Company, of which the following abstract was printed in the bill of exceptions as the only part of the contract material to the issue in the case :</p> <p>“We [the Fitchburg Steam Engine Company] will furnish foundation plan and deliver the engine on cars here supplying man’s time for three days, or less, to superintend the erection of engine ready for steam connections and, if connections are made without delay, to start engine under steam, turning it over to you in running order you paying his expenses and furnishing laboring help as needed, all for the sum of thirteen hundred fifty and no one hundredths ($1350) dollars and will allow you for your 9 X 18 engine f. o. b. here $360.00 in as good condition as now, fair, wear and tear considered. Ninety ($90.00) dollars when engine is shipped and notes at sixty (60), ninety (90), one hundred twenty (120) and one hundred fifty (150) days for two hundred twenty-five dollars (225.00) each from date of shipment each having interest added after thirty (30) days from its date, thus giving five months time from shipment, for payment.”</p> <p>The defendant Fitchburg Steam Engine Company called as its only witness Chadbourne, the superintendent of the Coffin Valve Company mentioned above as the general manager of that company, who testified that Daniels was sent by the Fitchburg Steam Engine Company, and was received by the Coffin Valve Company under the terms of this contract; that the engine had been shipped from Fitchburg and the witness did not know whether or not the contract price of the engine had been paid; that the engine had been unloaded from the cars in Neponset at the factory of the Coffin Valve Company by the workmen of the Coffin Valve Company, and that the various parts had been placed in the engine room; that Wilburt, McAvinnay and the plaintiff all received their pay from the Coffin Valve Company in the regular course of its business; that the Coffin Valve . Company built the bed on which the engine was to rest; and that one Perry, a foreman of the Coffin Valve Company, gave Daniels directions where to set up the engine but did not give him any directions as to the details of setting it up; that Daniels superintended the erection of the engine; that Perry came there occasionally and looked at the engine; that he did not talk with the workmen at all but that he spoke once or twice with Daniels; and that Daniels stayed there until the engine was completely set up.</p> <p>The evidence also tended to show that no part of the apparatus used in lifting the fly wheel broke or gave way during the operation.</p> <p>At the close of all the evidence the judge ordered a verdict for the defendant in each case; and the plaintiff alleged exceptions, which by agreement were allowed in one bill of exceptions applying to both cases.</p>

<p>Bill in equity, filed in the Supreme Judicial Court for the county of Suffolk on September 4, 1906, and amended on September 12, 1908.</p> <p>The case was before this court on an appeal by the defendant from an order denying a motion by the defendant to dismiss the bill. A decision affirming the order was reported in 196 Mass. 143. After the issuing of the rescript, the bill was amended by adding as specifications regarding the allegations of lack of honesty, care and prudence on the part of the defendant in the management and investment of the tontine fund, the following :</p> <p>“1. That the defendant has, during each year while the plaintiff’s policy was in force, paid to its executive officers unnecessarily large and exorbitant salaries, including salaries of $100,000 per annum to its president and its vice-president, and has, in each of those years, paid much larger sums than were reasonable or proper as fees to its directors, these fees amounting, in each year, to more than $40,000.</p> <p>“ 2. That the defendant has, in each of said years, improperly and unlawfully paid large sums of money as contributions to the national campaign funds of the republican and democratic parties, and also to the campaign funds of both those parties in the State of New York.</p> <p>“ 3. That the defendant and its officers and directors have, in each of said years, acted improvidently, fraudulently, and dishonestly in the investment of the funds of the corporation, including both the ‘ reserve ’ and the ‘ surplus,’ in that they have neglected to invest said funds in a safe and profitable manner, whereby the greatest benefit might be derived therefrom by the society and the policy holders, including the plaintiff, but, on the contrary, have invested said funds in unsafe and unprofitable business ventures, in order that large profits might be made both directly and indirectly by said officers and directors for themselves.