Volume 203 — Massachusetts Reports

<p>Bill rs equity, filed in the Probate Court for the county of Suffolk on June 11, 1908, by the trustees under the will of Newell A. Thompson, late of Boston, for instructions as to whether, under the clause of the will quoted in the opinion, the daughter of Fanny T. French was entitled to a one quarter interest in the estate on the death of her mother, or whether she and the administratrix of the estate of her brother, Harry G. French, were each entitled to a one eighth interest.</p> <p>In the Probate Court, Grant, J., made a decree that Fanny T., and the administratrix of the estate of Harry G. French each should receive a one eighth interest.</p> <p>On appeal, the case was heard by Sheldon, J.,'who reserved it for determination by the full court. The facts were agreed upon and are stated in the opinion.</p>

<p>Deed. Way, Private. Easement. Eminent Domain. Equity Jurisdiction, To enjoin interference with private way, Injunction. Equity Pleading and Practice, Decree.</p> <p>Where one owning a large tract of land abutting on a highway makes and records a plan of subdivision of the land into house lots with a private street forty feet wide running at right angles from the highway into the tract and joining only with a second private street thirty feet wide, which runs at right angles with the first and which in turn joins only with a third private street thirty feet wide running at right angles with the second and terminating in the highway, and there are forty-four lots abutting on such private streets, and each of the private streets bears a separate name, it is apparent that the three private streets were intended by the owner to form a continuous passageway and that he did not intend to make a restrictive distinction between the use of the two openings upon the highway; and therefore one, to whom one of the lots bounding upon one of the streets opening upon the highway was conveyed by a deed referring to the plan and to the ways therein, has a right to have kept open and unobstructed not only a passageway from his lot along the private street upon which it abuts directly to the highway, but also a passageway from his lot along the private street upon which it abuts to and through the second private street, thence to and through the third and thence to the highway.</p> <p>Where the owners of lots of land abutting on private streets which form three sides of a rectangle, the fourth side of which is a public street, have rights to use the streets for passing to and fro from and to the highway -and to use either opening into the highway without discrimination, and a railroad by eminent domain takes and appropriates to its use all but ten feet of the width of the transverse private street, the rights of such owners of lots remain unimpaired in the remaining ten feet of the street.</p> <p>The owner of a large tract of land in Boston abutting on a highway made and recorded in the registry of deeds a plan of subdivision of the land into lots with private streets wholly within the tract and forming three sides of a rectangle of which the highway was a fourth, the only access to the highway from the lots abutting on the streets being by the streets. Along the side of the tract opposite to the highway ran a railroad. A corporation engaged in the purchase, distribution and sale of milk purchased lots of land which were designated on the plan and which comprised all the lots bounding on the private street which ran parallel with the highway and joined the ends of the other two private streets, as well as contiguous lots on the other two streets. The deeds conveying the lots to the corporation all referred to, and bounded the lots by, the lots and streets on the plan. The corporation intended to use th.e land for a milk station (such a location being difficult to acquire) and for that purpose erected fences shutting off the cross street from the two streets leading to the highway. In a suit promptly begun by owners of lots on the two streets running to the highway, seeking an injunction commanding the removal of the obstructions, a judge who heard the case on its merits, while holding that the obstructions to the streets were unlawful, refused to grant a mandatory injunction because the defendant offered to the plaintiff the use of another way parallel to and ten feet from the street which it had closed, and ordered that, upon the tender of a deed by the defendant in accordance with its offer, the plaintiff should have the option either to accept the way tendered and one dollar damages, or to seek in an action at law full damages for the obstruction of the streets. On appeal by the plaintiff from the decree, it was held, that a mandatory injunction should issue commanding the removal of the fences, since, having constructive notice by the recorded plan of the location and existence of the streets, the corporation had no right for its own convenience or for the profitable improvement of its property to compel the owners of other lots bounding on the streets to relinquish any part of their rights in the streets either at a valuation to be fixed by the assessment of damages, or for another way to be given in substitution.</p>

<p>Equity Pleading and Practice, Appeal. Way, Private.</p> <p>Upon an appeal from a decree dismissing a bill in equity to enjoin the owner of the house next to that of the plaintiff on the same street from obstructing an alleged passageway about four feet wide on the land of the defendant between the two houses, where the judge who heard the case filed a memorandum in which he stated that on all the evidence he found that the use made of the passageway by the owners and occupants of the plaintiff’s premises had been permissive and not adverse, and found further that there had not been an uninterrupted use of the passageway for a period of twenty years before the bill was filed, and where also there was a direct conflict between the evidence for the plaintiff and that for the defendant, and the judge, who saw the witnesses and heard them testify, also took a view of the premises, which must have settled a disputed point in the testimony as to whether the plaintiff’s son moved a certain fence over upon the defendant’s land, which he denied, the decision of which must have gone a long way toward determining which story as a whole was to be believed, this court, after a full consideration of the whole evidence, held, that the finding of the trial judge that there had not been an uninterrupted use of the passageway for a period of twenty years should be affirmed, and did not find it necessary to consider the other findings made by the judge.</p>

<p> Gift, Inter vivas. </p> <p>In a suit in equity by an administrator against a woman, to recover possession of two hundred and fifty-one negotiable bonds alleged to belong to the estate of the plaintiff’s intestate, it appeared that the plaintiff’s intestate had amassed a fortune of nearly a million dollars, that he was a married man living apart from his wife, and for the thirty years previous to his death had lived with the defendant, that he supported her in comfort during his life and intended to give her the means of living in still greater comfort after his death, that he often stated that he did not intend to make provision for her by a will, for wills could be broken, that nearly two years before his death the intestate had executed an assignment or bill of sale to the defendant of the two hundred ahd fifty-one bonds in question, enumerating them by their names and numbers, and that he performed thereafter a series of acts intended to, operate as a gift of the bonds to the defendant, with the result that two weeks before his death the bonds and the assignment or bill of sale were in one of three tin boxes in a safe deposit compartment of the intestate and on this tin box the intestate had put a card bearing the name of the defendant, that, previous to this, the intestate with the permission of the defendant had cut off all but a few of the coupons and had collected most of them on his own account, that in another of the three tin boxes in the compartment were securities belonging to the intestate which he did not attempt nor intend to give to the defendant, that the attorneys of the intestate appointed by him to go to the safe deposit compartment were the defendant and a bank president, who was an intimate friend of the intestate, that at first these attorneys were appointed to go to the compartment during his lifetime, but that, afterwards, on finding that this was so, he had changed the power so as to authorize them also to go to the compartment after his death, that there were two keys to the compartment, one of which the intestate gave to the bank president and the other of which he kept himself, that the tin boxes inside had no keys, that two weeks before he died the intestate told the defendant to go to his desk (in the room they were in) where his keys were and bring them to him, that she did so, that he then said “ Those are the keys to the vault. I want you to take those keys off of that bunch and keep then), and don’t let any one have them, they belong to you,” that there was a small ring or bunch of four keys on a large ring or bunch of keys, that this smaller ring or bunch of keys the defendant took and kept, that one of them was the key of the safe deposit compartment which had been kept by the intestate, that another was the key to a small tin box that always stood on the intestate’s desk in the house where he lived with the defendant, that the third was the key of that desk,.and what the fourth one was did not appear, that, at the time that the intestate executed the assignment or hill of sale of the bonds to the defendant, he had executed and delivered to her a bill of sale of all the furniture in the house in which they lived, that during the last four days of his life the intestate was unconscious most of the time, that two days before he died the defendant, accompanied by a lawyer, whom the intestate had informed of his gift of the bonds to the defendant and who had promised the intestate that he would see that the defendant had her rights, went to the safe deposit compartment, opened it with the key given to the defendant by the'intestate, and took out the tin box marked with the defendant’s name, that they then removed the box to the bank, of which the intestate’s intimate friend was the president, and with him opened the tin box which contained the two hundred and fifty-one bonds and the assignment or bill of sale transferring them to the defendant, that they checked off the bonds and found that they agreed with the list in the bill of sale, and then the lawyer hired a safe for the defendant in another safe deposit vault and put the bonds and the assignment or bill of sale in it, where they were when the intestate died two days later. The judge of the Superior Court who heard the case found for the defendant, and made a decree dismissing the bill, from which the plaintiff appealed. This court, after a careful examination of the evidence found that there was a valid gift of the bonds to the defendant; that, what would have been the result if the intestate had not given the defendant the small hunch of keys two weeks before he died, it was not necessary to consider, because that act and the intestate’s declaration which accompanied it constituted a completed gift inter vivas, and the removal of the bonds by the defendant and the lawyer who went with her was authorized by the intestate.</p>

<p>Bill in equity, filed in the Superior Court on July 20, 1908, by the members of the board of health of the city of. Boston, to compel the defendants as the owners of a private passageway in Boston, known as Butlers Row, running westerly and southerly from Chatham Row to State Street in Boston, to cause that passageway to be paved with material and in a manner satisfactory to the plaintiffs in accordance with an order made by them under the provisions of St. 1894, c. 119.</p> <p>Certain of the defendants demurred to the bill on the ground, among others, that the statute, under which the order of the plaintiffs was made, was void and of no effect as in violation of the Constitution of Massachusetts and also of the Constitution of the United States.</p> <p>The case came on to be heard before Dana, J., upon the demurrer. He made an order overruling the demurrer pro forma, and, being of the opinion that the question of the constitutionality of St. 1894, c. 119, so affected the merits of the controversy that the question ought, before further proceedings, to be determined by this court, at the request of the parties reported the case to this court for such determination. St. 1894, c. 119, is quoted and described in the opinion.</p>

<p> Damages. Water Supply. Taunton. Middleborough. Assowompsett Pond. Namasket River. </p> <p>At the trial of a petition by the town of Middleborough against the city of Taunton under St. 1875, c. 217, § 2, for the assessment of damages to the petitioner’s property from the acts of the respondent in pumping water from Assowompsett Pond for a water supply under authority of that statute, the presiding judge refused to rule that “ upon all the evidence the petitioner failed to file its petition within the time allowed ” by the statute. The section under which the petition was brought provided that damages should be assessed and determined in the same manner as is provided where land is taken for highways, which would require such a petition to be filed before the expiration of one year “from the date of the order providing for” the taking. St. 1875, c. 217, requires no formal taking. The petition was filed on July 1,1895. The act was accepted by the respondent in 1875, but no action was taken under it until 1892, when the city authorized its water commissioners to do what was necessary to avail itself of the act. On April 10, 1894, the respondent began to pump large quantities of water from Assowompsett Pond into Elders’ Pond, but did not construct the dam called for by the act until the autumn of 1894. The pumping into Elders’ Pond was in order that the respondent might run the water into its pipes for distribution, and it continued to do this until it completed the dam. On July 2, 1894, an order for taking water from Assowompsett Pond was passed by the city council of the respondent and this order was approved by the mayor on July 7, 1894. It was under this order that the dam was built. Held, that, since the order of July 7, 1894, purported to be the first order directing the things to be done which had to be done to take the waters of Assowompsett Pond, and since that order took the waters of that pond (although such a formality was assumed by the court to have been unnecessary) there was at least a question for the jury upon all the evidence whether the petition filed on July 1, 1895, was not filed within the required time, so that the request for the ruling was refused rightly.</p> <p>At the trial of a petition by the town of Middleborough against the city of Taunton under St. 1876, c. 217, § 2, for the assessment of damages to a gas and electric plant owned by the petitioner and operated by it with water drawn from the . Namasket River, which flows from Assowompsett Pond, by the acts of the respondent in pumping water from Assowompsett Pond for a water supply under the authority of that statute, which authorized the respondent to “ construct and maintain'a dam at the place where the Assowompsett Pond flows into Namasket River,” but provided “ that the natural flow of said Assowompsett Pond into the Namasket River shall at all times be maintained,” the petitioner, subject to the exception of the respondent, was allowed to introduce evidence tending to show that one element of damage done to it by the respondent’s use of the waters of Assowompsett Pond consisted in the fact that the amount of flow of water to which it was entitled at its mill was indeterminate under the taking, and that it was left to the respondent’s officials without co-operation on the part of the petitioner to give that amount of water to it. It previously had been held by this court that “ the natural flow ” which by the statute is secured to the mill owners on the Namasket River is “ the flow of the river at the height which' is usual in times of ordinary water, when the current is not increased by a freshet, or by recent uncommonly heavy rains.” It appeared in evidence that the average yield of water in available horse power at the petitioner’s mill before the erection of the respondent’s dam varied very greatly in the different months of the year. The respondent contended that it was bound to give the mill owners the natural flow, and, if it did not, that would be ground for an action of tort, so that the petitioner was entitled to no damages under the act on this account. Held, that it was competent for the petitioner to prove that the imposition of the limitation of “ the natural flow ” in the control of the respondent, even if in theory it was not a damage, did in fact impair the market value of the petitioner’s water rights, and that the evidence was admitted rightly.</p>

