Volume 202 — Massachusetts Reports

<p>Damages, For property taken or injured under statutory authority. Grade Crossings. Limitations', Statute of.</p> <p>Under the provision of St. 1903, c. 478, limiting the time within which a petition for damages caused by the abolition of a grade crossing must be brought to “ one year after the time the property is entered upon and work actually commenced thereon,” it does not matter that the work actually begun was so trifling in amount that no charge was made for it as part of the cost of construction, if it was necessary to do it in constructing the street and it was done in good faith, and there is nothing which requires that the work shall be prosecuted continuously from the time when it actually was begun, although the fact that it was not so prosecuted may be considered in determining whether the work actually was begun at one time or another.</p> <p>Under the provision of St. 1903, c. 478, limiting the time within which a petition for damages caused by the abolition of a grade crossing must be brought to “ one year after the time the property is entered upon and work actually commenced thereon,” an entry for the purpose of constructing any part of a way laid out under the decree of the Superior Court confirming the decision of the commissioners is deemed a taking possession of all the lands included in the laying out, and the limitation begins to fun against a petitioner, whether the work was begun upon his land or upon some other part of the way thus laid out.</p>

<p>Negligence, Of contractor building subway under highway, Bes ipso loquitur. Way. Evidence, Relevance and materiality. Practice, Civil, Variance.</p> <p>At the trial of an action against a contractor who, under a contract with the Boston transit commissioners by the terms of which he was responsible “ for any injury which ” might “result from his act or neglect,” was constructing a tunnel for the city of Boston under various public streets, to recover for an injury received by the plaintiff in midwinter because a sidewalk upon which he was walking caved in, the caving being alleged to be due to the fact that the defendant negligently performed his work under the sidewalk, there was evidence tending to show that in the construction of the tunnel, which passed beneath the place where the sidewalk caved in, the sidewalk had been taken up by the defendant and an excavation had been made, which was refilled and the sidewalk replaced two or three weeks before the accident, and that in the summer preceding the accident there had been a “ slump ” of the soil at about the same place. Held, that the doctrine of res ipso loquitur was applicable, and that there was evidence warranting the jury in finding that the accident was caused by the negligent manner in which the defendant had refilled the excavation and relaid the sidewalk.</p> <p>At the trial of an action by one, who was injured in midwinter by the caving in of a sidewalk on a public street, against a contractor who in the course of constructing a subway had taken up the sidewalk, had made and refilled an excavation under it and liad relaid the sidewalk, the plaintiff contending that the caving in of the sidewalk was due to the negligent way in which the contractor did his work, evidence that in the summer preceding the accident the bank of earth at the excavation “ slid ” is admissible as tending to show the character of the soil at that point.</p> <p>A declaration alleged that on a day in winter the plaintiff was a traveller on a certain public street, “ that the defendant was engaged in excavating beneath the surface of the street . . . and so carelessly and negligently carried on his work by his servants and agents that he permitted the sidewalk ... to drop, so that the plaintiff . . . fell into said hole or opening caused by the said negligence of the defendant.” The evidence introduced by the plaintiff showed that the work of the defendant under the sidewalk had been completed two or three weeks before the accident. Held, that there was no variance between the pleading and the proof.</p>

<p>Negligence, In use of elevator, Licensee, Proximate cause. Elevator. Usage, Eight existing by customary practice. Practice, Civil, Conduct of trial, Setting aside special finding, Verdict.</p> <p>In a business building, in which there is a freight elevator for the common use of all the tenants and their employees, a practice or custom existing in the building, which gives the servant of any tenant who is using the elevator in his master’s business the right to use it exclusively until his use of it is completed, is not unlawful or improper, and may be taken into account in passing upon a question of negligence in the use of the elevator by a servant of one of the tenants.</p> <p>In a business building, in which there is a freight elevator for the common use of all the tenants and their employees, a practice or custom existing in the building, which gives the servant of any tenant who is using the elevator in his master’s business the right to use it exclusively until his use of it is completed, if a servant of one of the tenants is thus using the elevator and before the completion of such use complies with the request of the servant of another tenant to allow him to come upon the elevator with a heavy crate for transportation to one of the upper floors, the last comer is a mere licensee, and the master of the man who permitted him to enter the elevator before completing his own use of it owes him no duty except not to injure him by a wilful or wanton and reckless act, even if the servant of such master was acting within the scope of his employment when he turned aside from his own work to accommodate and assist the servant of the other tenant.</p> <p>In an action for personal injuries alleged to have been caused by the negligence of a servant of the defendant, if there is no contention and nothing to show that the plaintiff and the defendant’s servant were fellow servants, it is proper for the judge to refuse a request of the plaintiff for a ruling, that, not being fellow servants, the plaintiff did not assume the risk of being injured by the negligence of the defendant’s servant, there being no occasion for making such a ruling.</p> <p>In an action for personal injuries alleged to have been caused by the negligent starting of a freight elevator in a business building by a servant of the defendant, a tenant in the building, it appeared that the elevator was maintained for the common use of all the tenants and their employees and that there was a practice or custom existing in the building, which gave the servant of any tenant who was using the elevator in his master’s business the right to use it exclusively until his use of it was completed. The plaintiff was a servant of another of the tenants who came upon the elevator with a heavy crate, and the evidence was conflicting as to whether the servant of the defendant, who had been using the elevator to take down some cases of rubbers for shipment, was continuing its use in taking back three cases of rubbers because they were badly broken, and was in possession of the elevator when the plaintiff asked permission to bring the crate upon it, or whether, as the plaintiff testified, he found the elevator empty and had loaded the crate upon it when the defendant’s servant came upon the elevator and started it, and the plaintiff’s foot was caught. The plaintiff asked the presiding judge to rule that if the defendant’s servant “kept the elevator at the street level for more than a reasonable time after unloading his goods, the plaintiff had a right to take the elevator to carry his goods to an upper floor.” The judge refused to make this ruling on the ground that there was no evidence to show that the defendant’s servant kept the elevator an unreasonable time after .unloading. There was, in fact, evidence for the defendant which, if believed, would have warranted a finding that the defendant’s servant had possession of the elevator and had detained it for an unreasonable time. .Held, that, although, if the reason given for the refusal of the ruling were the only ground on which it could be upheld, such refusal could not be sustained, yet the ruling was refused rightly on other grounds, namely, that the keeping of the elevator at the street floor by the defendant’s servant was not and could not be found to be the proximate cause of the accident, which was the alleged negligent starting of the elevator by the defendant’s servant, the fact that the defendant’s servant had kept the elevator at the street level for an unreasonable length of time after unloading it, if he did so, being one of the conditions under which the accident occurred but not a cause of it, and that such detention of the elevator did not give the plaintiff a right to take possession of it before the use of it by the defendant’s servant was completed.</p> <p>In an action, in which there has been a verdict for the defendant and the plaintiff has made a motion asking the judge to set aside the general verdict and also to set aside the answers of the jury to certain questions submitted to them by the judge, the' judge may set aside one of the special findings of the jury, which there was no evidence to warrant, and at the same time permit the general verdict to stand, where there is no inconsistency in doing so.</p> <p>Where there is a general verdict and there are also special findings, which are not inconsistent with one another or with the verdict, the question whether the verdict should be set aside is a matter within the discretion of the presiding judge.</p>

<p>Negligence, Of owner of ship toward one employed by stevedore under contract with owner, Independent contractor, Employer’s liability. Ship. Contract, Construction. Words, “Appliance.”</p> <p>Apart from contract, the duty at common law of the owner of a ship at a wharf toward an employee of a stevedore lawfully at work upon the ship is the same as that of an employer respecting the apparatus and the permanent constructions of the ship, with and upon which the employee is expected to work, even though he may be in the immediate employ of the stevedore as an independent contractor.</p> <p>Where a stevedore makes a contract with the owner of a ship to load and unload it, the owner is liable to an employee of the stevedore who, while he was standing upon a hatch in the course of his duties, was injured by the hatch falling in because it was provided with insufficient flanges and coamings to hold it in place, if the employee did not know of such insufficiency and it was not obvious and could be ascertained only by an experiment, to perform which two men at least would be required, or by accurately measuring a five foot space.</p> <p>A stevedore made with the owner of a ship a contract in writing for the loading and unloading of the ship by which it was provided that the stevedore should hire and pay the men necessary for the purpose and should “ provide all necessary engines, fuel, lights, tackle and other appliances for the purpose ” and should “have the sole and entire charge, control and direction of the work,” that in performing the work in question “the stevedore has permission to use the ship’s winches, booms, falls and tackle or any other appliances of the ship if he desires so to do, in such condition as he may find them in, on or over the ship’s deck, the stevedore furnishing men to run them; but no obligation of any sort is assumed by the [owner] ... or is to be implied from such permission ... or otherwise to keep or have such winches, booms, falls and tackle or other appliances ... in safe or fit condition for use . . . and this permission shall be construed as a mere license to the stevedore and his men to use at his or their own risk . . . any winch, boom, fall, tackle or other appliance that may happen to be on or over the ship’s deck.” An employee of the stevedore who had no knowledge of such contract was injured by the falling in of a hatch due to the insufficiency of the coamings and flanges upon which it rested. Held, that the contract did not by its terms or fair intendment include the hatches of the vessel in the “ appliances ” therein mentioned. Whether, if the contract had included the hatches among such appliances, it would have affected the rights of the employee who did not know of it, therefore was not determined.</p> <p>The relation of the owner of a ship toward a stevedore and his employees engaged in loading or unloading it implies by inherent necessity an invitation on the part of the owner to such employees to use the hatches of the ship for such purposes, and from such relation arises a duty on the part of the owner to call to the attention of the stevedore and his employees dangers in such use that are not obvious nor incident to the business, or to pay for the consequences of a failure so to do.</p> <p>Where a stevedore makes a contract with the owner of a ship to load and unload the ship, and the contract provides that the stevedore is to have “ the sole and entire charge, direction and control of the work,” the stevedore becomes liable to his employees engaged in the work for injuries resulting from an insufficiency of the flanges and coamings of a hatch which was not obvious nor apparent upon reasonable inspection, and of which he might give warning to his employees. Distinguishing Hyde v. Booth, 188 Mass. 290.</p> <p>Where a stevedore, who by the terms of a contract in writing with the owner of a ship has “the sole and entire charge, direction and control of the work” of loading and unloading the ship and is required to furnish all necessary lights, directs an employee, just before midnight on a dark night with no artificial light to assist in covering the batches of the ship and, while doing as directed, the employee is injured by the falling in of a hatch upon which he was standing, due to an insufficiency of its flanges and coamings of which he did not know and which without a light he could not have discovered on inspection but which he might have discovered if sufficient light had been furnished, the stevedore is liable to his employee for his injuries thus received.</p>

<p>Landlord and Tenant, Tenancy by sufferance. Practice, Civil, Judge’s charge.</p> <p>The owner of a certain building did not own the land upon which it stood, but as a tenant at will paid to the owner of the land a ground rent for such land, and let the building as a store to one who paid him an agreed price therefor. The owner of the land by a lease in writing let a larger parcel of land, which included that upon which the building stood, to the occupant of the building, the lease containing no reservation or condition relating to the building. The owner of the building at once knew of such lease, but did not remove the building from the land, and refused to pay to the lessee any rent for the land it occupied. Held, that, upon the making of the lease, the owner of the building became as to the land upon which the building stood a tenant at sufferance of the lessee named in the lease and in the absence of any special agreement between the parties was liable under R. L. c. 129, § 8, to such lessee for rent of the land occupied by the building.</p> <p>At the trial of an action of contract upon an account annexed for the use and occupation of certain land, it appeared that the land was occupied by a building owned by the defendant, who at one time had paid a ground rent to the owner of the land, and that the building was occupied by the plaintiff by permission of the defendant; that, at the beginning of the period stated in the account annexed, the owner of the land had leased it by a lease in writing to the plaintiff. The answer contained an allegation of payment and there was evidence tending to show an agreement between the parties whereby the rent due to the plaintiff from the defendant was applied toward payment of the amount due to the defendant from the plaintiff, and that both parties treated the building as a chattel. The presiding judge charged the jury that the “ defendant must show that the plaintiff agreed not to charge her any land rent after the plaintiff had taken the lease, and that the defendant would be liable to pay said land rent unless he was excused from so doing by the plaintiff.” Held, that the defendant was not harmed by the charge.</p> <p>The fact, that, upon the owner of land making a lease of it to another, and a former tenant at will thus becoming a tenant at sufferance of the lessee, such tenant at sufferance asserts that he will pay no rent to the lessee, does not affect his liability to do so under R. L. c. 129, § 3.</p>

<p>Contract for breach of a covenant against incumbrances contained in a deed of land from the defendant to the plaintiff. Writ in the Superior Court for the county of Plymouth dated August 14,1906.</p> <p>The case was tried before Hardy, J. The facts are stated in the opinion. The jury found for the plaintiff; and the defendant alleged exceptions.</p>

<p>ConteXct for $1,000, as described in the opinion. Writ in the Municipal Court of the City of Boston dated June 22, 1906.</p> <p>On appeal to the Superior Court the case was tried before Hardy, J. The action was brought to recover the compensation alleged to have been agreed upon for performing a surgical operation upon the defendant’s son. The defendant admitted that the operation was performed at his request, and also admitted that he owed the plaintiff, after the operation had been performed, whatever the services were reasonably worth.</p> <p>The letters of the defendant to the plaintiff, referred to in the opinion, contained, among other things, the following:</p> <p>In a letter of January 12, 1905, was the following: “I would like to know if you would not be interested enough in the New England Storage Warehouse to take for your services ten shares of stock in the company and balance in cash when the same is issued to me, which will probably be before long. Under our prospectus, Mr. Woodruff and myself are entitled to $10,000 for carrying through the project and no stock has-been sold to any one for less than $100 per share. The stock bears interest at the rate of 6 % per annum from the time it is paid for, and all of our subscribers think we have one of the best propositions that has ever been placed on the market.”</p> <p>In a letter of February 2, 1905, was the following: “The only reason I asked you to take ten shares of stock in part payment of your bill was that I have everything at the present time but money, and as the stock is exactly the same as money to me (we have raised at the present time some $300,000 and every one has paid in one hundred cents on the dollar with no guarantee of any kind) I thought possibly you might like the investment. When it comes the proper time for me to sell my stock, after I have placed the other, of course, I would just as soon pay you the money, and if you can wait until that time I will send you a check.”</p> <p>In a letter of March 18,1905, was the following: “ I thought your price of $1,000 was very high, but as I placed myself in your hands, I do not see that I really have anything to complain of. . . .</p> <p>“ Just as soon as I can spare the money, I will send you a check for your bill.”</p> <p>In a letter of August 2,1905, was the following: “ Regarding my bill, I do not see how I can say any more than I have said, that just as soon as I can spare the money I will send you a check.”</p> <p>At the close of the evidence, the defendant asked the judge to make certain rulings, among which were the following :</p> <p>“ 4. The statements made in the letters may be considered as admissions by the defendant, not that he owed $1,000 as alleged by the plaintiff, but only to the extent that he owed the defendant something. That amount must be a fair and reasonable recompense for the particular operation. What amount is fair and reasonable lies wholly within the province of the jury to determine. The statements in the letters and the sum stated in the bill are merely recitals of a past transaction and as such are not admissible to prove what amount would be reasonable.</p> <p>“5. The letters of the defendant are inadmissible to prove the amount of the bill. Their only purpose would be to prove that the defendant admitted to the plaintiff a liability and to prejudice the jury. The defendant still admits a liability, though of a lesser amount than the plaintiff demands. Since the defendant makes this admission the letters become useless.</p> <p>“ 6. What is a reasonable charge is a question of fact lying wholly within the province of the jury. With the evidence, the fact that, in many cases, the plaintiff has made smaller charges than in the present case, the jury are empowered to consider all the evidence and to decide on what is reasonable wholly irrespective of the bill rendered by the plaintiff.”</p> <p>“ 10. The mere fact that Mr. Evans did not object to the amount of the bill in his letter written after the fact, is not conclusive as to the reasonableness of the bill.</p> <p>“ 11. Even if the letter from Mr. Evans to Dr. Conan t written some months after the operation constituted a promise on his part to pay the bill, that promise was made without consideration and is therefore not binding on Mr. Evans and does not preclude him from contesting the reasonableness of the bill.”</p> <p>The judge refused to make any of the rulings requested by the defendant, and ordered the jury to return a verdict for the plaintiff in the full amount claimed. The jury returned a verdict for the plaintiff in the sum of $1,178.33; and the defendant alleged exceptions.</p>

<p>Contract, Construction. Guaranty.</p> <p>In an action of contract it appeared that by an agreement in writing the plaintiff agreed to buy of the defendant one thousand dollars’ worth of tile stock of a certain company, and the defendant agreed to repurchase the stock at the end of one year for the sum of $1,000, if the plaintiff so desired, and guaranteed to pay him “ dividends amounting to not less than eight per cent per annum on the above one thousand dollars’ worth of stock.” The plaintiff received the stock and did not exercise his right to call upon the defendant to purchase it at the end of a year. He received dividends upon the stock at the rate of eight per cent per annum for one year and two months, and after that received no dividends whatever. He brought the action on the guaranty to recover the amount of $80 a year for the period that had elapsed since the payment of dividends had ceased. The judge, who heard the case without a jury, found for the defendant an'd gave judgment for him. Upon an appeal by the plaintiff, it was held, that the ju’dgment should be affirmed; that, if the guaranty should be construed as running for a reasonable time, it would be difficult to say as matter of law that a finding that a reasonable time had elapsed at the end of fourteen months was wrong, but that the more reasonable construction of the agreement was that the guaranty was intended to be limited to the year to which the obligation to repurchase was limited, and therefore that all the dividends which were guaranteed had been paid.</p>

Contract to recover certain freight moneys alleged to be owed by the defendant to the plaintiff. Writ in the Municipal Court of the City of Boston dated December 13,1904. The answer contained a general denial and an allegation of payment. On appeal to the Superior Court the case was tried before Lawton, J. The following facts appeared at the trial.

<p>Contract, Construction, Performance and breach. Damages.</p> <p>In an action for the alleged breach of a contract in writing, by which the plaintiff agreed to excavate rock from and remove a certain ledge on the land of the defendant, a corporation which then was putting up some new buildings, to crush the rock to certain specified sizes and deliver the crushed rock as therein specified, it appeared that the defendant undertook to terminate the contract as soon as the buildings were completed but before the whole of the ledge was removed, and prevented further performance on the part of the plaintiff, contending that under the contract the plaintiff was to crush only so much of the ledge as should be needed in the construction of the new buildings and that it had a right to terminate the contract as it did. The contract, among other things, contained the following: " That whereas the owner desires to secure the removal of a certain ledge ... of rock situated upon its premises . . . and whereas the contractor desires to undertake and carry on such work of removal . . . Now, therefore, . . . One. The contractor undertakes and agrees, subject to the provisions hereof and to the directions of the engineer in charge, to excavate and remove the ledge . . . Five. The owner shall furnish at convenient central points about the ledge . . . the necessary power . . . Six. . . . the contractor shall thoroughly wash and cleanse the ledge before the same is blasted or excavated . . . The owner is thoroughly to strip the earth and soil from the ledge as rapidly as is required.” It further was provided that the “ excavation and removal shall be to grade thirteen or such other grade as may be specifically designated by the said engineer,” and a provision was made for “ changing the grade to which the ledge or any portion thereof shall be levelled.” It further was provided that “ The contractor shall use the chips and loose stones not crushed in filling up hollows in the ledge caused by the work of excavation, to the end that upon the completion of the work the ledge shall be substantially at the grade or grades designated.” The only reference in the contract to buildings in process of construction was a provision that if work upon the building was suspended by strikes the engineer might order the prosecution of work under the contract suspended. Held, that the contract was one for the removal of the entire ledge, and that the defendant had no right to terminate the contract upon the completion of its buildings.</p> <p>In an action for the alleged breach of a contract in writing, by which the plaintiff agreed to excavate rock from and remove a certain ledge on the land of the defendant, the contract contained a provision that the “ excavation and removal shall be to grade thirteen or such other grade as may be specifically designated ” by the defendant’s engineer. There was a further provision that “ The engineer in charge may at any time during the progress of the work give written notice to the contractor, as hereinbefore provided, changing the grade to which the ledge or any portion thereof shall be levelled, and the grade so designated shall be in substitution of the grade thirteen mentioned in this instrument.” The defendant’s engineer gave to the plaintiff a notice, purporting to be under this clause, that thereafter the grades would be eighteen and twenty-three instead of thirteen. The plaintiff refused to acquiesce in this change on the ground that it was not warranted by the contract, and thereupon tlxe defendant virtually put a stop to the work and prevented the plaintiff from completing it. An auditor to whom the case was referred found that the effect of the change of the grade from thirteen to eighteen and twenty-three was that only a small amount would be excavated from the top of the ledge, and that the change was made by direction of an officer of the defendant for the purpose of terminating the plaintiff’s work. At the trial the defendant’s engineer testified on cross-examination that “he did not know of any purpose to which the tops of the ledges levelled off to grade twenty-three and grade eighteen could be put ” and that his object in changing the grade was to stop the plaintiff from working further. The presiding judge instructed the jury that “The engineer under the terms of the contract . . . was authorized to make any change of grade incidental to the purpose of carrying out the provisions of the contract, —that is, for the purpose of taking away the ledge, — but he had no authority ... to change the grade to an impracticable grade for the purpose, and simply for the purpose, of terminating the contract.” On exceptions alleged by the defendant after a verdict for the plaintiff, it was held, that the instruction of the judge was correct; that, by the only reasonable construction of the provision of the contract, the defendant’s power to change the grade did not include the power to change it so as to abrogate the contract, but gave the defendant authority to make only such reasonable changes as would render the removal of the ledge when completed more satisfactory to it.</p> <p>In an action, by a contractor against a corporation, for a breach of a contract in writing, by which the plaintiff agreed to excavate rock from and remove a certain ledge on the land of the defendant, to crush the rock to certain specified sizes and deliver the crushed rock as therein specified, where it appeared that the defendant, under an erroneous construction of the contract, wrongfully undertook to terminate it before the whole of the ledge was removed and prevented further performance on the part of the plaintiff, the plaintiff, upon the question of damages, showed that he had made a sub-contract for a stone crusher with an engine and an engineer to run it, a boiler, cars and other equipment required to crush the stone into the sizes called for by his contract with the defendant, and, subject to the defendant’s objection and exception, was allowed to put in evidence the price which he was required by the sub-contract to pay for what was furnished. The judge properly instructed the jury that the plaintiff was entitled to recover as damages, if he prevailed, the difference, if any, • between what it would have cost him to complete the work according to the contract and the sum which he was to receive therefor. Held, that the case of Smith v. Flanders, 129 Mass. 322, seemed to be’decisive in favor of the admissibility of the evidence, but that, even if the evidence was admitted wrongly, the '■ defendant could not have been harmed by its admission, as the cost of completing the work would not be enhanced by the existence of the sub-contract and ' might be diminished by it.</p>

<p>Bill in equity, filed in the Superior Court on October 12, 1907, alleging an equitable mortgage created by the conveyance on January 25, 1876, by the plaintiff to the defendant Howes of a certain parcel of real estate on Bremen Street in that part of Boston called East Boston, and by an instrument executed by the defendant Howes on the same day as follows: “ Boston, Jan. 25, 1876. Reed of Edward F. Porter a deed of real estate in East Boston consisting of a lot of land and stable thereon, apd which is to be reconveyed to him on payment of all indebtedness to me and G. A. Somerby & Sohier & Welch or either of us on account of services rendered or which any or all of us maiy render for him he having retained us as his attorneys in all matters. L. W. Howes.” ;</p> <p>The bill prayed, among other things, for an accounting and ;a reconveyance.</p> <p>In the Superior Court the case was heard by G-asTcill, J., who made a memorandum of findings containing the facts which are stated in substance in the opinion. The judge made a final decree that the bill be dismissed ; and the plaintiff appealed.</p>

<p>Probate Court, Appointment of commissioner under Buie 35, Appeal, Framing of issues. Insane Person. Guardian. Constitutional Law. Witness. Evidence.</p> <p>Where, upon an appeal from the decree of a single justice of this court affirming a decree of the Probate Court appointing a guardian of a person alleged to be insane, it appeared that the evidence had been taken down by a stenographer, who thereafter was appointed a commissioner to take the evidence under Equity Rule 35, this court did not find it necessary to pass upon the question whether'a commissioner could be appointed in that way, as they affirmed the decree appealed from, assuming for the purposes of the case that the evidence was properly before them.</p> <p>At the hearing before a single justice of this court of an appeal from a decree of the Probate Court appointing a guardian of the respondent as an insane person, the respondent conducted his case in person, and he also, against his protest, was called as a witness by the petitioners and testified as such, so that the justice who heard the case had the fullest opportunity to observe his manner and behavior, his physical condition, the way in which his mind appeared to work, the expression of his countenance, and the way he spoke and acted and appeared to feel in regard to matters that came up. There also was the testimony of an expert on insanity that in his opinion the respondent was of unsound mind, and there was evidence of acts and declarations of the respondent which could he found to tend to support that conclusion. Held, that the rule, in cases heard as this was, is that the finding of the single justice will not be set aside unless clearly erroneous, and that the court could not say that a finding that the respondent was insane was clearly erroneous.</p> <p>At the hearing before a single justice of this court of an appeal from a decree of the Probate Court appointing a guardian of the respondent as an insane person, a motion of the respondent that issues may be framed to be submitted to a jury is addressed to the discretion of the justice who hears the case.</p> <p>At the hearing before a single justice of this court of an appeal from a decree of the Probate Court appointing a guardian of the respondent as an insane person, the proceeding being of a" civil and not a criminal nature, the respondent, against his protest, may be called and examined as a witness by the petitioner without the violation of any constitutional right.</p> <p>At the hearing before a single justice of this court of an appeal from a decree of the Probate Court appointing a guardian of the respondent as an insane person, evidence of what the respondent testified at the hearing in the Probate Court is admissible, as also are a letter and a folder contained in it, incoherent in character, which were sent by the respondent to the receiver of his property appointed by the court, apparently being one of many similar communications addressed to different persons.</p> <p>A letter sent by a person adjudged to be insane to a member of the bar appointed by the Probate Court receiver of his property is not in the nature of a privileged communication from client to counsel.</p>

Tort by a workman for personal injuries sustained by him on May 17, 1904, while in the employ of the defendants. Writ dated November 28, 1904. In the Superior Court the ease was tried before Richardson, J. The plaintiff testified that on May 17, 1904, at half past ten o’clock in the forenoon, he was working for the defendants as a laborer in the construction of a building on Boylston Street, Boston.