</p> <p>“ 4. That the defendant has, while the plaintiff’s policy was in force, invested a very large proportion of its assets, including both ‘ reserve ’ and 6 surplus,’ amounting in all to about $37,884,000 in large office buildings, situated in fifteen cities in various parts of the world, including New York, Boston, and St. Louis; that these investments were made in bad faith and from dishonest motives ; are such as would not have been made by reasonably prudent and honest men, and that they have proved highly unprofitable to the society; that the failure of these investments to return reasonable profits to the society has been largely due to the dishonest management of the buildings, and particularly to the fact that valuable portions of these buildings have been rented to the officers and directors of the defendant, or to their relatives or friends, or to corporations in which they were financially interested, at prices much below their true rental value.</p> <p>“5. That the defendant has, during each of said years, kept much greater sums of money than was reasonable or proper on deposit in banking institutions, receiving therefor much lower rates of interest than might otherwise have been obtained, and that this has been done in order to benefit these institutions, in which the officers and directors of the defendant have been financially interested, to the detriment of the society.</p> <p>“ 6. That the defendant has, during each of said years, wasted and lost large amounts of its funds, including both ‘ reserve ’ and ‘ surplus,’ by participation in various syndicates and other speculative enterprises for the purchase and sale, or underwriting, of securities; and that the officers and directors of the defendant have made large profits at the expense of the society by selling to it at exorbitant prices, securities owned or underwritten by syndicates of which said officers and directors were themselves members.</p> <p>“ 7. That the defendant has, during the life of the plaintiff’s policy, improperly expended large sums of money in public entertainments.”</p> <p>Other material allegations in the amended bill are summarized in the opinion.</p> <p>The defendant demurred and alleged as causes of demurrer the following:</p> <p>“ 1. The plaintiff has not in his bill made or stated any such case as entitles him to the relief prayed for, or to any relief against the defendant as to the matters contained in the said bill, or any of such matters.</p> <p>“ 2. The plaintiff has a plain, adequate and complete remedy at law.</p> <p>“ 3. The necessary parties are not before the court.*</p> <p>“4. The plaintiff is not entitled to an order directing the defendant to furnish him an account showing in detail its dealings with the dividends, if any, upon the plaintiff’s policy, retained by it, and with the fund, if any, in which the plaintiff is entitled to share, or with the interests and profits on said funds, or with the accumulations thereof.</p> <p>“ 5. Upon the facts alleged in the bill, the plaintiff is bound by the apportionment of the tontine fund made by the defendant, and is not entitled to have the amount of his share, if any, of the surplus ascertained by the court, or to a decree that such amount so ascertained shall be paid over to him by the defendant.</p> <p>“ 6. The plaintiff has not alleged with sufficient definiteness and specification the facts tending to show that the defendant has not dealt honestly, or with due care, with the tontine fund, and has appropriated and wasted the same, as alleged in the eighth paragraph of the plaintiff’s bill as amended, so as to entitle the plaintiff to any relief therefor.</p> <p>“ 7. It does not appear that the plaintiff, on June 9, 1906, or at any time, made any election of the options given in paragraph five of the r provisions and requirements ’ stated in the policy dated September 8,1886.</p> <p>“ 8. It does not appear from the facts set forth in the bill as amended that the relief prayed for by the plaintiff is of a nature or in an amount sufficient to invoke the powers of a court of equity.”</p> <p>The demurrer was heard and overruled by Hammond, J. The defendant appealed and, at the request of the defendant, the presiding justice reported the case for determination by the full court.</p>