<p>Intoxicating liquors, Civil liability for damage caused by intoxicated person. Practice, Civil, Judge’s charge. Damages.</p> <p>In an action under R. L. c. 100, § 68, by the wife of an habitual drunkard against the proprietor of a bar room for personal injuries from an assault upon the plaintiff by her husband in consequence of intoxication caused" by liquor sold to him by the defendant, it is right for the presiding judge to instruct the jury that they must find that the assault was caused by the plaintiff’s husband being in a state of habitual drunkenness at the time, and that this state of habitual drunkenness had been caused in whole or in part by liquor sold by the defendant.</p> <p>An inaccurate statement in the charge of a presiding judge, which if it stood alone would be erroneous, may be cured by a subsequent clear and correct instruction.</p> <p>In an action under R. L. c. 100, § 68, by a married woman against the proprietor of a bar room for personal injuries, resulting in the premature birth of a dead child, from an assault upon the plaintiff by her husband in consequence of intoxication caused by liquor sold to him by the defendant, it is proper for the jury upon the question of damages to consider the plaintiff’s pain in labor at the time of the alleged miscarriage.</p>

<p>Carrier, Passenger. Passenger. Negligence, Street Railway, Gross, Causing death.</p> <p>At the trial of actions against a street railway company by an administrator to recover for the conscious suffering and death of the plaintiff’s intestate, who was alleged to have been injured by reason of his having been thrown from a street railway car because it negligently was started with a jerk as he was getting upon it, the only evidence as to the circumstances of the accident was a statement made by the plaintiff’s intestate before his death to the effect that he was stepping on the car and had one foot on the step when the conductor rang the bell and the jerk of the car threw him, and the testimony of an eyewitness who stated that the car had stopped or almost had stopped at the crossing where he saw the plaintiff’s intestate standing, which was a crossing where passengers usually were taken on, that he did not see the plaintiff’s intestate do anything before he got on the car, that he did not know whether the plaintiff’s intestate signalled or not, that he heard no bell rung for the car to stop, that, as the plaintiff’s intestate had his left foot upon the step and was reaching with his right hand, the conductor rang the bell for the car to start and the car started with a jerk and the plaintiff’s intestate was thrown, and that he believed that the conductor saw the plaintiff’s intestate. Held, that there was evidence for the jury upon the questions whether the plaintiff’s intestate had become a passenger and whether the servants of the defendant were negligent in the operation of the car.</p> <p>Evidence tending to show that the conductor of a closed electric street railway car, who was standing in the interior of the car as it stopped or almost stopped at a place where it was usual to take on passengers, saw a strong, healthy young man about eighteen or nineteen years of age with his left foot on the step of the car and reaching with his right hand in an attempt to get on to the car, and, without waiting for the young man to reach a place of safety in the car, rang a bell giving a starting signal to the motorman, who started the-car with such a jerk that the young man was thrown to the ground and received injuries from which subsequently he died, will not warrant a finding that the conductor was grossly negligent.</p>

<p>Lord’s Day. Contract, Validity. Practice, Civil, Conduct of Trial, Judge’s charge, Exceptions.</p> <p>In an action of contract to recover compensation for services in purchasing horses, alleged to have been rendered by the plaintiff to the defendant at the request of the defendant, the evidence of the plaintiff tended to show that in a conversation with an agent of the defendant on a Sunday, the agent suggested to the ' plaintiff that he should buy a certain number of horses for the defendant in Canada, that the plaintiff told the agent that he “ could go ” but asked the agent who was to pay him and that the agent stated that the defendant was to pay him; that later, on a Tuesday, the agent asked the plaintiff to go to Canada on a succeeding day, and the plaintiff did so and performed the services for which recovery was sought, the agent being with him in Canada. The evidence of the defendant tended to show that the agent at no time asked the plaintiff to go to Canada to buy horses for the defendant. In his answer the defendant set up that the plaintiff’s contract of service was illegal because it was made on the Lord’s day. The presiding judge refused to rule that, if the services for which the plaintiff was seeking compensation were rendered in pursuance of an agreement made by the parties on the Lord’s day, the plaintiff could not recover, and charged the jury on that question that they were to “ leave out all that took place on Sunday, because that does not bind anybody, and say whether there was enough done upon other days, week days, so as to show that this plaintiff was requested to . . . perform this service and requested under such circumstances that he was fairly entitled to receive pay.” Held, that there was no error in the rulings or in the charge.</p> <p>Under a statement in a bill of exceptions, “ To all of this portion of the charge the defendant duly excepted,” referring to a portion of the charge to the jury covering five quarto pages, the contention that the tone of the portion of the charge referred to tended to influence the jury in favor of the plaintiff, is not open to the defendant.</p>

<p>Mortgage, Of personal property. Equity Jurisdiction, To compel restoration of property obtained by fraud.</p> <p>Under R. L. c. 198, § 1, a mortgage of personal property, in which the mortgagor describes himself as of Boston, when his residence is in the town of Waltham, if it is recorded only in Boston and is not recorded in Waltham, and the property is not delivered to the mortgagee, is of no effect except between the parties to it, and, if the mortgagor before he made the mortgage obtained the property from its owner by fraud, such owner may maintain a suit in equity to compel its restoration to him without putting the mortgagee in the position in which he was before he took the mortgage.</p>

Petition, filed on April 15, 1909, for a writ of mandamus addressed to the members of the board of appeal under St. 1907, c. 550, containing the building laws of Boston, ordering them to grant an application of .the petitioners for a permit to construct a covered way thirty-two feet above the ground between two buildings on opposite sides of Avon Street in Boston. The case was heard by Braley, J., who reported it for determination by the full court.

<p>Two bills nr equity, filed in the Supreme Judicial Court, the first in the county of Suffolk on April 23, 1908, and the second in the county of Bristol, by consent, on April 24, 1908, as of April 6, 1908, the first by Robert C. Hooper and Francis C. Welch, as the trustees of an estate created under a deed of trust dated June 1, 1883, by Sarah L. Ames, late of Easton, for the use and benefit of her granddaughter Helen Ames Hooper for life and thereafter for other purposes, and the second by the .same persons as the trustees of an estate given in trust by the will of Frederick L. Ames, late of Easton, for the use and benefit of his daughter Helen Ames Hooper for life and thereafter for other purposes, the first defendant in each of the cases being Helen Hooper, an infant under twenty-one years of age, the only child of Helen Ames Hooper, both bills praying for instructions.</p> <p>The questions upon which instructions were prayed for were the following:</p> <p>“1. Shall the plaintiffs hold during the lifetime of said Robert C. Hooper, husband of said Helen Ames Hooper, the whole, one third, or any portion of the trust fund now in their hands which during the lifetime of said Helen Ames Hooper was held for her benefit under the provisions of said deed of trust of Sarah L. Ames ? If so, to what person or persons is the income of said trust fund so held by them to be paid, and in what proportions?</p> <p>“ 2. Is it the duty of the plaintiffs forthwith to pay over the whole, two thirds, or any portion of said trust fund tq Robert 0. Hooper and Francis 0. Welch, either as executors of or as they are trustees under the third [in the second bill “ fifth ”] and seventh paragraphs of the will of said Helen Ames Hooper, or to any other person or persons ? If so, whether the whole or a portion, and what portion, and to what person or persons ?</p> <p>“3. To what person or persons is the income derived from said trust fund held by your petitioners to be paid, and in what proportion ? ”</p> <p>It was ordered that, as the two cases involved substantially the same interests, they should be heard together in the county of Suffolk. The cases came on to be heard before Hammond, J., who reserved them upon the respective bills and answers for determination by the full court, such decrees to be entered as justice and equity required.</p> <p>The material portion of the deed of trust made on June 1, 1883, by Sarah L. Ames, the grandmother of Helen Ames Hooper, was as follows:</p> <p>“ Third. — To each of the following-named grandchildren of the party of the first part, namely, Helen Angier Ames [Helen Ames Hooper then twenty years old], Oliver Ames, Mary Shreve Ames, Lothrop Ames, and John Stanley Ames, as and when they shall successively arrive at the age of twenty-five years, there is to be paid by said trustee the income of their proportion of said trust fund and its accumulations, to be held and enjoyed by them during their respective natural lives, — payments to the granddaughters of said party of the first part to be made on their respective receipts, free from the interference or control of their husbands, if any, and said income and said payments to all said grandchildren to be free from the interference or control of their creditors, not subject to levy or attachment by the same, or in any other manner to diversion from the personal enjoyment of said grandchildren, nor is the same to be' at any time subject to anticipation or assignment.</p> <p>“ Fourth. — Upon the decease of either of said grandchildren, after his or her arriving at the age of twenty-five years, his or her portion of said trust fund and its accumulations is to be by said Trustee paid over and conveyed to such of his or her children, if any, and in such proportions as he or she may, by any instrument in the nature of a will, executed in the presence of two or more witnesses, direct; provided, however, that if either of said grandchildren shall die after arriving at said age, leaving a husband or wife, such grandchild may, by said instrument, give to such husband or wife the enjoyment for life of not exceeding one-third part of the .income of his or her share of said trust property, and dispose of the residue of said share and of the remainder after the decease of said husband or wife in manner as aforesaid, and in default of any instrument of the character above mentioned, the share of each grandchild is to be distributed equally to and among his or her children, if any, otherwise the same is to be paid over and distributed to and among his heirs-at-law.”</p> <p>The material clause in the will of Frederick L. Ames, the father of Helen Ames Hooper, was as follows:</p> <p>“ On the decease of each of my daughters, after the arrival of one of my children at the age of twenty-five years, as aforesaid, said trustees are to pay over and distribute her share of the trust property to and among her children in such manner and in such proportions as she may by any instrument signed by her in the nature of a will in the presence of two or more witnesses direct, and in default of any such instrument to pay over and distribute the same equally among her children and grandchildren, if any, grandchildren to take the share which would have fallen to their parent, if alive, provided, however, that if any of my daughters shall thus die leaving a husband surviving, she may by any instrument of the character above set forth, provide for an annuity to be paid to said husband during his life to an amount not exceeding one-third of the income of her share of said trust property.”</p> <p>Helen Ames Hooper died on January 13, 1907. At the time of her death she was forty-four years of age. She left no grandchildren and only one child, said Helen Hooper, a minor daughter, then fifteen years of age.</p> <p>The will of Helen Ames Hooper was proved on February 18, 1907. The third, fifth and seventh paragraphs of that will, in regard to which instructions were sought, were as follows:</p> <p>“ Third. Whereas by the Deed of Trust made by my grandmother, Sarah L. Ames, dated June 1,1883, a fund is created for my benefit and the Trustee thereunder is directed upon my decease after arriving at the age of twenty five years, to pay over and convey such trust fund so created for my benefit, and its accumulations, to such of my children, if any, and in such proportions as I may by any instrument in the nature of a will, executed in the presence of two or more witnesses, direct; provided, however, that if I shall die after arriving at said age, leaving a husband, I may by said instrument give to such husband the enjoyment for life of not exceeding one third part of the income of said trust property so held for my benefit and dispose of the Residue of said share and of the remainder after the decease of my said husband in manner aforesaid and</p> <p>“ Whereas I have arrived at said age of Twenty five years,</p> <p>“Now in the exercise of said power, I hereby direct that an annuity of one third of said trust property shall be paid to my said husband, during his life,</p> <p>“And at his decease said one third of said trust property shall be deemed to have formed part of the trust fund created by the seventh paragraph of this will and be distributed or held as therein set forth ; but if by the terms of said deed I have not the power to appoint the said fund in Trust for the benefit of my issue, then I direct the trustees or trustee acting under this paragraph of my Will to pay over, transfer and convey the principal of said fund so held for his benefit in equal shares, to my children then living, the issue of a deceased child however, to take its ancestors share by right of representation.</p> <p>“ And I give, devise, bequeath and appoint the remainder of said trust fund so created for my benefit, by said deed, or the whole thereof, if I shall survive my said husband, to the trustees or trustee then acting under the said seventh paragraph of this Will, to be distributed or held as in said seventh paragraph set forth; but if by the terms of said deed I have not the power to so appoint the same in Trust for the benefit of my issue, then I give, devise and bequeath the same in equal shares to my children living at the date of my decease, the issue of any deceased child however, to take its ancestors share by right of representation.”</p> <p>“Fifth. Whereas by the will of my Father, Frederick L. Ames, a fund is created for my benefit, and the Trustee thereunder is directed on my decease after arriving at the age of twenty five years to pay over and distribute the same to and among my children in such manner and in such proportions as I may by any instrument signed by me in the presence of two or more witnesses direct; provided however, that if I shall thus die leaving a husband surviving I may by any instrument of the character above set forth, provide for an annuity to be paid to my said husband during his life, to an amount not exceeding one third of the income of said trust property.</p> <p>“ Now in the exercise of said power I hereby direct that an annuity of one third of the income of said trust property shall be paid to my said husband during his life; and at his decease, the said one third of said trust property shall be deemed to have formed part of the trust fund created by the seventh paragraph of this will and be distributed or held as therein set forth.</p> <p>“ And I give, devise, bequeath and appoint the remainder of said trust fund so created for my benefit by the said will of my father or the whole thereof, if I shall survive my said husband, in the following manner, viz., to the trustees or trustee then acting under the said seventh paragraph of this will to be distributed or held as in said seventh paragraph set forth.”</p> <p>“ Seventh. All the rest, residue and remainder of my estate, real and personal, of which I shall die seised and possessed, and to which I shall be in any way entitled at the time of my decease and over which I now or may then have any power of appointment, and which I have not or cannot appoint to my said husband, or if I shall survive my said husband all the estate herein given and appointed to or for his benefit (except the personal property specifically bequeathed by the second paragraph of this will as therein set forth, if my said husband does not survive me) I give, devise and bequeath to my said husband and to Francis C. Welch, and their and his heirs and assigns, in Trust, nevertheless, to and for the following uses, intents and purposes, viz: to divide the same into as many equal shares or portions, the same being designated, as I shall leave children surviving me counting also for one of said shares or portions the issue then living of every my child then deceased; and to pay over, transfer and convey free of trust to such issue of each deceased child respectively the share or portion so set apart for him or her, such issue taking by right of representation and to continue to hold the share or portion so set apart for each of my children then living, and to pay to each son from the principal of the fund so set apart for his benefit when he shall arrive at the age of twenty-five years or at any time or times thereafter, sums not exceeding in the aggregate the amount of one hundred fifty thousand dollars, provided the trustees or trustee, acting from time to time hereunder shall deem it advisable; or the trustees or trustee may pay the said sum in one amount, if they or he shall deem it advisable; and to pay to each son from the principal of the fund so set apart for his benefit when he shall arrive at the age of thirty five years or at any time or times thereafter, additional sums not exceeding in the aggregate the amount of One hundred and fifty thousand dollars, provided the trustees or trustee acting from time to time hereunder shall deem it advisable or the trustees or trustee may pay said additional sum in one amount, if they or he shall deem it advisable ; and to pay to each daughter from the principal of the fund so set apart for her benefit when she shall arrive at the age of twenty one years or at any time or times thereafter, sums not , exceeding in the aggregate the amount of One hundred and fifty thousand dollars provided the trustees or trustee acting from time to time hereunder shall deem it advisable, or the trustees or trustee may pay the said sum in one amount if they or he shall deem it advisable; and to pay the nett income of each of said funds so held for the benefit of each of my children, to such children respectively, during his or her life ; and at his or her death to pay over, transfer and convey the principal of his or her said fund with any accumulated income, as such child shall by any last will or instrument in the nature thereof attested by two or more competent witnesses, direct and appoint; and in default of such will or instrument or so far as the same shall fail to operate, to pay over, transfer and convey the same to his or her children, then living, the issue however of any deceased child taking its ancestors share by right of representation, but if he or she shall leave no such last will or instrument, and no issue him or her surviving, then to pay over, transfer and convey the same to those persons who are at that time my heirs by blood, provided however, that if any such heir has then a fund held in trust for his or her benefit under this will, his or her share of such distribufcion, shall be added to and form part of the fund herein created for his or her benefit.”</p>