<p>Tort, for injuries received by the plaintiff due to his being run into by an electric car of the defendant as he was crossing the street railway track in front of it, having come from behind a car going in the opposite direction, from which he had just alighted. Writ in the Superior Court for the county of Suffolk dated March 10,1906.</p> <p>The case was tried before Stevens, J., who, aj; the close of the evidence, ordered a verdict for the defendant; and the plaintiff alleged exceptions. The facts are stated in the opinion.</p>

<p>Way, Defect in highway. Negligence.</p> <p>The fact that changes in a public street of a city are being made under authority of a statute providing for the abolition of a grade crossing does not relieve the city from its statutory liability for an injury to a traveller caused by a defect in the street, if no order has been made by the proper authorities of the city for-molly closing the street to public travel.</p> <p>Vt the trial of an action of tort against a city under Pub. Sts. c. 52, §§ 17,18, to recover for bodily injury to and the death "of the plaintiff’s intestate caused by his walking at night off an abutment which the plaintiff alleged that the defendant had made in a public street in raising its grade and had not properly guarded, it appeared that the changes in the surface were being made under the provisions of a statute abolishing a grade crossing of a railroad with a public street, that the street where the abutment was had not been formally closed to travel by any vote of the authorities having the right to close it, that no lights or barriers had been placed on or near the abutment, that the street was one of several which proceeded from a public square about four hundred and fifty feet from the abutment, and that about two hundred and twenty-five feet from the abutment it was crossed at right angles by another street. Certain witnesses for the defendant stated that at the public square there were barriers, with lights and notices prohibiting travel on the street, placed across the street in question, but with spaces at the ends of the barriers large enough for persons to pass freely around the barriers, (one witness stating that there was a space of seven or eight feet at one end,) and that there were like barriers and lights across the intersecting street and on each side of but not in the street in question. There was other evidence tending to show that the public square was one much used, that many people lived and had business on the street in question and went back and forth around the ends of the barriers at the square, a beaten muddy path having been worn there by them, there being no sidewalk. The presiding judge, having left to the jury the special question whether the city maintained the barriers and lights described by the defendant’s witnesses and the jury having answered affirmatively, ruled that there was no evidence of negligence on the part of the defendant. Held, that the ruling was wrong, since the special finding related only to the existence of the barriers and lights and the question, whether they were suitable and sufficient, still remained to be passed upon by the jury.</p> <p>A traveller on a city street in many cases may be justified in thinking that a notice that the way is closed to public travel, placed upon a barrier in the street, is no broader in its scope than the barrier to which it is attached and that the thing closed to public travel is only that part of the street which is shut off by the barrier.</p> <p>At the trial of an action of tort under Pub. Sts. c. 52, §§ 17,18, against a city to recover for bodily injury to and the death of the plaintiff’s intestate, a woman about sixty years of age, caused by her walking on a dark night off an abutment thirty feet high in a public street made by the defendant in the course of raising the grade of the street, there was evidence tending to show that the abutment was about four hundred and fifty feet distant from a public square, that there was no obstruction in the street between the square and the abutment, that there were barriers in the street at the square, but with ample room at both ends for persons on foot to pass them and a muddy path worn there where persons had done so, that the plaintiff’s intestate lived on a street near the street in question and had not been on the latter street since work had been begun thereon by the city, that on the night of the accident she entered the street by passing the barriers at the square and walked straight ahead, thinking that her path was clear until, without warning, she fell. Held, that the question, whether the plaintiff’s intestate was in the exercise of due care, was for the jury.</p>

<p>Tort by the administrator •With the will annexed of Ellen McLaughlin for the conversion of $9,000 “or thereabouts” which, it was alleged in the declaration, the defendant “ wrongfully, tortiously and by means of the exercise of undue influence obtained from the plaintiff’s testatrix . . . and converted to her own use.” Writ in the Superior Court for the county of Suffolk dated May 4, 1905.</p> <p>The case was tried before Bond, J. The interrogatories and the answers to them, referred to in the opinion, were as follows:</p> <p>“ Q. What sum of money did you receive from the plaintiff’s testatrix on or about the 7th day of September, A. D. 1904? A. About $8,800.</p> <p>“ Q. What order or orders and on what savings bank or other banking institution for the payment to you of money deposited in the name of the plaintiff’s testatrix or of any person for her did you receive on or about the 7th day of September A. D. 1904 ? A. I received the following orders: — One on the Suffolk Savings Bank, and one on the Provident Institution for Savings, and two checks on the United States Trust Company.</p> <p>“ Q. State the specific amounts of money you collected on said orders and name the institution from which you received the same. A. I received about $6,800 from the United States Trust Company, about $400 from the Provident Institution for Savings and about $1,100 from the Suffolk Savings Bank.</p> <p>“Q. State what transfers if any were made of accounts in banking institutions from the name of the plaintiff’s testatrix to your name or that of any person for you or designated by you ? A. There were no transfers made in any banking institution from the name of the plaintiff’s testatrix to my name or that of any person designated by me.</p> <p>“ Q. State the sum total of money which you received from the plaintiff’s testatrix ? A. As stated in one answer.”</p> <p>Other facts are stated in the opinion. At the close of the plaintiff’s evidence, the presiding judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Negligence, Of one owning or controlling real estate, Elevator, In factory, Employer’s liability. Evidence, Remoteness, Relevancy.</p> <p>At the trial of an action against the proprietor of a shoe factory, by a young man nineteen years of age, who, while employed therein, fell down a freight elevator well, the declaration in three counts alleging negligence of the defendant in failing to protect and safeguard the elevator well as required by R. L. c. 104, § 43, failure to warn the plaintiff of the state of affairs, and, under R. L. c. 106, § 71, cl. 1, a defect in the ways, works or machinery of the factory, it appeared that the plaintiff in the course of his duties was pulling shoe racks from one room to another when the heel of his shoe came off, that he stepped to the opening of the freight elevator well and to fix his heel raised his foot and placed his right hand for support upon a bar which was across the opening, that the bar was six feet long, four inches wide and one inch thick and rested at each end upon an iron cleat or half square, that it could be moved lengthwise through the cleats, that, as the plaintiff’s hand was resting on the bar, the bar slipped lengthwise out of its support and he fell into the well; it also appeared that the plaintiff had been employed by the defendant for eight days and had had abundant opportunity to observe the condition of the opening. The presiding judge ordered a verdict for the defendant, and the plaintiff alleged exceptions. Held, that the exceptions must be overruled, since the plaintiff must be held to have assumed the risk of the displacement of the bar in the manner described.</p> <p>If, at the time when one enters into the employ of the proprietor of a factory, the opening into an elevator well therein is insufficient to satisfy the requirements of R. L. c. 104, § 43, but such insufficiency is so apparent that the employee either knows or ought to observe it, and, because of such insufficiency he is injured, he cannot recover from his employer, since he must be held to have assumed the risk of the injury which he received.</p> <p>At the trial of an action by an employee in a factory against his employer, to recover for injuries alleged to have resulted from the plaintiff’s falling down an elevator well because of an insufficient or defective guard in front of the well, if it appears that, at the time of the accident, the means of guarding the well were the same as they were when the plaintiff entered the defendant’s employ eight days before, evidence as to the condition of the opening into the elevator before the plaintiff entered the defendant’s employ properly may be excluded.</p>

<p>Insurance, Fraternal beneficiary. Fraternal Beneficiary Corporation. Trust, Resulting.</p> <p>Where a member of a fraternal beneficiary corporation in 1899 receives from the corporation a benefit certificate in which his wife is named as beneficiary, and, after his wife has died, he dies without leaving an heir or next of kin or person dependent upon him and without having designated any person as benefieiary under the certificate, in place of his wife, if the constitution and by-laws of the corporation contain no provision as to what person shall receive the death benefit under such circumstances nor as to the benefit’s reverting to the corporation, the executor of the will of such deceased member cannot recover from the corporation the benefit in an action at law, either on the ground that under the circumstances a trust results in favor of the executor, or otherwise.</p>

<p>Contract, Rescission. Equity Jurisdiction, Rescission of contract, Accounting.</p> <p>In a suit in equity for a rescission of a contract under which the plaintiff paid money to the defendant as an investment in a certain enterprise, and for an accounting as to the money, it appeared that the only agreement or contract made was that the plaintiff, by his subscription to the enterprise, became interested with the defendant and some other persons whose names he did not know in an “ underwriting syndicate for the flotation of certain copper properties in Arizona and New Mexico.” The defendant acted as treasurer and manager of the syndicate and the plaintiff paid in his money in reliance upon the defendant’s ability to manage and conduct a copper mining enterprise. The defendant failed to exercise reasonable care and prudence in the matter and the enterprise was a failure. There was no evidence of dishonesty or of fraud on the part of the defendant. Held, that the bill should be dismissed, since there was no ground for rescission of the contract.</p> <p>In the absence of fraud, nothing less than conduct on the part of one party to a contract that amounts to an abrogation of it, or takes away its foundation, gives the other party to the contract a right to rescind it.</p>

<p>Assignment, Validity. Trust, Creation. Insurance, Life. Words, “ My will.”</p> <p>An assignment of life insurance policies made to the trustees to be named in the will of the assignor, for the sole use and benefit of the assignor’s wife, who has assented to this provision for her benefit, is of no effect unless it is executed and attested as a will, because it cannot take effect until after the death of the assignor and does not create a present trust.</p> <p>In an assignment made to “ the trustees to be named in my will ” the phrase “ my will” must be held to mean the document finally admitted to probate as the will of the assignor.</p> <p>The provision of R. L. c. 118, § 78, that “ every policy of life insurance made payable to or for the benefit of a married woman, or after its issue assigned, transferred or in any way made payable to a married woman, or to any person in trust for her or for her benefit, whether procured by herself, her husband or by any other person, and whether the assignment or transfer is made by her husband or by any other person, shall enure to her separate use and benefit, and to that of her children,” has no application to an assignment of a life insurance policy purporting to be made to the trustees to be named in the will of the assignor, for the sole use and benefit of the wife of the assignor, because such an attempted assignment is of no effect, so that the policy never has been legally assigned for the benefit of the wife or in any way legally made payable to her.</p>

<p>Executor and Administrator. Bond. Scire Facias. Agency. Words, “Debts.”</p> <p>In R. L. c. 149, § 2, providing that the executor of a will, who also is the residuary legatee thereunder, may give a bond as therein provided “ with condition to pay all debts and legacies of the testator,” the word “ debts " includes all enforceable claims, and makes the executor liable on his bond for the benefit of a savings bank, which has obtained a judgment against the executor on a claim founded on the fraud of the testator, who, while standing in a fiduciary relation to the bank, induced it to lend money upon security of little value.</p> <p>On a writ of scire facias against an executor, who also was the residuary legatee of his testator, and under R. L. c. 149 gave a bond conditioned to pay all debts and legacies of the testator, in which the plaintiff makes a suggestion of waste under R. L. c. 172, § 8, and shows that he obtained a judgment against the defendant as executor on which an execution was returned unsatisfied, the defendant may defeat the action by showing that in fact there was no waste, and for that purpose he may show what the assets of the estate were and how they were used.</p> <p>At the trial of a writ of scire facias against an executrix, it appeared that the defendant, who was the residuary legatee under the will of the testator, had given a bond to pay all debts and legacies, that the plaintiff had obtained a judgment against her as executrix on which an execution against her had been returned unsatisfied, and brought the writ upon a suggestion of waste, and that the defendant had filed an account by which it was shown that she had paid debts of the testator to an amount considerably larger than the amount of the assets of his estate. The defendant testified that she had no actual knowledge or notice of the plaintiff’s claim until after all the assets had been paid to other creditors, nearly two years after the date of her appointment. There was testimony for the plaintiff that the defendant’s son, who acted for her in some matters in the settlement of the estate, was shown the plaintiff’s papers and was informed of the plaintiff’s claim at a time which probably was before the payment of the claims of some of the other creditors. The defendant’s son died before the trial. The plaintiff contended that the defendant should at least have declared the estate insolvent, so that the plaintiS might receive his share. The judge, who heard the case without a jury, found as a fact that the defendant had no actual knowledge of the plaintiS’s claim and had no notice of it, unless as matter of law the communication to her son constituted such notice. The judge ruled that the defendant might show that in fact there was no waste, and found that she had established the fact by her evidence. Held, that the judge was not bound to find as matter of law, either that the defendant’s son was so far her general agent as to bind her in a special matter of this kind by his knowledge of the testator’s liability to the plaintiS, or that the information given to him was so convincing as to be equivalent to knowledge; that the ruling of the judge that the defendant might show that there was no waste was correct, and that his finding that she had established the fact by her evidence was warranted.</p>

<p>Contract against a stockholder in a corporation organized in the State of Colorado residing at Worcester in this Commonwealth to enforce the alleged personal liability of the defendant under the statutes of Colorado. Writ dated September 17, 1907.</p> <p>The declaration was as follows:</p> <p>“ The plaintiffs say that the defendant is a stockholder in the State Bank of Monte Vista and on June 15, A. D. 1899, and at all times thereafter owned, and now owns sixty shares of the capital stock of said bank of a par value of one hundred dollars.</p> <p>“ That said bank of Monte Vista was and still is a corporation duly organized under the laws of th'e State of Colorado on or about August 1, A. D. 1890 ; that said bank did a general banking business in Monte Vista and Hooper in the County of Rio Grande, and in Creede in the County of Mineral, in said State of Colorado, until June 15, 1899, when said bank became insolvent, and on that day made an assignment of all its assets, under the laws of said State of Colorado, to Norman H. Chapman of said Monte Vista.</p> <p>“ That at the time of the organization of said bank the laws of the State of Colorado for 1885, at page 264, Sec. 1, which is now known as Sec. 533 of Mill’s Annotated Statutes, provided as follows:</p> <p>“ ‘ Shareholders in banks, savings banks, trust, deposit, and security associations, shall be held individually responsible for debts, contracts, and engagements of said associations, in double the amount of the par value of the stock owned by them respectively.’</p> <p>“ Said section has at all times since the organization of said bank been, and now is, in full force and effect, and has been interpreted by the Supreme Court of the State of Colorado, which is the highest court of said State, to impose an individual liability upon each stockholder of said bank of double the par value of stock held by each stockholder, in addition to the amount of the subscription for said stock; that this liability is solely for the benefit of the creditors of the bank, and constitutes a fund exclusively for the benefit of all the creditors, and forms no part of the assets of the corporation, and the right of action to enforce said liability accrues to the creditors themselves and not to the assignee of said bank.</p> <p>“ And the plaintiffs say that on June 9, A. D. 1905, certain creditors of said bank brought an action for and on behalf of all the creditors of said bank against said State Bank of Monte Vista, and Norman H. Chapman, assignee thereof, and all the stockholders thereof, including this defendant, in the District Court of the City and County of Denver in the State of Colorada, to ascertain and fix the amount due from each stockholder to the creditors of said bank under said liability above set out, upon an accounting of all the assets and indebtedness of said bank; and that it appears from the proceedings and record in said case that judgments have been rendered against all the stockholders of said bank who reside in the State of Colorado, and $3,250 has been collected on said liability from those who are solvent and applied on the indebtedness of said bank to the creditors, and that executions have issued against all the others and been returned ‘ No property found.’</p> <p>“And the plaintiffs say that Sec. 12 of the Civil Code of Colorado, Acts of 1887, provide as follows:</p> <p>“ ‘ If the parties to the action, those who are united in interest, shall be joined as plaintiffs, or defendants, but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint, and when the question is one of a common or general interest of many persons, or when the parties are numerous, and'it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all, and the court may make an order that the action be so prosecuted or defended.’</p> <p>“ And the plaintiffs say that under said Section 12 of the Civil Code, said court duly entered a decree on June 21, A. D. 1907, a copy of which the plaintiffs crave leave to produce at the trial of this action in proof thereof, whereby said Alfred L. Miller, Dan Workman and Phosbe C. Smith, the above named plaintiffs, were appointed to represent all creditors, and are authorized to sue for the benefit of all the creditors of said State bank and bring all necessary actions and proceedings for the purpose of collecting the stock liability from the stockholders of said bank residing outside of the State of Colorado, to the end that any and all sums so collected by them be divided ratably among the creditors of said bank in proportion to the amount of their respective claims; and by said decree it further appeared that after deducting the amounts paid by the assignee, derived from the assets and the amounts paid on the stock liability, as aforesaid, there was still due from said bank to the plaintiffs and the other creditors, the sum of $84,319.89; that said bank is wholly insolvent and without money or property from which said sum can be collected in whole or in part, and that no judgment rendered therein against said bank can be collected by execution, or otherwise; that in order to raise a fund to pay the remainder of said amount, to wit, $84,319.89, still due from said bank to the plaintiffs and the other creditors, and in order that the same be prorated equally among the stockholders, according to the amount of stock held by each of them, it is necessary for the remaining stockholders, who have not paid anything to pay 53J per cent, of their stock liability; and by said decree, the defendant is adjudged liable to the plaintiffs upon the said number of shares to an assessment of $6,420, to be collected by the plaintiffs for the benefit of all the creditors of said bank.</p> <p>“ Wherefore the plaintiffs say that the defendant owes them the amount of said assessment, with interest thereon.”</p> <p>The defendant filed the following demurrer:</p> <p>“ And now comes the defendant in the above entitled cause and demurs to the plaintiffs’ declaration, and assigns specially as causes of demurrer the following:</p> <p>“ First. It appears that under said alleged statute of Colorado as construed by the highest court of said State the alleged right of action accrued to the creditors themselves and so accrued on June 15, 1899, when said alleged bank became insolvent and made an assignment for creditors, and that said alleged rights of creditors, therefore, accrued more than six years before the suing out of the plaintiffs’ writ and was barred by the statute of limitations.</p> <p>. “ Second. That the declaration does not state a legal cause of action substantially in accordance with the rules contained in R. L. c. 173.</p> <p>“ Third. It appears that the plaintiffs are not statutory assignees, and are powerless to enforce in this Commonwealth the alleged rights of the creditors. [Followed by subdivisions a and b here omitted.]</p> <p>“ Fourth. That the pretended decree, entry whereof is alleged in the support of this action, does not appear, on the allegations of the declaration, to be such a decree as to be entitled to faith, credit or effect in the courts of this Commonwealth, and therefore does not support the action, or show any cause of action against this defendant in favor of the plaintiffs.” [Followed by subdivisions a, b, c, d, e and f here omitted.]</p> <p>In the Superior Court Graskill, J., overruled the demurrer, and, being of the opinion that the matter ought to be determined by this court before any further proceedings in the trial court, reported the case for determination by this court, and stayed all further proceedings except such as were necessary to determine the rights of the parties.</p>

<p>Damages, For property taken or injured under statutory authority. Way, Extent of public easement. Elevated Railway.</p> <p>Upon a petition for the assessment of damages under St. 1903, c. 163, § 3, for injury to the petitioner’s dwelling houses on Boylston Street in Newton by the trestle constructed, and used during a certain period, by the Boston and Worcester Street Railway Company over and across the tracks of the Boston and Albany Railroad on that street under the authority given by § 1 of the same chapter, it appeared that the trestle was a structure of timber twenty feet high and was erected in the middle of the street in front of the petitioner’s houses, and that the effect of its construction and operation was very similar to that produced by the construction and operation of an elevated railway in a large city, and there were facts which warranted a finding that the trestle, if its construction had not been authorized by the statute, would have been a private nuisance of a grave character to the petitioner’s property, and that its maintenance, in the absence of such authority, would have been a use of the street which would have been unreasonable under the general taking. Held, that upon such a finding the right to construct and use the trestle could not be included in the easement acquired by the public when the street was laid out, and that under St. 1903, c. 163, there would be a taking of the petitioner’s property by right of eminent domain, which would make him a person “legally damaged in his property by the construction, maintenance or use of the said trestle ” under § 3 of that statute. Held, also, that the fact that the damage was not permanent did not affect the petitioner’s right to recover compensation for that which he had suffered.</p>

<p>Practice, Criminal, Exceptions, Charging jury. Witness, Impeachment of. Pleading, Criminal, Indictment. Accessory.</p> <p>At the trial of an indictment for murder before two judges of the Superior Court, the counsel for the defendants made orally an offer of evidence which was excluded by the judges. The defendants’ counsel indicated an intention to save an exception to the exclusion of the evidence, and the court said that which fairly implied that an exception had been saved. It was arranged that the defendants’ counsel should put their offer of proof in writing and present it to the judges. On the morning of the next day of the trial such an offer in writing was presented to the judges, and was not referred to again by the judges or the counsel until the case had been given to the jury, when it was discovered that the judges understood that the arrangement for the presentation of the offer in writing was in order that they might consider it in writing instead of ruling upon the oral statement. The counsel for the defendant believed that the court had ruled and had excluded the evidence and believed that their exception to the ruling was recognized and had been saved to them. The judges refused to allow the exception, and, upon a petition to prove exceptions, a commissioner to whom the petition was referred found the facts above stated and also found “ that the words of the court gave the counsel reasonable cause to believe that their right was saved to them.” Held, that the exception should be allowed.</p> <p>At the trial of an indictment for murder against a number of defendants, all of whom were foreigners of the same race, the defendants offered to prove that a person, who had assisted the police officers as an interpreter in their efforts to ascertain the facts and to arrest the guilty parties, had tried to induce certain four persons to give false testimony against the defendants and had paid to each of them a substantial sum of money upon his promise to give such false testimony, and also that a police officer, who helped to arrest some of the defendants and assisted in obtaining evidence of the facts communicated to the district attorney, was implicated in the effort to procure false testimony from some of the four persons. The evidence thus offered was excluded. None of the four persons, from whom it was alleged that the false testimony was sought, testified at the trial, and the evidence was not offered in contradiction of or to affect the credibility of any witness. Held, that the exclusion was proper; that . there was no such legal identity or privity between the interpreter or the police officer and the Commonwealth as to make proof of such dishonest and criminal conduct on their part admissible to disparage the prosecution of the case.</p> <p>At the trial of an indictment for murder against a number of defendants, where one of the witnesses for the government is a police officer who helped to arrest some of the defendants and assisted in obtaining evidence of the facts communicated to the district attorney, if evidence is offered to impeach his testimony, to the effect that he was implicated in an attempt to procure false testimony against the defendants, the evidence thus offered is admissible as affecting his credibility, but, if, in a case where such evidence was offered and excluded, it appears that the witness testified only as to undisputed matters and to nothing that tended to show guilt as to any of the defendants who excepted to the exclusion of the evidence, such an exception will not be sustained, because, if the jury had believed the evidence which the defendants offered and in consequence had given less credence to the statements of the witness, the result of the trial could not have been affected.</p> <p>In a criminal trial, as in a civil one, it is within the discretion of the presiding judge or judges to refuse to permit a witness to be asked on his cross-examination a question which he already has answered twice to the same effect, especially where the question relates to an immaterial matter.</p> <p>In an indictment for murder in the first degree the words “ deliberately premeditated ” are not necessary, a charge in the form prescribed by It. L. c. 218, § 67, being sufficient.</p> <p>In an indictment for being accessory before the fact to a murder it is sufficient to follow the form prescribed by K. L. c. 218, § 67. If the defendant needs more definite information, § 89 of the same chapter gives him a right, on motion, to a bill of particulars.</p> <p>In a criminal, as in a civil case, the presiding judge or judges properly may refuse to instruct the jury upon a particular part of the evidence, it not being the duty of a judge to deal with particular facts any further than seems to him necessary for the proper presentation of the issues in the case.</p>

<p>Bill in equity, filed in the Supreme Judicial Court, as amended, on July 13, 1906, by the trustee under a contract made on February 15, 1879, by the Massachusetts Hospital Life Insurance Company with Arthur W. Austin, late of Milton, for the benefit of Henry W. Austin, his son, praying for instructions as to his duties as such trustee under the contract in connection with the sixth article of the will of Arthur W. Austin proved oh September 3, 1884.</p> <p>Also another bill in equity, filed in the Supreme Judicial Court on October 4,1907, by the trustees under the will of Arthur W. Austin, praying for instructions.</p> <p>Thé cases were referred to William H. H. Emmons, Esquire, as master, who filed a report. Later the cases came on to be heard by Morton, J., who reserved them upon the master’s report, the exceptions thereto in each case and so much of the pleadings as might be material, for determination by the full court, such decree to be entered as law and justice might require.</p> <p>The contract above referred to was as follows:</p> <p>“ Annuity in Trust.</p> <p>“ The Massachusetts Hospital Life Insurance Company in consideration of the principal sum of twenty-five thousand dollars and cents, received by them of Arthur W. Austin for the benefit of his son Henry W. Austin of Milton in the State of Massachusetts in trust as heretofore mentioned, the receipt whereof is hereby acknowledged, do hereby promise and agree to and with the said Ai’thur W. Austin, his executors and administrators, that the said company shall and will invest the same in bank or other stock, or in real estate, or place the same out at interest on mortgage or other security at the discretion of the directors ; and that the said company shall and will yearly and every year during the natural life of said Henry, pay or cause to be paid, to said Arthur for his use during his life, and at his decease to be paid to Henry D. Austin, brother of said Arthur if living, for the benefit of said Henry, payable to him at his discretion, in such sums as he may think judicious. If said Henry D. shall have deceased the actuary of said company for the time being to appoint some trustworthy person to act, in yearly payments on the first day of January in each and. every year during the natural life of said Henry, (unless added to the principal sum as provided below) the first payment to be made on the first day of January next the same rate of interest on said principal sum as the said company shall actually make and receive upon their capital stock paid in, and the other property in their possession, including real estate, stocks of the United States, bank or other stocks, notes, bonds, and mortgages, after deducting all necessary expenses and charges (excepting office rent and the salaries of the company’s officers and servants) and all actual losses by bad debts or otherwise, not arising from the actual fault of the company or their servants, and also half of one per centum per annum for the expenses of their office, and the labor, trouble and responsibility of investing, taking care of, and managing said Trust property. The said principal sum received of said Arthur to be invested and managed, and the amount of the income thereof to be estimated, ascertained and determined by the directors of said company, in the way and manner provided in the extract from the article on Annuities in Trust, printed at the bottom. Interest to commence August 15, 1879.</p> <p>“If the grantees of this annuity shall at any time become bankrupt or insolvent, or if their interest under this annuity shall be attached or seized on any process of law or in equity, their right to receive payment of the annuity in money shall forthwith cease, and thereafter, the company instead of paying said annuity in money to said grantees, shall retain the amount in their hands, and thereafter, while the money remains in the hands of this company, shall apply and expend the same, as it shall fall due, in such way and manner as said Arthur, his executors or administrators shall in writing direct and appoint; or in default of such directions and appointment, the directors of said company shall, at their discretion, either appropriate the same for the use and benefit of any child or children of said grantees, in such way and manner as they may think expedient, or shall add the income thereof to the principal sum to increase the same, to be disposed of in like manner as is provided in relation to said principal sum on the death of said grantees, or shall apply or expend the amount of the income from time to time as said directors may deem to be most in accordance with the true intent and meaning of this contract.</p> <p>c< And the said company, for the consideration aforesaid, further promise and agree that, in sixty days after the decease of the said Henry W. Austin they will assign, transfer, and pay the amount of the aforesaid principal sum (or such part thereof as shall not have been lost by bad debts or otherwise, without the actual fault of said company or their servants) and all interest then due thereon at the time of said death, in real estate, stocks, notes, bonds, and mortgages, belonging to said company, all, any or either of them, at the pleasure and discretion of the directors, at the prices at which the same respectively shall stand charged in the books of the company at the decease of said Henry W. in the way and manner provided in said extract from said article, to said Arthur W. Austin, his executors or administrators.</p> <p>„ “ In witness whereof, the said Massachusetts Hospital Life Insurance Company have, by their actuary and secretary duly empowered for this purpose, signed and delivered this contract, this fifteenth day of February, one thousand eight hundred and seventy-nine.</p> <p>“ J. C. Braman, Samuel C. Cobb,</p> <p>Secretary, Actuary.”</p> <p>Henry D. Austin died before Arthur W. Austin, and, upon the decease of the latter, one James W. Austin was appointed and served as trustee, who, being deceased, was succeeded by one Walter Austin, who was succeeded by the plaintiff in the first case.</p> <p>The fifth and sixth articles of the will of Arthur W. Austin were as follows:</p> <p>“ 5th. I hereby give and bequeath to each of my children living at my decease the sum of One Thousand Dollars, which is to be held in trust by my Executors and to be paid or to be expended by them for the support of the children respectively during the year after my decease, and it is to be paid or expended in such sums and in such manner as may seem to my Executors judicious.</p> <p>“ 6th. Having invested in the Massachusetts Hospital Life Insurance Company of which Samuel C. Cobb is actuary on the 15th of February, 1879, a sum for the benefit of each of my children, the income of which is for their support respectively, in case the income does not amount annually to $1,200 for each respectively, I direct my Executors to supply any deficiency from that sum, from the income of my other estate, so that each may have $1,200 per annum for their support. And the one thousand dollars to be used for my son Henry W. Austin under the fifth item of this Will with the above provision is to be in full of his portion of my estate, I being convinced that $1,200 per annum for his support will be sufficient for all his necessary wants, and that more would be injurious.”</p> <p>On February 7, 1903, Henry W. Austin executed an instrument purporting to assign and transfer to two persons named, to be divided between them proportionally, “ all income and moneys hereafter payable to me as beneficiary under terms of the will of my late father, Arthur W. Austin, duly probated in the Probate Court, Suffolk County, Massachusetts, whereof Walter Austin is now trustee; To have and to hold said income and moneys to their own use and benefit until said sum and my notes to them with interest be duly paid.” The assignment was made to secure the repayment of certain sums of money lent and to be lent to the assignor by the assignees and the payment of certain notes given by him to them.</p>