<p>Equity Pleading and Practice, Master, Master’s report, Exception to master’s report. Sale of Merchandise in Bulk. Subrogation. Mortgage, Of personal property. Marshalling. Equity Jurisdiction, To set aside sale of merchandise in bulk.</p> <p>While it is true that in a suit in equity an exception to a master’s report, which is based upon an objection to the master’s making a ruling of law that upon the facts reported by him the plaintiff was entitled to no relief against the defendant, is well taken as an abstract proposition, it becomes immaterial where it appears that all the facts are reported by the master.</p> <p>An insolvent mercantile corporation, the stock in trade in whose store was subject to two mortgages, the second of which covered not only the property then in the store but also “ all other goods and supplies . . . hereafter contained in ” the store, sold its stock in trade in bulk and not in the usual course of trade to one with whom it agreed that out of the purchase price it would at once pay the amounts due on the mortgages, and the purchaser paid to the corporation $1,725 in two checks, one for $1,500, the amount due on the mortgages, and the other for $225. The corporation at once indorsed and delivered the $1,500 check to the mortgagee, who forthwith discharged the first mortgage and assigned the second and the note which it secured to the purchaser, who immediately took possession of all of the stock in trade. Both the corporation and the purchaser acted in good faith and with no actual intent to defraud the corporation’s creditors. None of the requirements of St. 1903, c. 415, regarding sales of merchandise in bulk, were- complied with. Thereafter the corporation was adjudged bankrupt and a trustee was appointed, who sought by a bill in equity to gain possession of the stock in trade formerly of the corporation. The trustee had not offered, and there was no offer in the bill, to pay to the purchaser what he had paid on the mortgages. Held, that the purchaser, having acted in good faith, was subrogated to the rights of the mortgagee, and was not prevented from enforcing the rights thus obtained by the constructive fraud which, according to St. 1903, c. 415, he had committed; and that therefore thebill must be dismissed.</p> <p>The general doctrine, that the equitable rule of marshalling assets for the protection of a junior creditor by compelling a senior creditor to resort first to a fund or security which the junior creditor cannot reach, will be confined to cases, where two.or more persons are creditors of the same debtor and have successive liens upon the same property while the creditor prior in right also has other security belonging to the same debtor and not available to the holder of the junior lien, and will not be enforced to the detriment of the prior creditor.</p>

<p>Bill in equity, filed in. the Superior Court for the county of Suffolk on December 5, 1907, seeking to compel the payment by the defendant to the plaintiff as administrator of the estate of Hazen V. Thompson of the balance of a deposit made with the defendant under Pub. Sts. c. 144, § 16, by the judge of probate for the county of Essex for the benefit of Thompson together “with any accumulations which may have accrued thereon.”</p> <p>In the Superior Court the case was heard by Fox, J., on an agreed statement of facts, material among which were the following :</p> <p>John B. Nichols, administrator of the estate of one Samuel Thompson, late of Amesbury, tendered to Hazen V. Thompson $4,185.10, which he was entitled to receive as one of the next of kin of Samuel, but which he refused to receive. The judge of the Probate Court for the county of Essex thereupon decreed that the administrator deposit the sum with the defendant, and he did so, the defendant issuing therefor the following certificate of deposit:</p> <p>“ $4185.10 No. 3,009.</p> <p>New England Trust Co.</p> <p>No. 85 Devonshire Street, Comer Water Street.</p> <p>Boston, March 23, 1887.</p> <p>“ These may certify, that the New England Trust Company, has received from the Hon. George F. Choate, Judge of the Probate Court of Essex County, Mass., thro’ John B. Nichols, Administrator of Estate of Sam’l Thompson, late of Amesbury, Mass., the sum of forty-one hundred, eighty-five 10/100 dollars to accumulate for Hazen V. Thompson, of Haverhill, Mass., of current funds, upon which the said Company will allow .interest at the annual rate of two and one-half per cent, from this date, none if drawn in thirty days, and on demand will repay the like amount of United States notes or other current funds, with the interest, to the said Judge of Probate Court, Essex County, Mass., or his assigns, on the return of this certificate, which is assignable only on the books of the Company. The right is reserved by the Company, upon giving ten days’ notice, to reduce the rate, or discontinue the payment of interest on this certificate, or pay off the principal. Such notice to be served personally or through the Post Office, directed to the address named on the books of this Company.