<p>Negligence, In use of electricity.</p> <p>At the trial of an action against a city operating an electric light plant, by an employee of a telephone company who was injured because of a current of electricity communicated from a wire of the defendant, which transmitted electricity at high voltage for commercial purposes to a wire of his employer upon which in the course of his duties the plaintiff was working, it appeared that the wire upon which the plaintiff was working was called a “ messenger ” wire and was one from which was suspended a cable of his employer, that the commercial wire of the defendant was put up after the messenger wire without proper insulation and, by reason of the defendant’s negligence, was strung across and above and too close to the messenger wire, so that in a wind there was contact between the two, that the plaintiff had been sent to lower the messenger wire, thus placing it farther from the defendant’s wire, that he was not an inexperienced man in such work and had been employed at it for over a year, that in the course of his work at the time of the accident he stepped upon the copper roof of a building and then grasped the messenger wire, and received a shock which caused him to fall from the roof. It also appeared that, while the plaintiff was working on the messenger wire, he used a small fall and tackle. Held, that, for the injury to the plaintiff to have occurred, the wires must have come into contact, that he must have known of such a possibility and the risk attending it, and that, for him to have acted as he did when he must have known of such a possibility constituted negligence which contributed to cause the injury and barred his recovery.</p>

<p>Land Court, Master, Appeal. Election. Flats. Seashore. Noddle’s Island. Words, “Belong to,” “ Ordinary low water mark.”</p> <p>Comment by Knowlton, C. J., on the functions of a master appointed by a judge of the Land Court under R. L. c. 128, § 35, upon an application for the registration of a title.</p> <p>Where under R. L. c. 128, § 36, a judge of the Land Court upon a petition for the registration of a title appoints a master, who makes a report of his determination of the facts, and exceptions are taken to his findings, which are considered and passed upon by the judge, if a party who took such exceptions appeals from the decision of the judge to the Superior Court for a trial by jury upon the facts, for which issues are framed, the facts are determined finally by the jury, and the party who has taken the appeal cannot afterwards rely on his exceptions to the findings of the master. Having made his election to have a trial by jury on an appeal, he must see that the issues are framed in such a way as to cover all the material facts that he raised by his exceptions.</p> <p>The vote of the General Court on March 13,1640, “ It is declared, that the flats round about Nodles Hand do belong to Nodles Hand to the ordinary lowe water marke,” was a grant of the fee of such flats to the persons who owned that island under previous grants to Samuel Maverick.</p> <p>In interpreting the phrase “ ordinary low water mark,” where the distinction intended is between the extreme low water mark and the ordinary or common line of low vrater, having reference to all times and all seasons, the only way of reaching a correct result is to take the average of the low tides, which gives the line of mean low water.</p> <p>At the trial of an appeal from a judgment of the Land Court, upon a petition for the registration of a title to lands, consisting of flats lying easterly and southerly of the upland that formerly was called Noddle’s Island and now is called East Boston, the claim of the petitioner to the flats was founded upon a vote of the General Court passed on March 13, 1640, as follows : “ It is declared, that the flats round about Nodles Hand do belong to Nodles Hand to the ordinary lowe water marke.” The petitioner introduced evidence tending to show that in 1640 the colonists intended by “ordinary lowe water marke ” the extreme low water mark, that is, the lowest point to which the tide ever ebbs in the normal, regular periodical succession of the tides. On issues presented to them the jury found that the word “ ordinary ” as used in the colony order above quoted was not “ affected by any usage sufficiently general and definite to fix its sense in said order as the line of the lowest spring tides due to natural tidal causes uninfluenced by storms.” The jury also found on other issues presented to them that there was no contemporaneous construction of the colony order by both parties nor any later mutual construction of the order by which the flats were included at least as far out as the present line of extreme low water. They also found that “ the facts necessary to constitute an estoppel against the Commonwealth in reference to the petitioner’s claim to the flats, at least as far out as the present line of extreme low water,” did not exist. It appeared that since 1830 there liad been a subsidence of the upland amounting to seventy-nine one hundredths of a foot, affecting to that extent, as nearly as could be ascertained, the line of mean low water. Upon the facts found by the jury the presiding judge ruled that “ the ordinary lowe water marke ” meant in 1640 the same as the line of “mean low water," as these words now are used. He ruled also that the petitioner was not entitled to an allowance for the subsidence of the land, which had made the mean low water mark of the present day higher than the ordinary low water mark of 1640, the change having come gradually from natural causes, when there were no marks or boundaries to show exactly what was the line of mean low water in 1640 or at any later date. Held, that the rulings of the judge were correct.</p> <p>Under the rules of law applying to accretion and erosion and to the elevation and subsidence of land affecting the water line along the shore of the sea, where the change comes gradually from natural causes and is shown by no marks or boundaries, the line of ownership follows the changing water line.</p>