<p>Bill in equity, filed in the Superior Court for the county of Suffolk on December 8, 1904, alleging that the plaintiff and the defendant had been partners, that the business of the partnership had been sold and that thereafter the defendant had had charge of the liquidating of the firm accounts, and on account of such liquidation owed certain sums to the plaintiff; and praying that the defendant be ordered to account with the plaintiff, and “ that the defendant be required to immediately wind up the affairs of the company, dissolve the same in due form, and pay over to the plaintiff the amount found due on said accounting,” and for general relief.</p> <p>The case was referred to Wellington Wells, Esquire, as master. In his report, beside the facts stated in the opinion, he found in substance the following :</p> <p>Previous to January 1,1899, the plaintiff and the defendant had been engaged in business as partners under the firm name of the Boston Felting Company. There was an accounting between them in December, 1895. On January 1,1899, they sold out the partnership business to the American Felt Company, but reserved to themselves the accounts receivable and assumed bills payable up to that time. After the business was sold out, the plaintiff and the defendant were both employed by the American Felt Company.</p> <p>The defendant’s continued relations to the partnership are stated by the master in the following terms: “ I find upon all the evidence that the defendant was the liquidating partner of the business of the Boston Felting Company ; that there was no express agreement at the time the partnership was formed, or subsequent thereto, that the defendant should receive compensation for his services in settling the affairs of the partnership; that the defendant rendered these services with the knowledge and consent of the plaintiff, and that these services were equally beneficial to the plaintiff and the defendant.” Consequently, the master disallowed a claim of the defendant for $1,787.63 for his own time and personal services in litigation relating to a claim of $13,000 of the partnership against a debtor whose property was in the hands of a receiver. He also found that the value of such time and services was $600.</p> <p>The facts with regard to the claim against the American Felt Company are stated in the opinion.</p> <p>The master also found: “ An item for $1,229.05 on the exchange account, I find was charged off to profit and loss by the bookkeeper at the direction of the defendant while she was working on the new account. By this account it appeared that a check of the firm had been drawn, payable to one Hattie I. Babcock, for the sum of $1,250 and dated June 10, 1899. This check was not produced in evidence, and I find it has been destroyed. The defendant testified that all the checks of the partnership were destroyed some time shortly after the business was sold out to the American Felt Company. The plaintiff testified that he had never destroyed any of the checks or authorized their destruction by any one else, or had known of their destruction until the hearing of this case. I find that the stub in the check-book corresponding to the number of the destroyed check bore this entry in the handwriting of . . . the bookkeeper, ‘$1,250.00 June 10th, 1899, Hattie I. Babcock Exchange for cash $1,250.00.’ Ho evidence was introduced in regard to the indorsements on said check. I find that the defendant almost invariably signed the firm check, except on one occasion when the plaintiff signed the firm’s check payable to one Woodruff; that when the defendant was to be out of town he generally left some firm checks signed in blank which were later filled out, as occasion required, by the bookkeeper, and sometimes under the direction of the plaintiff if he was in the office. The bookkeepers testified that they had no recollection of this check or the circumstance under which it was given.</p> <p>“ I find that the defendant was the attorney in fact for the executors under the will of one Chapin which was probated in Florida. Under the provisions of this will, one Clarissa Babcock, who was the sister of the testator, was the beneficiary for life of the income of a quarter of the estate, with the remainder over to one Hattie Babcock, who was her daughter. The defendant testified that he did not recall any Hattie I. Babcock. The books of the firm on the personal account of the defendant showed that on June 10,1899, he paid to one Hattie I. Babcock the sum of §31.25.</p> <p>“ I find that the defendant swore to an account of the said estate as of June, 1898, which account shows a distribution of §1,250 to one Clara Babcock who I find from the evidence was the same person as the Clarissa Babcock named in the will.</p> <p>“ After the plaintiff had introduced evidence of the probating of said estate, the defendant testified that he inquired at home after giving his previous testimony, and his wife informed him that she had a relative by the name of Hattie I. Babcock who was a niece of the testator named in said will, and he then testified that this information did not refresh his recollection in any way in regard to the §1,250 check.</p> <p>“The plaintiff testified that he never knew a Hattie I. Babcock and had no knowledge of this check until he heard the evidence at this trial.</p> <p>“ I find that ... in June, 1899, the Boston Felting Company was doing no business except on account of the American Felt Company. The account of the Boston Felting Company with the American Felt Company was closed in March, 1900.</p> <p>“ I find that the pass book of the said partnership showed no deposit of cash of the amount of §1,250 or of any sum nearly as large during the period of several weeks after the date of said check. I find that the firm had exchanged their checks for cash during that time and that some of them were for sums nearly as large, but that almost all of these, and particularly the large ones, were for customers. I find that the firm had no customer by the name of Hattie I. Babcock. I find it was the custom of the bookkeepers to put the cash into the drawer and pay with it any bills which were presented, and that it might be some days after the cash was received before a deposit of what remained of it was made. The bookkeepers further testified that when they paid bills from cash out of the drawer, they made slips showing the transaction, which slips were copied into an account and sent monthly to the New York office of the American Felt Company and that the slips were then destroyed. None of these slips of the books of the American Felt Company were produced at the hearing, though demand to produce them was made by the plaintiff upon the defendant.</p> <p>“ I find that about the date of this check the Boston Felting Company was not contracting indebtedness or paying bills therefor on its own account in cash. . . .</p> <p>“ Upon all the evidence I find that there was no agreement, between the plaintiff and defendant that this balance should be charged off to profit and loss; I find that the defendant has not satisfactorily accounted for said sum, and I rule that the defendant, as liquidating partner, is chargeable to the plaintiff for the latter’s share thereof.”</p> <p>The substance of the defendant’s exceptions sufficiently appears in the opinion. There was a hearing upon the exceptions before Fox, J., who overruled them and decreed that the master’s report be confirmed and that the sum therein found to be due to the plaintiff be paid to him by the defendant. There was no decree for a dissolution. The defendant appealed.</p>

<p>Tort for deceit in the sale of land. Writ in the Superior Court for the county of Middlesex dated January 18, 1906.</p> <p>The ease was tried before Stevens, J. The facts are stated in the opinion. The jury found for the defendants; and the plaintiffs alleged exceptions.</p> <p>The case was submitted on briefs.</p>

Contract for damages resulting to the plaintiff from a refusal by the defendant to permit the plaintiff to carry out a contract in writing which provided that the plaintiff for an agreed price should do the fireproofing for a building for the Knights of Columbus at New Haven, Connecticut, being erected by the defendant as general contractors. Writ in the Superior Court for the county of Middlesex dated September 13, 1905.

Contract, for interest at the rate of six per cent per annum from the date of the death of the defendant’s testatrix upon the amount of a bequest to the plaintiff. Writ in the Superior Court for the county of Suffolk dated March 10, 1908.

<p>Sale, Vendor’s lien. Lien. Carrier, Stoppage in transitu. Replevin.</p> <p>Where a vendor consigns goods shipped by freight to its own name in the city where the purchaser does business, and, upon being notified by the carrier of their arrival at their destination, expressly authorizes the carrier to deliver the goods to the purchaser, and the carrier thereupon at the request of the purchaser transports the goods to the carrier’s warehouse in a neighboring city and stores them there in the name of the purchaser, the vendor cannot maintain replevin against the carrier for the goods, since, although the freight charges for the original shipment of the goods remain unpaid, he no longer has any right to the possession of the goods, both because he has lost his vendor’s lien by the delivery to the purchaser’s order, authorized by him, and because the goods are no longer in transit in the course of the shipment made by him, but have entered upon a new shipment and upon storage authorized by the purchaser alone.</p>

<p>Negligence, Employer’s liability.</p> <p>A boy seventeen years of age employed in a paper mill as a third hand upon a paper machine one hundred and fifty feet long, on which dryer rolls and calender rolls revolve with great rapidity, whose duty it is to go into a narrow space between the two kinds of rolls and take out the broken paper which has fallen to the floor, if he knows that the whole machinery is “ helping to pull the paper through ” and that “ the calender rolls were going when the paper was in there,” but does not know that there is a suction caused by the revolution of the calender rolls and a likelihood that a roll of paper may be sacked in by those rolls, does not assume the risk of an injury caused by a roll of paper, which he has gathered up and is carrying in his arms, being sucked in by the calender rolls so quickly that he cannot let go of the paper before his hand is drawn in between the rolls.</p>

<p> Negligence. Railroad. Agency. </p> <p>If the foreman of section men, who have been removing old ties from the bed of a railroad near a station, gives some of the ties to a stranger, at his request, with permission to take them away, and in taking them away the stranger places two of the ties on the passenger platform of the station, and negligently leaves them there, where a passenger, alighting from a train after dark, stumbles over them and is injured, in an action by such passenger against the railroad corporation maintaining the track and station for his injuries thus caused, there is no evidence that the stranger who left the ties on the platform was the agent of the defendant in doing so, but it is a question for the jury whether the section foreman or the station master, who knew that a stranger was at work removing the ties, was negligent in not preventing the leaving of the ties on the platform where a passenger alighting from a train would be likely to stumble over them.</p>

<p>Contract upon a policy of accident insurance issued by the defendant, to recover $10,000 and interest thereon for the accidental loss of the plaintiff’s right hand, which was injured by fire in a burning building on November 18, 1907, and was amputated on November 22, 1907. Writ dated April 15,1908.</p> <p>In the Superior Court the case was tried before White, J. Among the instructions requested by the defendant were the following:</p> <p>“ 6. The. plaintiff made a warranty in the contract. or policy of insurance declared upon that no application ever made by him for insurance had been declined, and this warranty was not true in fact, and the plaintiff made the same well knowing it to be untrue and with the actual intent and purpose to deceive the defendant and the jury must find for the defendant.</p> <p>“ 7. The plaintiff made a warranty in the contract or policy declared upon that he had not in contemplation at the time of the issuance and acceptance of the policy any special journey or hazardous undertaking, whereas at the same time the plaintiff had in fact a special journey in contemplation and that this warranty was material and was not true in fact and was made with actual intent and purpose to deceive the defendant and the jury must therefore find for the defendant.</p> <p>“ 8. The plaintiff made a warranty in the contract or policy declared upon that his income per week exceeded the gross amount of weekly indemnity under all policies carried by him and this warranty was material and was not in fact true and the plaintiff made the same knowing that it was untrue and that the plaintiff made it with actual intent and purpose to deceive this defendant and therefore the jury must find for the defendant.”</p> <p>The judge refused to give these and other instructions requested by the defendant, and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $10,896.72. The defendant alleged exceptions, raising the questions stated and described in the opinion.</p>

<p>Contract, What constitutes, Performance and breach. Damages.</p> <p>The following offer was made by one corporation to another and was accepted by the corporation to which it was addressed: “ Gentlemen: —I am authorized by our board, of directors to offer you the sum of $100,000 for your property on Camden Street in Boston which we are now occupying on a lease, the terms to be as follows : $5,000 cash when signing papers, $5,000 cash on delivery of the deed, remainder to remain on mortgages, you to take a second mortgage with interest at 6% and arrange for renewal of first mortgage or extension of it until it can be placed for a term of years, you to pay a sufficient sum on the first mortgage in order to get it extended, payments to be arranged so that we shall pay you the sum of $11,000 per year, you to pay interest on the mortgages and taxes and the balance to be applied to the purchase price of the property, you to pay the insurance up to the time it is transferred to us, also the taxes for the year 1903.” Meld, that the offer was not a mere preliminary proposal, but with its acceptance constituted a contract which fixed the rights of the parties, and that it contained a sufficiently definite and certain statement of all the essential terms which the parties then intended to introduce into their contract, and consequently was not too indefinite to be the foundation of a final agreement.</p> <p>In an action for the alleged breach of a contract to buy certain real estate from the plaintiff for the sum of $100,000, if it appears that the defendant refused to buy the property except upon a condition which was not contained in the contract, so that the plaintiff was excused from further performance or offer of performance on his part, but it is admitted that $100,000 was no more than a fair price for the property, it seems, that the plaintiff cannot recover more than nominal damages for the failure of the defendant to pay that price for it.</p> <p>In an action for the breach of a contract to buy from the plaintiff for $100,000 certain real estate, which was subject to a mortgage, the plaintiff alleged that the defendant by conspiracy and combination with the mortgagee made it impossible forthe plaintiff to perform his contract. It appeared that the mortgagee refused to extend the mortgage and proceeded to a foreclosure under a power of sale contained in the mortgage, that by the terms of the sale a deposit of $5,000 was required, that the attorney for the plaintiff was the highest bidder . and the property was knocked down to him for $65,000, but that he failed to deposit $5,000 in cash and offered instead a cashier’s check for that amount, which the auctioneer after consultation with the attorney for the mortgagee refused to accept, that the attorney for the mortgagee was mistrustful in regard-to the validity of the check because it had been issued for several weeks and had been used at an injunction trial two weeks before, that the attorney for the. plaintiff asked for a suspension of the sale for fifteen or twenty minutes to enable him to get the money on the check, saying that he could get the money at the bank and return within that time, and there was evidence that he could have done so. Thereupon the property was put up again and the only bidders were the attorney for the mortgagee and the attorney for the defendant, and the property was sold to the attorney for the defendant for $60,400, and the attorney for the defendant immediately deposited $5,000 in cash with the auctioneer. Held, that the evidence would not warrant a finding that there was any conspiracy between the defendant and the mortgagee to deprive the plaintiff of his rights or disable him from performing his contract, that the defendant had a right to bid at the sale and to acquire the property in the manner that he did for a smaller price than that stipulated in his agreement with the plaintiff, that the mortgagee’s attorney and the auctioneer had a right to refuse to receive a cashier’s check instead of actual money, especially under the circumstances, and also had a right to refuse to give the plaintiff’s attorney time to procure the money on the check. Whether the facts could be made the ground of a bill of equity to avoid the sale was not before the court.</p>

<p>Attorney at Law. Practice, Civil, Appeal, Discretion of court.</p> <p>A petition, filed in the Superior Court, alleging that an attorney at law, who was a member of the bar of the Commonwealth, while acting as attorney for the petitioner had collected $8,000 due to the petitioner and had failed to pay it over to him because, as he admitted, he had lost it in speculation on his own account, and that the attorney had promised to pay the petitioner $5,000 of that amount but had failed to keep his promise to do so, and praying for an “ order and decree ” that the attorney should pay to the petitioner $5,000 and interest and costs and, in default thereof, that he should “ be punished according to law as in such cases made and provided, and for such other and further relief as ” the court might “ deem just and proper,” is a proceeding upon the law side of the court, and upon an appeal from an order dismissing the petition questions of discretion cannot be considered.</p> <p>A petition in the Superior Court, which alleges that an attorney at law, who was a member of the bar of the Commonwealth, while acting as attorney for the petitioner collected $8,000 due to the petitioner and failed to pay it over to him because, as he admitted, he had lost it in speculation on his own account, and that the attorney promised the petitioner to pay him $5,000 of that amount but failed to keep his promise, and which prays for an “ order and decree ” that the attorney shall pay to the petitioner $5,000 and interest and costs and, in default thereof, that he shall “be punished according to law as in such cases made and provided, and for such other and further relief as ” the court may “ deem just and proper,” is not recognized by the statutes as an authorized proceeding for the collection of such a debt, and, while the court, as a part of its power of regulation of the conduct of its own officers, might make an order for the payment into court of money collected by an attorney and not paid over, and might punish the attorney for contempt if he disobeyed the order, the making of such an order would be an exercise of discretion, from a refusal to exercise which no appeal lies.</p>

<p>Contract for rent. Writ in the Municipal Court of the City of Boston dated October 20, 1906.</p> <p>On appeal to the Superior Court, the case was heard by Raymond, J., without a jury. The facts are stated in the'opinion.</p> <p>At the close of the evidence, the plaintiffs asked the presiding judge to rule as follows:</p> <p>“ 1. Upon all the evidence the defendant was a tenant at will and the plaintiffs as á matter of law are entitled to recover.</p> <p>“ 2. The defendant remaining in possession of the premises leased to him after the termination of his lease and rent being paid quarterly by the defendant and accepted by the plaintiffs after the termination of said lease, created as a matter of law a tenancy at will and the plaintiffs were entitled to a written notice to terminate the tenancy, as provided by statute.</p> <p>“3. Upon all the evidence the plaintiffs are entitled to a verdict.”</p> <p>The defendant requested the following rulings :</p> <p>“ 1. After the expiration of the lease the defendant remained on the premises as a tenant at sufferance.</p> <p>“ 2. After the expiration of the lease the mere payment of a quarter’s rent by the defendant did not change his tenancy at sufferance to a tenancy at will. . . .</p> <p>“ 4. There must have been an acknowledgment on each side of a tenancy at will or acts constituting what is equivalent thereto on the part of both the plaintiffs and defendant of the intention to consider the defendant a tenant at will, in order to change the tenancy at sufferance to a tenancy at will.</p> <p>“ 5. Upon the facts proved the plaintiffs cannot recover.</p> <p>“ 6. The notice of January 30, 1905, did not change the tenancy at sufferance to a tenancy at will. . . .</p> <p>“ 8. The notice as given on January 30, 1905, if necessary, was sufficient notice of intention to quit from the defendant to the plaintiffs.”</p> <p>The presiding judge refused to rule as requested by the plaintiffs, gave the rulings requested by the defendant, and further ruled “ that the defendant did not assent to become a tenant at will and the fact of holding over and payment of rent did not constitute him a tenant at will,” and “ that, as a matter of law, the defendant was not a tenant at will but was a tenant at sufferance, and not liable to pay rent for the same beyond such time as he actually occupied or detained them, to wit, beyond the month of April, 1905; and that as a matter of law, the facts would not warrant a finding for the plaintiffs.”</p> <p>Accordingly, the judge found for the defendant; and the plaintiffs alleged exceptions.</p>

<p>Tort for personal injuries alleged to have been received by the plaintiff while he was in the defendants’ employ and to have been due to a defective condition of a tube expander which was furnished to him to work with. Writ in the Superior Court for the county of Middlesex dated January 27, 1905.</p> <p>There was a trial before Aiken, C. J. The plaintiff testified that he was forty-one years old, that he had been a machinist for fifteen years or more, and that he had used tube expanders before, and had used the particular one which caused the accident three times; that on October 19, 1904, he was ordered by the defendants’ superintendent to go the next morning at about three or four o’ clock to a certain factory and expand the tubes of a boiler; that when he went to the shop of the defendants about three o’clock in the morning of October 20, before the shop was open, to get his tools, he found this tube expander lying beside his own box of tools inside the shop; that it was of the requisite size, and the only one of that size in the shop so far as he knew ; that the defendants had a tool room which was locked at night; that “ the practice was when a tool was wanted they asked the boss for it ”; that the plaintiff took the tube expander and proceeded to the shop where the boiler was, and “rolled,” i. e. expanded, a couple of boiler tubes, “ the process being to strike with his machinist’s hammer on the head of the pin of the tube expander, which, being tapering toward the other end, was thereby forced farther into a cylinder which formed part of the tool and was inserted in the end of the tube, and by being forced in operated to push outward some rolls which were inserted in the cylinder, and so expanded the end of the boiler tube ”; that he started to roll a third tube and struck the head of the pin a' square blow with his hammer when a flash occurred, and one or more small pieces of steel broke and flew from the head of the pin and pierced his left eye; that the tube expander showed bright spots where clipped off; that he subsequently tried to file the head of the pin, but the file would not “ touch it ” and that this indicated that it was very hard; that the defendant Marrinan stated after the accident in the presence of the plaintiff and others that he bought the tube expander hardened; that the plaintiff did not know at the time of the accident that the tube expander was hardened and could not tell by looking at it whether it was hard or soft; that he had never seen tools when pounded on flash and break off as this one did; that he had never worked with them in the dark; that he had used cold chisels and prick punches many times, and that the parts of them on which he pounded were of soft steel; that he had worked on lathes, turning and boring, and turning shafting, and used all kinds of tools like an ordinary machinist.</p> <p>There also was testimony by experienced machinists that the regular machinist’s hammer is hard and that if a hardened piece of steel is struck with it the result is likely to be a flash and a flying off of a piece of steel with sufficient force to pierce the flesh or eye; that if the steel pounded on is annealed it will “ upset ” or roll over, but not fly off; that the process of annealing is by heating the steel red hot and letting it cool gradually without water; that the head of the pin of a tube expander is not usually hardened and should be soft; that the head of a tool pounded on becomes hammer-hardened from constant use, that is, its temper is increased by striking with a hammer; that the method of testing the temper of steel is by filing it, and if the file does not “ touch ” the steel it is hard and brittle.</p> <p>At the close of the evidence for the plaintiff the presiding judge ordered a verdict for the defendants on the ground that the plaintiff assumed the risk of the accident as one of the risks of his employment; and the plaintiff alleged exceptions.</p>

<p>■ Tort for personal injuries received by the plaintiff on May 12, 1893, while in the employ of the Fitchburg Railroad Company at Rotterdam Junction, New York, through having his hand caught in a coupling by reason of alleged negligence of a switching crew alleged to have been employed by the defendant as lessee and operator of the West Shore Railroad. Writ in the Superior Court for the county of Suffolk dated July 22,1893.</p> <p>The case was tried before Sherman, J. There was evidence tending to show the following facts:</p> <p>At the time of the accident the plaintiff had been a brakeman in the employ of the Fitchburg Railroad Company for three years. In the spring of 1893, he became a baggageman. Previous to the accident, he had been at Rotterdam J unction not more than six times and was not familiar with the conditions there nor with the manner of carrying on business at the yard there.</p> <p>Between three and four o’clock in the morning of May 12, 1893, while it still was dark, the plaintiff, under orders from the conductor of the train upon which he was to work on its way to Boston, was assisting in coupling an engine to baggage and express ears. Other cars had not yet been attached. While he was so engaged, some sleeping cars, propelled by a switching engine and under the control of a switching crew, were pushed with a force which was unusual against the cars which the plaintiff was coupling and drove them ahead several feet although their brakes were set, and the plaintiff’s hand was caught and severed from his arm.</p> <p>Several witnesses testified that there was no one upon the forward end of the sleeping cars as. they approached and that no apparent means were taken to communicate to the engineer of the switching engine when to stop because of the cars which he was approaching. At the time of the accident, the plaintiff did not know that there was any agreement for joint operation and control of the yard.</p> <p>The evidence of the defendant tended to controvert that of the plaintiff on nearly all of the material issues.</p> <p>The deposition of one Benjamin was read by the plaintiff. From the deposition it appeared that, at the time of the accident to the plaintiff, the deponent was acting as yardmaster at the Rotterdam Junction yard. At the time of the taking of the deposition, the defendant objected to the following interrogatory as “ incompetent, irrevelant and immaterial ” and as “ calling for facts not shown to have been actually observed by the witness and as calling for hearsay evidence.” When the deposition was read to the jury, the objection by the defendant was renewed. The answer was read subject to the defendant’s exception. The question and answer were as follows:</p> <p>“ Q. What steps did you take to ascertain whether or not any of the crew of the Fitchburg train was in a position of danger when the shifter was pushing the sleepers toward said Fitchburg cars, and what did you learn as a result of taking such steps ? A. I didn’t take any steps to ascertain if any of the Fitchburg crew were in danger. The train was in the yard conductor’s charge, but he didn’t take any such steps.”</p> <p>In the course of the direct examination of one Harriman, a witness for the defendant, he testified that at the time of the accident to the plaintiff he was serving as agent for the joint yard at Rotterdam Junction for the defendant and the Fitchburg Railroad Company under the contract described in the opinion. He was asked by the defendant’s counsel “ Under the practice there, what was the method whereby the men were protected in the operation of their work, as to whether they looked out for themselves or otherwise ? ” The plaintiff objecting, the defendant’s counsel made the following offer of proof: “ What I want to get at is whether in going in between the cars of the Fitch-burg train there it devolved upon the man doing it to look out for himself, to use his eyes and look out for other trains. I wish to show, in the specific way of doing work there, it devolves upon Mm to look and ascertain whether the shifter is at work at the other end of the train.” The question was excluded, and the defendant excepted.</p> <p>Other facts are stated in the opinion.</p> <p>At the close of the evidence, the defendant asked the presiding judge to rule as follows:</p> <p>1. “ That on all the evidence the plaintiff could not recover.</p> <p>2. “ On the evidence, the plaintiff and the crew of the shifter were fellow servants, and the defendant is not liable to the plaintiff for the negligence, if any, of the said shifting crew.</p> <p>3. “ On the evidence, the jury would be justified in finding that the plaintiff assumed the risk incident to the position he took between the cars and the engine.</p> <p>4. “The test of the question whether the plaintiff and the other men engaged in the same work of making up the train in the joint yard were fellow servants or not is whether they were all subject to the control, orders and directions of the same master for that time, at that place and in that undertaking.”</p> <p>The presiding judge refused to rule as requested, and in Ms charge to the jury stated, “ I have ruled that that sMfting crew are not fellow servants with the plaintiff, and that the plaintiff may recover, as against the sMfting crew, for the carelessness of that sMfting crew, it being admitted that they are the servants of the defendant jointly with somebody else, if they were negligent.”</p> <p>The jury found for the plaintiff; and the defendant alleged exceptions.</p>

<p>Marriage and Divorce, Petition to vacate decree. Superior Court. Judgment.</p> <p>tThe Superior Court has no power to vacate a decree for divorce after it has become absolute, where the court had jurisdiction to grant the decree, even though the decree was made because of perjured testimony knowingly procured by the libellant, and because of gross fraud practised upon the court.</p>

<p>Contract, Implied in fact. Practice, Civil, Report.</p> <p>In an action by the owner of a patent, against a corporation, on an agreement implied in fact to pay to the plaintiff royalties on machines made and sold by the defendant as being covered by the plaintiff’s patent although they were not covered by it, it was not denied by the defendant that for a time an agreement to pay such royalties might be inferred or implied from its conduct, but it contended that such implied agreement had been terminated by a notice given by the defendant to the plaintiff that it was not using the plaintiff’s patent and did not intend to pay any further royalties upon the machines it was making and selling. There was evidence of the giving of such a notice, but there also was evidence that after the time when the notice was said to have been given and up to the date of the writ the defendant’s machines continued to be marked, advertised and sold as patented under the plaintiff’s patent. Held, that, although the defendant could at any time have terminated the arrangement under which it was paying royalties to the plaintiff to which without such arrangement the plaintiff would have had no claim, yet it was a question for the jury whether the notice was given, and the fact that the defendant continued to mark, advertise and sell its machines as made under the plaintiff’s patent was some evidence that it regarded the previous arrangement as still in force, so that it was right for the presiding judge to leave to the jury the question whether the arrangement by which the defendant agreed to pay royalties to the plaintiff was in force during the whole period up to the date of the writ, even if a finding that it was in force during the whole period would be greatly against the weight of the evidence.</p> <p>A judge of the Superior Court under R. L. c. 173, § 105, has power in his discretion to report a case for determination by this court, although his only reason for doing so is that the losing party by accident or mistake failed to file a bill of exceptions within twenty days after the verdict, exceptions having been taken properly at the trial which in the opinion of the judge presented material questions that should be passed upon by this court.</p>

<p>Tort for personal injuries incurred on October 30,1901, while in the employ of the defendants, manufacturers of sausages doing business in Boston under the name of Park’s Sausage and Provision Company, when the plaintiff had been set at work to operate a meat chopping machine of the defendants. Writ dated April 14, 1903.</p> <p>In the Superior Court the case first was tried before Bell, J., who at the close of the plaintiff’s evidence ordered a verdict for the defendants. The plaintiff alleged exceptions, which were sustained by this court in a decision reported in 195 Mass. 272.</p> <p>There was a new trial before Bond, J., at which evidence was introduced by both parties. The evidence for the plaintiff is described in the opinion as not differing in substance from that presented at the first trial.</p> <p>At the close of the evidence the defendants asked the judge to direct a verdict for the defendants. This the judge refused to do, and the defendants excepted. The judge then submitted the case to the jury under full instructions at 10.15 A. m. on November 4, 1908. At 9.30 A. M. on November 5, the jury reported a disagreement. Thereupon the judge directed the jury to return a verdict for the defendants; and the plaintiff alleged exceptions.</p>