</p> <p>“ N. H. Henchman, Howard B. Allen,</p> <p>Secretary. Receiving Teller.”</p> <p>Various payments were made by the defendant from the deposit from time to time under decrees of the Superior Court in suits then pending.</p> <p>On May 31, 1895, the defendant sent the following letter to Hazen V. Thompson, which was received by him: “May 81, 1895. 5 p. M. Mr. Hazen V. Thompson, Haverhill, Mass. Dear Sir: In the matter of the Deposit with this Company which by the decision ordered and decreed by the Probate Court of Essex County, Mass., under date of May 13, 1895, after payment of your assignments and orders, there remains for your benefit the sum of twenty-eight hundred, forty and 46/100 dollars ($2840.46) as cash May 21, 1895. Our certificate so showing No. 3009 is in possession of the Probate Court of said Essex County, Salem, Mr. J. T. Mahoney, Register. We now desire to notify you that no interest will be paid upon said amount after the first day of June, 1895, or allowed thereon. Yours very respectfully, N. H. Henchman, Secretary.”</p> <p>No other. notice was ever sent to Hazen V. Thompson, and no notice was sent to the .judge of the Probate Court for the County of Essex that no further interest would be allowed on said certificate. •</p> <p>On its date the defendant sent to the register of probate of Essex County the following letter: “June 14, 1895. J. T. Mahoney, Esq., Register of Probate, Essex County, Salem, Mass. Dear Sir: As yet we fail to have acknowledgment from Mr. Hazen V. Thompson, of our letter to him in relation to certificote No. 3009 and balance as Decreed belonging to him. Altho’, we tried by registered mail and otherwise to reach him, as we distinctly wish him to understand that the interest ceased on June first 1895. Yours very truly, N. H. Henchman, Secretary.” On October 24, 1907, the judge of probate of Essex County, (who is one of the plaintiffs,) made a decree that “ the balance of deposit due on said certificate, with any accumulations which may have accrued thereon since the time when said deposit was made,” be paid by the defendant to the plaintiff as administrator of the estate of Hazen V. Thompson.</p> <p>. If no interest was to be allowed on the deposit after June 1, 1895, the plaintiff administrator was entitled to $1,304.75. If interest at the annual rate of two and one half per cent was to be allowed, the plaintiff administrator was entitled to $2,049.67. If interest at the annual rate of six per cent was to be allowed, $3,092.57 should be paid to the plaintiff administrator.</p> <p>At the request of the parties, the judge reported the case for determination by this court.</p>

<p>Bill nsr equity, filed in the Superior Court for the county of Suffolk on March 23, 1908, by Adeline L. Haskell, administratrix of the estate of Waldo C. Haskell, late of Boston, against the executors of the will of Jacob M. Haskell, of whom she was one, seeking to enforce payment of certain non-negotiable promissory notes made by the defendants’ testator and payable to the plaintiff’s intestate.</p> <p>The case was heard by Fox, J., a commissioner having been appointed to take the evidence. The material facts are stated in the opinion.</p> <p>The judge made the following memorandum of his decision:</p> <p>“It is admitted that the paper (Exhibit 9) signed by two executors, one of whom is also the plaintiff in this suit and the only person interested in the prosecution of it, was prepared by the plaintiff’s counsel in order to anticipate and avoid the defense of the statute of limitations, which it was expected the third executor would insist upon. If (as is conceded) one of several executors may insist upon the statutory bar even if the other executors are willing to waive it, I think it must follow that it is not open to the other executors to strike down his defense by the device which was resorted to in this case. See also Pub. Sts.'-c. 197, § 17, the language of which has been changed by the last revision. (B. L. c. 202, § 14.) I think, too, that the testimony tending to show that the son, ten years after the rights of action had accrued, asked the father to pay certain of- his.bills ‘on account,’ and that the father paid them, there being nothing in the testimony to indicate on what account the bills were paid, is not enough to avoid the bar. (Pond v. Williams, 1 Gray, 630; Ramsey v. Warner, 97 Mass. 8,13.) Bill to be dismissed.”</p> <p>The bill accordingly was dismissed ; and the plaintiff appealed.</p>