<p>Trademark. Equity Jurisdiction, To restrain unlawful use of trademark, Plaintiff must come into court with clean hands, Damages, Laches, Advice of counsel, Profits, Appeal. Equity Pleading and Practice, Motion for modification of decree. Interest. Jurisdiction.</p> <p>A jobber, not a manufacturer, who sells shoes which are manufactured solely for him and under his direction and control, may create and establish under R. L. c. 72, § 7, a valid trademark by which the shoes are designated.</p> <p>A jobber, doing business under the name of the Washington Shoe Company, and selling shoes known to the trade and the public as the “ Washington Shoe,” who is the lawful owner of a valuable trademark recorded under R. L. c. 72, § 7, consisting of the word “ Washington ” and a portrait of George Washington, may grant a license for the temporary use of his trademark during a limited period without any abandonment of his rights after the termination of the license.</p> <p>In a suit in equity to restrain the defendants, manufacturers of shoes, from using a trademark of the plaintiff and to recover profits alleged to have been realized from its unlawful use, it appeared that the plaintiff was a jobber, not a manufacturer, who sold shoes which were manufactured by the defendants and others solely for him and under his direction and control, and had created and established a valuable trademark, that he entered the employ of the defendants under an oral agreement, by which they took over the business which he had carried on, and manufactured and sold shoes stamped with his trademark, he having charge of this part of their business as long as he remained in their employ, that after a period of about two years the plaintiff rightfully left the employ of the defendants and the license of the defendants to use his trademark was terminated, but that the defendants continued to use it after notice from the plaintiff not to do so. The plaintiff, before he entered the employ of the defendants, did business under the name of the Washington Shoe Company, and his trademark consisted of a label with the word “ Washington ” and a portrait of George Washington. At the argument before this court, the defendants for the first time attempted to set up the defense, that, although the plaintiff’s trademark was valid, equity would not lend its aid against infringers of it, because the plaintiff did not come into court with clean hands, having represented to the dealers to whom he made sales in the name of the Washington Shoe Company, that that company was the manufacturer of the shoes which he sold with the label of “ Washington.” It appeared that the plaintiff was known to the trade as a manufacturer and not as a jobber, and that the letter head used by him read as follows: “ Washington Shoe Co., Manufacturers of Specialties. Men’s, Boys’ and Youth’s Shoes.” Held, that, in the light of the other evidence, the fact that the plaintiff’s letter head contained the words quoted did not establish the further fact that he was deceiving his customers by false representations that he was the manufacturer of the shoes, and that the label itself contained no false representation; that merely collateral representations, although false, will not bar the owner of a trademark from relief either at law or in equity; and that the single justice had the right to make a final finding that the plaintiff had not been guilty of any such false or fraudulent representations in regard to the shoes sold by him under his trademark as to make it inequitable to give him the full relief prayed for.</p> <p>In a suit in equity to restrain the defendants from using a trademark of the plaintiff and to recover profits alleged to have been realized from its wrongful use, the single justice who heard the case found that the plaintiff had a valid trademark and was entitled to relief against the defendants for its infringement. He made an interlocutory decree enjoining the defendants from continuing their unlawful use of the plaintiff’s trademark, and sent the case to a master to take an account and to determine the damages and the profits, if any, to which the plaintiff was entitled, but reserving consideration of the plaintiff’s right to claim profits as such until the filing of the master’s report. At the hearings before the master some portions of the testimony were more favorable to certain contentions which the defendants made before this court as to the defendants' liability than the testimony which was heard by the single justice. The plaintiff, before the master, objected to this testimony as incompetent if it was intended “ to attack any of the findings either of fact or law ” of the single justice, saying, “ All facts in regard to the trademark are concluded by the findings of the court.” To this the defendants’ counsel answered, “ I am not raising any such question as that.” Later the defendants’ counsel made a motion for a modification of the findings and of the interlocutory decree made by the single justice, so as to make them accord with the facts found by the master. The justice denied the motion, and the defendants appealed. Held, that the motion was , addressed to the judicial discretion of the justice, and that, although the exercise of such discretion might be reviewed upon appeal, it ought not to be disturbed unless it was plainly wrong, and, in view of the declaration of the defendants’ counsel before the master,' that by the evidence offered he did not seek to overthrow the findings which had been made by the justice, this court could not say that the justice’s discretion was exercised wrongly.</p> <p>In a suit in equity to restrain the defendants, manufacturers of shoes, from using a trademark of the plaintiff and to recover profits alleged to have been realized from its wrongful use, it appeared that the plaintiff was a jobber, not a manufacturer, who sold shoes which were manufactured by the defendants and others solely for him and under his direction and control, and had created and established a valuable trademark, that he entered the employ of the defendants under an oral agreement, by which they took over the business which he had carried on, and manufactured and sold shoes stamped with his trademark, he having charge of this part of their business as long as he remained in their employ, that, after a period of about two years, the plaintiff rightfully left the employ of the defendants, and the license of the defendants to use his trademark was terminated, but that the defendants continued to use it after notice from the plaintiff not to do so. The plaintiff, before he entered the employ of the defendants, did business under the name of the Washington Shoe Company and his trademark consisted of a label with the word “ Washington ” and a portrait of George Washington. It further appeared that, while the plaintiff was employed by the defendants and while under his license they rightly were using his label and the name of the Washington Shoe Company, the plaintiff notified dealers in the trade that the defendants were the manufacturers of these shoes and were doing business under his former style, and through his assistance it became known generally that the Washington shoes were made and sold by the defendants, so that after the plaintiff had left their employ and had forbidden them to use his label further, the shoes sold by the defendants with this label were sold not as the plaintiff’s shoes but as goods of their own manufacture. Held, that the fact, that a result of the defendants’ rightful use of the plaintiff’s trademark under the license from him was to make the defendants’ customers believe that the trademark belonged to the defendants, without any false representation that they were selling the plaintiff’s shoes, did not lessen the injury done to the plaintiff or the wrongful advantage gained by the defendants; that the defendants had no right to use the label or the business name of the plaintiff except during the time that he remained in their employ, that after notice from the plaintiff of the termination of the license their continued use of the label was wrongful and with wrong intent, and that the plaintiff was entitled to charge the defendants with the profits realized by them on the shoes sold by them with the plaintiff’s trademark, so far as those profits were the profits of a jobber and not of a manufacturer.</p> <p>In a suit in equity to restrain the defendant from using a trademark of the plaintiff recorded under R. L. c. 72, § 7, and to recover profits alleged to have been realized from its unlawful use, the plaintiff under § 9 of the same chapter is entitled both to an award of damages, if he proves damages, and to have the defendant required to pay the plaintiff as the owner of the registered label the profits derived from its wrongful use by the defendant, and, if at a hearing before a master the plaintiff chooses to put in no evidence on the issue of damage and elects to claim profits and not damages, a finding by the master that the plaintiff's damages were only the nominal sum of $1 does not prevent an award to the plaintiff for the profits. Especially is this so, where it appears that under a license from the plaintiff to the defendant, which afterwards was terminated, the defendant used the plaintiff’s trademark for a period of about two years and that the sum to be paid for its use was fixed by an oral agreement of the parties at §1,000 a year, this being strong, ifkiot controlling, evidence of damages caused to the. plaintiff by the defendant’s subsequent wrongful use of the trademark, although the actual profits received by the defendant .cannot be measured decisively by the amount of such a license fee.</p> <p>In a suit in equity by a jobber to restrain the defendants, manufacturers, from using a trademark of the plaintiff and to recover profits alleged to have been realized from its unlawful use, it appeared that the plaintiff, after selling goods under his trademark in his own trade name, entered the employ of the defendants under an oral agreement, by which they took over the business which he had carried on and manufactured and sold goods stamped with his trademark, he having charge of this part of their business as long as lie remained in their employ, that after a period of about two years the plaintiff rightfully left the employ of the defendants and the license to use his trademark was terminated, but that the defendants continued to use it after notice from the plaintiff not to do so. The defendants contended that the plaintiff had been guilty of such loches as to deprive him of the right to require an account of profits. It appeared, upon this issue, that the plaintiff delayed bringing his suit for nearly two years, but that the delay was caused in part by negotiations between counsel for the parties, and there was evidence before a master, to whom the case was referred upon the question of accounting for profits, that the delay in bringing the suit was due in part to the plaintiff’s desire to collect other money due to him from the defendants. Besides these circumstances, it was a conceded fact, that, immediately upon leaving the employ of the defendants, the plaintiff through his counsel notified them of his claim and warned them that he should hold them legally responsible for any further use of his trademark or of his former business name. Held, that the plaintiff had not been guilty of such loches as to deprive him of the right to an account of profits.</p> <p>In a suit in equity by a jobber to restrain the defendants, manufacturers, from using a trademark of the plaintiff and to recover profits alleged to have been realized from its unlawful use, it appeared that the plaintiff, after selling goods under his trademark in his own trade name, entered the employ of the defendants under an oral agreement, by which they took over the business which he had carried on and manufactured and sold goods stamped with his trademark, he having charge of this part of their business while he remained in their employ, that after a period of about two years he rightfully left the employ of the defendants and the license to use his trademark was terminated, but that the defendants continued to use it after notice from the plaintiff not to do so. It was a conceded fact, that, immediately upon leaving the defendants’ employ, the plaintiff through his counsel notified them of his claim and warned them that he should hold them legally responsible for any further use of his trademark or of his former business name. Upon the issue of the defendants’ wrongful intent, the defendants took the ground that in continuing the use of the plaintiff’s trademark they had acted under the advice of counsel, but it did not appear that they had communicated to their counsel all the facts on which such advice should have been based. The single justice who heard the case found that the defendants had received simply a temporary license from the plaintiff and that' on its termination they had no further right, and it appeared that their counsel, when he gave them the advice under which they claimed protection, was wholly ignorant of the existence of this fact. Held, that, after the plaintiff’s notice and warning, the defendants’ further use of the plaintiff’s trademark could not he said to be innocent or free from wrongful intent, and that, so far as it was necessary to show wrongful intent on their part, this was enough; and that, even assuming that the advice of counsel would have protected them in any event, it could not do so when it was given without a disclosure to him of the material facts which must have been known to the defendants.</p> <p>In an accounting, in a suit in equity against the members of a firm of manufacturers, for profits derived from the unlawful use of a trademark of the plaintiff, a master has a right to treat a cost sheet, prepared by one of the original firm of the defendants, and adopted and acted on by the defendants in the conduct of their business, as evidence of the cost of the goods sold by the defendants under the plaintiff’s trademark, and to accept its figures as correct in the absence of explicit evidence to the contrary.</p> <p>In an accounting, in a suit in equity against the members of a firm of manufacturers, for profits derived from the unlawful use of a trademark of the plaintiff, the fact that the defendants, after receiving notice of the plaintiff’s claim, failed to keep accounts which would show accurately the amount of their expenses and of their profits upon the goods sold by them under the plaintiff’s trademark properly may be treated by a master as a circumstance bearing against them.</p> <p>In an accounting in a suit in equity for profits derived by the defendants from the unlawful use of a trademark of the plaintiff, it is right for a master to consider losses from bad debts as neither increasing nor diminishing the amount of profits from sales of goods under the plaintiff's trademark, practically treating the sales by which the bad debts were incurred as if they had not been made at all.</p> <p>In an accounting, in a suit in equity against a firm of manufacturers, for profits derived by the defendants from the unlawful use of a trademark of the plaintiff, it is right for a master to refuse to allow the defendants to charge against their profits upon the goods sold by them under the plaintiff’s trademark any portion of the general expenses of their business not shown to have been caused by their sale of the goods sold wrongfully.</p> <p>In a suit in equity to restrain the defendants, manufacturers of shoes, from using a trademark of the plaintiff and to recover profits alleged to have been realized from its unlawful use, it appeared that the plaintiff was a jobber, not a manufacturer, who sold shoes which were manufactured by the defendants and others solely for him and under his direction and control, and had created and established a valuable trademark designating the shoes sold by him as a jobber, that thereafter he entered the employ of the defendants under an oral agreement, by which they took over the business which he had carried on and manufactured and sold shoes stamped with his trademark, he having charge of this part of their business as long as he remained in their employ, that after a period of about two years the plaintiff rightfully left the employ of the defendants and the license of the defendants to use his trademark was terminated, but that the defendants continued to use it after notice from the plaintiff not to do so and after a warning from him that he should hold them legally responsible for any further use of his trademark or of his former business name. A master, to whom the case was referred to take an account and to determine the damages and profits, charged the defendants with the total profits realized on the shoes sold by them with the plaintiff’s trademark after the termination of the license and the notice and warning from the plaintiff. Held, that, as the plaintiff had only the trademark of a jobber, he was entitled to receive only the profits which the defendants had derived from that trademark, and was not entitled to receive the profits which the defendants had derived from manufacturing the shoes, and that the plaintiff was to be allowed the same proportional part of the sum found by the master that he had obtained of the total profits before he entered the defendants’ employ, while he was using the trademark for himself and the shoes were manufactured for him by the defendants. Held, also, that the plaintiff was entitled to interest from the date of the filing of the master’s original report.</p> <p>Upon an appeal in a suit in equity from a final decree, which overruled exceptions to a master’s report, this court must determine what decree is to be entered, and in doing so may find it necessary to pass upon a question not raised by any of the exceptions to the master’s report.</p> <p>There is no ground for the contention that original jurisdiction of all suits relating to the infringement of trademarks is vested exclusively in the courts of the United States.</p>