<p>Bill in equity, filed in the Superior Court on May 21,1908, by a judgment creditor of one Morris Wheeler, who on September 9, 1907, had made an attachment upon certain real estate of Wheeler ón Brunswick Street in that part of Boston called Roxbury, and on March 21,1908, had caused such real estate to be levied upon in execution and to be sold to himself, subject to a mortgage made by Wheeler to one Joseph Rudnick on March 22, 1907, and assigned by Rudnick to the defendant on October 15,1907, when such mortgage was overdue, alleging that the defendant paid no consideration for such assignment and that such mortgage had been paid and satisfied on October 15,1907, when the defendant received from Wheeler two later mortgages upon the same property, that the defendant took the assignment of the mortgage from Rudnick knowing of the plaintiffs rights and designing to deprive him of them, and that on April 25, 1908, the defendant began foreclosure proceedings under the mortgage assigned to it by Rudnick, that the plaintiff offered to pay to the defendant whatever sums were due and payable to it under that mortgage, but that the defendant refused to account to the plaintiff or to receive the .money or to discontinue the foreclosure sale ; and praying that the assignment of the mortgage of March 22, 1907, from Rudnick to- the defendant might be decreed' to be in equity a discharge of that mortgage, that the defendant might be ordered to cancel and discharge that mortgage, that an accounting might be decreed between the plaintiff and the defendant to ascertain the amount, if any, which was due upon that mortgage of March 22, 1907, if it.should be proved at the trial that the defendant paid a lawful consideration for the assignment, that an accounting might be had between the plaintiff and the defendant to ascertain the amount, if any, which was due to the defendant upon the mortgages of October 15, 1907, that the defendant might be enjoined from transferring, assigning, or otherwise disposing of the mortgages of October 15, 1907, that the defendant, its agents and servants, might be enjoined from further proceeding with the foreclosure sale of the mortgage of March 22, 1907, and for further relief.</p> <p>The material facts were in substance as follows :</p> <p>At the time the attachment was made Wheeler, who was a builder, was engaged in the construction of a building upon the land. He had, long before the attachment, given a mortgage of $24,000 on the property to Rudnick, of which $6,000 represented the purchase price of the land (which had been conveyed by Rudnick to Wheeler), $15,000 Rudnick agreed to advance from time to time to be used in the construction of the •building, and $3,000 by agreement was left to be advanced or not, as Rudnick might see fit. If Rudnick should advance the whole $3,000, the mortgage was to be security therefor; if he should advance less than $3,000, the mortgage was to be cut down accordingly. Rudnick, before the attachment, had agreed with Wheeler to advance the full amount, and before September 9, 1907, the date of the attachment, had advanced in money $16,850, and after that time his further advances in money aggregated $1,903.</p> <p>Shortly before October 15,1907, the building being practically completed, Wheeler applied to the Wareham Savings Bank, the defendant, for a permanent mortgage loan of $24,000 on the property. The bank, through its investment committee, after investigation, agreed to make a loan of $22,000, provided Wheeler would take $20,000 thereof in cash and $2,000 in some land owned by the bank in Boston. This proposition was accepted by Wheeler, and the matter was referred by the bank to its conveyancer, Samuel T. Harris.</p> <p>Mr. Harris examined the title, prepared the papers, and found everything right except for the attachment outstanding in favor of the plaintiff against Wheeler. This was called to the attention of one Besse, the treasurer of the bank, on October 15,1907, at the registry of deeds by Mr. Harris. Besse had come from Wareham as the agent of the bank, bringing the money and ready to complete the transaction. Mr. Harris advised him that an assignment of the first mortgage — namely, the Rudniek construction mortgage of $24,000 — to the bank, as additional collateral security for the loan, would render the investment by the bank entirely safe. The treasurer, without the express authority of or consultation with the board of investment, relying on the advice of Mr. Harris, agreed to take the assignment of the mortgage, and such assignment was drawn and recorded, and the two new mortgages of $11,000 each were placed on record, and the money was turned over. Wheeler, being indebted to Rudniek for an amount considerably in excess of the $20,000 cash then paid over, turned this cash over to Rudniek. Rudniek immediately took another mortgage from Wheeler, which was placed on record, in the sum of $5,616, which represented the balance due Rudniek from Wheeler ; and the bank by Besse, its treasurer, signed the instrument printed below.</p> <p>On April 8, 1908, there having been a breach of the original Rudniek mortgage, Besse, the treasurer of the defendant bank, in its behalf entered and took possession of the premises for the purpose of foreclosing the same. Upon the bank’s taking possession, the plaintiff brought the present bill, and the sale under the power contained in the original Rudnick mortgage was adjourned from time to time.</p> <p>The instrument signed in behalf of the defendant, referred to above, was as follows :</p> <p>“ Boston, October 15, 1907.</p> <p>“ Whereas, there has been this - day assigned to the Wareham Savings Bank by Joseph Rudnick a mortgage of twenty-four thousand (24,000) dollars dated March 22, 1907, and recorded with Suffolk Deeds Book 3197 Page 587 covering the estates Nos. 58 & 60 Brunswick Street in that part of Boston, Mass., formerly Dorchester;</p> <p>“ Now, the said Wareham Savings Bank hereby declares and acknowledges that it has received said mortgage and holds the same as a muniment of title and for the following purposes, namely:</p> <p>“ 1. For the security and protection of said bank as the holder of two mortgages each dated October 15, 1907, and each for twelve thousand (12,000) dollars given to it by Morris Wheeler, one upon the estate No. 58 Brunswick Street, and the other upon the estate No. 60 Brunswick Street, both of which mortgages have this day been recorded with Suffolk Deeds.</p> <p>“ 2. For the security and protection of Joseph Rudnick (subject to the rights of said bank as herein recited) as he is the holder of a certain mortgage given to him this day by said Morris Wheeler for fifty-six hundred and sixteen (5616) dollars, covering both of said estates;</p> <p>“ 3. The said mortgage of twenty-four thousand (24,000) dollars assigned to the said bank as aforesaid may be discharged by it at any time after sixty days from the date hereof without the assent of the said Joseph Rudnick and Morris Wheeler or either of them, if in the opinion of Samuel T. Harris of Boston aforesaid such discharge will not in any way affect or impair the respective rights and security of the said bank and of the said Joseph Rudnick under their above described mortgages this day recorded as aforesaid.</p> <p>“ Wareham Savings Bank,</p> <p>By Frank A. Besse, Treas.”</p> <p>The case came on to be heard by Richardson, J., who reserved it for determination by this court, reporting the evidence.</p>

<p>Two actions, op tort, as stated in the opinion. Writs dated August 19, 1907.</p> <p>In the Superior Court the cases were tried together before Stevens, J., who at the close of the plaintiffs’ evidence ordered verdicts for the defendant; and the plaintiffs alleged exceptions. G. H. Mellen, (J. B. Vallely with him,) for the plaintiffs.</p> <p>H. C. Sawyer, for the defendant.</p>

Tort under the employers’ liability act for the death of the plaintiff’s intestate on July 14,1903, from injuries received by him while in the employ of the defendant by being struck in the head by a maul or mallet alleged to have been defective, with which one Scott, a fellow employee of the intestate, was driving into the ground a stake that the intestate was holding for him. Writ dated April 29, 1904.

<p>Tort, with counts at common law and under R L. c. 106, § 71, for injuries received by the plaintiff while in the defendants’ employ in a laundry. Writ in the Superior Court for the county of Middlesex dated September 20, 1905. On March 22, 1906, a motion to transfer the case to Suffolk county was allowed, and the case was transferred accordingly.</p> <p>The case was tried before Brown, J. There was evidence tending to show that, as the plaintiff was walking across the concrete floor of the laundry carrying a fringed spread on Ms right arm, when he was near a drying machme or extractor which was in motion revolving at its usual speed of twelve hundred revolutions a minute, Ms foot slipped on starch saturated with water, causing him to raise Ms arms so that the end of the spread was caught in the extractor and his right arm was drawn into it. Other facts are stated in the opinion.</p> <p>At the close of the evidence, the presiding judge ordered a verdict for the defendants; and the plaintiff alleged exceptions.</p>

<p>Negligence, Employer’s liability, In a foundry. Evidence, Presumptions and burden of proof. Notice, Under employers’ liability act.</p> <p>In an action against the proprietor of a foundry by one employed therein as a moulder, to recover for personal injuries caused by an explosion of molten metal which the plaintiff was pouring into a “ pig bed ” so called, which the defendant had furnished for the purpose, the declaration contained counts both at common law and under R. L. c. 106, § 71, cl. 1, 2. At the trial there was evidence tending to show that rust or dampness in the pig bed would have caused such an explosion as occurred, that it was not the duty of the plaintiff to inspect the pig beds for the purpose of ascertaining whether rust or dampness was present, but that he was expected to use the pig beds as he found them, that, while the presence of rust or moisture sufficient to cause such an explosion as that by which the plaintiff was injured would not be obvious to a moulder, it could readily be discovered by proper inspection, that for many years it had been the defendant’s practice to keep the pig beds free from rust and moisture by precautions that had been abandoned during the few weeks or months before the accident, during which time the care of them had been intrusted to a new and inexperienced employee to whom no instructions were given and who took no precautions, and that during that time an unusual number of small but harmless explosions had occurred. It did not appear decisively that the plaintiff knew of this change in the practice of his employer. There was no direct evidence of the presence of rust or moisture in the pig bed at or before the time of the explosion. The plaintiff, an experienced moulder, testified that, if it struck a hard substance, molten metal would fly into small particles, although that would do no more than burn the clothing, and that an explosion was liable-to occur at any time if a pig bed was not properly kept. There was no evidence that such an explosion as the one in question could have been produced from any other cause than an accumulation of rust or moisture. Held, that the questions, whether the explosion by which the plaintiff was injured was caused by the presence of rust or moisture in the pig bed due to negligence of the defendant or of his superintendent, whether the plaintiff was in the exercise of due care and whether he had assumed the risk of the injury, were for the jury.</p> <p>Where, at the trial of an action for personal injuries alleged to have been caused by negligence of the defendant, there is evidence from which the jury would be warranted in finding actual negligence of the defendant in a certain particular, followed by the existence of the very danger which might have been expected to arise therefrom, it cannot be said as matter of law that the plaintiff is bound to go further and to exclude the operation of other possible causes to which conceivably the danger might have been due instead of having been due to the actual negligence which has been shown.</p> <p>Where, intending to give a notice under R. L. c. 106, § 75, an employee of a corporation named the K. Company delivers to one who is the corporation’s treasurer a letter addressed “ To the Treasurer of the K. Company ” at the company’s place of business, which says “ You are hereby notified that, while working for you in your foundry ... I was seriously injured because of an explosion of hot metalsuch notice is not insufficient by reason of not having been addressed specifically to the corporation.</p>

<p>Partnership, Notice of retirement of partner. Notice. Agency, Undisclosed. Attorney at Law.</p> <p>Where one copartnership, which has been selling merchandise for several years to another copartnership, adds new members to its firm without giving any notice to the buying copartnership, and subsequently one member of the buying co-partnership retires by agreement and no notice is given to the selling copartnership, which a year after such retirement gives to the buying copartnership notice of the additions to its firm and then continues to sell goods to the buying copartnership and in so doing relies in part upon the credit of its retired partner, such retired partner is liable with his former copartners for the purchase price of such goods, and, if it was nót known to the retired partner who were the members of the selling copartnership, such fact does not affect his liability.</p> <p>The decision reported in Vietor v. Spalding, 199 Mass. 52, to the effect that an attorney at law who is retained generally by a client but, at the time of his receiving notice of the dissolution of a partnership with which his client has business dealings, is not acting on behalf of his client in any matter, has no authority to receive such notice on behalf of his client, affirmed.</p>

<p>Tort for personal injuries received by the plaintiff while he was driving a hansom cab on Falmouth Street in Boston, and due to the cab’s tipping over because it ran upon a pile of dirt alleged to have been left there negligently by an employee of the defendant. Writ in the Superior Court for the county of Suffolk dated November 1, 1905.</p> <p>The case was tried before Stevens, J. There was evidence tending to show that Beckwith, mentioned in the opinion, was hauling dirt, which the defendant took from an excavation it was making at the corner of Washington Street and Avon Street in Boston, from that point to the “ Fenway Dump.” While going down Falmouth Street toward Massachusetts Avenue, his load was dumped into the street. There was evidence tending to show that the load was dumped because a pin was lost from the cart, and also evidence tending to show that Beckwith deliberately dumped it. It was the pile of dirt thus caused that the plaintiff drove upon when his cab tipped over. Other material facts are stated in the- opinion.</p> <p>At the close of the plaintiff’s evidence, the defendant rested and requested the presiding judge to give eleven rulings, which in substance were that there was no evidence that Beckwith was a servant of the defendant or under its management or control, and that there was no evidence that, when he committed the act of negligence which caused the plaintiff’s injury, he was acting within the scope of his authority.</p> <p>The presiding judge refused to rule as requested, the jury found for the plaintiff; and the defendant alleged exceptions.</p>

<p>Tort for the death of the plaintiff’s intestate. Writ in the Superior Court for the county of Norfolk dated January 4,1906.</p> <p>The case was tried before Dana, J. It appeared that the plaintiff’s intestate, at the time when he met his death, was the manager of the telephone exchange of the New England Telephone and Telegraph Company at Randolph. 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>Tout for the alleged conversion of a promissory note dated February 7,1902, for $4,825, payable to the plaintiff four months after date and signed by Michael C. Hayes and Mary J. Hayes. Writ dated May 8,1907.</p> <p>In the Superior Court the case was tried before Bond, J. The facts as they appeared by the bill of exceptions are stated in substance in the opinion. The defendant asked the judge to give certain instructions to the jury, which the judge refused to do, and submitted the case to the jury with other instructions under which they returned a verdict for the plaintiff in the sum of $5,317.15. The defendant alleged exceptions, including an exception to the exclusion of certain evidence, which is described and dealt with in the opinion.</p>

<p>Contract for a balance of $10,467.16 alleged to be due for the erection of a Turkish bath house upon land of the defendant on Carver Street in Boston, with a count upon an alleged contract in writing and another count upon an account annexed. Writ dated January 9, 1904.</p> <p>In the Superior Court the case was referred to Clarence H. Cooper, Esquire, as auditor. He filed a report containing the findings which are stated in the opinion. The case afterwards was tried before Pierce, J. The defendant introduced no evidence. At the close of the plaintiff’s evidence the judge ruled that the plaintiff could not recover, and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p> Agency. Street Railway. Employers’ Liability Act. </p> <p>A motorman in the general employ of a street railway company, who at his request is excused from duty during the morning of a certain day, an extra man being put in his place, with the arrangement that he shall run an extra car in the afternoon or find a substitute to do so, after he is thus excused and before he has found a substitute for the afternoon, is not an employee of the company within the meaning of the employers’ liability act, and if he goes into a telephone booth in a waiting room at a station of the company, where he afterwards is found dead, the circumstance that, when killed, he may have been using or intending to use the telephone in completing arrangements to be relieved from duty in the afternoon, even if it is a fact instead of a pure conjecture, does not make him an employee of the company, because the making of an arrangement fora substitute or finding out whether an extra car was to be run that afternoon would be for himself and not in behalf of the company.</p>

<p>Contract, by the owner of certain lots of land on Ivy Street and Mountfort Street in Boston, for $3,988.26 paid by the plaintiff under protest as assessments levied by the street commissioners on the plaintiff and other abutters for the construction of those streets under St. 1892, c. 418, § 8, which was held to be unconstitutional in Lor den v. Coffey, 178 Mass. 489, decided On April 4, 1901, the first of the payments having been made on June 21, 1899, and the last having been made on March 20, 1901. Writ dated November 16, 1901.</p> <p>In the Superior Court the case was submitted to Schofield, J., upon an agreed statement of facts. He ordered that judgment be entered for the defendant, and at the request of both parties reported the case for determination by this court, such judgment to be entered as law and justice required.</p>

<p>Tort, brought by Mary A. Bowen, who was engaged in the teaming and trucking business, as the assignee in writing of James H. Roberts and Daniel G. Langlands, the manufacturers and owners of a fly wheel delivered at the defendant’s freight yard at East Cambridge for transportation over its railroad and alleged to have been injured and destroyed through the negligence of the defendant’s servants when lifting it from the plaintiff’s wagon by means of a crane or derrick. Writ dated July 16,1907.</p> <p>The declaration originally was as follows:</p> <p>“ First count: And the plaintiff says that she is the assignee of James H. Roberts and Daniel G. Langlands, both of Boston, in said county.</p> <p>“ And the plaintiff says that the defendant is a common carrier for hire of passengers and freight, and received for carriage from the plaintiff’s assignors at Boston, in said county, one large flywheel in two parts, the property of the plaintiff’s assignors, on or about the fourteenth day of June, in the year 1907. And the defendant, in consideration of a certain freight to be paid by the plaintiff’s assignors, agreed and undertook to carry said fly wheel from said Boston to Stafford Springs, in the State of Connecticut, and 'there to deliver the same, but that said defendant failed so to deliver the same, and the said fly wheel is wholly lost and destroyed.”</p> <p>“Second count. And the plaintiff says that sne is the assignee of James H. Roberts and Daniel G. Langlands, both of Boston, in said county.</p> <p>’ “ And the plaintiff says that the defendant operates a steam railroad in said Boston, and is a common carrier for hire of passengers and freight over and upon said railroad, and that the defendant received from the plaintiff’s assignors, on or about the fourteenth day of June, in the year 1907, a certain large fly wheel, the property of the plaintiff’s assignors, to be safely carried by it, that the defendant, its agents and servants, did not safely carry said fly wheel, but so negligently, carelessly and improperly received and handled, and managed said fly wheel that they wholly destroyed it.”</p> <p>A third count, added later by amendment one day before the date of the return of the verdict, was as follows:</p> <p>“And the plaintiff says that she is the assignee of James H. Roberts and Daniel G. Langlands, both of Boston in said county.</p> <p>“ And the plaintiff says that the defendant operates a steam railroad in said Boston, and is a common carrier for hire of pas-. sengers and freight over and upon said railroad, and that on or about the fourteenth day of June, 1907, the plaintiff’s assignors tendered unconditionally a certain large fly wheel to the defendant for transportation over its railroad; that the defendant, by its agents and servants, carelessly, negligently and improperly handled and managed the said fly wheel and that they wholly destroyed it.”</p> <p>A still later amendment, filed by consent two days before the date of the allowance of the bill of exceptions, was as follows :</p> <p>“ And now comes the plaintiff in the above entitled cause and moves to amend her declaration by striking out the words And the plaintiff says that she is the assignee of James H. Roberts and Daniel G. Langlands, both of Boston in said county.’ ”</p> <p>In the Superior Court the case was tried before Pierce, J.</p> <p>One Grady, a witness called by the plaintiff, testified on direct <yira.Tnina.tion that in June, 1907, he was employed by the plaintiff and took a fly wheel weighing about two tons from J. H. Roberts and Company, East Cambridge, to the Boston and Albany yards in Boston; that he drove under a crane and then went over to the platform and told one Wood, the man in charge, that he had a fly wheel; that Wood said he would send some men over to take it off; that there were three men at the derrick when he drove up; that he had seen these men before at the platform but not at the crane. The fly wheel was in two parts, resting on the flanges with the hub up. He then testified as follows:</p> <p>“ Q. What did these men do with the fly wheel which was on your team ?</p> <p>“ A. Well, I got the ropes off the wheel to make it ready for them, and I supposed they were going to take one wheel off, one half, and one of the men there said, 6 We will take the two of them off.’ It was getting late, it was then between half past four and five o’clock; so I supposed they knew their business and — So they put the chain around the two of them and got down on the winch and started to wind it up, and when they got the strain on it got about a little way out of the wagon and I heard a break and I told them to stop, so they stopped, and Mr. Wood came over between some cars; I told him what had happened, and he passed some remark, I couldn’t say just what it was, that they couldn’t receive it; so I told him not to touch the wheel until I reported to my boss. So I went up and telephoned to my boss, Mr. Bowen,* and he come down and looked at it to see how the thing was, and told me to leave the wagon there and take the horses off and take them away.”</p> <p>He further testified that the wheel was in good condition, that a chain was used to lift the wheel and was wrapped around the hub; that there was no block between the hubs, but they were lying right close together; that he had nothing to do with making the chain fast to the fly wheel, did not give any instructions to anybody, and did not have anything to do with lifting it.</p> <p>On cross-examination he testified that he had never unloaded machinery from a crane before, but that he knew how to unload a fly wheel such as he had; that he could not have unloaded it alone as it was too heavy for one man to handle; that Wood was one and one half times the length of the court room away from the crane on the platform ; that he told Wood that he had a fly wheel, as he expected Wood to send over some men to help him and wanted him to do so; that he was on and off the team while the hitch was being made; that some one might have handed him the end of the chain while the hitch was being made; that he did not know which man actually made the hitch; that he did not know all of the men on the team. In a written statement admitted to be signed and certified to by him, introduced in evidence by the defendant as an exhibit for the purpose of contradicting the witness, he said:</p> <p>“ I drove right up under the crane and found three of the railroad hands there. I said that we had better take one half of the wheel at a time. This was the first thing said by any one. I supposed of course that it was part of their duty to help me. They said that it would be all right to take both pieces together and make one job of it, that it was getting late. I got down on the ground and began unroping the wheel from the wagon, while the three railroad hands put the chain around the wheel and made the hitch. When I got the ropes off from below I got up on the team and helped hold the two parts of the wheel together while one of the men finished putting the chain around them. I wanted to help out as much as possible in making the hitch. When the hitch was all made the railroad hands went over to the derrick and began turning the cranks. We wanted to raise it a little from the wagon to see if the hitch was O. K. As soon as the strain came three of the, spokes broke. The wheel was not raised a single inch from the wagon. The men stopped turning as soon as the spokes snapped. I gave no orders about making the hitch or running the derrick, but trusted to the railroad men; for I thought that they knew more about such things than I.”</p> <p>On re-direct examination he testified that he remembered passing the end of the chain to one of the men on request; that when a teamster came into the Boston and Albany yard with a heavy object “ they had men there to unload, he helped, of course.”</p> <p>On re-cross examination he testified that he understood that he was there to help and intended to help so far as he could in unloading.</p> <p>One Langlands, a witness called by the plaintiff, testified that he was the sole surviving member of the firm of James H. Roberts and Company, that in "June, 1907, he employed Bowen to cart a fly wheel from his factory in Cambridge to the Boston and Albany yards; that when he found the wheel was broken he told Bowen that Bowen must either give him a clean receipt from the railroad for this wheel or pay him for it; that Bowen paid him for the wheel in full and he gave Bowen a receipted bill for the wheel; that he executed the assignment. The receipted bill and the assignment were put in evidence. The bill was dated July 26, 1907, and was for “one split fly sold to C. Bowen for $325, with a freight charge of $12.50.” The assignment was dated August 3, 1907. This was the only assignment introduced in evidence.</p> <p>Langlands further testified that if a wheel is in two parts and the hubs are short and do not come together and there is no blocking between, a wrap hitch would pull the centre out, which would result in the breaking of the spokes; to lift the two parts together it would be necessary to put a block between the hubs unless separate hitches were made; that this fly wheel weighed from three to five tons.</p> <p>On cross-examination he testified that he sent a bill to Bowen, who protested against paying it at first, but he told Bowen he would hold Bowen liable, as he knew nobody else, and then Bowen paid in full, getting a receipt in full; that he intended to release Bowen from all further liability; that a check dated August 9, 1907, was given by Bowen in payment; that the assignment in evidence was signed by him a few days before the trial but merely carried out his previous intention.</p> <p>On re-direct examination he testified that he agreed to put Bowen into his place against the Boston and Albany Railroad.</p> <p>There was other evidence both for the plaintiff and the defendant.</p> <p>At the close of the evidence, the defendant asked the judge to rule that there was not sufficient evidence to warrant a finding for the plaintiff, and asked him to instruct the jury that the plaintiff was not entitled to recover. He also asked for other instructions of which the fifteenth was as follows: “15. The plaintiff cannot recover from the defendant if she or her agents or servants contributed to the injury.”</p> <p>The judge refused to order a verdict for the defendant, or to give any of the instructions requested. He submitted the case to the jury, who returned a verdict for the plaintiff in the sum of 1364.50. The defendant alleged exceptions.</p>

<p>Limitations, Statute of. Executor and Administrator. Corporation, Foreign, Liability of stockholder. Receiver.</p> <p>Where, after an assessment lawfully has been made upon a Massachusetts stockholder in a foreign corporation, he dies and, after an administrator of his estate has been appointed and has qualified by giving bond, the two year period of limitation provided for in R. L. c. 141, § 9, passes, no action for the collection of the assessment can be maintained against the heirs and next of kin of the stockholder under R. L. c. 141, §§ 26 28, which provide for the enforcement of rights of action which accrue after the expiration of the two year period of limitation, since the right accrued not only before the expiration of such period, but also before the death of the decedent.</p> <p>A citizen of Massachusetts owned stock in a certain corporation organized in a State whose constitution contained a provision that a stockholder in a domestic corporation of that nature should be liable for the debts of the corporation to the amount of the stock owned by him. The statutes of the State provided for the adjudication by a proper court of the inability of such a corporation to pay its debts, for the determination of the amounts of the debts, for successive assessments upon the stockholders and for the appointment of a receiver with power to collect such assessments by proper proceedings in other States. Such proceedings duly were taken in the State of its incorporation with regard to the corporation in question and an assessment was made upon the stockholders. Thereafter the Massachusetts stockholder died, an administrator of his estate was appointed, the two year period of limitation provided for in R. L. c. 141, § 9, passed and the estate was fully administered. Subsequently a second assessment duly was made in the court of the State where the receivership proceedings were pending, and the receiver by a bill in equity sought under R. L. c. 141, §§ 26-28, to enforce payment of such assessment by the heirs and next of kin of the deceased stockholder, contending that the right of action was, as was required by § 27, one which accrued after the expiration of the period of limitation provided by R. L. c. 141,- § 9, and which could not legally have been presented to the Probate Court. Held, that the bill must be dismissed, since, before the estate of the deceased stockholder had been fully administered, because of the continued pendency of the receivership proceedings, the claim of the plaintiff, although uncertain in amount, had become one which “may become justly due from the estate,” and which therefore under R. L. c. 141, § 13, might have been presented to the Probate Court and provision made for the reservation of funds or the giving of security for its payment.</p> <p>The object of the proceedings before the Probate Court under R. L. c. 141, §§ 13,14, which provide for the retention of funds by an executor or administrator on presentation by a creditor of the estate, before the estate is fully administered, of a claim the right of action to enforce which does not accrue within two years after the giving of the administration bond, is not to collect the claim presented nor even finally to adjudicate its amount or validity, but simply to extend the period of time after which by R. L. c. 141, § 9, it otherwise would be barred.</p> <p>A receiver of a foreign corporation, lawfully appointed by a court of the State of its incorporation with power “ to sue for . . . compromise and settle any and all stockholders’ liability that may exist under the constitution and laws of ” such State “or otherwise, and to prosecute and sue for the amount of such liability or any assessments that may be made by” the court which appointed him “ on account thereof for the satisfaction of the claims of the creditors ” of the corporation, since he is entitled to prosecute a claim for the enforcement of an assessment against a stockholder when it becomes due, is the proper person to present to the Probate Court, in which the estate of a Massachusetts stockholder of the corporation is being administered, a petition under R. L. c. 141, § 13, seeking to have funds of the estate reserved or security given for the payment of an assessment which may be made and become due after the expiration of the two year period of limitation provided for by R. L. c. 141, § 9.</p>

<p>Bill in equity filed in the Supreme Judicial Court for the county of Suffolk on June 4,1908. The allegations and prayers of the bill are summarized in the opinion. The eighth and ninth clauses of the lease from the Boston and Providence Railroad Corporation to the Old Colony Railroad Corporation were as follows:</p> <p>“ Eighth. The lessee will, during the continuance of this lease, protect and save harmless the lessor and the Rhode Island Company* against all actions or claims for injury to persons or property during the term thereof, by reason of any want of repair of the demised road and property or appurtenances, or of the road, property and appurtenances of the Rhode Island Company, or any want of care and skill in the operation and management of the same, or by reason of any defects therein; and will not permit the lessor or the Rhode Island Company to be subjected to any payment, penalty or forfeiture for violation of law in any respect in relation to the maintenance and operation of their said roads and property; but will indemnify and save them harmless against all loss, cost, damage or liability caused by it, or arising out of the use and operation of said roads and property, whether by reason of any contract, statute, negligence or misfeasance, or by reason of the neglect of the lessee or lessor to use and operate said railroad and property as required by law during the continuance of this lease. The lessee will make all permanent improvements on said railroads and property at its own expense; will keep the demised premises reasonably insured, and apply the proceeds of any insurance to restoring and replacing the property destroyed, or otherwise to the benefit of the demised property; and, at the expiration or earlier termination of this lease, it will return said demised road and property to the lessor as a railroad between Boston and Providence, with its now existing branches, and suitably equipped and provided with depots, stations, shops and other structures, of at least equal value with those now existing thereon, and in as good order and condition as the same now are, together with all permanent improvements thereon; and with rolling stock, machinery, tools, furniture, appliances, telegraph apparatus and equipment, of equal value with that hereby demised, according to the appraisal thereof.</p> <p>“ Ninth. The lessor will, upon the written request of the lessee, from time to time, convey to such person or persons as the lessee may appoint in such request such portions and parcels of the real estate owned by the lessor outside of its location, and not required by the lessee for railroad purposes, as the lessee may designate, and upon such reasonable terms and for such reasonable price as it may direct, at its expense, the proceeds to be received by the lessee; but upon an express agreement, however, by the lessee, that all proceeds thereof, or a sum equal thereto, shall be, or shall previously have been, from the funds of the lessee, applied to additions other than improvements upon the railroads of the lessor or their branches, or connected with their real estate, which shall thereupon become the property of the lessor, and subject to the provisions of this instrument; and if, at the expiration or earlier termination of this lease, the lessee shall not have expended in such additions a sum equal to the proceeds of the real estate so conveyed, the balance unexpended shall be paid over to the lessor without interest. But the lessor shall not be obliged, unless its directors consent, to convey any of its real estate in Boston east of the present Dartmouth Street bridge, or of the tract of land owned by it near the junction of its main road with the Dedham branch thereof, and between said branch and the New York & New England Railroad, containing about thirty-three (33) acres ; upon which tract, unless thus previously conveyed, and unless it shall return the shops of the lessor now existing, the lessee shall, if not otherwise agreed with the directors of the lessor, place the shops which it is to return to the lessor upon the expiration or earlier termination of this lease, under the eighth article hereof.” ¡</p> <p>The defendants demurred. The demurrers were heard and were sustained by Loring, J., and a decree was entered dismissing the bill with costs. The plaintiffs appealed.</p>