<p>Bill or equity, filed in the Probate Court for the county of Worcester on January 30, 1908, by the administrator with the will annexed of the estate of Chester A. Dresser, late of South-bridge, for instructions.</p> <p>The bill alleged</p> <p>First. That the will of said Chester A. Dresser was approved and allowed on May 9, 1902; that under paragraph four of that will, the residue of the estate was given in equal portions of one fourth each to Hannah M. Dresser, his widow, and to Mary C. Edwards, Franklin D. Dresser and Henry B. Dresser, his children; that Franklin D. Dresser died testate, after the death of Chester A. Dresser, his widow, now Ida M. Maxwell, being named as executrix of his will; that the fifth paragraph of said will was as follows :</p> <p>“ At this date and. time of making this instrument there stands on my books, an account against my son Henry B. Dresser January 1st 1882 amounting to thirteen thousand nine hundred and fifty-nine and 14/100 dollars $18,959.14, which debt has been created by my endorsing of the paper of the firm of Randall Daffin & Co. of which firm my son Henry B. Dresser was a member and at whose request and for his benefit the endorsements were made and the firm having failed to pay their notes I was compelled to do so. And my son Henry B. acknowledges that the principal and interest is rightly due from him; therefore I request that in making an inventory of my estate my executors include the amt above written, $13,959.14, with annual interest at the rate of 6 pr cent, pr annum, and that in paying out the legacies, the amount found on the account against Henry B. Dresser shall be applied as a proportion of his interest in my estate.”</p> <p>That Henry B. Dresser died on December 13, 1895, leaving as issue Henry C. Dresser, Frank G. Dresser, Robert B. Dresser, Edith A. Dresser and Richard Dresser, all of whom were made defendants; that it was contended by said issue that said account against Henry B. Dresser was adjusted by the testator subsequent to the making of said will and that said issue were therefore entitled to their full share in the estate of the testator and that no set-off against or deduction from said one fourth part should be made because of said account; that it was contended by other legatees under said will that said account was not adjusted and that the share of the issue of said Henry B. Dresser in said estate should be diminished by the amount of said account with interest thereon.</p> <p>Second. That it appeared from the records in said estate that various sums of money and certificates of stock in the Central Mills Company had at various times been paid over and delivered to certain legatees under said will, namely, Hannah M. Dresser, Franklin D. Dresser and Ida Maxwell, executrix, and Mary C. Edwards.</p> <p>Third. That the plaintiff was in doubt as to whether or not the account named in the fifth paragraph of said will should be set off against the share of the issue of Henry B. Dresser, and was also in doubt as to what rate of interest, if any, should be charged against the parties named in the second paragraph of the will upon the amounts which it might appear said parties had received.</p> <p>Fourth. That the plaintiff had in his hands a considerable amount of personal estate which it was his duty to distribute among the residuary legatees in such amounts as they might be entitled thereto.</p> <p>The bill prayed for instructions,</p> <p>First. As to whether or not under said fifth paragraph of said will any deduction should be made from or set off against the share of the issue of said Henry B. Dresser, and if so, how much.</p> <p>Second. As to what rate of interest, if any, should be charged upon the payments of money and delivery of stock which should be proven to have been made to the parties named in the second paragraph of the bill and for such further instructions as to the distribution of said estate as to the court might seem proper.</p> <p>Chester A. Dresser died on August 15,1899. A copy of his will as allowed on May 9, 1902, was annexed to the bill as follows:</p> <p>“ Be it remembered that I, Chester A. Dresser of Southbridge in the county of Worcester and Commonwealth of Massachusetts, being now of fair health and of sound and disposing mind and memory do hereby make publish and declare this my last will and testament on this twenty-first day of January in the year of our Lord one thousand eight hundred eighty two.</p> <p>“ And in the first place I give and bequeath unto my beloved wife Hannah Maria Dresser for her own use and behoof the sum of thirty-five thousand dollars $85,000 meaning to include in said sum the property which she had at her marriage and has brought to my estate. I also give to her for her use during, her life, the homestead estate where I now live including the lot purchased. of Jedediah Marcy.</p> <p>“ I also give and bequeath to my said wife all the household furniture, and crockeryware, and silver, the pictures and ornaments, and other articles in the house used for housekeeping purposes. [The rest of this clause related wholly to the provisions made for the testator’s wife.]</p> <p>“ Secondly. In case Edward D. Reynolds, the son of my said wife, survives me and my said wife I give and bequeath unto him whatever sum may be due to my said wife as shown on my books and papers. Said sum to be paid to him out of my estate upon the decease of my said wife the same being an equivalent for the money which my said wife has brought to my estate, and which my said wife’s son is therefore justly entitled to receive therefrom. “ Thirdly. I order and direct the executors hereinafter named as soon as may be after my decease to pay out of my estate all my just debts and funeral expenses, and make such improvements as they may deem necessary or proper on my lot in the cemetary and place headstones at my grave like those at the graves of my deceased wives, paying all expenses therefor out of my estate.</p> <p>“ Fourth. All the rest, residue and remainder of my estate of which I shall die seized of and possess be the same real, personal or mixed and left after carrying out the provisions hereof, I give devise and bequeath unto my said wife and my three children, Henry B. Dresser, Mary C. Edwards, wife of Stephen K. Edwards, and Franklin D. Dresser to share equally and alike, the issue of any one of my children who may be dead at my deceased to take by right of representation</p> <p>“ To have and to hold the same to them and to their use and behoof in fee simple for ever.</p> <p>“ Fifth. . . . [This paragraph is printed above under the first heading of the plaintiff’s bill, and it also is quoted in the opinion.]</p> <p>“ Sixth. I do hereby constitute, name and appoint my said son Henry B. Dresser and my said wife Hannah Maria Dresser to be the executors of this my last will and testament. And it is my wish that my said executors may be exempt from giving bonds or sureties on their official bonds for the discharge of their duties. And for the more expeditious and proper way of settling and distributing my said residue of my estate among my said legatees, I do hereby authorize and empower my said executors to convert the same into money and to distribute and pay the share which each is entitled to under this will in money, and for that purpose I do authorize and empower them to bargain and sell at public auction or prívate sale as they shall deem best for the advantage of my estate any and all of my estate real or personal, and to make, execute and acknowledge and deliver all necessary deeds, instruments and papers to convey the same to the purchaser or purchasers thereof. And upon the same being so converted into money to divide the same into shares as required by this will and pay out the same to those entitled to receive it.</p> <p>“ But nothing herein contained shall be construed to prevent the said legatees from dividing among themselves any part or all of my residuary estate in case they all agree upon such division and distribution without sale thereof.</p> <p>“ So far as any trust of any of my estate under the provisions of this will are created it is my will that my said executors shall discharge the same according to the terms thereof.</p> <p>“And to my executors I would suggest that in disposing of the large blocks the Edwards House and C. A. Dresser House, Hotel, it might be favorably done by forming a syndicate and dispose of in shares.</p> <p>“ In witness whereof I have hereunto set my hand and affixed my seal on the day and year above named in the presence of the persons named below whom I, the said Chester A. Dresser, called as witnesses thereof in their presence also publishing and declaring the same to be my last will and testament.</p> <p>“ Chester A. Dresser.” (seal)</p> <p>[Here followed an attesting clause with the names of three witnesses.]</p> <p>A copy of a codicil, also annexed, was as follows:</p> <p>“ I Chester A. Dresser of Southbridge make this codicil to the foregoing will, dated the 1st day of January, A. D. 1882, which I hereby ratify and confirm in all respects except as changed hereby.</p> <p>“Whereas by the first clause of my said will I give and bequeath unto my said wife the sum of thirty-five thousand ($35,000) dollars, meaning to include in said sum what property she had at the time of her marriage and brought to my estate, I now give and bequeath unto my said wife thirty-five thousand ($35,000) dollars without any reference to what she had at time of her marriage and brought to my estate.</p> <p>“In witness whereof I have hereunto set my hand and seal this 2nd day of January, A. D. 1883.</p> <p>“ Chester A. Dresser.” (seal)</p> <p>[Here followed an attesting clause with the names of the same three witnesses.] The other material facts are stated or sufficiently referred to in the opinion.</p> <p>In the Probate Court Forbes, J., made a decree ordering, among other things, that the legacy to the issue of Henry B. Dresser be paid to them “ without any deduction being made therefrom on account of said indebtedness.” Ida Maxwell, executrix of the will of Franklin D. Dresser, Edward D. Reynolds and Mary C. Edwards appealed. The appeal was heard by Loving, J., who made the following decree:</p> <p>“ The will of Chester A. Dresser intended and provided for the division of the residue of his estate among his widow and his three children (or respective issue) sharing equally and alike. The account between the testator and his son Henry is to be dealt with in determining this division. On the first day of January, 1882, the son Henry owed the testator, as appeared on the testator’s books of account and by his will, the sum of thirteen thousand nine hundred fifty-nine and 14/100 dollars. To this sum interest thereon at the rate of six per cent, per annum, with annual rests, reckoned to the 15th day of April, 1884, is to be added. Therefrom the sum of eight hundred thirty-seven and 32/100 dollars received by the testator on, or as of, April 15, 1884, in connection with the closing of the affairs of Daffin and Dresser, is to be deducted and this is the only deduction to be so made. The balance, with compound interest thereon at six per cent, per annum to August 15, 1900, is an amount which is to be added to the residue of the testator’s estate and deducted from the one-quarter share of the son Henry (or his issue) in the residue, plus the amount of said account, as provided by the fifth clause of the will.</p> <p>“ The residue of the estate and the shares of those interested therein are to be ascertained as of August 15,1900. From the gross assets of the estate should be deducted all amounts properly paid or transferred under the first, second and third articles of the will. All income earned by the remaining assets up to August 15, 1900, should be added to said remaining assets as part of the residue. The expenses of administration should be deducted from the gross amount of the residue so determined and the net amount so obtained is the net residue of the estate. To this net residue should be added the balance of the account with the son Henry, determined to August 15, 1900, as aforesaid. If one-fourth of the combined net residue and the amount of the said account against Henry is greater than the amount of said account, then the difference between the two is the share of the residue to which the children of said Henry are entitled; and in this case the share of each of the other three distributees is one-fourth of said residue including the amount of said account against Henry.</p> <p>“If, on the other hand, the amount of the said account against Henry is equal to or greater than one-fourth of the said combined net residue and account against Henry, the said residue, without adding the amount of the account against Henry, is to be divided into three parts and the children of Henry have no share or interest therein.</p> <p>In either event those interested in the residue (in the proportions ascertained as aforesaid) share in any income earned by the residue from and after August 15, 1900, in the same proportions in which they share in said residue as herein decreed.</p> <p>“Any property not reduced to cash by the executor or administrator should be taken at such valuations as the parties interested may agree upon, or in the absence of agreement at the inventory valuations, or such other as the Probate Court may determine.</p> <p>“ In the casting and settlement of accounts all the advances heretofore made by the special administrator and by the executrix shall be disposed of as follows: At the time of each advance the advance shall be charged to the share of the legatee in the income then earned by the residue to which the legatee receiving the advance is entitled, if the share of that income to which that legatee is entitled equals or exceeds the sum then advanced. If the sum advanced exceeds the share of income then earned to which that legatee is entitled, the amount paid him or her over and above the income then due him or her is to be charged as a partial distribution of the principal of the residue, and that legatee’s share in the residue and in the income shall be reduced accordingly.</p> <p>“ If the consent of all interested in the residue was not given to the transfer of the shares transferred on July 25, 1904, those shares must be returned to the estate, together with the dividends since received thereon, and interest on the amount of said dividends since the receipt thereof respectively.</p> <p>“ The decree of the Probate Court appealed from is reversed and the cause remanded, to said court for further proceedings in accordance with this decree.”</p> <p>The children of Henry B. Dresser appealed. Ida Maxwell, executrix of the will of Franklin D. Dresser, also appealed. The evidence was reported by a commissioner.</p>

<p>Five bills in equity as described in the opinion.</p> <p>In the Superior Court the cases came on to be heard together before Richardson, J., who reported them for determination by this court as follows:</p> <p>“ The above entitled five suits came on for hearing before me for final decrees, and by consent of all the parties were heard together. An agreed statement of facts was filed, and certain oral testimony and documentary evidence were introduced. All parties requesting it, I hereby reserve and report the evidence, the agreed facts hereto appended and all questions of law therein for the consideration of the full court, such decrees to be entered in the several suits as equity and justice may require. It is agreed by all parties that any needed amendments of the pleadings may be made or may be considered as made in any and all of said suits.”</p>

<p>Unfair Competition. Statute, Construction. Contract, Validity. Sale. Equity Pleading and Practice, Parties, Appeal. Evidence, In writing, Extrinsic affecting writing. Equity Jurisdiction, To enforce negative agreement in contract in writing, Specific performance, “ He who seeks equity must do equity.” < Damages, In suit in equity.</p> <p>R. L. c. 56, § 1, making it a criminal offense punishable by fine or imprisonment to impose a condition in the sale of goods “ that the purchaser shall not sell or deal in the goods ... of any other person,” being highly penal in its nature, is to be construed strictly and does not prohibit a sale at a reduced rate in consideration of an agreement to sell the vendor’s goods alone.</p> <p>A contract in writing between a corporation, which is engaged in the business of selling patterns for all kinds of garments worn by women and children and in publishing periodicals and catalogues illustrating such patterns, and a dry goods merchant called in the contract a “ special agent,” provided that the corporation should sell and deliver to the merchant for a stated period patterns at one half the retail price thereof, should allow the merchant twice each year to return, at nine tenths of the sum paid for them and in exchange for new patterns, patterns purchased under the agreement, and should permit $200 of $400 paid by the merchant for patterns “ to stand on its books as a ‘ standing credit ’ to bear interest at four per cent per annum payable semiannually ... and to become due and payable on the termination of this agreement.” The merchant agreed to purchase from the corporation and keep on hand at all times during the term of the contract except certain specified months patterns worth $400 at half the retail price, to allow the corporation’s agents to examine and take account of his pattern stock, to purchase a specified amount of advertising matter at specified prices and to pay $200 for patterns furnished, to keep the patterns on tile ground floor of .his store and to cause a lady attendant to give proper attention to their sale, “ to conserve the best interest of the agency at all times ” and “not to sell or permit to be sold on the premises . . . during the term of this contract any other make of patterns.” Held, that the contract was not a violation of R. L. o. 56, § 1, making it a criminal offense punishable by fine or imprisonment to impose a condition in the sale of goods “ that the purchaser shall not sell or deal in the goods ... of any other person,” following Commonwealth v. Strauss, 188 Mass. 229.</p> <p>In a suit in equity to enforce a valid contract in writing, by the provisions of which the defendant agreed not to sell or permit to be sold on his premises during a certain period dress patterns of any other make than the plaintiff’s, and to enjoin the defendant from carrying out a contract made by him with a business rival of the plaintiff under which he was selling patterns of the business rival, such business rival is not a necessary party.</p> <p>Whether specific performance of a contract in writing to provide a certain thing for the plaintiff will be granted in a suit in equity depends upon whether the thing contracted for can be purchased by the plaintiff and whether damages are an adequate compensation for a breach of the contract.</p> <p>Specific performance of a negative covenant in a contract in writing will not be denied in a case, otherwise a proper one therefor, merely because an affirmative covenant with which the negative covenant is allied is in kind one which a court of equity does not enforce specifically.</p> <p>In a suit in equity by a corporation, which was engaged in the business of manufacturing and selling patterns for all kinds of garments worn by women and children and in publishing periodicals and catalogues illustrating such patterns, against a merchant who was the proprietor of a dry goods store which was the largest in a certain city, to enforce covenants in a contract between the parties in which the defendant agreed “ to conserve the best interests of the agency [established in his store for the sale of the plaintiff’s goods] at all times; not to sell or permit to be sold on the premises . . . during the term of this contract any other make of patterns,” it appeared that the method by which the plaintiff was pushing its business was by creating an agency in a store in each of the principal cities and towns for the sale of its patterns, the proprietor of the store, besides agreeing to purchase a certain number of patterns at a price much less than their retail price, also agreeing to buy at a reduced price a certain number of the plaintiff’s pamphlets and catalogues, the pamphlets to be resold at a profit and the catalogues to be distributed gratuitously, and that the contract between the plaintiff and the defendant was of this nature; that it was of advantage to the plaintiff to have its patterns sold in the same store where goods were sold from which women’s and children’s garments are made; and that the defendant had broken and intended to continue to break the contract by refusing to sell the plaintiff’s goods and by selling those of a business rival of the plaintiff. Held, that the covenant was one to provide something which the plaintiff could not purchase elsewhere and that damages were not an adequate compensation for its breach; and therefore that specific performance of it should be decreed.</p> <p>The rule, that an agreement in writing cannot be varied or contradicted by oral testimony as to negotiations previous to the making of the contract in writing,is not a mere rule of evidence, but is one of substantive law and rests on the principle that, where the parties deliberately have put their agreement in writing, they shall not be allowed to say that the agreement is different from that which the writing states. For this reason, testimony given at the hearing of a suit in equity, which tended to show an oral agreement which placed upon one of the parties to a contract in writing on the same subject later entered into by them a greater burden than that imposed by the contract, although it was admitted without objection and became a part of the evidence in the case, can have no effect to change the terms of the contract in writing.</p> <p>At the hearing of a suit in equity for the specific performance of a valid agreement contained in a contract in writing, that the defendant should not sell other goods than the plaintiff’s, it appeared that other terms of the contract, which was made on March 28 of a certain year, were that the plaintiff should furnish to the defendant goods of the specified character and advertising matter relating to them and thus should establish an agency in the defendant’s store. It also appeared that the plaintiff desired to have only one agency in any city. Evidence was admitted without objection tending to show that, previous to the making of the contract in writing, the plaintiff had a similar contract witli another merchant in the same city, which was terminable at will by the plaintiff by the giving to the merchant of a notice in writing, and that, as part of the negotiations leading up to the contract in writing between them, the plaintiff orally had agreed with the defendant that the defendant should have the ex-elusive right to sell the plaintiff’s goods in the city, but no such agreement appeared in their contract in writing. It also appeared that, at the time of the making of the contract in writing between the plaintiff and the defendant, the defendant was bound by a similar contract with a business rival of the plaintiff, which was terminable only by a three months’ notice in writing by the defendant. After the making of the contract ip writing between the plaintiff and the defendant, they modified its terms by postponing the date when it should go into operation to June 28 of the same year, and the only evidence as to the reason for the postponement tended to show that it was made in order that thus the defendant might be enabled legally to terminate his contract with the plaintiff’s business rival before the contract with the plaintiff went into operation. The judge who heard the case found that the postponement “ was in pursuance of and carried out a paroi understanding and agreement that the defendant should have an exclusive right of sale and that ” the contract between the plaintiff and the other merchant in the city “ should be terminoted, the earliest date at which the plaintiff could terminate it being June 28.” On appeal from a final decree, it was held, that the judge’s finding of fact was plainly wrong, the fact being that the postponement was made in order to enable the defendant to bring his contract with the plaintiff’s business rival to an end before the contract between the plaintiff and the defendant went into effect.</p> <p>Where, in a suit in equity for the specific performance of a contract in writing, it appears that by the contract the plaintiff, a manufacturer and dealer, agreed to sell patterns and fashion publications to the defendant, a merchant in a city, and the defendant agreed to maintain in his store an “agency” for the plaintiff’s goods and not to sell similar goods of any other manufacturer, and it also appears that, in the oral negotiations preceding the making of the contract in writing, it was understood that the defendant’s should be the only “ agency ” of the plaintiff in the specified city, but that such understanding was not incorporated into the contract, the defendant, although the oral understanding was not . a part of the contract in writing subsequently made, cannot be required by the plaintiff specifically to perform the contract in writing until the plaintiff terminotes a contract of a similar nature existing between himself and another merchant in the city, since he who seeks equity must do equity.</p> <p>Where, at the hearing of a suit in equity for the specific performance of a valid agreement contained in a contract in writing, that the defendant should not sell goods of a certain character which were not provided by the plaintiff, and for damages for the breach of such agreement, the presiding judge found “it is impossible to determine accurately the amount of that damage in dollars and cents, although I am satisfied that it is more than nominal,” and this court after a review of all the evidence finds that, although the plaintiff had suffered damages, it was not possible to prove and had not been proved what they amounted to in dollars and cents, an appeal from a decree by the judge who heard the case, ordering the defendant to pay the plaintiff $25 as damages, should be sustained.</p>

<p>Contract for the amount of an unearned, portion of a premium upon a policy of fire insurance alleged to have been cancelled by the defendant. Writ dated December 17, 1908.</p> <p>The declaration alleged that the plaintiff was the owner of a hotel in Bridgton, Maine, known as the Bridgton House; that on or about May 1, 1908, he and one Amos W. Knight entered into mutual covenants under seal whereby the plaintiff promised to deliver to Knight a good and sufficient warranty deed of the hotel, after Knight had paid the plaintiff therefor the sum of $14,000 in three equal instalments, the last of which was to be paid on or before August 1, 1912; that Knight in the meantime was to be put in possession of the hotel and was to remain in possession; that Knight also covenanted to insure the hotel in some good insurance companies for a certain sum, during the period to August 1,1912, such insurance to be in the name and for the benefit of the plaintiff, and all premiums for such insurance to be paid for by Knight; that Knight, in compliance with his obligation to the plaintiff, did negotiate with E. C. Jones and Company, agents of the defendant, for the insurance he was bound to furnish to the plaintiff, and, as a result of such negotiation, the defendant, on or about July 7, 1908, issued an insurance policy, covering the hotel, against loss by fire, naming the plaintiff as the insured party in the policy, and promising to indemnify him against loss of the, hotel to the extent of $1,500 for the period of one year from July 7, 1908; that the policy of insurance was delivered to the plaintiff and was accepted by him; that one of the provisions of the policy was that either the insurer or the insured could cancel the policy at will, but that if the insurer should elect to cancel the policy it promised to pay to the insured a ratable portion of the premium named in the policy; that the premium named in the policy was $45, and it was stated in the policy that this premium had been received by the defendant; that thereafterward, on or about November 7, 1908, the defendant elected to cancel the policy and did cancel it, and that thereupon the defendant owed the plaintiff a ratable portion of such premium; and that, although often requested by the plaintiff, the defendant refused and neglected to pay it to the plaintiff.</p> <p>The defendant, in its answer, after a general denial and an allegation of payment, alleged that no premium on this policy had ever been paid by the plaintiff, or by Amos W. Knight;' that Knight gave a note to the defendant as collateral security for the amount of the premium; that this note had never been paid, and that, as no premium had been paid by Knight or the plaintiff, the plaintiff was not entitled to any return premium.</p> <p>In the Superior Court the case was submitted to Wait, J., upon an agreed statement of facts, which gave no power to draw inferences. The material facts contained in the statement are described in the opinion. It concluded as follows: “ It is agreed that if, on these facts, the plaintiff ought to recover, judgment shall be entered for the plaintiff in the sum of $41.25. If the court finds that the defendant ought to prevail, judgment shall be entered for the defendant.”</p> <p>The judge ruled that the plaintiff could not recover, and reported the case for determination by this court. If his ruling was correct, judgment was to be entered for the defendant; otherwise, judgment was to be entered for the plaintiff in the sum of $41.25.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on January 18, 1909, by the executrix of the will of Mary E. Howland, late of New Bedford, who also was trustee thereunder, for instructions.</p> <p>The bill was as follows:</p> <p>“ 1. Mary E. Howland, late of said New Bedford, died testate on March 25, 1907, and her last will and testament dated April 14, 1905, was duly allowed by the Probate Court of the County of Bristol by a decree entered on June 21, 1907, from which decree an appeal was taken, and the decree was affirmed by this court on November 12, 1907.</p> <p>“2. The plaintiff is the duly appointed and qualified executrix of said will and also trustee under the seventh clause thereof.</p> <p>“ 3. The defendants Jessie E. Corson and Susan A. Gilbert are the legatees named in the seventh and eighth clauses of said will. The defendant Barker C. Howland, the surviving husband of the testatrix, claims to be the present owner of the interest of the legatee Susan A. Gilbert in the bequest under the seventh clause of said will by virtue of an assignment from her to him.</p> <p>“ 4. The seventh and eighth clauses of said will are as follows, to wit:</p> <p>“ 1 Seventh. After the payment of my just debts, expenses of funeral, cremation and burial and the administration of my estate and the delivery of the specific bequests hereinbefore given the remainder of the money securities or deposits belonging to my estate, I ask shall be held in trust by my said executrix during the lifetime of my cousin Susan A. Gilbert, and during the continuance of said trust the net income received therefrom shall, from time to time, and at least semi-annually, be paid to my said cousin for her own personal use and free from all interference'or control of her husband.</p> <p>“6 Upon the decease of my said cousin, Susan A. Gilbert, said trust shall terminate and said trust shall then revert to my general estate and be paid to my said sister, Jessie E. Corson, as hereinafter provided.</p> <p>“ ‘ Eighth. All articles of personal property belonging to me at my decease, which are not herein specifically bequeathed or designated to be held in trust, and all right, title and interest, if any, which I may have in any real estate at my decease, I give, devise and bequeath to my said sister, Jessie E. Corson, and upon the termination of said trust, the net amount then remaining of sa,id trust estate shall also be delivered and paid to my said sister, who shall receive, hold, enjoy and dispose of the same as her own individual property, free from the control and interference of her husband, and shall hold the same to her and her heirs and assigns forever.’</p> <p>“ 5. Ten days before the execution of said will, to wit, on April 4, 1905, an instrument of trust of that date was entered into by and between Barker C. Howland and the said Mary E. Howland, his wife, and William C. Parker and James L. Gillingham, trustees. The said husband and wife were then, and for some time previous thereto had been, living apart; and they continued to live apart thereafter up to the time of Mrs. Howland’s decease. By the provisions of said instrument, a trust fund of $5,500 was created, from the principal of which and the interest thereon semiannual payments of $250 each were to be made to Mrs. Howland. And a general power of appointment of the trust fund by will was given to Mrs. Howland by the trust instrument as follows:</p> <p>“ 1 That in the event of the death of said Mary E. Howland while these trusts remain in force, thereupon said trusts shall terminate and all said funds then held in trust shall be paid by said trustees to such persons, or disposed of in such manner, as the said Mary E. Howland shall by her last will direct. In the event of the said Mary E. Howland dying intestate the said fund shall then be paid said Barker C. Howland.’</p> <p>“ By the agreement of the parties to the trust instrument a promissory note for the sum of $5,500, dated April 4, 1907, payable to the said trustees on demand, with interest at the rate of five per cent per annum, signed by Sarah C. Howland, and indorsed by said Barker C. Howland, was substituted for the cash payment of $5,500 provided for in the trust instrument.</p> <p>“ 6. After the affirmance by this court of the decree of the Probate Court admitting said will to probate, an action at law was brought in the Superior Court, by the plaintiff as executrix of said will against the trustees named in the trust instrument to recover the fund, upon the ground that the will operated as an execution of said power of appointment, and therefore the executrix was entitled to the fund; and it was so held by this court on appeal from the judgment of the Superior Court in said action. Howland v. Parker, 200 Mass. 204.</p> <p>“It was said by the court, ‘We are of opinion that the fund passes under the eighth clause if it does not pass under the seventh clause; ’ and also, ‘ The question whether the fund passed under the seventh or eighth clause is a question which should be decided in a suit in which the legatees named in those two clauses are parties. Upon that question we express no opinion now. As we have said, the executrix is entitled to the fund, whichever way that question is answered.’</p> <p>“ Upon said decision the fund was paid over to the plaintiff as executrix of the will.</p> <p>“ 7. The plaintiff is in doubt whether the testatrix by her will intended to include this fund in the personal property designated in the seventh clause to be held in trust by the executrix or in the residue of the personal property bequeathed by the eighth clause.</p> <p>“ Wherefore the plaintiff prays the instructions of this honorable court upon the question whether the fund passed under the seventh clause or the eighth clause of said will, and for such other and further instructions and decrees in the premises as the nature of the case may require or as to your honors may seem meet.”</p> <p>A copy of the will of Mary E. Howland was made a part of the bill. The bequests which preceded the seventh and eighth clauses quoted in the bill were as follows:</p> <p>“ First. After my decease I request that my sister Jessie E. Corson at the expense of my estate shall have the direction of my funeral and shall cause my body to be cremated and my ashes to be buried beside the body of my mother in the burial lot in Riverside Cemetery in this said County.</p> <p>“ Second. I give and bequeath to my said sister, Jessie E. Corson, as specific legacies the various articles which I have received from her as gifts and which shall be possessed by me at my decease.</p> <p>“ Third. I give, devise and bequeath to my said sister, Jessie E. Corson, my right and title in the burial lot in said Riverside Cemetery in which lot are buried the bodies of my father and mother, to have and to hold the same to her and her heirs and assigns forever.</p> <p>“ Fourth. I give and bequeath to my friend, Helen D. How-land of Boston, Massachusetts, as specific legacies, the various articles which I have received from her as gifts and which shall be possessed by me at my decease.</p> <p>“ Fifth. I give and bequeath to my cousin, Susan A. Gilbert of said New Bedford, as specific legacies, such articles of personal property belonging to me, not including money or articles of jewelry which may be upon the premises wherein she lives at my decease, and also my wearing apparel but not including articles of jewelry, wherever such apparel may be at my decease.</p> <p>“ Sixth. I give and bequeath to my friend Lucy G. Booth of Newton, Massachusetts, as specific legacies, the various articles which I have received from her as gifts and also my diamond ring, such ring being the largest bowed and containing the largest diamond of the two rings belonging to me.”</p> <p>The case came on to be heard before Rugg, J., upon the bill and answers and certain agreed facts, which are stated in substance in the opinion. The justice, at the request of all the parties, reserved the case for determination by the full court, such decree to be entered as law and justice might require.</p>