<p>Appeal from a decree of the Probate Court for the county of Middlesex, allowing the will of Martha E. Bailey of Newton.</p> <p>After the proceedings which are stated in the opinion, the following two issues were tried before Braley, J.: (1) “ Was said instrument propounded for probate as the last will and testament of Martha E. Bailey procured to be executed by the undue influence of Frederick W. Webber? ” and (2) “ Was the instrument propounded for probate as the last will and testament of Martha E. Bailey procured to be executed in whole or in part by the undue influence of Frederick W. Webber, and if in part, what part ? ”</p> <p>The will contained eighteen items. Of these, the first, fourth, fifth, sixth, seventh, eighth, ninth, tenth, twelfth, thirteenth, fourteenth and fifteenth items were directions for specific bequests and legacies to persons and charitable organizations not parties to this proceeding, almost all of the individuals so named being close friends or relatives of the testatrix, and none of the charitable organizations having been suggested by Dr. Webber. The second item related to the care of a family burial lot. The third devised to James Warren Bailey, the appellant, the testatrix’s interest in the “ homestead place ” and certain personal property. The sixteenth item devised certain real estate to the trustee under the will to pay the net income to the appellant during his life, and then to convey the land to three charitable organizations, one of which was the Boston Home for Incurables. The seventeenth item devised and bequeathed the residue of the estate to the trustee, to pay the net income thereof to the appellant during his life, and after his death on the happening of various contingencies, to various beneficiaries, of whom Frederick W. Webber and the Boston Home for Incurables "were two. The eleventh item gave to “my friend and physician Doctor Frederick W. Webber ” “nine of my shares of Calumet and Hecla stock, and my circlet diamond ring of three stones to be used as a scarf ring.” The eighteenth item appointed the executor and trustee.</p> <p>Chester B. Humphrey, Esquire, an attorney in the employ of the Old Colony Trust Company, the executor and trustee named in the will, testified that the testatrix unaccompanied came to him in April, 1906, with memoranda for a will, and that they had some conversation on the basis of which he made a draft of a will for her and sent it to her. In this first draft, Dr. Webber was given twelve shares of Calumet and Hecla stock, instead of nine shares as in the final draft. Other provisions were practically the same, except that the trust as to real estate, which appeared in item sixteen of the will as finally executed, was not then provided for. This was added on May 21, 1906. On June 27, a provision was dictated providing for a small annuity to Dr. Webber. This was not in the will as executed. The will was executed on July 18, 1906.</p> <p>Frederick W. Webber testified that he was a practising physician and had known the testatrix since 1902, and thereafter attended her continuously up to the time of her death, no other physician attending her during that period. The testatrix first spoke to him with regard to her making a will in the spring of 1905, asking him to act as executor. He refused. She brought the matter up repeatedly, and finally he suggested that she go to the Old Colony Trust Company. She told him from the beginning not to let her brother know of the will. He looked up for her the names of three charities. She did not make a bequest or give a legacy to any of them. He, the witness, never saw a draft of the will and did not know that there was to be a legacy for him, except as to a diamond ring. In June, 1907, he read the will for the first time. He knew that the testatrix had written out certain memoranda, which he had seen, for use in making her will.</p> <p>Dr. Webber also testified of complaints by the testatrix to him as to the treatment of her by her brother, the appellant, of statements by the executrix that the appellant had used violence upon her, and of marks of violence which he, the witness, had found upon the person of the testatrix, and which she had told him were caused by the appellant.</p> <p>Dr. Webber also testified that in September, 1906, the testatrix left the house where she had been living with her brother and went to board with a lifelong friend, where she remained until she died on August 13, 1907. In the meantime, because of her inability owing to illness to attend to her business affairs personally, Dr. Webber had been attending to the affairs of the testatrix for her. A brokerage firm objecting to recognizing certain signatures made by her mark, Dr. Webber and others suggested that she execute a trust deed. She asked him to act as trustee and he repeatedly refused, but finally, after she had refused to accept various men of well known standing as trustee, he consented, and, with the advice and assistance of her own counsel, a trust deed was executed on March 6,1907. The deed in substance placed all the property of the testatrix in the control of the trustee for management, for payment to the testatrix or her order of the net income, and for disposition after her death according to the directions of her will or according to law if she died intestate.</p> <p>Dr. Webber also testified that during April, 1906, he made seven professional visits upon the testatrix; during May, 1906, ten; during June, 1906, five and, previous to July 18 in July, 1906, three. In January, February and March, 1907, he visited her almost daily. He testified that such visits always were necessary for her proper treatment, and that his bills all were paid promptly excepting those covering a short period before the death of the testatrix.</p> <p>There was other evidence both in confirmation of and in contravention of the foregoing testimony of Dr. Webber.'</p> <p>At the close of the evidence, the presiding justice permitted counsel for the Boston Home for Incurables and for Frederick W. Webber to address the jury; and the appellant excepted.</p> <p>The appellant requested the following rulings among others:</p> <p>“12. If the jury find that Dr. Webber did exercise undue influence over the testatrix in the matter of the making of her will, it does not necessarily follow because she made some bequests and legacies to her distant relatives and friends and to charities that such bequests and legacies are valid, and that as to these bequests she was free from such influence, for the jury might also find that this was a part of his scheme to cover his own wrongdoing and make this will as a whole seem just and reasonable.</p> <p>“13. If the jury find that Dr. Webber did exercise undue influence over the testatrix in the matter of the making of her will, and that in doing so his only interest was in his own legacy, yet if you find that in making the other bequests and legacies to her distant relatives and friends and to charities she was influenced by him with the intent on his part to make his own legacy seem more reasonable, such other bequests and legacies must be found to be likewise affected by his undue influence and cannot stand.”</p> <p>Counsel for Dr. Webber requested that the following ruling be given:</p> <p>“ The instrument executed by Martha Ella Bailey July 18, 1906, in the presence of three attesting witnesses, having been proved to be an act apparently deliberate, and executed with all usual and legal formalities by a competent person, is to be accepted and allowed as her last will and testament, unless the party seeking to avoid and destroy it prove that an influence was exercised over the testatrix by Frederick W. Webber at the time, which constrained her to do that which was contrary to her will and desire, but which she was unable to refuse to do.”</p> <p>At the close of the charge, the presiding justice stated: “ I have been asked by various counsel in this case to give certain instructions, and in so far as I have not covered or given them in the instructions to the jury, I save their several exceptions.”</p> <p>The findings of the jury upon the issues are stated in the opinion. The appellant and Frederick W. Webber alleged exceptions.</p> <p>Other facts are stated in the opinion.</p>

<p>Insurance, Accident. Contract, Construction. Words, “ Satisfactory.”</p> <p>The meaning of an agreement by a fraternal beneficiary corporation, contained in a certificate issued to a member, that it will pay to the beneficiary appointed under the terms of a certificate a stipulated amount within ninety days from the receipt by its board of directors “ of proof satisfactory to said board of the death of” the member “ and that his death has been caused wholly and entirely by external, violent, and accidental means,” is that the proof thus furnished must be such as ought to be satisfactory to reasonable men acting reasonably.</p> <p>Where at the trial of an action upon a certificate of fraternal beneficiary insurance which required, before payment of a death benefit, that the board of directors of the corporation issuing the certificate should have received “ proof satisfactory to said board of the death of” the member to whom the certificate was issued “ and that his death has been caused wholly and entirely by external, violent, and accidental means,” it appeared that after the death of the certificate holder the beneficiary and a physician, who attended the certificate holder after the accident which was alleged to have caused the death, furnished to the defendant’s board of directors affidavits that the death was caused wholly and entirely by external, violent and accidental means, that the board requested further affidavits, which the plaintiff furnished, namely, a second affidavit by the attending</p> <p>. physician, and one by a physician who had attended the deceased before the accident, in one of which the affiant refused to say that the death was caused by the accident, and in the other of which the affiant stated on information and belief that the death was not so caused. The board thereupon rejected the claim. The presiding judge refused to allow the jury to consider the two additional affidavits. Held, that the question, whether under the circumstances the defendant’s board of directors acted reasonably in rejecting the plaintiff’s claim upon the proof submitted to them, was for the jury, and that in determining that question, while the jury should not be allowed to consider other evidence than that which was submitted to the directors, they should have been allowed to consider all the affidavits which the directors considered.</p> <p>Although, in an affidavit by the physician who was in attendance upon the holder of a certificate issued by a fraternal beneficiary corporation at the time of his death following an accident, the physician has declined to state positively that death was or was not the result of the accident, the plaintiff in an action subsequently brought against the corporation by the beneficiary named in the certificate to recover the amount named therein is not by such affidavit precluded i from introducing in evidence testimony of such physician and of other medical experts tending to show that the death of the certificate holder was caused by the accident within the terms of the policy. Anything to the contrary in Campbell v. Charter Oak Ins. Co. 10 Allen, 213, referred to as discredited by subsequent decisions.</p> <p>At the trial of an action by the beneficiary named in a certificate of fraternal beneficiary insurance against the corporation issuing it, to recover for benefits agreed in the certificate to be paid upon the deatli of the certificate holder, the jury should not be allowed to consider, upon the issue whether the death of the certificate holder was caused by a certain accident, preliminary affidavits fur- : nished by the plaintiff to the defendant tending to establish that fact, which were furnished according to a requirement in the certificate that preliminary . proof of such fact should be so furnished within ninety days of the accident, such affidavits being admissible only to show that the plaintiff had satisfied requirements of the certificate as to such preliminary proof.</p>

<p>Corporation. Evidence, Presumptions and burden of proof, Inferential. Street Railway, Consolidation. Estoppel. Malden and Melrose Railroad Company. West End Street Railway Company. Equity Jurisdiction.</p> <p>In the absence of a statutory provision on the subject, the mere acquisition of all the capital stock, property and assets of a corporation by an individual or by another corporation does not of itself make the new holder liable to pay the debts of the vendor corporation.</p> <p>In the absence of evidence to the contrary, there is a presumption that the action of a street railway corporation in the purchase under the provisions of a special statute of the capital stock, property and assets of another street railway corporation is lawful.</p> <p>In the absence of evidence to the contrary, there is always a presumption that the official action of a board of public officers is lawful.</p> <p>The West End Street Railway Company, after the enactment of St. 1887, c. 418, acquired by purchase from one who had purchased them from the Malden and Melrose Railroad Company all of the capital stock, property and assets of that company, and its treasurer then reported to the railroad commissioners that the West End Street Railway Company “owned the stock and property of the Malden and Melrose Company — all of it—;and would like to have the Malden and Melrose Railroad Company report omitted.” The commissioners thereupon struck the Malden and Melrose Railroad Company from their lists and reported “ The Malden and Melrose having been merged in the W est End by the purchase of all of its capital stock and assets." Thereafter for more than twenty years the West End Street Railway Company operated the system formerly of the Malden and Melrose Railroad Company as its own. In a suit in equity to compel the West End Street Railway Company to pay judgments rendered against the Malden and Melrose Railroad Company before 1887, of which the West End Street Railway Company was ignorant at the time of the purchase, it was held, that fair inferences from the above facts were that the terms and conditions of the purchase by the West End Street Railway Company were duly approved by the directors and by a majority of the stockholders of each of the corporations and by the railroad commissioners, as required by St. 1887, c. 413, § 1; or at any rate that the West End Street Railway Company was estopped to deny that such were the facts, and therefore that, since under those circumstances by force of § 1 the West End Street Railway Company became subject to the liabilities of the Malden and Melrose Railroad Company, the suit might be maintained.</p> <p>The owner of a judgment recovered before the enactment of St. 1887, c. 413, with regard to the purchasing by the West End Street Railway Company of the stock, property and assets of other street railway companies and consolidating with them, against a street railway company, whose entire capital stock, property and assets the West End Street Railway Company purchased in accordance with the statute, has a claim under § 1 of the statute against that company irrespective of whether the company knew at the time of its purchase of the existence of the judgment or not, and can maintain a suit in equity against both companies to enforce payment of the judgment by the West End Street Railway Company.</p>

<p>Trespass, To real estate. Judgment. Damages, In tort. Nuisance. Real Action.</p> <p>In an action for trespass upon a strip of land belonging to the plaintiff by constructing upon it a part of the foundation supporting a wall of the building upon the adjoining lot on a city street, it appeared that about three years before the date of the writ the plaintiff brought an action for the same trespass, in which the presiding judge instructed the jury to take as the measure of damages the diminished value of the plaintiff’s property, whereupon the jury returned a verdict for the plaintiff in a substantial sum, for which judgment was entered, and the amount was paid in full by the defendant and was received by the plaintiff. It further appeared that since the judgment in the previous action there had been no trespass other than the maintenance of the same wall upon the plaintiff’s land. Although the case was disposed of on another ground, it was intimated that the previous judgment and its satisfaction must be a bar to this action, as the plaintiff had received full compensation for all the injury done to his property by the act of the defendant in going upon his land and' erecting there this permanent structure.</p> <p>If an owner of land upon a city street constructs a wall which encroaches upon the adjoining land, and the owner of the strip of land thus unlawfully built upon brings a writ of entry, in which he recovers judgment for the possession of the land on which the trespass was committed, he cannot afterwards maintain an action against the trespasser for an alleged nuisance in continuing the maintenance of the wall, because the part of the wall on the plaintiff’s land belongs to him and the defendant has no right to remove it.</p> <p>. If an owner of land on a city street brings a writ of entry to obtain possession of a strip of land on which the owner of the adjoining lot has constructed a part of a wall, and obtains a judgment for possession and costs, on which he takes out an execution, which is returned into court when the costs have been paid by the tenant, and the demandant in his writ has set forth no claim for damages and none are awarded to him, whether this judgment is a bar to an action for trespass subsequently brought by the demandant in the writ of entry against the same person to recover damages for injury to his property from having the wall upon it, on the ground that full damages might have been recovered in the writ of entry under R. L. c. 179, §§ 12-16, 42, here was not considered because the facts made it immaterial.</p>

<p>Tort for personal injuries alleged to have been incurred when alighting from a car of the defendant in which the plaintiff was a passenger, at the time and place and in the manner described in the opinion. Writ dated November 18,1905.</p> <p>In the Superior Court the case was tried before Bishop, J. The facts shown by the evidence are stated in the opinion. At the close of the evidence the defendant asked for certain rulings and instructions, of which the first was that upon all the evidence the plaintiff could not recover, the second was that upon all the evidence the plaintiff was not in the exercise of due care, and the third was that upon all the evidence the defendant was not negligent. The judge refused to make these and other rulings requested by the defendant, and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $1,500. The defendant excepted to the refusals and to the instructions given.</p> <p>The judge reported the case for determination by this court. If either of the defendant’s requests numbered 1, 2 or 3 should have been given, judgment was to be entered for the defendant; otherwise, judgment was to be entered upon the verdict.</p>

<p>Bill m equity, filed in the Supreme Judicial Court on August 18 and amended on November 25, 1908, by the Postal Telegraph-Cable Company of Massachusetts, a corporation organized under the laws of this Commonwealth, against the city of Worcester, to enjoin the defendant from compelling the plaintiff under the provisions of St. 1902, c. 372, to remove its line of telegraph from its present location in a certain district of that city and to place it underground.</p> <p>The case came on to be heard before Sheldon, J. The plaintiff read the pleadings and a statement of certain facts which were agreed to by the parties. The plaintiff then offered evidence in support of the allegations of its bill. Thereupon the defendant contended that upon the allegations of the bill and the facts agreed upon the bill could not be. maintained, and moved that it be dismissed.</p> <p>In response to an inquiry of the justice as to whether the defendant rested its case, the defendant stated that it did. The justice thereupon refused to permit the plaintiff to put in evidence in support of the allegations of its bill, and ruled that upon those allegations, and the facts as agreed upon, the bill could not be maintained, and ordered that the bill be dismissed. He reported the case for determination by the full court. If the ruling of the single justice was correct, the bill was to be dismissed; otherwise, such order or decree was to be entered as, under the circumstances, the law required.</p>

<p>Bill in equity, filed in the Superior Court on July 9, 1908, by the owner of a lot of land with a building thereon in Needham, where the husband of the plaintiff carried on the undertaking and livery business, to enjoin the defendant from maintaining a fence constructed by him across a road or way running from the plaintiff’s building across the land of the defendant to a public highway called Great Plain Avenue.</p> <p>In the Superior Court the case was heard by Richardson, J., upon a master’s report and the exceptions thereto. He made a final decree that the bill be dismissed, and the plaintiff appealed.</p>

<p>Two bills in equity, filed in the Superior Court respectively on March 14, 1904, and April 18, 1907, the first by the George H. Sampson Company, a corporation organized under the laws of the State of Maine, and the second by Alfred A. Hersey of Melrose, both of them against the Commonwealth of Massachusetts and also against the United States Fidelity and Guaranty Company, a corporation organized under the laws of the State of Maryland, in the first case as surety on a bond given under the requirement of Pub. Sts. c. 16, § 64, and in the second case as surety on a bond given under the requirement of R. L. c. 6, § 77, the other defendants in the first case being contractors doing business as copartners under the firm name of Shanahan, Casparis and Company, and the other defendants in the second case being contractors, doing business as copartners under the firm name of T. G. Gill and Company, and also certain claimants, among them the Locke Canal Company, a corporation organized under the laws of the State of Virginia.</p> <p>In the Superior Court the two cases were heard at different times by the same three judges, Fessenden, Richardson, & Wait, JJ. In this first case the defendant United States Fidelity and Guaranty Company demurred to the bill, and the demurrer was overruled by the judges. The case was submitted to them upon an agreed statement of facts, and they ordered that the bill be dismissed. The judges filed the following memorandum:</p> <p>“ The demurrer of the defendant Fidelity and Guaranty Company is overruled. We are unable to say that the gunpowder would ‘ form a part of the completed structure,’ within the language of the case of Kennedy v. Commonwealth, 182 Mass. 480, and, upon the authority of that case, the bill must be dismissed. Decree accordingly.”</p> <p>A final decree was entered dismissing .the bill, and the plaintiff appealed.</p> <p>The second case was referred to Winfield S. Slocum, Esquire, as master, “ to hear the parties and their evidence, and report his findings to the court, together with such facts, evidence and questions of law as either party may request.”</p> <p>Later the case was heard by the three judges upon the master’s report and the exceptions thereto. They made a final decree which ordered, among other things, that the exceptions of the defendants United States Fidelity and Guaranty Company, Locke Coal Company, Daniel McDonald, Malden City Lumber Company, Robert C. Guptill and Alonzo A. West.to the master’s report be overruled, that the sum of $2,644.65 retained by the defendant Commonwealth of Massachusetts, and the bond executed to said Commonwealth by the defendants, Thomas H. Gill, John F. Gill and John F. Elkins, as principals, and the defendant United States Fidelity and Guaranty Company, as surety, constitute security under R. L. c. 6, § 77, for the payment for labor performed or furnished and for materials used in the construction of the public work described in the plaintiff’s bill; that the plaintiff performed and furnished labor and furnished materials used in the construction of said public work under a contract with the defendants Thomas H. Gill, John F. Gill and John F. Elkins; that the defendants Addie L. Brown, the Locke Coal Company, Timothy O’Brien, Joseph P. O’Connell and George A. Parry, Richard H. Parry and Robert A. Parry, copartners under the name of Parry Brick Company, the Malden City Lumber Company, Benjamin Pope and Edgar W. Cottle, copartners under the firm name of Pope and Cottle, and William H. Wood, severally furnished materials used in the construction of said public work all under contracts with the defendants Thomas H. Gill, John F. Gill and John F. Elkins and that the plaintiff and the defendants Addie L. Brown, the Locke Coal Company, in respect of its claim for cement furnished, Timothy O’Brien, Joseph P. O’Connell and George A. Parry, Richard H. Parry and Robert A. Parry, copartners under the name of Parry Brick Company, the Malden City Lumber Company, Benjamin Pope and Edgar W. Cottle, copartners under the firm name of Pope and Cottle, and William H. Wood had severally complied with the provisions of the statute above mentioned and were entitled to the benefit of the security for the payment of the sums due them respectively from the defendants Thomas H. Gill, John F. Gill and John F. Elkins for such labor and materials together with interest on said several sums from the respective dates of filing of their respective statements under said statutes; and that the security above stated constituted trust property or a fund which the defendant Commonwealth of Massachusetts held in trust for the benefit of the plaintiff and the defendants above named entitled to the benefit of the security to the extent above set forth; that the several claims of the defendants the Carson. Trench Machine Company, J. J. Doyle, D. G. Danahy, Robert C. Guptill, W. S. Kaulbaek, the Malden Grain Company, Daniel McDonald, Patrick McGovern, Edwin Troland, Alonzo A. West, John D. Welsh and the Locke Coal Company, in respect of its claim for coal furnished, be disallowed; that the sum retained by the defendant Commonwealth was not sufficient to pay the sums due the plaintiff and the defendants aforesaid for labor furnished and materials used in the construction of said public work, that the defendants Thomas H. Gill, John F. Gill and John F. Elkins, principals, and the defendant United States Fidelity and Guaranty Company, as surety, were liable upon said bond, that the defendants Thomas H. Gill, John F. Gill and John F. Elkins were financially irresponsible; and it was further ordered and decreed that the defendant United States Fidelity and Guaranty Company within sixty days after entry of this decree should pay to the Commonwealth $10,047.34, which was the sum necessary to enable the Common wealth to pay the plaintiff and the defendants aforesaid the sums due them, aggregating $11,264.89 with interest to the date of the decree, and should also pay the Commonwealth interest on said sum of $11,264.89 from the date of the decree; and that thereupon the Commonwealth immediately should distribute the sums then held by it as aforesaid, as further directed in the decree. The defendant United States Fidelity and Guaranty Company and the defendant Locke Coal Company appealed.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action at common law by one, who was employed by the defendant to operate a riveting machine, to recover for personal injuries alleged to have been caused by the plug of a petcock on the machine being blown out and striking the plaintiff in the eye, the plaintiff can recover if he shows that he was in the exercise of due care and that the injury was due to the facts that the petcock was not a suitable and proper one for the use to which it was put and that it was defective when it was put on, although it appears that the petcock was procured from the defendant’s stock room where there were other petcocks of different shapes and sizes, if it does not appear that there was in the stock room any petcock suitable for the need which the fellow employee sought to satisfy.</p> <p>At the trial of an action by one, who was employed by the defendant to operate a riveting machine, to recover for personal injuries caused by a plug of a defective or unsuitable petcock on the machine being blown out and striking the plaintiff, it appeared that the plaintiff had worked on hydraulic riveting machines for about thirty years, that the machine at which he was injured was operated by compressed air instead of by water pressure and that it had been installed by the defendant for four weeks only, which constituted the plaintiff’s entire experience with such a machine, that the petcock in question was procured from the defendant’s stock room and by him was put into the machine, the plaintiff having nothing to do with the installation; and the plaintiff testified that he had never repaired the machine himself, although he had helped to do so, that he “did nothing but run the machine,” that he was not a machinist and never had had any experience with machinery except in using it, that the only thing he had done with the petcock was to open it and close it about six times in four weeks, that he knew nothing of how it was made or of its inner construction, that he never had had anything to do with putting on pet■cocks, that for some time before the accident the machine had been giving him trouble, that he had thought something was wrong with the pump and repeatedly had reported its condition, and that the machine “ kicked . . . every little while.” Held, that it could not be ruled as matter of law that the plaintiff knew and appreciated and therefore assumed the risk of working with the defective petcock; and that the question whether he was exercising due care was for the jury.</p>

<p>Pleading, Civil, Answer. Assault and Battery. Contract. Carrier. Ship. Immigrant. Evidence, Presumptions and burden of proof, Materiality. Practice, Civil, Exceptions, Conduct of trial. Damages, For eviction from a steamship.</p> <p>In an action by a passenger against the owner of a steamship the declaration contained two counts, one for assault and battery in forcibly ejecting the plaintiff from the ship, and the other for breach of contract in so doing, and the answer, besides a general denial, stated, “ If the plaintiff shall introduce evidence tending to show that at the time of the acts complained of she was a passenger . . , the defendant will show that she was suffering from trachoma, a dangerous, contagious disease, amd that the defendant rightfully ejected her.” A trial occurred without objection to the form of the answer. Held, that, if such objection had been taken, the defendant could not have put in any evidence of the justification thus defectively sought to be averred.</p> <p>The answer in an action by a passenger against the owner of a transatlantic steamship for forcibly ejecting the plaintiff from the ship set up a general denial and also averred that the defendant rightfully ejected the plaintiff because “ he was suffering from trachoma, a dangerous, contagious disease.” Held, that under such answer the defendant had no right to rely in justification of the expulsion of the plaintiff upon evidence tending to show that such expulsion occurred because the ship’s physician, a duly qualified medical man, having examined the plaintiff, reported to the defendant that he ought not to be allowed upon the ship because he had trachoma, a dangerous, contagious disease.</p> <p>Where, in an action of tort for assault and battery to recover for forcible expulsion of the plaintiff, a passenger, from a transatlantic steamship of the defendant, the answer sets up in justification of the expulsion that the plaintiff was suffering from trachoma, a dangerous, contagious disease, the burden is upon the defendant to make out the justification alleged, and not upon the plaintiff to disprove it by showing affirmatively that his expulsion was wrongful and without justification. Whether, where the action is for breach of contract in committing the same act and the same justification is set up in the answer, the same rule as to burden of proof applies, was not decided.</p> <p>In an action in which the declaration contained two counts, one in tort and one in contract, and the answer set up a justification of the acts of the defendant, and a different rule as to the burden of proof might apply as to the different counts, the presiding judge, against the objection and subject to an exception of the defendant, ruled that the burden of proof was upon the defendant, but made no distinction between the two counts. The defendant did not ask that such distinction be made, and therefore this court, having decided that the ruling was right as to the count in tort, without deciding whether it was right as to the count in contract, overruled the defendant’s exception.</p> <p>Although, at the trial of an action by a passenger against the owner of a transatlantic steamship to recover for an unlawful expulsion of the plaintiff, a passenger, as the ship was about to sail from Liverpool, England, for Boston, where the defendant relied in his answer upon an averment that the plaintiff at the time was suffering from trachoma, a dangerous and contagious disease, evidence that, about three months before, as he was about to sail from Boston to Liverpool, the defendant’s “ doctors or people ” examined him, and also evidence that, the morning after his expulsion by the defendant, he sailed for Boston from Liverpool by a steamship owned by a different person than the defendant, is immaterial, an exception by the defendant to its admission will not be sustained, since the defendant could not have been prejudiced by its admission.</p> <p>In an action by a woman passenger against the owner of a transatlantic steamship to recover for a wrongful eviction from the ship, evidence that because of the eviction she was left in Liverpool, England, a long distance from her friends, is competent on the question of damages.</p> <p>Where, in an action by a woman passenger.against the owner of a transatlantic steamship to recover for an alleged wrongful expulsion from the ship, the defendant seeks to justify his acts upon the ground that the plaintiff was suffering from trachoma, a dangerous and contagious disease, testimony of the plaintiff’s husband and others that, although they associated with the plaintiff intimately during periods near to the date of the expulsion, they did not contract the disease, is admissible in the discretion of the judge presiding at the trial.</p>

<p> Civil Service. Mandamus. </p> <p>Under St. 1904, c. 314, as modified by St. 1905, c. 243, one who duly is enrolled in the classified list of the civil service of the Commonwealth, before he can be removed by his superior officer, is entitled, if he requests it in writing, to a full and proper hearing in the nature of a trial.</p> <p>Where, upon being notified by his superior officer that he was indefinitely suspended, one, who duly was enrolled in the classified list of the civil service of the Commonwealth, requested in writing that he be given a hearing on the charges against him according to St. 1904, c. 314, as modified by St. 1905, c. 243, and upon a day set by his superior officer attends before him for that purpose, but, when he requests his superior officer to furnish him with information and to produce for him the testimony in support of the charge and specifications against him and letters from him to the department upon which certain specifications are based, such requests are refused, and he is not allowed to be sworn, he is not given such a hearing as the statute requires, and, upon his petition after his removal following such proceedings, a peremptory writ of mandamus reinstating him will be issued.</p>

<p>Appeal from a decree of the Probate Court for the county of Middlesex allowing the second and final account of the plaintiff as administratrix of the estate of Theodore C. Fletcher.</p> <p>The case previously was before this court on exceptions alleged by the appellant at the hearing before a single justice of an appeal from a decree of the Probate Court allowing the first account of the administratrix, and was reported in 191 Mass. 211. Thereafter the second and final account was filed in the Probate Court and was allowed. After appeal, the case was referred to an auditor, and then was heard by Loving, J., who ruled that both the first and the second accounts of the administratrix were before him for a rehearing, and found that, because before the appointment of the administratrix $6,868 of the $10,884.96 with which the inventory charged her had been distributed by the parties under the terms of the agreement referred to in the opinion, Schedule B * of a first and final account should contain an item of $4,016.96 representing property in the inventory which never came into the hands of the administratrix ; that Schedule B also should contain items showing the distribution, made in further carrying out of the agreement, of the balance of the estate (which was capital stock in various corporations and needed the official action of the administratrix and therefore had to await her appointment), and an item of $50 paid on account of the expenses of administration, which amounted to $875.03; and that the case be remanded to the Probate Court for further proceedings in accordance with the decree thus to be entered. Schedules A and B of the account as thus stated by the single justice balanced.</p> <p>Other facts are stated in the opinion.</p> <p>The case was reported by the single justice for determination by the full court.</p> <p>The case was submitted on briefs.</p>

<p>Negligence, Employer’s liability, In a factory. Evidence, Opinion : experts, Circumstantial, Remoteness, Competence, Hospital records. Practice, Civil, Conduct of trial.</p> <p>At the trial of an action at common law against a gas company by an employee in the defendant’s gas works, to recover for personal injuries received from an explosion which occurred as hot tar was being poured into a barrel, there was evidence which tended to show that the barrel was second hand and had been purchased empty by the defendant from a" shoe company to whom it had been furnished filled with a cement containing naphtha or gasoline, that some of the solution still was in the barrel when delivered to the defendant, that the defendant did not cause the barrel to be inspected as to its contents, except to ascertain whether there was water in it which would be harmful to the tar, and that the hot tar when poured into the barrel caused evaporization of the naphtha or gasoline which mixed with air made an explosive compound. It appeared that other barrels had been so purchased by the defeudant and that no explosion ever had occurred in them. The plaintiff testified that there was no flame which could have ignited the compound other than that of a gas jet fifteen feet distant from the barrel and of a retort fire twenty-two feet distant, and, of two experts called by the plaintiff, one testified that the compound could not have been ignited from the gas jet, and the other that it might have been, but that it was highly improbable that it was. Held, that the jury were warranted in finding that the flame of the gas jet or of the retort fire ignited an explosive compound formed in the barrel, that there was a duty on the part of the defendant to make an inspection of the barrel before using it for hot tar, and that the injury to the plaintiff was the direct and proximate result of the failure of the defendant to perform that duty.</p> <p>Until he sees some indication to the contrary, an employee in a gas factory has a right to assume that a barrel, furnished to him by the superintendent of the factory for the purpose of being filled with hot tar, has received whatever inspection is necessary to see that it can be used by him with safety for that purpose.</p> <p>In framing a hypothetical question to be put to a witness qualified as an expert, the usual practice is to allow counsel to include in the question an assumption of the existence of such facts and conditions as a jury may have a right to find upon the evidence as it is at the time the question is put to the witness or as there may be fair reason to suppose it thereafter in the course of the trial may appear to be; and in determining whether such a question shall be allowed, the judge in many cases must rely to a great extent upon the good faith of counsel in their statement as to what the evidence may be.</p> <p>It is within the discretion of the judge presiding at the trial of an action against a gas company by an employee to recover for injuries due to an explosion alleged to have been caused by the ignition of an explosive gaseous compound resulting from hot tar being poured into a barrel which previously had contained a mixture of which naphtha or gasoline was an ingredient, to admit testimony as to the liability of naphtha in a barrel so to dry as to leave a small amount of naphtha therein, and as to the condition of old barrels.</p> <p>St. 1905, c. 330, relative to the keeping by certain hospitals of records of the cases under their care and the history of the same, and to the admissibility in evidence of such records as to all matters therein contained, before its amendment by St. 1908, c. 269, did not make so admissible records made before its enactment.</p> <p>The attending physician at a hospital made memoranda of the history and facts as to cases under his care and handed the memoranda to a person in the employ of the hospital whose duty it was to make in a record book a copy of the memoranda, and to have the custody of the record so made. Such recorder had no personal knowledge of the facts so recorded. In a case where such a record was comparatively recent and the attending physician was not shown to have been dead, it was held, that the record, produced by the recorder and custodian, was not admissible in evidence, under the rule of the common law, to prove the facts therein stated.</p>

<p>Equity Pleading and Practice, Reservation by report. Gift. Donatio Causa Mortis.</p> <p>Where in a suit in equity the judge who hears the case, after finding certain facts, dismisses the bill, and then reports the case for determination by this court upon the terms' that such decree is to be entered “ as justice and equity may require,” it is the duty of this court to examine the facts and come to their own conclusion, giving due weight to the conclusion of the judge who heard the case.</p> <p>In a suit in equity by an administrator to compel the delivery to him of property which had belonged to his intestate and which was claimed by the defendant, as the president and a trustee of a voluntary association of which the intes.tate was a member, by virtue of an alleged donatio causa mortis to the association, it appeared that the property of the intestate consisted of certain wearing apparel and $500 in money. Some of the wearing apparel was in a trunk and some of it was hanging in a closet of his room, which he occupied as a boarder. One morning he was very sick and knew it. Before leaving for the hospital, in which he died, he handed the key of the trunk to his landlady and said, “ Here is the key of my trunk. Don’t give it to anybody but the president, Mr. P., [the defendant] or the board of trustees. Give it to them.” He also told her in substance that there was $500 in a pocket book in his trunk, that there was a dress suit that he intended should be used as his burial clothes, that there was some clean underwear which he wished the landlady to “ pick out ” for a similar or some other purpose and some shirts which his nephew might wear. The landlady said, “ There is lots of clothes in the closet. Who will I give the trunk to and all that ? ” He said, “ The society. They will take charge of everything. Do not give the key to anybody but Mr. P. or the board of trustees.” The landlady said, “ This ain’t legal, Mr. L. You have to have it in black and white.” He said, “ Well, Mr. P. is to come to-night, and I will send him word to come to the hospital. ... If I am not cremated, I want a little headstone put up, a grave and a headstone with perpetual care.” The landlady-said, “ I guess there won’t be much left after that.” He said, " I don’t want an expensive one, I want a little neat stone. What is left I want the society to have.” The trial judge expressed the opinion that the evidence did not compel him to hold that the gift was incomplete. He ordered that the bill be dismissed, and reported the case to this court for such decree as equity and justice might ■require. Held, that, as the intestate did not intend to give to the society all of the clothing in the trunk nor all of the money, his delivery of the key of the trunk to the landlady was not intended to change the title to a part of the contents and therefore must fail as to the whole, and that there was no sufficient delivery of the clothes in the closet, what was said about them being rather a direction to hand them to the society than an indication of an intention to part at that time witli the title, and, moreover, that it did not appear that the landlady agreed or supposed that she was acting for or in behalf of the defendant or the society in taking the key, but that it appeared rather that she intended to act and supposed she was acting to keep the property safely for the intestate, thinking that his estate could not he disposed of without a writing; consequently, that there was no delivery of any property sufficient to constitute a donatio causa mortis, and a decree was ordered for the plaintiff.</p>

<p>Contract by the American Bridge Company and the Central National Bank under and by virtue of two assignments made by F. G. Coburn of all moneys coming due to Coburn under two contracts with the city of Boston dated respectively July 16, 1901, and August 27, 1901, for the construction of two buildings for the City Hospital. Writ dated October 30, 1906.</p> <p>The action was brought to recover the amount of two architect’s certificates dated November 10, 1902, for the sums of $2,210 and $3,085.50. The case was referred to Carleton Hunneman, Esquire, as auditor, who found for the defendant. Afterwards the case was heard by Sanderson, J. The only evidence presented was the auditor’s report and the exhibits thereto annexed.</p> <p>The assignments were dated April 10, 1902, when the buildings were in the course of construction. Notice in writing of the assignments was given to the defendant on November 14, 1902. A short time after this Coburn abandoned the work. The defendant asked the judge to make the following ruling: “ The defendant is entitled to set off or recoup against the sum certified by the architects on November 10, as due F. G. Coburn and Company any set-offs or recoupments in its favor arising out of the contracts whether before or after November 10, 1902.”</p> <p>The judge refused to make this ruling. He found for the plaintiffs in the sum of $7,164.81*, and the defendant alleged exceptions.</p>

Two actions of toet, the first by a married woman for personal injuries received on May 3, 1905, from being struck by an -automatic door of a car on the defendant’s elevated railway at its Dover Street station in Boston, while the plaintiff was attempting to enter the car, and the second by the husband of the plaintiff in the first case for loss of her services by reason of such injuries. Writs dated respectively January 6, 1906, and July 15, 1907.

<p>Indictment, found and returned in the county of Suffolk on April 11, 1908 in thirty-one counts for larceny, as described in the opinion.</p> <p>On December 3, 1908, the defendant filed a motion for a statement of particulars. On December 9 the Commonwealth by the district attorney filed a statement of particulars, and on the same day the defendant filed a motion that the Commonwealth’s statement be expunged and discharged from the records, and that the court order and direct the Commonwealth to file further particulars and specifications as requested by the defendant in his motion filed on December 3. On December 14 this motion of the defendant was denied by Schofield, J.; and the defendant appealed from the order.</p> <p>On December 15 the defendant was placed on trial before Schofield, J. The defendant filed a motion to quash the indictment, which was denied by the judge. The defendant excepted to the order. At the close of the evidence for the Commonwealth the defendant rested, without offering any evidence, and asked the judge to compel the Commonwealth to elect upon which of the offenses, alleged to be set forth in the Commonwealth’s specifications as to each count, it asked a verdict. The judge refused to require the Commonwealth to make such an election and ruled that if under any count the jury were satisfied under the rules ,of evidence that either of the offenses embodied in the general phrase “ larceny ” had been committed the defendant might be convicted on such count. The defendant excepted.</p> <p>The defendant thereupon presented twenty-seven requests for instructions, of which nine were given in a form satisfactory to the defendant and two were waived. To the judge’s refusal to give the remaining instructions requested and to all portions of the charge inconsistent with the rulings requested the defendant excepted.</p> <p>On the sixth, twentieth and twenty-eighth counts the Commonwealth offered no evidence. On these and on the twenty-second count, on which evidence was offered, a verdict of not guilty was returned by order of the judge. On each of the remaining twenty-seven counts the jury returned a verdict of guilty; and the defendant alleged exceptions.</p> <p>The verdict was returned on December 80, 1908. On January 13, 1909, the defendant filed a motion in arrest of judgment. The motion was denied, and the defendant appealed from the order. On the same day the defendant was sentenced to imprisonment in the State prison for a term of not more than fourteen years and not less than ten years. The defendant moved for a stay of execution, and his motion was denied.</p>

<p>Railroad, Obstructing highway. Way, Public, Obstruction by railroad company.</p> <p>It is no defense to a complaint against a railroad corporation under R. L. c. Ill, § 196, for obstructing a highway with cars for more than five minutes at one time, that the continuance of the obstruction was due solely to the unlawful acts of third persons not in the defendant’s employ.</p>

<p>Negligence, Of one owning or controlling real estate. Nuisance. Way, Public.</p> <p>An apartment house in a city stood fifteen feet hack from the sidewalk of the public highway, and the owner built a sidewalk nine feet wide running from the entrance of the house, the outer lines of which curved where it joined the sidewalk of the street, so that the entrance walk there was seventeen feet wide. Abutting on the sidewalk of the street, but upon his own land, the owner of the house maintained a row of bricks set in serrated form and slightly elevated above the surface of the sidewalk. Back of the curved line of the entrance walk where it joined the sidewalk, he maintained a clump of shrubs, and, six inches from the end of the bushes nearest the sidewalk, and about three inches back from the line of the sidewalk, a piece of upright pipe with a wooden plug in it, the whole being about sixteen inches high, and being one of a series of stakes along the top of which a smooth wire was strung. A woman passing on a wet night from the house to the street raised the skirt of her gown from fifteen to twenty inches and, as she turned to the sidewalk, caught it on the top of the stake and was thrown down. Held, that the structures maintained by the owner did not constitute a nuisance, and also that the owner in maintaining them was not guilty of negligence toward a person using the entrance of the building by his implied invitation. ■ 0</p>

<p>Telephone Company. Boston. Municipal Corporations, By-laws and ordinances, Officers and agents. Way, Public.</p> <p>An order of the board of aldermen of Boston, purporting to give to a telephone company, which is incorporated under the laws of this Commonwealth but ■ which has not yet any telephone system in actual operation in the city, a right to establish above and below all present and future streets in Boston all such appropriate structures as may be adapted to the installation and maintenance of an electrical or other system for “ the transmission of sound, signals and intelligence,” discloses the characteristics of a franchise rather than of a permit, and is beyond the power of the board, and therefore void.</p> <p>The power given by R. L. c. 25, § 54; c. 26, §§ 2, 6, to the selectmen of towns and the mayors and boards of aldermen of cities to permit the use of public ways for telegraph and telephone wires by the laying of wires in the first instance under such ways, is subject to, and cannot be exercised until satisfaction of, the pro- ■ visions of R. L. c. 122, § 2, as amended by St. 1906, c. 117, relating to the method of applying for such locations, and to public hearings before the granting of them.</p>

<p>Devise and Legacy, Bequest of residue to executors “for their services.”</p> <p>A testatrix in a will drawn by herself made sixteen bequests to relatives and friends and charitable organizations amounting to $17,500, and also disposed of her personal belongings, silver and household furniture. The will in addition contained the following clause: “ Should there be a residue, ... I request my executors to pay [to two charitable organizations named] whatever remains if not more than $1,000. Should there be more than that sum remaining, I direct that the surplus be used toward the payment of my executors for their services under this will.” After she had made her will, the testatrix lost considerable money in bad investments, and thereupon went to a lawyer with whom she had a slight acquaintance and executed a codicil in which in the first paragraph she expressly ratified and confirmed her will “ in all respects save as the same . . . [was] . . . changed ” by the codicil, and in subsequent paragraphs revoked five of her charitable bequests amounting to $2,600, added bequests amounting to $1,050, limited the amount to he given to the charitable organizations by the portion of the will above quoted to $500, stated “ it is my desire that regardless pf any residuary provisions contained in said will my executors receive in any event fair compensation for their services,” revoked the nomination of one of two executors named in her will, who was her nephew, and substituted for him the lawyer who drew the codicil, and stated, “All provisions of said will applicable to executors shall apply to ” the newly named executor. After administration of the estate, and the payment of $900 to the executors on account of their services, there was left $3,000 which the executors claimed under the terms of the will. Held, that under the terms of the will and codicil such residue went to the executors for their own benefit.</p>

<p>Contract upon an order in writing payable to the plaintiff drawn by one John G. Foster upon the defendant and accepted by him. Writ dated March 28, 1904.</p> <p>The order declared upon was as follows :</p> <p>“Waltham, Mass., 8/8,1908.</p> <p>“ Mr. M. P. Collins,</p> <p>“ Dear Sir:</p> <p>“ Please reserve and pay the Buttrick Lumber Co. one thousand ($1000) dollars and deduct the same from any amount due me on final payment.</p> <p>“John G. Foster.”</p> <p>“ Accepted, — M. P. Collins,</p> <p>By Geo. E. Strout, Archt.’3</p> <p>In the Superior Court the case was tried before Bond, J. The contract to which the order related began as follows:</p> <p>“ Building contract, made this seventeenth day of February one thousand nine hundred and three, by and between M. P. Collins of Waltham, Mass., and John G. Foster of Waltham, Mass., builder.</p> <p>“ The said John G. Foster agrees with the said M. P. Collins to make, erect, build and finish in a good, substantial and workmanlike manner, a 3-store and apartment brick faced building upon lot situated at the corner of Main and Lexington Streets, Waltham, Mass., said building to be built of good and substantial material and in accordance with the drafts, plans, explanations or specifications furnished or to be furnished to said John G. Foster by Geo. E. Strout, Architect, and to be finished complete on or before the fifteenth day of June, 1903.</p> <p>“ And the said M. P. Collins agrees to pay for the same to the said John G. Foster the sum of six thousand and fifty dollars, as follows:</p> <p>1st $1200 when outside walls are up and roof covered.</p> <p>2nd $1150 when building is plastered, cellar cemented and windows in.</p> <p>3rd $1000 when stores are finished and building finished outside.</p> <p>4th $1200 when building is completed.</p> <p>5th $1500, 31 days after building is completed.</p> <p>“ Security against mechanics’ or other liens is to be furnished by said John Foster prior to fifth payment.”</p> <p>Foster was called by the plaintiff as a witness, and the substance of his testimony is described in the opinion.</p> <p>The order sued upon was made and accepted on August 8, 1903. Foster testified that he began work under the contract in February, 1903, and that he completed the construction of the building in September, 1903.</p> <p>Foster also testified that he made a settlement with the defendant on October 12,1903, and at that time signed a release, which was put in evidence by the plaintiff. It was dated October 12, 1903, and was a release in full of all claims which Foster had against Collins.</p> <p>He further testified, “ The consideration of my signing the release was that he [Collins] should pay all bills then having a hold on the building. ... At that time there was $2,200 due me. There was a balance of $700 on the fourth payment, and a final payment of $1,500. That final payment was due according to the contract thirty-one days after, and I finished about September 11. So on October 12 there was $2,200 due me from Mr. Collins. I did not get any money when I signed the release. I understood he was to pay the bills that had a hold on the building. I don’t know what time the owner moved into the building, but I think it was before October 12.”</p> <p>At the close of the evidence, the defendant asked the judge for seventeen rulings and instructions to the jury. Of these the judge gave the eighth, fifteenth, sixteenth and seventeenth as follows: “8. The order upon which this action is brought was a conditional order, payable only out of the final payment when it should become due according to the terms of the contract.”</p> <p>“ 15. The fact that the defendant made payments from time-to time to Foster under the contract, does not constitute a waiver of his right to have Foster complete the contract according to the plans and specifications.</p> <p>“ 16. The fact that the defendant entered into possession and occupied the building, after Foster had refused to do any further work upon it, does not amount to an acceptance of the building, or a waiver of his right to have the contract fully performed.</p> <p>“ 17. The burden of proof is upon the plaintiff to show that the final payment became due to Foster.”</p> <p>The remaining rulings and instructions requested by the defendant, which the judge refused to give, were as follows:</p> <p>“ 1. Upon all the evidence the plaintiff is not entitled to maintain this action.</p> <p>“ 2. By the terms of the contract between the defendant and Foster, the final payment did not become due so long as there were valid claims entitled to be maintained as liens upon the building, for which Foster gave no security.</p> <p>“ 3. There is no evidence which would warrant the jury in finding that the agreement between Foster and the defendant which resulted in the release executed by Foster Oct. 12,1903, operated to make the final payment due to Foster according to the terms of the order.</p> <p>“ 4. If the defendant, on October 12, 1903, in consideration of the release then executed by Foster, agreed to pay him $100 and to pay all valid liens upon the building, that agreement did not amount to a waiver of the defendant’s rights to refuse payment of the order upon the ground that the final payment never became due according to the terms of the contract.</p> <p>“ 5. In the absence of fraud or collusion for the purpose of defeating the plaintiff’s claim, the defendant had a right to enter into a new agreement with Foster on Oct. 12,1903, by which he agreed to pay Foster $100 and pay all valid outstanding liens upon the building, in consideration of the execution of the release by Foster of all further claims upon him, even though such agreement would operate to defeat the plaintiff’s claim upon the order.</p> <p>“ 6. The acceptance of the plaintiff’s order by the defendant would not deprive the defendant and Foster of the right to modify their contract in such way as they might deem best, in the absence of fraud or collusion between them to defeat the plaintiff’s claim.</p> <p>“ 7. If on October 12, 1903, there was a bona fide difference of opinion between the defendant and Foster as to whether the building had been completed according to the plans and specifications, and if they then compromised their differences by entering into a new agreement whereby Foster released the defendant from all further liability to him in consideration of the defendant’s promise to pay him $100 and to assume and pay all valid outstanding liens upon the building, such compromise agreement violated no rights of the plaintiff in any such way as to entitle it to maintain this action upon the order.”</p> <p>“ 9. This action was prematurely brought.</p> <p>“ 10. The final payment upon the contract between the defendant and Foster could not be regarded as due, so long as there were valid outstanding liens in favor of McKenna and John W. Foster. [John W. Foster was the father of John G. Foster who had done work on the building.]</p> <p>“ 11. If the defendant accepted the order in suit payable out of the final payment when due on the contract, and afterwards accepted the order of another sub-contractor, which was paid , out of money coming due Foster upon prior payments either under the contract or for extras, which money if not so paid might have been applied to the payment of liens upon the building, the plaintiff cannot for that reason disregard the amount of such lien, and recover the amount of his order as if such liens had been paid out of such prior payments.</p> <p>“ 12. Foster had a right to have money coming due him on account of prior payments under the contract or for extras, paid or applied as he saw fit, notwithstanding the fact that the plaintiff had an order payable out of the final payment, even though the result might be that the plaintiff’s order would be defeated because of the defendant’s right to retain out of the final payment enough to satisfy all valid liens upon the building.</p> <p>“ 13. The defendant is entitled to be allowed out of the final payment all sums that may be necessary to extinguish liens upon the building which cannot be extinguished out of other funds of Foster in his hands, and the plaintiff can at best recover no more than the balance of such final payment remaining after such liens are extinguished.</p> <p>“14. If Foster, failed to complete the building according to the contract, the plaintiff cannot recover.”</p> <p>The judge refused to make or give any of these rulings and instructions, and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $1,115.50. The defendant • alleged exceptions to the refusals of the judge to rule as requested.</p> <p>“ The defendant also excepted to that portion of the charge in which the judge charged the jury that if Foster in good faith thought he had performed the contract and for that reason might be entitled to pay for his work with deductions for the cost of rectifying the deficiencies in the matters in which he failed to complete his contract that then he would become entitled to the final payment, or some portion of it, under the contract, within the meaning of this order. The defendant stated at the time of taking this last exception and as a reason for taking it, that he thought the rule there announced by the judge was a rule under which the plaintiff recovered, not on the contract, but on a quantum meruit.”</p>

<p>Four petitions, filed in the Superior Court respectively on November 25, December 9, December 11,1908, and February 26, 1909, under St. 1906, c. 402, § 4, for the assessment by a jury of damages suffered by the several petitioners by. reason of the work done by the Charles River Basin commissioners under authority of the provisions of that chapter, the petitioner in the first case being the owner of a lot of land bounded on the north by Revere Street, in Boston, on the east by Charles Street, on the south by Pinckney Street and on the west by the Charles River, the petitioner in the second case being the owner of a lot of land on the northerly side of Beacon Street numbered 424, and bounded northerly on the harbor commissioners’ line, the petitioner in the third case being the owner of a lot of land on the northerly side of Beacon Street bounded southerly by Beacon Street and northerly by the Charles River, and the petitioner in the fourth case being the owner of a lot of land on the westerly side of Brimmer Street numbered 19, bounded easterly by Brimmer Street and westerly by the Charles River.</p> <p>On page 424 is a reduced copy of a,plan, used at the argument, showing the changes in the Charles River Basin.</p> <p>In each of the cases the Commonwealth demurred to the petition. At different times between December 28, 1908, and March 1,1909, each of the cases came on for argument before Richardson, J. In each case he ordered that the demurrer to the petition be overruled, and, being of opinion that the orders ought to be determined by this court before any further proceedings in the Superior Court, by agreement of the parties he reported the cases to this court for such determination.</p> <p>The cases were argued together before this court on March 9, 1909.</p>

<p> Flats. Colony Ordinance of 161ft. Charles River Basin. </p> <p>The owners of flats in this Commonwealth acquired by virtue of the Colony Ordinance of 1647 hold them subject to the right of the Commonwealth to cover them with deep water by means of a permanent dam maintained for purposes of navigation, and their diminution in value from being thus permanently covered with water is not a taking of property from the owners.</p> <p>The owners of flats in the Charles River Basin, theretofore bare at low tide and valuable in furnishing" sand and gravel for sale, were deprived of no property by the erection of the dam authorized by St. 1903, c. 465, as amended by St. 1906, c. 402, maintaining the water over the flats at a permanent depth of eight feet.</p>

<p>Automobile, Registration. Negligence, In use of highway, Trespasser. Trespass. Way, Public.</p> <p>Whether St. 1903, c. 473, § 1, as amended by St. 1905, c. 311, § 2, providing that no person shall operate in this Commonwealth an automobile or motor cycle upon any public highway or private way laid out under authority of statute, unless he has been licensed and his vehicle registered as required by the statutes, ex- • cept that “any automobile or motor cycle owned by a non-resident of this State who has complied with the laws relative to motor vehicles and the operation thereof of the State in which he resides may be operated by such owner on the roads and highways for a period not exceeding fifteen days without the license ” should be interpreted as giving to such non-resident owners merely one period of fifteen days after once coming into this Commonwealth before being forbidden to operate their machines here without a license, and as allowing only one total period of grace during the whole license year, or whether it should be construed more liberally by allowing non-resident owners to operate their cars without a license for a period of not more than fifteen days upon any and every occasion when they shall come into this Commonwealth, here was not decided.</p> <p>A resident of Connecticut, who during sixteen days has been operating an automobile on the highways of this Commonwealth, except for a part of a day when he drove it to West Suffield, Connecticut, and the daytime of another day when he drove it to Brattleborough, Vermont, to attend a fair, and a day and a half when the machine was in a garage in this Commonwealth undergoing repairs, has operated an automobile on the roads and highways of this Commonwealth for a period exceeding fifteen days, within the meaning of St. 1903, c. 473, § 1, as amended by St. 1905, c. 311, § 2, and therefore, although he may have complied with the laws of Connecticut relating to motor vehicles, if he has not complied with the requirements of St. 1903, c. 473, and acts in amendment thereof, he is a trespasser upon the highway.</p> <p>By the provisions of St. 1903, c. 473, as amended by St. 1905, c. 311, regarding the registering of automobiles and the licensing of operators thereof, the Legislature created a duty on the part of persons owning or operating automobiles toward other travellers upon the highways, and therefore one who owns and operates upon the highway an automobile not registered as required by those statutes is a trespasser and other travellers upon the highway owe him no duty excepting to refrain from injuring him by acts done with a wanton or reckless disregard of consequences.</p>

<p>Tort for personal injuries received by the plaintiff and alleged to have been caused by his being thrown because of negligence of the defendant from the front platform of a closed surface electric car, upon which he was a passenger, as it turned upon the curve of the southerly loop at Dudley Street Elevated Station in Boston after it had come up the incline from the street. Writ dated July 29, 1903.</p> <p>The case was tried before Aiken, C. J. At the close of the evidence, he ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The case was argued at the bar in January, 1909, before jKnowlton, C. J., Morton, Hammond, Loring, & Braley, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Contract, Performance and breach. Strike. Damages.</p> <p>Where by a contract in writing made on May 22, 1902, a coal dealer agreed to deliver before November 1 of that year an amount of coal sufficient to fill the bins in a certain building with furnace and stove coal to their full capacity, and the contract contained a condition that the seller should not be responsible for the delivery “ if prevented by strikes or combinations of miners,” and from the middle of May, 1902, until November 26, 1902, a strike of miners in the coal mines of Pennsylvania wholly interrupted the ordinary supplies of coal of the dealer, but he had on hand at all times during the period of the contract quantities of coal of the proper grades equal to or greater than the amounts called for by this contract and was equipped with teaming and transportation facilities sufficient for the delivery of such coal at the premises of the buyer, it was held, that the contract of the seller toward the buyer was performed in full, if during the strike the seller apportioned all his available supplies of coal among his regular customers and those persons with whom he had contracts when his contract with the buyer was made and gave to each his fair and proportionate share of the seller’s available supplies, and if he delivered to the buyer during the period covered by the contract his fair and proportionate share of such supplies.</p> <p>A so called strike clause in a contract for the delivery of certain coal during a period named, stipulating that the seller shall not be responsible for the delivery of the coal “ if prevented by strikes or combinations of miners,” relieves the seller from his obligation to deliver to the buyer during a strike of miners more than the buyer’s due proportion of the supplies of coal which the seller has on hand or has reason to anticipate that he can obtain by the exercise of proper effort, but a strike during the period fixed for delivery has no effect to extend such period beyond the time limited by the contract.</p> <p>By a contract in writing made on May 22, 1902, a coal dealer agreed to deliver before November 1 of that year an amount of coal sufficient to fill the bins in a certain building. The contract contained a condition that the seller should not be responsible for the delivery “if prevented by strikes or combinations of miners.” From the middle of May, 1902, until November 26, 1902, a strike of miners in the coal mines of Pennsylvania wholly interrupted the ordinary supplies of coal of the dealer, but during the period covered by the contract he apportioned all his available supplies of coal among his regular customers and those persons with whom he had previous contracts and gave to each, including the buyer under the contract in question, liis fair and proportionate share of the seller’s available supplies. On October 31, 1902, the seller notified the buyer that for all coal delivered after November 1, 1902, he should charge the buyer the market price. He did so, and, on the buyer refusing to pay such price, brought an action to recover it. Held, that, if, after receiving the notice from the plaintiff, the defendant ordered coal that was delivered after November 1, he was liable for the market price, although he intended that such coal should be treated as delivered under the contract, because the obligation of the plaintiff to deliver under the contract terminated on November 1, and he had performed his whole duty under the contract up to that time, the strike, which did not terminate until after the termination of the contract, having excused him from delivering to the defendant more than his proportional share of the plaintiff’s coal on hand.</p>