<p>Equity Jurisdiction, Bill of ten taxable inhabitants. Boston Common. Boston Transit Commission. Public Officers. Constitutional Law, Vested Rights, Obligation of contracts, Eminent Domain, Delegation of legislative authority. Statute, Construction.</p> <p>Whether, upon a bill by ten taxable inhabitants under R. L, o. 25, § 100, this court have jurisdiction of a suit to enjoin the members of the Boston Transit Commission from constructing a tunnel from Cambridge under a part of Boston Common to the subway station near Park Street in pursuance of the authority given by St. 1906, c. 520, the court here did not find it necessary to determine, being of opinion that, if they had jurisdiction, the plaintiffs had shown no ground for relief; but the jurisdiction was doubted, because the proceedings sought to he enjoined were in charge of a board of public officers over whom the city had no control and were conducted under an act of the Legislature which left the city no alternative in the performance of its duties.</p> <p>Boston Common was dedicated by its owners and was set apart by the town in 1634 “ for the common use of the inhabitants of Boston as a training field and cow pasture.” It long has been settled that the legal title to the property vested in the town of Boston as a municipality, for the public uses referred to in the language quoted, and the city of Boston now holds the land for these public uses. The inhabitants are to use it in common for such purposes as require that it shall be accessible to all as a common to be enjoyed by the public, the two ways specified in the dedication being only typical as representing the common uses for which there was occasion at that time.</p> <p>Except in the exercise of the right of eminent domain, Boston Common could not be appropriated to a public use inconsistent with the general character of the use for which it originally was dedicated and set apart, and it is possible that there has been such an acceptance of the dedication of the original donors by the town and city of Boston and by the Legislature under different statutes as to amount in this respect to a public trust and deprive the public authorities of the right of eminent domain, which otherwise they would have, to devote the property to a public use of an entirely different kind.</p> <p>St. 1906, c. 520, in authorizing the construction of a tunnel under a part of Boston Common to the subway station near Park Street in such a way that the occupation of the Common above the surface hardly will be changed perceptibly, and increasing the facilities for approaching the Common, does not authorize any use of the Common inconsistent with the purposes of its original dedication.</p> <p>The title to Boston Common is held by the city of Boston in its municipal capacity merely as an agency of the government for the benefit of the public, which is represented by the Legislature. Accordingly St. 1906, c. 520, in authorizing the construction of a tunnel under a part of Boston Common, is none the less valid because it contains no provision for a vote of the city government or of the citizens of Boston.</p> <p>St. 1906, c. 620, authorizing the construction of a tunnel under a part of Boston Common, contains in § 23 the following provision: “ If the tunnel hereinabove described is constructed, it shall, except as otherwise expressly provided herein, be constructed and paid for upon and under the same terms, conditions and provisions, ... as are prescribed by chapter five hundred and thirty-four of the acts of the year nineteen hundred and two for construction of the tunnel therein provided for.” The statute referred to contained a provision that it should be submitted for acceptance to the voters of the city at the next municipal election. Held, that the reference to the previous statute did not relate to the question whether the tunnel should be constructed, but only to the question how it should be constructed after it was determined that it should be built, and such determination was provided for in St. 1906, c. 520, with no provision for a submission to the voters.</p> <p>The Boston Transit Commission are an administrative board of public officers, whose members in deciding questions delegated to them by the Legislature do not act judicially but as representatives of the public in the administration of the law, and such a board may act by a majority of their members, if all have had notice and an opportunity to act. Accordingly the determination by a majority of that commission that a tunnel should be constructed under a part of Boston Common in pursuance of the authority given by St. 1906, c. 520, was lawful and binding.</p> <p>The provision of St. 1906, c. 620, § 23, conferring on the Boston Transit Commission authority to determine whether a tunnel from Cambridge should be constructed under a part of Boston Common to the subway station near Park Street or whether instead a subway should be constructed by an alternative route, does not involve any unconstitutional delegation of legislative authority, but was a delegation only of such powers as lawfully may be exercised by boards of public officers.</p>

<p>Contract by a real estate broker to recover a commission for effecting a sale of certain real estate belonging to the defendant, in that part of Boston called Charlestown, known as Banker Hill Terraces, and sold on March 2, 1907, to the Roman Catholic Archbishop of Boston for $60,000. Writ dated May 20,1907.</p> <p>In the Superior Court the case was tried before Lawton, J. The facts which could have been found upon the evidence are stated in the opinion. At the close of the evidence, the defendant asked for certain rulings, among which were the following:</p> <p>“ 4. If the plaintiff while leading the purchaser to believe that he was acting for the purchaser co-operated with the defendant to deceive the purchaser or endeavored to deceive the purchaser without co-operation of the defendant, he cannot recover.</p> <p>“ 5. If the plaintiff undertook to act for both parties in effecting the sale he can recover compensation for neither unless his double employment was assented to by both. ■</p> <p>“ 6. If the plaintiff entered into an agreement with Mr. Coughlin to divide commission with him and this agreement was not known to both Father Tierney and the defendant, then the plaintiff cannot recover.”</p> <p>The judge refused to make any of these rulings, although it was held by this court that the jury were instructed in substance in accordance with the fourth request. Mr. Coughlin, mentioned in the sixth request, died while the negotiations were at an early stage. Father Tierney, mentioned in the same request, represented the purchaser. The portion of the judge’s charge relating to the fifth request is described in the opinion.</p> <p>The jury returned a verdict for the plaintiff in the sum of $1,308; and the defendant alleged exceptions.</p>

<p>Two bills IN equity, filed on October 7, 1902, by the Old. Dominion Copper Mining and Smelting Company, a corporation organized under the laws of the State of New Jersey, against Albert S. Bigelow of Cohasset, one of the two promoters who planned and effected the organization of the plaintiff, to compel, after rescission by the plaintiff, the restitution of the consideration received by the promoters for certain property alleged to have been sold by them to the plaintiff at a large profit without a disclosure of material facts, or to compel the defendant to account to the plaintiff for such secret profit, and to pay damages for such breach of trust, as described in 188 Mass. 315-320, the first suit relating to the original issue of thirty thousand shares and the second suit to the original issue of one hundred thousand shares of the capital stock of the plaintiff.</p> <p>The defendant demurred to the bills, and upon a reservation for determination by this court the demurrers were overruled in a decision reported in 188 Mass. 315.</p> <p>The cases were heard' on the merits by Sheldon, J., who on December 10, 1907, made a decree that the plaintiff should recover from the defendant a sum of money found by the justice to be due to it from him, with interest from a day named, and that execution should issue against the defendant for the total sum with costs. Both the plaintiff and the defendant appealed.</p> <p>While the cases were on the docket of the full court and were about to be reached for hearing at the March sitting of 1908, the defendant filed a bill in equity in the Court of Chancery of the State of New Jersey, praying for an injunction against the prosecution of the pending suits in this Commonwealth, and upon this bill a temporary injunction was issued by the New Jersey court as described in the opinion. On August 8, 1908, the New Jersey court made a decree dismissing the suit in that State, and the present defendant, as the plaintiff in that suit, announced his intention to prosecute an appeal from the decree. Thereupon, on motion of the plaintiff in the present suits, Braley, J., on August 14,1908, made in each of the cases the following interlocutory decree : “ It is ordered and decreed that an injunction issue restraining the defendant Albert S. Bigelow, his attorneys, agents, and servants from further prosecuting the action commenced by said Bigelow against the plaintiff in the Court of Chancery in the State of New Jersey, as is in the plaintiff’s petition set forth; and from commencing or prosecuting any other suit or proceeding either in law or in equity, except in this court, against the plaintiff to prevent it from obtaining the final decision and decree of this court, or in any manner to delay or impede the presentation of said case according to the due and orderly course of procedure in this court, or until further order of the court.”</p> <p>On August 26,1908, the defendant made a motion to vacate the interlocutory decrees of August 14,1908, and to dissolve the injunction issued thereon. On August 28, 1908, the defendant made another motion to modify the decrees of August 14, 1908, and the injunctions issued thereon. On August 28,1908, Braley, J., made orders denying both of these motions. In each of the cases the defendant appealed from the decree of August 14, 1908, and from the orders denying the defendant’s motions to vacate or modify such decree.</p> <p>While the appeals from the decrees made by Sheldon, J., were still on the docket of the full court, the defendant made a motian to be allowed to file a supplemental answer setting up as a bar to the plaintiff’s claims a judgment of the Circuit Court of the United States for the Southern District of New York entered on July 23, 1908, in a suit in equity entitled Old Dominion Copper Mining & Smelting Co. v. Frederick Lewisohn & others, executors. The motion was heard at a special sitting of the full court, and on September 4, 1908, this court made an order vacating the decrees and remitting the cases for hearing before a single justice upon the question whether the defendant should be allowed to file the supplemental answer, and, if his motion was allowed, for a further hearing upon the matters set up in this answer, “ and for reversal or such modification of the original decree, if any, as ought to be made by reason of these matters,” as reported in 199 Mass. 488.</p> <p>The cases were heard by Braley, J., upon a motion of the defendant to be allowed in each of the cases to file a supplemental answer setting up the above named judgment as a bar, and to introduce evidence to prove the facts alleged therein. On September 16, 1908, the justice made an order granting the motion. The plaintiff, instead of taking an appeal, asked the justice to report his action to the full court. In accordance with this request he did so. If his action was reviewable, then, if the allowance of the amendment was wrong, the order was to be reversed ; otherwise it was to stand.</p> <p>A commissioner was appointed to take the evidence relating to the matters set forth in the supplemental answer, and the cases came on to be heard before Hammond, J. On October 9, 1908, he made an order reserving the cases for determination by this court, using in each case the same language, which was as follows:</p> <p>“ This case came on to be heard upon the evidence relating to the matters set forth in the supplemental answer filed by the defendant September 4, 1908, and evidence introduced on behalf of the defendant and on behalf of the plaintiff, as more fully appears in the commissioner’s report thereof; and after the hearing of said evidence a decree in the form of the original decree in said case was ordered, but the question of whether or not said order should be modified or reversed by reason of said supplemental answer, and the evidence in support thereof, is reserved for the consideration of the full court; and this case, including the entire record and the commissioner’s reports of the evidence, is now reserved for the consideration of the full court as if upon the original appeals from the final decree of December 10, 1907, and for such further modification, if any, as should be made therein by reason of the evidence bearing upon said supplemental answer, and also upon the reservation concerning the order permitting the filing of said supplemental answer, and also upon the appeal of the defendant from the decree entered August 14,1908, granting an injunction, and also upon the appeals of the defendant from the orders entered August 28,1908, refusing to modify or vacate said decree of August 14, 1908, and for such final decree and order upon this reservation as justice and equity require. The foregoing is made as a reservation and not as a decree.”</p> <p>The case was argued at the bar in November, 1908, before Knowlton, C. J., Morton, Hammond, Braley, & Bugg, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Contract, for rent of a blacksmith’s shop and boiler shop upon Wharf Street in Gloucester, the second count, which was the only one material, being upon a lease in writing, of which a copy was annexed to the declaration and bore the signatures under seal of the plaintiff and of “ Frederick Sylvester & Co.” Writ dated March 17,1903.</p> <p>The defendant filed an answer in abatement alleging that, if he was indebted to the plaintiff he was indebted jointly with one Mary Sylvester, who ought to have been made a party. He filed a further answer, without waiving his answer in abatement, containing a general denial, an allegation that the lease was void because no such copartnership as Frederick Sylvester and Company existed, an allegation of payment, and an allegation that the plaintiff by his use of the roof of the premises had rendered them unfit for occupancy and had evicted the defendant from them.</p> <p>In the Superior Court the case was tried before Crosby, J. He overruled the plea in abatement, and refused to give certain instructions requested by the defendant, giving other instructions instead. His rulings so far as material are stated in the opinion. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Municipal Corporations, By-laws and ordinances. Constitutional Law, Police power, Delegation of legislative authority.</p> <p>It here was assumed, that it is within the power of the municipal authorities of a city which has accepted the provisions of R. L. c. 104, § 1, relating to the inspection of buildings, to decide that rags are more inflammable than many other articles, and that picking, sorting or storing them involves peculiar danger of fire, and therefore that ordinances properly may be passed to prescribe the materials and regulate the manner of construction of buildings used for that purpose and to provide for the inspection and fix the mode of use of such buildings.</p> <p>A provision of an ordinance of a city which has accepted the provisions of R. L. c. 104, § 1, relating to the inspection of buildings, forbidding the use of any building for the picking, sorting or storage of rags without a permit in writing from the chief of the fire department is invalid and void.</p>