<p>Negligence, Due care of plaintiff.</p> <p>In an action against a street railway corporation for personal injuries, from being run down by an electric car of the defendant, it appeared that the accident took place on a street running through a village on which the defendant maintained a single track. There was evidence tending to show that the car was going very fast, and one witness testified that it was going a mile a minute. It was a pleasant day in June. An approaching car could be seen for a' distance of at least three hundred feet. The plaintiff was walking at the rate of from three to three and one half miles an hour and was driving a pair of horses which he intended to hitch to a plow. He lived nearby, and testified that he knew that cars were likely to come in either direction and that it was a place where cars came at considerable speed. He testified that just before he attempted to cross the track he looked and listened for an approaching car but saw no car and heard no whistle or other noise to indicate that one was approaching. On cross-examination he admitted that the car must have been in close proximity to him when he looked. When he was struck he was crossing the track diagonally with his back toward the approaching car. The evidence indicated that the horses got over the track safely and were not misbehaving, although they broke away and ran when the plaintiff was struck by the car. Held, that as matter of law the plaintiff was not in the exercise of due care and so was not entitled to go to the jury; that he must have stepped upon the track in front of a rapidly approaching car which was in plain sight, and, if he looked and listened, he must have done so carelessly, as, even if the car was running at the rate of a mile a minute, it must have been in sight when the plaintiff started to cross the track.</p>

<p> Lake Cochituate. Boston. Eminent Domain. </p> <p>The taking by the city of Boston of “ all the waters of ” Long Pond [now Lake Cochituate] and “ all the water-rights thereunto belonging or in any wise appertaining ” under authority of St 1846, c. 167, with regard to the taking of certain waters by that city for the purposes of a water supply, deprived persons claiming a right to the use of sucli waters as grantees of the Natick Indians, to whom certain grants were made in 1659 by the General Court, of any such rights as they thus acquired, and brought them within the provision of St. 1846, c. 167, as to compensation.</p>

<p>Malicious Interference. Pleading, Civil, Declaration. Unfair Competition. Sherman Act.</p> <p>In a declaration in an action for maliciously inducing another person to break his contract with the plaintiff, it is not necessary to set out the statements, if any, which were made by the defendant to induce the third person to break the contract.</p> <p>In the declaration, in an action for maliciously inducing another person to break his contract with the plaintiff, it is not necessary to set out the contract between the plaintiff and the third person. It is sufficient to state its effect so far as it is material.</p> <p>A declaration alleged that the plaintiff was a corporation, organized under the laws of this Commonwealth for the purpose among others of jobbing or retailing window glass, with its principal place of business in Boston, that it had been engaged for many years in jobbing and retailing window glass to customers, principally in Boston and New England, and that it and other window glass jobbers throughout the United States entered into contracts with an association called the National Window Glass Jobbers Association, by which the association agreed to purchase window glass in large quantities from the manufacturers thereof, principally the defendant, and to sell it to the plaintiff and the other jobbers, that the plaintiff under its contract was entitled to receive from the association a large quantity of window glass, namely, two hundred thousand boxes, but that the defendant, with knowledge of the contract between the plaintiff and the association, and with intent to injure the plaintiff in its business, maliciously induced the association to break its contract with the plaintiff and to refuse to deliver to it any of the window glass to which the plaintiff was entitled. The defendant demurred to the declaration, contending that the contract between the plaintiff and the association, as described in the declaration, was in unlawful restraint of trade, and was illegal both at common law and under 26 U. S. Sts. at Large, c. 647, commonly known as the Sherman act, and therefore that the interference of the defendant to prevent the performance of the contract was justified as fair trade competition. Held, that there was nothing in thé contract described in the declaration in violation of the Sherman act, so called, nor anything tending to create a monopoly or to operate in restraint of trade at common law, and that the demurrer should be overruled, the plaintiff having stated a case on which it was entitled to recover damages from the defendant for knowingly and maliciously inducing the association to break its contract with the plaintiff.</p>

<p>Bill in equity, originally an action at law, filed in the Superior Court on April 7,1904, for a percentage of renewal premiums on life insurance policies alleged to be due as commissions to Isador Wolffsohn, whose trustee in bankruptcy the plaintiff was, as stated in the opinion.</p> <p>The case was referred to John F. Brown, Esquire, as a master. Besides the findings stated in the opinion, he found that on March 27, 1899, the bankrupt owed the defendant $678.82. Other material findings are stated in the opinion. Exceptions of both parties to the report were overruled by Fox, J., who made a decree dismissing the bill. The plaintiff appealed.</p>

<p>Tort, for personal injuries received by the plaintiff while in the employ of two of the defendants, Merrill and Emerson, from falling down an elevator shaft in a building owned by Russell, the other defendant. Writ dated January 16, 1907.</p> <p>The case was tried before Hitchcock, J. A verdict was ordered for the defendants under the circumstances stated in the opinion ; and the plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Tort for the alleged conversion of three bars used in the bar room of a hotel. Writ dated December 17, 1904.</p> <p>The case was tried before Sherman, J. Besides the facts stated in the opinion, it appeared from the report by the presiding judge that it was “ admitted for the purposes of this report that there had been a breach of the condition in the plaintiffs’ mortgage, and that the plaintiffs had a right to possession of the articles in question if they were not real estate or held under defendant’s mortgage, entry, or foreclosure. That is, it was agreed between counsel at the trial, that, if these articles were personal property, the plaintiffs had a right to them unless held under defendant’s mortgage, entry, or foreclosure; but if they had become a part of the realty or held as aforesaid, the plaintiffs did not have a right to them; and this was the question at issue in this case.” Other facts are stated in the opinion.</p> <p>The presiding judge ordered a verdict for the defendant and reported the case for determination by this court under the terms stated in the opinion.</p> <p>The case was submitted on briefs.</p>

<p>Negligence, In use of highway. Street Railway.</p> <p>If, in order to reach a stairway leading to an elevated railway station by way of a platform which is between parallel tracks on the surface of a street, a traveller on the highway, instead of continuing to cross to the platform on a crosswalk on which he is walking, leaves the crosswalk when he still is ten feet from the nearest street car rail and goes diagonally toward the platform for some distance and then along beside the rail for four or five steps with his back to a car which he has seen about two hundred feet away when he left the crosswalk but which he has not looked at again after leaving the crosswalk, and is struck by the car just as he steps upon the track, he cannot be said to be in the exercise of due care, although at the time when he left the crosswalk he “ assumed . . . that he had time to cross the track and get on to the platform before the car came along.”</p>

<p>Negligence, Railroad, Defective car of company other than defendant, Gross, Causing death, Res ipso loquitur. Evidence, Presumptions and burden of proof. Estoppel.</p> <p>Where one railroad company has the possession and control of and is using in its own business and for its own purposes as a part of one of its trains a freight car owned by another company, its duty to strangers is not discharged merely by establishing an adequate system of inspection and by providing a sufficient number of competent inspectors, but it is under the same liability as if it were itself the owner of the car.</p> <p>It is the ordinary experience of mankind that the top roof of a railroad car will not blow oS even in a high wind if the car is in good condition and in a proper state of repair and, if the roof of such a car does blow off in a high wind while the car is in the possession and control of and is being used by a railroad company, which is not its owner, for its own purposes and as a part of one of its own trains, and a person, not a passenger, rightly in the neighborhood is injured thereby, it well may be inferred in the absence of explanation that the accident was due to the negligence of such railroad company.</p> <p>The mere fact that, at the trial of an action of tort for personal injuries alleged to have been caused by reason of negligence of the defendant, both the plaintiff and the defendant offer evidence in attempted explanation of the accident, does not preclude the jury, in case they find that no satisfactory explanation has been given, from finding negligence of the defendant from the mere happening of the accident if it was one which was caused by instrumentalities in the control of the defendant at the time and which in the ordinary experience of mankind would not have happened if such instrumentalities had been in good condition and in a proper state of repair.</p> <p>At the trial of an action under R. L. c. 171, § 2, against a railroad company by the administrator of one who, while in the exercise of due care, was killed by being struck by the roof blown from a freight car in a high wind, it appeared that the car was owned by a railroad company other than the defendant and that at the time of the accident it was in the possession and control of the defendant and was being used by it on its own business and as a part of one of its own trains; and there was evidence tending to show that a fascia board was broken off from the roof and that the roof was in such condition that wind could get between it and a metallic roof immediately beneath it, that such a condition was a generally recognized source of danger, that the roof which blew off had been loose fifteen minutes before the accident and in such a condition as to call for an examination while the car was being shunted about, that an examination of the roof was made by employees of the defendant, who found no defect therein, that the wind at the time was blowing fifty miles an hour, and that a proper examination of the car and its roof would have disclosed the imminent danger, with the existing wind, of just such an occurrence as did take place. Held, that there was evidence, not only of want of ordinary care on the part of the employees of the defendant who inspected the car and permitted it to continue unrepaired, but also of gross negligence on their part.</p> <p>The doctrine of res ipso loquitur is to be applied only against a party who by himself or his servants had at the time of the accident in question the control and management of the appliance or instrumentality whose failure or defective condition was the cause of the accident.</p> <p>Where a railroad company delivers a freight car of which it is the owner to another railroad company which is to deliver the car to a third company in the course of transporting freight, and, after the car has completed its journey, it again comes into the possession of the second company, which without authority from the owner uses it in its own business and as a part of one of its own trains, the company which owns the car is not liable, either solely or jointly with the company in whose possession the car is, to a stranger who is injured by reason of a defect' or want of repair therein, whether such defect or want of repair is hidden or obvious.</p>

<p>Contract for money had and received by the defendant’s intestate to the use of the estate of the plaintiff’s testator, the declaration alleging that the defendant’s intestate procured from the plaintiff’s testator three life insurance policies from which she received $8,500 on October 7 and 14, 1895, and also procured real estate from him from the sale of which she received $4,000 on July 18,1899, and that she fraudulently concealed from the plaintiff’s testator and his legal representatives the cause of action until within six years before the date of the writ. Writ dated January 16,1906.</p> <p>The case was tried before King, J. Besides the facts stated in the opinion, there was evidence tending to show that the defendant’s intestate always had lived in Middlesex County, that the only libel for divorce in which a person of her name was a party was the one mentioned in the opinion; that, during the period when the plaintiff’s testator and the defendant’s intestate were living together as man and wife, i. e. from August 19,1874, until September 19, 1895, he took out three life insurance policies payable to her as his wife, the proceeds of which, received by her after his death, and interest thereon made up six of the •items of the declaration; and that on June 13, 1894, he deeded to her real estate which she sold after his death, the proceeds of which, with interest, made up the remaining items of the declaration.</p> <p>Other facts are sufficiently 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>Tort under E. L. c. 102, § 146, against TomB. Middlebrook and Ellen Johnson, for injuries received on July 8, 1907, from the bite of a dog of which the defendants were alleged to be the owners or keepers. Writ in the Municipal Court of the city of Boston dated July 25, 1907.</p> <p>The declaration contained six counts, the first of which alleged that the two defendants were at the time of the injury the joint keepers of the dog which caused the injuries; the second count alleged that the two defendants were the joint owners of the dog at the time; the third count that the defendant Johnson was the keeper of the dog at the time; the fourth count that the defendant Johnson was the owner of the dog at the time; the fifth count that the defendant Middlebrook was the keeper of the dog at the time; and the sixth count that the defendant Middlebrook was the owner of the dog at the time.</p> <p>On appeal to the Superior Court the case was tried before Orosby, J.</p> <p>At the close of all the evidence, the defendants asked the judge to give to the jury the following instructions, among others:</p> <p>“ 9. There is" no evidence from which the jury can find that the two defendants owned the dog which produced the injury jointly.</p> <p>“ 10. That there is no evidence in the case from which the jury can find that the dog in question was kept jointly by the two defendants.”</p> <p>“ 13. That upon all the evidence the jury cannot find a verdict against both of the defendants.”</p> <p>The judge gave the ninth instruction as requested, but refused to instruct the jury as requested by the defendants in the tenth and thirteenth requests, and instructed them that there was evidence in the case from which the jury could find that the dog in question was kept jointly by the two defendants, and that upon all the evidence the jury could find a verdict against both defendants.</p> <p>The jury returned a verdict for the plaintiff against both defendants. They assessed the damages sustained by the plaintiff in the sum of $175, and doubled that amount under the provision of the statute, assessing the total damages in the sum of $350. The defendants alleged exceptions.</p>

<p>Tort, with counts at common law and under the employers’ liability act, by the administrator of the estate of Gustaf P. Johnson, for the conscious suffering and death of the plaintiff’s intestate, caused by his being crushed by a freight elevator on July 3,1905, when he was attempting to board the elevator in the basement of the building numbered 122-126 on Summer Street in Boston, where the defendants carried on the hardware business, the plaintiff’s intestate being a few days less than fifteen years of age, and having been in the employ of the defendants for two and one half days. Writ dated January 20, 1906.</p> <p>At the trial in the Superior Court before Bond, J., the following facts appeared: On the day of the accident an expressman named Hurley came to the building occupied by the defendants for the purpose of delivering goods to one of the tenants other than the defendants. He lost a paper down the elevator shaft, and an employee of the defendants named Newcomb volunteered to get it for him. Either Newcomb or the expressman ran the elevator up to the street level, and then went down in it to the basement, stopping the elevator car from two to two and a half feet above the basement floor. After Newcomb had reached in under the car and got the lost paper, the car started up again. It did not appear who started it, as Newcomb and the expressman each denied that he did it. As the elevator started, Newcomb saw the plaintiff’s intestate coming toward the elevator with a pail. The boy called out, “ Wait a minute.” He then shoved his pail upon the elevator, and attempted to jump on. Newcomb tried to get him off, and asked him what he was doing. The expressman pulled the rope to stop the car. Before he could stop it, however, the elevator caught the plaintiff’s intestate at the waist as he was trying to get upon the car, and crushed him between the car and the floor above.</p> <p>At the close of the evidence the judge ordered a verdict for the defendants; and the plaintiff alleged exceptions.</p>

<p>Bill in equity, filed in the Probate Court for the county of Suffolk on December 19, 1907, alleging</p> <p>1. That Ellen M. Ware of Washington in the District of Columbia, died on August 31, 1906, leaving a will which was proved in the county of Suffolk on November 22, 1906; that the plaintiff and Albion Parris of Washington were named as executors in this will, and were appointed and qualified as such.</p> <p>2. That at the time of her death Ellen M. Ware was seised and possessed of one undivided half part of a certain parcel of real estate situated on Essex Street and East Street in Boston.</p> <p>3. That on July 11, 1907, the plaintiff presented to the Probate Court for the county of Suffolk a petition praying for the appointment of Robert S. Minot, or some other suitable person, as trustee to sell and convey the undivided half part of said real estate situate on Essex Street and East Street in Boston; that on this petition it was ordered and decreed by the judge of probate for the county of Suffolk that Robert S. Minot be appointed trustee with authority to sell said undivided half part for $133,500, and to invest the proceeds thereof simultaneously in shares or certificates to be issued by said Minot as trustee under the Willis-Ware real estate trust agreement, and to hold and apply such shares or certificates for the benefit of the persons who would have been entitled to said undivided half part of said real estate if such sale had not been made.</p> <p>4. That in accordance with this decree Minot sold said real estate (the plaintiff joining in the conveyance thereof) and invested the proceeds, namely, $133,500, in shares of said Willis-Ware real estate trust, and at the time of the filing of the bill said shares stood in the name and were in the possession of said Minot as trustee under said decree.</p> <p>5. That the plaintiff was informed and believed, and therefore averred, that the only persons who might or could be entitled to any interest in said undivided half part of said real estate if such sale had not been made (other than Robert S. Minot) were the plaintiff, Emily W. Pierce of Portland, Maine, Charlotte H. Mansfield of Portland, Maine, and certain minors named, the children of Charlotte H. Mansfield, and any issue not yet born of said Emily W. Pierce and Charlotte H. Mansfield.</p> <p>The plaintiff prayed</p> <p>1. That the court should determine what persons, if any, other than the plaintiff would have been entitled to said undivided half part of said real estate if such sale had not been made, and what the respective rights and interests of the parties were therein.</p> <p>2. That said trustee, Robert S. Minot, be ordered to transfer and assign said shares in the Willis-Ware real estate trust to the plaintiff, and that the court should make such other order or decree with reference to said, shares as might seem meet and proper.</p> <p>The will of Ellen M. Ware, of which a copy was attached to the bill, was as follows:</p> <p>“ I, Ellen M. Ware of the City of Washington, D. C., do make and declare this my last will and testament.</p> <p>“ My real estate situated in the City of Portland, Maine, I leave in trust to the executors of this will to be disposed of as follows:</p> <p>• “ All the interest and rents accruing from my share of the Portland estate to be applied to paying off the sums advanced by me for the improvement of the property owned by us in common. When such indebtedness is paid to my son Richard Ware interest and principal, then one half of the income of such estate I wish to be paid regularly to Emily W. Pierce.</p> <p>“ The other half of the income to be applied to the payment of various sums of money loaned by me to Warren W. Mansfield amounting in all to $8000.00; all these payments of indebtedness to go to my son Richard Ware. When all these debts are paid, then the whole of such estate in Portland, Maine, I wish to be handed over to said Emily W. Pierce and Charlotte H. Pierce (Mansfield) as their own freehold, half to each.</p> <p>“ To Miss Emily W. Dana of Falmouth, Maine, I bequeath six thousand dollars in memory of pleasures and obligations of the past.</p> <p>“All my household furniture, all my silver plate, jewelry, clothing and personal articles I give to my son Richard Ware.</p> <p>“ All the rest, residue and remainder of my property of every description whatever, real, personal and mixed, of whatever the same may consist, wherever the same may be situated, and whenever the same may have been acquired, whether before or after the execution of this will, I bequeath to my said son, Richard</p> <p>“ If the said Richard shall not survive me, or if he shall die leaving no will duly executed by him, or if he shall die leaving no lineal descendants, then in that case it is my wish, and I so ■direct, that it, the property above mentioned, shall at my son’s death pass in equal shares to my nieces, daughters of my late sister, Emily H. Pierce and to the lawful, living children of either of them who shall then be dead, if any, such last named to take the share which would have gone to their mother .had she continued to live.</p> <p>“ I appoint my son, Richard Ware, and Mr. Albion K. Parris, both of Washington D.C. to execute this will; and I request ■that neither shall be required to give bonds.</p> <p>“ Ellen M. Ware.”</p> <p>[Here followed an attesting clause and the signatures of three witnesses.]</p> <p>The Probate Court appointed Charles B. Barnes, Jr., Esquire, guardian ad litem, to represent minor children and persons unborn. He filed a report as such guardian, and the case was heard in the Probate Court upon his report by George, J. He made a decree declaring, among other things, that by the will the plaintiff, “Richard Ware, took a qualified fee in the one undivided half part of the real estate mentioned in the petition, being part of the residue determinable in the event of his death leaving no will or lineal descendants, with an executory devise over to the nieces of the testatrix, daughters of her late sister, Emily H. Pierce, and to the lawful, living children of either of them who shall then be dead, by right of representation.” The plaintiff, as the sole child and heir at law of Ellen M. Ware, appealed.</p> <p>Upon the appeal the case was heard by Sheldon, J. He ruled as a matter of law that the will of Ellen M. Ware created an executory devise, and that the plaintiff did not take an absolute fee. He ordered that the appeal be dismissed and that the case be remitted to the Probate Court, without passing upon the question of the power of the court on this bill to act upon the removal of the trustee. At the request of the plaintiff, he reserved the case, upon the pleadings and the evidence, for determination by the full court, such decree to be entered as justice and equity might require. The evidence was reported by a commissioner appointed under Equity Rule 35. By a photograph of the will of Ellen M. Ware, which was put in evidence by agreement, it appeared that the will was in the handwriting of the testatrix.</p>

<p>Negligence, Street railway, Due care of plaintiff. Street Railway.</p> <p>Although it is not the duty of a street railway company, across whose track an open trench has been dug by a contractor constructing a system of sewers under a contract with a town, to guard the sewer trench or to remove and replace barriers across its track to enable its cars to pass, yet if, on a dark night, its servants operating one of its cars, on coming to the trench, find a barrier across the track, and no one there to remove it, and thereupon remove the barrier and fail to put it back, leaving the trench unguarded, and a traveller riding a bicy- ' cle upon the track rides into the trench and is injured, in an action against the street railway company for his injuries thus caused, there is evidence of negligence on the part of the defendant.</p> <p>In an action against a street railway company for personal injuries from riding a bicycle in the evening upon a track of the defendant on a highway into a trench dug across the track, it being alleged that a servant of the defendant had removed a barrier guarding the trench and negligently had failed to put it back, there was evidence that it was a dark night, that the plaintiff was following at a distance a car of the defendant, and, when six hundred feet away, saw it pass over the place where the accident happened, that the trench crossed the track at right angles, was four or five feet wide, and had been dug by contractors who were constructing a sewer system under a contract with a town. There were piles of dirt on both sides of the track and at the nearer and farther side of the trench. The plaintiff testified that he was riding his bicycle on the track because it was better going on the stone pavement between the rails than it was outside where the sewer recently had been constructed and the street was rough. There was no barrier or light across the track when the accident happened. The evidence did not warrant a finding that there was a barrier on the nearer side of the trench before the car passed which the plaintiff saw when six hundred feet away, but there was evidence that there was a barrier with a lantern hung on it within about ten feet from the trench on the side away from the plaintiff before this car had passed, that this barrier was removed by a servant of the defendant and that it was not put back. Held, that there was evidence warranting a finding that the accident was caused by the failure to put back the barrier about ten feet from the trench on the farther side; also, that there was evidence that the plaintiff was in the exercise of due care.</p>

<p> Fraternal Beneficiary Corporation. Mandamus. </p> <p>A vote of a mutual benefit corporation suspending one of its members from membership for non-payment of an assessment of $1, regularly made, if passed without notice to the member and without giving him an opportunity to be heard, is irregular and unauthorized.</p> <p>At the hearing upon a petition for a writ of mandamus against a mutual benefit corporation to compel the reinstatement of the petitioner as a member of the respondent, it appeared that by a vote of the respondent the petitioner was suspended from membership for non-payment of an assessment of $1, regularly made, but that the vote was passed without notice to the petitioner and without giving him an opportunity to be heard, and tiiat at the time the assessment became due the petitioner was disabled and was receiving benefits, or should have been receiving them. A by-law of the respondent provided as follows : “ A member being at the time sick or disabled and receiving benefits, cannot be debarred from receiving a continuation of such benefits because of his inability to pay his assessment. The president being authorized to deduct from the sums paid him for benefits such amounts as will keep him in good standing, which money so deducted is to be paid to the financial secretary and his receipt taken therefor.” It also appeared that the petitioner was ill and unfit to work, by reason of general debility from consumption, for a period of about three months ending after his suspension by the vote mentioned above, that a committee was appointed by the respondent under a provision of its by-laws to investigate his sickness or disability, and upon their report sick benefits were paid to him for about five weeks at the regular rate provided for such cases, less $1.60 deducted under the provision quoted above for a'death assessment, and for his monthly dues. Upon a report of the financial secretary that the committee had been unable to find the petitioner at home, the respondent voted to drop the petitioner from the sick list and to discontinue giving him sick benefits. It appeared that the petitioner was ready to co-operate with the committee in arranging to meet them and to be where they could find him, and it did not appear that there was any change of residence or of post office address on his part that had any connection with the action of the respondent or with the petitioner’s rights in the matter. Held, that a writ of mandapius should issue ordering the petitioner’s reinstatement.</p> <p>Upon a petition for a writ of mandamus, brought by a member of a mutual benefit corporation against the corporation, which has suspended him, to compel his reinstatement, where the petitioner alleges and shows that his suspension was wrongful, it is no ground for refusing to issue the writ that the petitioner did not first resort to the provision of a by-law of the corporation on the subject of the reinstatement of a suspended member, if this provision applies only to the case of one who admits that he was suspended rightly, and who, to avail himself of it, must assume the regularity of his suspension and must pay a membership fee and one month’s dues in advance, and who also, if reinstated under the by-law, cannot receive benefits until the expiration of a month from the time of his reinstatement.</p>

<p>Devise and Legacy, Division by classes or by individuals. Trust, Power of trustee to sell real estate. Words, “Share and share alike,” “Heirs,” “Need.”</p> <p>The seventeenth clause of a will, each of the first fifteen clauses of which contained a legacy of a stated amount of money to a specified person, and the sixteenth clause of which devised the testator’s homestead to a son of his nephew A., provided as follows: “ I give and bequeath the Ballance of my real Estate and Personal Property to my Heirs as follows to the 8 Children of my Nephue A. 8 shares to the 8 children of my Niece F. 8 shares and my said Niece one Share and to ” the son of a grandnephew one share “ making 18 shares Share and Share alike.” One of the eight children of the niece F., who was living when the will was made, died before the testator. Held, that it was manifest that the testator intended to' dispose of all of his property, and that the clause quoted was intended as a residuary clause, that, although he used the words “share and share alike,” he intended the division to be made by classes and not by individuals, and that the eight parts of the residue given to the children of F. should be divided among the seven living at the death of the testator.</p> <p>By the sixteenth clause of his will, a testator devised his homestead to a grandnephew P. By the seventeenth clause he divided the residue into eighteen parts, of which seventeen parts were given by classes to P.’s brother and sister, to a niece F., and to her children, and to the children of a nephew, but $4,000 was deducted from P.’s share because of the devise of the homestead. The eighteenth clause read as follows: “ I give that Said Four Thousand Dollars to the remaining 17 Heirs to be divided Equally among them.” One of the children of the niece F. had died before the testator. Held, that the division of the $4,000 was to be among those named in the eighteenth clause, excepting P., in a single class, each receiving one sixteenth.</p> <p>After clauses disposing of the residue of his estate among a niece and grandnephews and grandnieces, a testator provided as follows: “ If at my Decease any of said Heirs are not 21—years of age I will that the Money going to them be invested by the trustees in good City Bonds or in some good Savings Banks and if said Heirs are not in need of the money it shall remain invested until they becom of age.” The will nowhere specifically gave the trustees power to sell real estate. The residue was both real and personal estate. Held, that it was the intent of the testator that each beneficiary’s share should be paid to him as he reached majority, that whether or not a beneficiary was “ in need of money ” at any time was to be determined by the trustees in the exercise of sound judgment and wise discretion in the light of all attendant conditions, and that by implication without express statement there was conferred upon the trustees a power of sale of real estate.</p> <p>Where a will makes it the duty of the trustee thereunder to provide for the needs of certain beneficiaries, and the estate consists of both real and personal property, the trustee by necessary implication has power to sell real estate included in the trust to carry out its purposes.</p>

<p> Feeble Minded Person. Notice. Overseers of the Poor. </p> <p>A notice in writing, by one applying to a judge of probate for the commitment of a feeble minded person to the Massachusetts School for the Feeble-Minded in accordance with R. L. c. 87, §§ 118,119, which is addressed “ Overseer of the Poor ” of the town where the alleged feeble minded person resides, and which is sent by mail and placed in a post office box where mail for the overseers of the poor of that town is put, whence it is taken by one of the overseers, who acknowledges such receipt without the knowledge of his associates, is sufficient notice to satisfy the requirements of § 119.</p> <p>If the notice in writing, which is required by R. L. c. 87, § 119, to be given, by one applying for the commitment of a feeble minded person to the Massachusetts School for the Feeble-Minded, to the overseers of the town where such feeble minded person resides, is given to one member of that board, it is sufficient.</p>

<p>Petition, filed on March 19, 1909, alleging that the respondents, the members of the board of selectmen of Natick, illegally had removed the petitioner from his office as a member of the police force, and praying for a writ of mandamus commanding them to reinstate him.</p> <p>The case was heard by Morton, J. The facts are stated in the opinion. The single justice dismissed the petition and reported the case for determination by the full court.</p> <p>The case was submitted on briefs.</p>

The objections to the decree, filed with the first appeal, were as follows: “ 1. Said administrator has not rendered a true account of his administration though cited by the court. “ 2. Said administrator has not faithfully administered said estate according to law. . “ 3. Said administrator has unreasonably delayed the settlement of his account and the distribution of said estate.” The objections filed with the second appeal were as follows: “ 1.

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

<p>Insurance, Life. Husband and Wife. Bankruptcy. Constitutional Law. Limitations, Statute of.</p> <p>St. 1894, c. 522, § 78, re-enacted in substance in R. L. c. 118, § 73, contains the following provision : “ Every policy of life insurance made payable to or for the benefit of a married woman, or after its issue assigned, transferred, or in any way made payable to a married woman, or to any person in trust for her or for her benefit, whether procured by herself, her husband or by any other person, and whether the assignment or transfer is made by her husband or by any other person, shall inure to her separate use and benefit, and to that of her children, subject to the provisions of this section relating to premiums paid in fraud of creditors.” Held, that this statute applies to and includes an assignment by a husband to his wife of a paid up endowment life insurance policy, and that such an assignment, made when the assignor is deeply insolvent and is known to be so both by himself and his wife and followed by the bankruptcy of the assignor, is good against the trustee in bankruptcy of his estate by virtue of the statute, although the facts may be such that except for the statute the assignment would be in fraud of his creditors.</p> <p>The provision of St. 1894, c. 522, § 73, re-enacted in substance in R. L. c. 118, § 73, by which, as interpreted by this court, an assignment of a paid up endowment life insurance policy by a husband to his wife, made when the husband is , deeply insolvent, and which except for the statute would have been in fraud of creditors, is good against the trustee in bankruptcy of the husband’s estate, is not unconstitutional as creating an unreasonable exemption of property unlimited in amount.</p> <p>The question, whether an allegation in a declaration that the defendant “ concealed the cause of action ” can be treated, on demurrer, as an allegation that the defendant fraudulently concealed the cause of action within the meaning of R. L. c. 202, § 11, so that the statute of limitations did not begin to run until the discovery of the cause of action, here was suggested but not considered.</p>

<p>Tort for personal injuries sustained while in the employ of the defendant. Writ dated March 10, 1908.</p> <p>The declaration alleged that the plaintiff on or about June 18, 1907, was employed by the defendant as a carpenter upon a certain brick building in process of erection by the Appleton Com-pony over Robeson Street, so called, in Lowell, and was working under one Coram, who was employed by the defendant as foreman of the carpentry work on the building and was entrusted with and exercising superintendence over the work and whose sole or principal duty was that of superintendence; that by reason of the negligence of Coram in superintending the placing in position of a heavy timber in the building, the plaintiff, who was at the time engaged in the placing of the timber, was greatly injured ; that the plaintiff was in the exercise of due care and diligence ; and that the plaintiff gave the defendant due notice in writing of the time, place and cause of the injury within sixty days from the time of the accident.</p> <p>On motion of the defendant the plaintiff filed three specifications, of which the third was waived at the trial. The other two were as follows :</p> <p>“ 1. Said superintendent was negligent in that he caused a certain derrick, used in placing in position the heavy timber referred to in the plaintiff’s declaration, to be set in an improper position with reference to said heavy timber.</p> <p>“ 2. Said superintendent was negligent in that while said derrick was so improperly set with reference to the said heavy timber and while said heavy timber was connected with said derrick so improperly placed, he gave orders to the man in charge of and operating said derrick to hoist on the same, by reason of which said heavy timber struck the plaintiff and caused the injury complained of.”</p> <p>In the Superior Court the case was tried before White, J.</p> <p>The plaintiff testified in direct examination that he had worked as a carpenter for eighteen years, for seven years employed by the defendant, and had been engaged for the defendant in the same kind of work as that under way when he was injured for four or five weeks before his injury. There was no question as to his being a competent and experienced workman.</p> <p>It appeared in evidence that the work which was going on was the placing in position of a timber about twenty-five feet long, its other dimensions being ten by sixteen inches, and weighing about twelve hundred pounds, in the course of the erection of a mill in Lowell; that the timber was to serve as a floor beam to support the fourth floor of the mill and was being raised from the third floor ; that when in position one end of this floor beam was to rest upon an iron plate in a brick wall while the other was to extend half way over the top of a wooden column eleven and a half feet high and eight and a half inches in diameter and was to rest upon an iron cap placed thereon; that a portable, single arm derrick was used in placing the timber in position, consisting of an upright stationary mast about twenty feet high, resting upon, and with its bottom fastened to, a timber forming its base, to which it also was connected by two wooden supports or braces, one on each side of the mast, extending from a few feet above its foot diagonally down to the base timber, while from the top of the mast two guy ropes, one on each side, extended at right angles with the base timber to further secure and steady the derrick when in operation; that a pulley was set in the mast near its top through which ran a rope down to and connected with a drum or crank at the base around which it was coiled, the other end of the rope being left free to attach to the weight to be moved; that the derrick was operated by men standing at the base winding or unwinding the coil of rope by means of handles on the drum as it might be required to hoist or lower the weight; that although the mast and pulley were stationary, the derrick could be inclined somewhat in either direction in which the guy ropes extended by lengthening and shortening the guy ropes as might be required to hold the derrick steady in such inclined position. It was admitted that during the process of handling such a timber as the one which caused the accident to the plaintiff, and while its weight was suspended upon it, this derrick could be moved readily, and that this had been done frequently; that in order to set the floor beam in its proper position one man should stand on the brick wall near the iron plate thereon, the brick wall being then up to a level with the top of the column, to guide that end of the beam on to the iron plate while another man stood at the other end of the beam near the column to guide that end; that in order to bring the man, who was to guide the column end of the beam to its proper place, into such position as would enable him so to do, a wooden horse about eight feet in height was employed, the top of which was about five feet long ; that in the floor of the mill where this work was progressing there was at the time an. opening twenty-seven feet long and eight feet wide beginning at a point a few feet toward the wall from the column and extending throughout most of its length beyond the column, this opening having been left for the purpose of hoisting up from the lower floors timbers, columns and other things, and, before placing this wooden horse in the position which it occupied at the time of the accident, a few planks were placed over part of this hole to rest the horse on ; that at the time the accident happened the defendant himself was not present, but his foreman, one Coram, mentioned in the declaration, was present directing the work; that the derrick was placed in position under Coram’s direction by the plaintiff and another employee.</p> <p>It was not contended that the guy ropes were insecurely fastened, or that the derrick slipped at all or moved of itself in any way, during the subsequent events before the accident.</p> <p>It further appeared that no floor beams previously had been set on that floor but similar beams had been set in the same manner on lower floors of the building, that, in the work of placing these other beams, the plaintiff had stood on the wooden horse near the column and had adjusted that end of the beam thereon, and that upon the occasion in question and because of the open space in the flooring above referred to, the plaintiff inquired of the foreman, before they began to hoist the beam, where he should set the wooden horse; that the foreman thereupon directed the plaintiff to board over a part of the open space near where the base of the column was to rest, indicating the precise portion to be so covered, and that the plaintiff did so, laying the planks where the foreman, who was standing by, directed, and stopping when and where the foreman directed; that the portion of this opening so temporarily planked was such that the only space afforded by it to set the wooden horse upon was close to the base of the column and on the side of it nearest to the derrick, so that in standing on the horse to adjust the end of the timber on the column the plaintiff stood on the side of the column nearest to the derrick and between a line drawn from the column to the iron plate on the brick wall and a line drawn parallel thereto through the base of the derrick, with his face turned toward the column and his back to the derrick and the brick wall beyond.</p> <p>The plaintiff testified in cross-examination that it would have been a safer position for him if the wooden horse had been on the other side of the column farthest from the derrick, so that when adjusting the beam he could have stood facing the column and the derrick and the brick wall beyond, that in such position the timber if it swung would not have struck him, and that he could have planked over that part of the open space so as to have set the wooden horse in such position as well as to have planked where he did, had the foreman ordered him so to do.</p> <p>It further appeared in evidence that when the derrick was so set and the planking so temporarily laid, but before the column itself was raised or the wooden horse was set up, the loose end of the rope running over the pulley on the derrick was attached to the floor beam then lying near and about in front of the derrick, and that the men operating the derrick drum were ordered by the foreman to hoist; that at the same time the plaintiff and another workman procured the column and set it in position; that they did this by bringing it from some place near on the same floor, each carrying an end, and set it up ; that the plaintiff then got the wooden horse from where it was standing close by, leaving the other man holding the column in position, and set the horse in the place previously prepared for it; that the plaintiff then mounted the horse with an iron cap, weighing some seventy or eighty pounds, and adjusted this to the top of the column, the beam having been in the meantime swung up by the operation of the derrick so that the end nearest the column was hanging just about over the column’s top; that the plaintiff was a man of about medium height; that, having set the iron cap on the column, the plaintiff guided the end of the beam on to the cap, while another workman at the opposite end standing on the brick wall guided that end of the beam toward the iron plate fitted to receive it; that it then was found that the beam did not hang horizontally and that its heavier end was a little too far over the column while the other end was not quite far enough over the brick wall to fit in its proper position on the iron plate, but so swung, slanting downward toward the column, that it did not reach its proper place on the plate; that the foreman, who then was standing on the brick wall to assist in guiding that end of the beam, thereupon gave orders to the men operating the derrick to “ ease up,” which was done, and the beam thus was lowered until one end rested on the wall near the iron plate and the other end on the column, but that neither end was exactly in proper position; that the plaintiff, when the strain was thus eased off the beam, left his place on the wooden horse and came down to the floor as he testified, to “ get something ” or to “do something,” he did not recall just what; that the man on the brick wall then, by the foreman’s orders, crawled out on the beam and moved the chain or rope connecting it with the pulley a few inches toward the column and then returned to the brick wall, whereupon the foreman from the brick wall ordered the plaintiff to get back and guide that end of the timber; that the plaintiff thereupon again mounted the horse, standing in the position before described, with his back to the derrick, and the foreman again ordered the men operating the derrick drum to “ hoist ”; that immediately upon the execution of this order, the beam instead of rising upward was pulled or swung against the plaintiff, knocking him from the horse and occasioning the injuries complained of, while at the same time the column, which was then being further steadied by a man standing at its foot, was pulled out from his control and fell, together with its iron cap, in the same direction in which the plaintiff fell.</p> <p>Upon cross-examination the plaintiff testified that he had helped raise timbers in the same way many times and had helped raise the timbers on the second and third floors on this job; that when the derrick rope first lifts the timber, the latter usually tips somewhat, owing to the fact that one end of it is likely to be heavier than the other, but that until the beam has been lifted it is practically impossible to tell which end, if either, will prove to be the heavier ; that on the occasion in question he did not remember whether Coram gave him any order about procuring the column or not, but knew that it was necessary to get a column and that they might have got it at the proper time without an order; that he did not remember whether any order was given to get a horse, but thought that one was given; that he knew some positions were more dangerous in which to set the horse than others; that he knew that as the timber swings things are likely to be hit; and that he stood upon the horse for the purpose of steadying the timber; that when he mounted the horse the second time he knew that the timber was to be hoisted and went up there for the purpose of guiding the timber and help steady the column, and that it was while he was attempting to do this that the timber pushed him from the horse.</p> <p>There was no evidence that in any of his previous work guiding such floor timbers into position the plaintiff had stood with his back to the derrick. '</p> <p>The man who was stationed on the brick wall, one Eagan, was called as a witness by the plaintiff, and, besides his testimony, there was no other evidence except as to damages.</p> <p>At the close of the plaintiff’s case, the judge was asked to order a verdict for the defendant; and, upon the parties each agreeing that the damages sustained by the plaintiff amounted to $450, the judge ordered a verdict for the defendant, and, with the consent of the parties, reported the case for determination by this court. If the ruling was correct, judgment was to be entered upon the verdict; otherwise, judgment was to be entered for the plaintiff in the sum of $450.</p>

<p>Three bills in equity, filed in the Superior Court on July 8, 1908, by Hollis R. Bailey as trustee in bankruptcy of the estate of James A. Wood of Cambridge, the first two suits having been brought to recover insurance premiums alleged to have been paid by the bankrupt in fraud of creditors, and the third suit having been brought to recover $5,000, as the full amount of the proceeds of a life insurance and endowment policy assigned by the bankrupt to the defendant in that case, the plaintiff alleging that the transfer of the policy to" the defendant by the bankrupt was fraudulent as against his creditors.</p> <p>In each case the defendants or defendant demurred to the bill.</p> <p>In the Superior Court the three cases were heard together .upon the demurrers by Richardson, J., who made orders overruling the demurrers; but, being of opinion that the orders overruling the demurrers so affected the merits of the controversies that the matters involved therein ought, before further proceedings, to be determined by this court, at the request of the defendants, he reported the cases for that purpose. If the demurrers, or any of them, were overruled rightly, the defendants were in such cases to answer; if the demurrers, or any of them, should have been sustained, the bills in such cases were to be dismissed with costs.</p> <p>R. L. c. 118, § 73, provides, among other things, as follows : “ If a policy of insurance is effected by any person on his own life ... in favor of a person other than himself having an insurable interest therein, the lawful beneficiary thereof, other than himself or his legal representatives, shall be entitled to its proceeds, against the creditors and representatives of the person effecting the same; . . . provided, that, subject to the statute of limitation, the amount of any premiums for said insurance paid in fraud of creditors, with interest thereon, shall inure to their benefit from the proceeds of the policy; but the company issuing the policy shall be discharged of all liability thereon by payment of its proceeds in accordance with its terms, unless, before such payment, the company shall have written notice by or in behalf of a creditor, with specification of the amount claimed, claiming to recover for certain premiums paid in fraud of creditors. Every policy of life insurance made payable to or for the benefit of a married woman, or after its issue assigned, transferred or in any way made payable to a married woman, or to any person in trust for her or for her benefit, whether procured by herself, her husband or by any other person, and whether the assignment or transfer is made by her husband, or by any other person, shall inure to her separate use and benefit, and to that of her children, subject to the provisions of this section relative to premiums paid in fraud of creditors.”</p>

<p>Replevin. Practice, Civil, Verdict. Estoppel.</p> <p>Chattels taken under a writ of replevin are in the custody of the law. The bond given by the plaintiff stands as security to the defendant for a proper disposition of the property according to the order of the court.</p> <p>In an action of replevin against two defendants, one of them the mortgagor and the other the mortgagee of the goods replevied, the defendant mortgagor was defaulted, and the plaintiff offered no evidence of his title or of his right to the possession of the goods replevied, but filed a paper admitting that the defendant mortgagee did not retain or have in his possession the goods replevied when the writ was sued out, and asked the presiding judge to instruct the jury • to find for this defendant on that ground. The judge refused to give this instruction, and instructed the jury to find for the defendant mortgagee on the ground that the plaintiff had failed to show any title to the property replevied sufficient to maintain the action. The jury returned a general verdict for the defendant mortgagee, and the plaintiff excepted to the refusal to give the instruction requested and to the instruction given. Held, that the exceptions must be overruled; that the failure of the plaintiff to prove any title to the property or a right to the possession of it was a sufficient reason for the return of the verdict, and that the plaintiff’s failure to prove a taking or a detention of the property by the defendant mortgagee also was a good reason for the return of the verdict, and that it was not necessary for the verdict to show on which ground the jury reached their conclusion, as either ground was sufficient.</p> <p>In an action of replevin the disposition of the property, which under the writ is in the custody of the court, is to be ordered according to the rights of the parties at the time of making the order, although such rights may have been changed since the date of the writ.</p> <p>In an action of replevin against two defendants, one of them the mortgagor and the other the mortgagee of the goods replevied, the plaintiff failed to show any title to or right of possession of the goods. The defendant mortgagor, who had been adjudged a bankrupt, was defaulted and the trustee of his estate in bankruptcy, who had been made a party, also was defaulted. It appeared that at the date of the writ the defendant mortgagee had a good title as mortgagee and that, very soon afterwards, he had the right of immediate possession for a breach of condition of the mortgage, but that, before he could obtain actual possession of the goods, they had been removed from the hands of the defendant mortgagor on the plaintiff’s writ of replevin. The jury returned a general verdict for the defendant mortgagee, and the defendant mortgagee asked the presiding judge for an order that the goods be returned to him. Held, that, although as a general rule in an action of replevin a return cannot be ordered to a person from whom the chattels were not taken, and, if the defendant mortgagor had not allowed himself to be defaulted, a return of the goods to him would have been ordered, yet the defendant mortgagee would have had the benefit of such a return as the owner of the goods with a right of immediate possession under the mortgage, and therefore that justice would be done by ordering a return of the goods to the defendant mortgagee. Moreover, although the replevin bond was not before the court, it was assumed that it recited a taking of the property from the joint defendants under the writ and that it was conditioned in part upon a return of the property to them if such was the order of the court, so that a return to the defendant mortgagee would be a compliance with the requirement of the bond in that particular, and the plaintiff by the recital in the bond was estopped to deny that the property was replevied from the defendant mortgagee when in possession of it.</p>

<p>Petition, filed on March 19, 1906, for damages resulting to the petitioner from the discontinuance of a private way called Maple Street in Attleborough in the process of the abolition of a grade crossing of the respondent.</p> <p>The case was tried before Hardy, J., together with another case by the same petitioner against the town of Attleborough, and six cases by Clarence L. Watson against this defendant and the town. It appeared that the petitioner was the lessee of premises shown on the accompanying plan from Clarence L. Watson. The term of the lease was ten years from April 2,1900, and it was duly recorded. It contained a provision that the lessee or its successors or assigns should “ have the right and option at any time during the continuation of this lease, to purchase said tract of land together with said rights of way,” the price either to be agreed upon by the parties or to be determined by referees.</p> <p>The provisions of the lease with regard to rights of way followed immediately after the description of the land leased and were as follows: “Together with a right of way of at least twelve feet in width from the northerly line of said lot to the cart path, which runs over said other land of said Watson about one hundred and fifty feet north of said northerly line of said tract, and to a point on said cart path within two hundred feet at least from said railroad land, and together with a right of way over said cart path or other equally convenient way to said river and across the same, and a right of way in continuation over land now or formerly of John W. and Oscar Wolfenden to County Street, the same as granted to said Watson and Fred A. Newell by deed from Richard D. Manchester, ... or as otherwise possessed by said Watson or as appurtenant to said lands of said Watson or any part thereof. And together with a right of way over said cart path or equally convenient way across said railroad land to Maple street, the same as granted by said deed from said Manchester or as otherwise possessed by said Watson or as appurtenant to said lands of said Watson or any .part thereof. Such rights of way to run with said land herein demised as appurtenant thereto, for use by travellers on foot, and with teams and vehicles of any description, but not to be exclusive, nor shall the rights of way herein demised prevent the said lessor, his heirs or assigns from demising or granting the same rights of way to the lessees or assigns of other parts of said lands of said Watson.”</p> <p>The “ cart path,” referred to in the above quoted portion of the lease and in the opinion, is marked “roadway” on the accompanying plan. Such “roadway,” and the “private way discontinued ” and the “ private way,” shown on the plan, formed Maple Street. The right of way provided for the petitioner in his lease is marked on the plan “ Location of Petitioner’s Right of Way before Construction of Olive Street.” About six hundred feet from where Maple Street crossed Ten Mile River it joined with County Street, a town way. About four hundred feet from where it crossed the railroad it ran into South Main Street. Both County Street and South Main Street were parallel to the railroad. The only connection that the large tract of land shown on the plan had with the streets of the town was by means of Maple Street.</p> <p> </p> <p>The final report of the commissioners appointed by the Superior Court in the proceedings for the abolition of the grade crossing, which was confirmed on July 2, 1904, determined that the Maple Street crossing should be abolished and Maple Street at that point discontinued, that a new crossing should be made and a new street called Olive Street Extension, crossing the railroad at an elevation, should be constructed as shown on the plan. Such construction discontinued entirely the petitioner’s right of way. Nearest the railroad, Olive Street Extension was thirty-eight and one half feet above the land occupied by the petitioner. Opposite the northwest córner of that land it was elevated twenty-four and one half feet.</p> <p>The actual entry to begin the work in accordance with the decree of abolition was made on the petitioner’s premises in February, 1906. Inside of two weeks after this work was begun, access to the petitioner’s lot was practically closed, but the plant was running until early in July, 1906. Olive Street Extension was not opened to travel until September, 1907, and at that time a new way constructed by the town from the end of Olive Street Extension across Ten Mile River to County Street was opened.</p> <p>At the close of the evidence, the petitioner requested the presiding judge to make the following rulings, which were refused:</p> <p>“ 1. The petitioner is entitled to damages for the diminution in the market value of the petitioner’s interest in the real estate.</p> <p>“ 2. The jury in assessing damages may consider any loss to this petitioner’s interest in the real estate arising from any of the following conditions, so far as it is found to exist: loss of opportunity to use spur track; lack of adaptability for manufacturing purposes;, existence of embankment on the north and east side of the petitioner’s property. . . .</p> <p>“ 6 b. There is no evidence that at the time as of which the damages are to be assessed there was any probability that the Town of Attleborough would lay out a street in continuation of Olive Street Extension.</p> <p>“ 6 a. The jury cannot consider any probability there may have been at the time as of which the damages are assessed that the Town of Attleborough would lay out a street in continuation of Olive Street Extension.</p> <p>“ 7 a. Under the decree Olive Street Extension destroyed this petitioner’s right of way to the north of Olive Street Extension.</p> <p>“ 7 b. The jury may find that the construction of the Olive Street Extension under the decree destroyed the plaintiff’s right of way to the north of Olive Street Extension.</p> <p>“ 7 e. If the jury find that the lessor and the lessee either expressly or impliedly agreed upon the location of the twelve-foot way from the north line of the lessee’s land to the cart path, then the location was fixed and neither of the parties had the right to change the location. . . .</p> <p>“ 7 e. After the layout and construction of Olive Street Extension the lessee had no right to alter the surface of the way-on the lessor’s land except for the ordinary repair of the way and could not construct an embankment on the lessor’s land so as to reach the slope and street.</p> <p>“ 7 /. The lessor was not bound to give a temporary way around the south side of Olive Street Extension to the lessee during the construction of the work.</p> <p>“ 7 g. The lessor was not bound to give to the lessee a right of way along the lessor’s land on the south side of Olive Street Extension up to the surface of Olive Street Extension.</p> <p>“ 7 h. The words in the lease 6 or other equally convenient way’ do not mean a way equally convenient with the twelve-foot way from the north line of this petitioner’s premises.</p> <p>“ 7 i. The words in the lease 6 or equally convenient way ’ do not mean a way equally convenient with the twelve-foot way from the north line of this petitioner’s premises.</p> <p>“ 7 j. This petitioner was not bound to ask the lessor for a convenient way out of its premises during the construction of the work.</p> <p>“ 7 k. This petitioner was not bound to ask the lessor for a way out of its premises after the completion of the work.</p> <p>“ 7 l. If the jury find that the lessor and the lessee either expressly or impliedly agreed that the cart path should be the way to the track and the way towards County Street, then the location of those ways was fixed and neither party had the right to change the location. . . .</p> <p>“ 9. If the jury find that this petitioner had in its building machinery not fixtures, but necessary in working and using the machinery affixed to the land, the jury may consider the value of the said machinery which was not affixed, in determining the damage to the petitioner, if any, from loss of access to the streets of the town while the work under the decree was carried on.”</p> <p>Among other rulings, which the petitioner requested the presiding judge to make and which the bill of exceptions states “ were given or no exception was taken to the refusal to give them,” was the following: “ 10. In apportioning the damages between this petitioner and Mr. Watson the jury will give to this petitioner the diminution in the market value of its lease and the diminution in value of its buildings and fixtures.”</p> <p>The presiding judge charged the jury in part as follows:</p> <p>“ By reason of the decree of the commission it is my duty to rule that, so far as the private rights of Mr. Watson were concerned in the way called Maple Street from the railroad location to the bridge over towards the Wolfenden property, his rights in that private way were not abolished. The rights of Mr. Wolfenden were not abolished so far as you find that they may exist from the deed. The rights of the Cornell-Andrews Company in that Maple Street Extension west of the railroad location were not discontinued so far as the company had any private right in that Maple Street Extension. The right that the Cornell-Andrews Corporation had in the way extending from the northerly line of the leased property to the cart path called Maple Street was not discontinued by that decree. So far as they had any private rights in that property previously to this decree- of the commissioners those private rights still continue. . . .</p> <p>“Now, perhaps I might as well deal with the question of what is called the dead-end here in this new way taken by the decree of July 2, 1904. ... In connection with the taking of such land and in connection with the injury to the remaining land because of such taking, you are to take it as if that way were established for all time, so far as the taking was concerned. So far as the taking is concerned, you are not at liberty to take into consideration the probability that there would in the future be a further taking by the public authorities for the extension of that way over the river to County Street. . . .</p> <p>“ There was considerable evidence introduced about the value of this plant [of the Cornell-Andrews Smelting Company]. These petitions are maintained for damages to the real estate, not for damages that may have been incurred by the parties because some contract was interfered with or because the business was interfered with as business. The statute does not imply that business losses are to be considered by you so far as the interference with the use of personal property is concerned or so far as the interference with certain contracts is concerned. . . . The question here is, What was the injury to the use and occupation of that realty, or that property attached to the realty, because of interference with its rights of access ? And that applies not only to the suit against the Providence Railroad Company but also the rights against the town of Attleborough.</p> <p>“ Now, in dealing with the question of the attachments to the real estate, I do not know that I need to spend much time upon that. The matter of option may be of some importance as showing what was the intention of the parties when this machinery was attached to the realty. Was it the intention of both parties that it should be made a part of the realty ? An option attached to the lease may be of importance to show that there was an intention on the part of the lessee when he had put it there perhaps to buy at the end of the term upon an agreed sum and it would become a part of the realty, that the sum that he paid perhaps would be less because of the attachments that he had made to the realty. That may be considered by you as bearing upon the question of intention. Did it become a fixture because there was an intention on the part of the lessee to remain there for a long time, to use the property, perhaps to buy it? But so far as an option attached to the lease is concerned with reference to any interference with that as a matter of damages or a claim for damages, you have no right to consider that as bearing upon the amount of damages that ought to be recovered in this case, because the interference with contracts between the parties is not to be considered, the interference with the personal property is not to be considered; that is excluded from your consideration. It is only the question of the value of the use and occupation, and the impairment of the value of that use and occupation by reason of any interference with such use and occupation. . . .</p> <p>“ As I have already said, that decree of July 2,1904, abolishing the private crossing over the railroad location, did not extinguish the rights of the Cornell-Andrews Company to the private way that existed from the northern boundary of its land to the old way called Maple Street, called the cart path in the lease. It did not abolish it. Up to the time that there was an entry upon the land by the town for the purpose of constructing a new way, it had the same right to use that way that it had before. Now in establishing the way over the premises, over this private right of way, the company still had the right to approach the public street that way provided it could do so by adapting that way to the new grade of the street, and when its officers or agents arrived, upon the surface of the new way, it had the right to cross it and had the right to pass off the new way over the limits of the old way to the cart path or Maple Street. I rule that as a Matter of law, because I have already explained to you that where a public way is established over land, the fee still remains in the owner, and if there is a private right of way, the right of way still exists for the purpose of approach to the limits of the public way, and you have the right to consider in the light of that law what interference there was with the accessibility to the old cart path at that time and what could have been done in connection with the approach to the new way. . . .</p> <p>“We are dealing here with the contract, a contract in the form of a lease, and as I view that contract it appears to me the proper construction is that there was an alternative right here to be considered by the jury as well as by the parties themselves in connection with the right of way. That is, if there was an interference on the part of Mr. Watson in connection with that use of the way, if he desired to change it in the future, [he agreed in the lease] that he would afford an equally convenient right of way for the Cornell-Andrews Company to the outer world, the Wolfenden bridge; that he would afford it either way, that is, on the way to the crossing and on the way to the Wolfenden bridge; and it is my duty, I think, to instruct you as a matter of law that under this interference that may have existed here With the rights of access to the Cornell-Andrews Company, that the company would have the right to call upon Mr. Watson to afford an equally convenient way by which access could have been obtained to outside property, and it is for you to say as a question of fact what would be an equally convenient right of .way. If you find that there was no convenient right of way that could be obtained in accordance with my instructions, then that leaves the petitioner, the Cornell-Andrews Company, in a condition to approach you and ask you what would be the damages under those circumstances, what would be fair and reasonable compensation for the loss of the use and occupation because that way could not be obtained. ... Now if you find upon all the evidence in this case that that reasonably convenient way could be afforded the Cornell-Andrews Company, it is my duty to instruct you that Mr. Watson under the contract would be obliged to grant it, and under the contract it would be the duty of the petitioner, the Cornell-Andrews Company, to apply for it. . .</p> <p>In one of the petitions by Watson against the Town of Attleborough, and in one of his petitions against the defendant in this case the jury found for the petitioner, and verdicts were directed for the respondents in the remaining four petitions brought by him.</p> <p>In the petition of Cornell-Andrews Smelting Company v. Town of Attleborough, the jury returned a verdict for the petitioner for $5,842.72, which verdict was set aside by the presiding judge.</p> <p>In this case, the jury found for the petitioner in the sum of $583.47; and the petitioner alleged exceptions.</p>

<p>Equity Pleading and Practice, Objections to master’s report, Exceptions to master’s report. Rules of Court, Equity Rule 81. Trust, Powers of trustee. Voluntary Association.</p> <p>Where in'a suit in equity no special order of the court has been made, exceptions to a master’s report which are founded on objections filed with the master more than five days after a notice, given by him to the parties or counsel under Equity Rule 31, that he had finally settled the draft of his report, should be dismissed.</p> <p>In a suit in equity for an accounting, it appeared that the defendants were trustees of a voluntary unincorporated association of which the plaintiffs were members, and as such trustees were in possession of certain land and funds, that the purpose of the association as stated in its by-laws was “ managing and improving certain lands and buildings located in Scituate; ” that the association grew out of a reorganization of a former association, and among the property conveyed to the new organization at the time of the reorganization was certain hotel property upon which the defendants subsequently expended money which the plaintiffs contended was expended wrongly because the former association had obtained possession of the property through receiving a mortgage of it to secure a loan of money advanced to the mortgagor, and subsequently receiving from the mortgagor a release of the equity of redemption, acts which, the plaintiffs contended, were outside of the former association’s by-laws. It appeared that the mortgagor, before mortgaging it, had purchased the property from the former association. Held, that it was immaterial whether or not the former association acted within its powers in acquiring the property in question, since it was properly property of the new organization, and therefore was property which the defendants under the by-laws were to manage and improve, and upon which therefore they could expend money of the association.</p>