<p>Bill in equity, filed in the Supreme Judicial Court for the county of Suffolk on August 13, 1908, by the trustees under a deed of trust, for instructions.</p> <p>The trust deed was elaborate, and covered eleven pages of the printed record. By its provisions certain real estate was conveyed to the trustees in trust, among other things, to pay, from the net income thereof, by paragraph 22, “ one fifth to Mary S. Apthorp during her life,” and after her death to her husband, John Y. Apthorp, one of the defendants; by paragraph 23, “ one fifth to said Mary S. Apthorp during her life ” and after her death to her son, Isaac Rand Thomas, one of the defendants; by paragraph 24, one fifth to Eliza Whitwell Bradlee during her life, and to certain persons after her death; by paragraph 25, one fifth to Mary Frances Thomas during her life and after her death to certain other persons; and by paragraph 26, one fifth to Lucy Alsop Thomas, and on her death to certain other persons.</p> <p>Paragraph 27 read as follows: “ 27. Provided, however, that during the life of the said Mary S. Apthorp one third of the entire net income of the trust estate shall be paid to her, and the persons to whom said income would otherwise be paid, as hereinbefore apportioned, shall during her life receive so much less.”</p> <p>Material portions of paragraphs 28 and 29 read as follows:</p> <p>“ 28. . . . During the life of the said Mary S. Apthorp interest upon the sum of one hundred and twenty-two thousand five hundred dollars shall be charged to the two fifths’ share of the income of the trust estate apportioned to the said Mary in sections twenty-two and twenty-three of this instrument; and interest upon the sum of sixty thousand dollars shall be charged to the one fifth share of said income apportioned to the said Lucy Alsop Thomas and others in section twenty-six of this instrument. After the death of the said Mary S. Apthorp, interest upon the sum of twenty-seven thousand five hundred dollars shall be charged to the one fifth share of the net income of the trust estate apportioned to the issue of the said Mary and others in section twenty-two of this instrument; interest on the sum of ninety-five thousand dollars shall be charged to the one fifth share of the said net income apportioned to the said Isaac' Rand Thomas and others in section twenty-three of this instrument; and interest on the sum of sixty thousand dollars shall be charged to the one fifth share of the said net income apportioned to the said Lucy Alsop Thomas and others in section twenty-six of this instrument, . . .</p> <p>“ The trustees shall, beginning with the year eighteen hundred and ninety-eight, retain annually from the share of the net income apportioned to the said Mary S. Apthorp and others in section twenty-two of this instrument the sum of one thousand dollars per annum, which sum shah be invested and with the increment thereof shall be held as a sinking fund, and applied to the discretion of the trustees to the reduction of the principal of that portion of the mortgage debt herein charged upon the share of the said Mary S. Apthorp, — namely, twenty-seven thousand five hundred dollars; and, after each such application, the amount of interest charged to the said share shall be reduced accordingly. . . .</p> <p>“ 29. The distribution of income, as aforesaid, shall be made quarterly or oftener at the convenience of the Trustees, upon the written order or receipt of the persons entitled thereto, signed at or immediately before the payment thereof, or by cheque payable to their order, and not by way of anticipation; and said income shall not be assignable or alienable by them, or liable for their debts, contracts or engagements. The quarter days for payment as established by the trustees are to be considered as the dates of distribution in determining the persons who are entitled to said income.”</p> <p>It appeared that the payments of income, as made by the trustees since January 26, 1899, were fixed amounts on the first days, respectively, of April, July and October in each year, and the balance on January 1, with an account submitted to the beneficiaries, stating all receipts and disbursements and the amounts of income distributed to the various beneficiaries.</p> <p>Mary S. Apthorp died on March 4, 1908, and the defendant John V. Apthorp, her husband, survived her. The total net income of the trust (not deducting the amounts of interest on said mortgages) for the period beginning January 1,1908, and ending March 4,1908, was, approximately, $11,166, of which the proportionate share of said Mary S.. Apthorp would amount to approximately $6,987.60. The mortgage interest upon the sum of $122,500 amounted, for the period from December 8, 1907, to March 4, 1908, to the sum of $1,156.94. Of the $1,000 sinking fund, the proportionate amount to be charged against the period from January 1,1908, to March 4, 1908, the date of the decease of Mary S. Apthorp, if that charge was to be apportioned, was, approximately, $261.11.</p> <p>The instructions asked for by the plaintiffs were: (a) whether the net income of the trust estate was to be apportioned as of March 4, 1908, the date of the decease of Mary S. Apthorp; (5) upon, what interests was the amount of interest upon the mortgages of $122,500 up to March 4, 1908, the date of the decease of Mary S. Apthorp, to be charged, and in what proportions ; and (e) in the event that such income was to be apportioned as of March 4, 1908, what proportion, if any, of $1,000 to be set aside annually as a sinking fund was to be charged against the estate of Mary S. Apthorp.</p> <p>Other facts are stated in the opinion.</p> <p>The case was heard by Sheldon, J., who ordered a decree to be entered, instructing the plaintiffs that that part of the net income of the trust estate which was payable to Mary S. Apthorp should be apportioned as of March 4, 1908, the date of her decease, and that the amount which was payable to her up to that time, after making the deductions provided for by the trust deed, ought to be paid to the administrator of her estate, proportionate to the period from January 1, 1908, to the date of her decease; and that the interest upon $122,500 and the charge of $1,000 for a sinking fund should be apportioned in the same way, and the amount of -these charges from January 1, 1908, to the time of her decease should be charged against and deducted from the amount of income payable to her as aforesaid ; and that the net balance remaining should be paid to the administrator of her estate. At the request of the defendant Lucy Alsop Thomas, the presiding justice reported the case for determination by the full court such decree to be entered as law and justice might require.</p>

<p>Tort for personal injuries received by the plaintiff while in the defendant’s employ because, upon his fingers being caught in a machine and upon his immediately giving an order to “throw off the power” to one St. Hillaire, who was working on the machine with him and subject to his orders, St. Hillaire did not obey the order, which would have stopped the machine and released the fingers, but turned the power on and cut off the fingers. Writ in the Superior Court dated March 27, 1907.</p> <p>The case previously was before this court on exceptions by the plaintiff to a refusal by the judge presiding at the former trial to give certain rulings, and is reported in 200 Mass. 19.</p> <p>The second trial was before Graslcill, J. The grounds of exceptions by the defendant, alleged after a verdict for the plaintiff, are stated in the opinion.</p>

<p>Negligence, Employer’s liability.</p> <p>At the trial of an action for personal injuries received by the plaintiff while in the employ of the defendant, it appeared that the plaintiff and four others were engaged under the direction of one D. in placing a coil of piping in a machine, one step of the work requiring that the plaintiff and three fellow workmen should lift the coil while a plank which had been supporting it was removed, so that the coil could be lowered into the machine beneath, the person removing the plank doing so from the other side of a partition in which there were windows with sills three feet from the floor, through which the coils were being pushed ; that one H., in the lowering of previous coils, had been removing the supporting plank, but that on the occasion of the accident D. had directed H. to go to the other side of the partition and help lift on the coil, saying that H. had been taking the planks out too slowly, and that he would “ show him how ”; that D. in pulling out the plank negligently struck one of the plaintiff’s fellow workmen and caused him to lose his balance so that the coil fell on the plaintiff’s hand. Held, that, assuming that D. might have been found to be a superintendent within the meaning of the employers’ liability act, the negligent act of D. was not one of superintendence, and that the defendant was not liable.</p>

<p>Negligence, Employer’s liability. Partnership. Joint Tortfeasors. Evidence, Admissions, Competency.</p> <p>At the trial of an action by a carpenter against a contractor for personal injuries received by the plaintiff while in the employ of the defendant, by reason of the breaking of a defective wooden bracket which supported the board flooring of a staging furnished by the defendant for the plaintiff to work upon, if it appears that the plaintiff had no part in placing the bracket in position, and there is evidence tending to show that the inner part of the bracket had become rotten from long use and exposure to the weather, but that a bracket in such a condition would appear sound to any one looking at it, it cannot be said as matter of law that the defective condition of the bracket was so obvious that the plaintiff must be charged with knowledge of it and held to have assumed the risk of any resulting accident, but that question is for the jury.</p> <p>At the trial of an action against a contractor for personal injuries received by the plaintiff, a carpenter in the employ of the defendant, by reason of the breaking of a defective wooden bracket which supported the board floorihg of a staging furnished by the defendant for the plaintiff to stand upon while at work upon a house, although it appears that a fellow servant of the plaintiff selected the defective bracket from among others of which there was a sufficient number for the stagings on the house, and that the defect might have been discovered on inspection, nevertheless, if there also is evidence tending to show that no more brackets had been provided by the defendant than were needed for the stagings around the house and that the bracket in question was one of the last to be taken, the jury would be warranted in finding that the defendant expected and intended that all the brackets should be taken and used as needed, and that the bracket which broke had been furnished with the others to be used as it was used, and therefore that the injury to the plaintiff was caused by negligence for which the defendant was liable, i</p> <p>At the trial of an action by a carpenter against two defendants for personal injuries alleged to have been received by the plaintiff while in the employ of the defendants and at work upon the staging of a building, and to have been caused by the breaking of a defective bracket supporting a staging upon which the plaintiff was working, if there was evidence tending to show that the plaintiff originally was employed by the second of the defendants only, that he received his pay at first from the second defendant by a check signed by the first, that for the last of several successive payments he was sent by the second defendant to the office of the first, where he received it, that a fellow employee with the plaintiff was paid sometimes by the first defendant, that, when he was paid by the second, it was by a check signed by the first, and that both defendants busied themselves about the building where the plaintiff was working and gave directions as to the work to be done and the materials to be used, the jury were warranted in finding that both defendants stood upon the same footing as to the plaintiff, although there also was evidence tending to show that a contract with the owner of the building as to the work being done there was with the second defendant only, and that the brackets furnished for the staging were his personal property.</p> <p>At the trial of an action for personal injuries against two defendants, evidence tending to show statements by the first defendant bearing on his relations with the second, although incompetent against the second defendant, should be admitted against the first.</p>

<p>Tort for personal injuries received while the plaintiff was in the employ of the defendant at work in its factory at Dudley, with counts under E. L. c. 106, § 71, alleging a defect in the ways, works or machinery of the defendant and negligence of a superintendent, and a count at common law alleging negligence of the defendant in failing to furnish the plaintiff with a reasonably safe and suitable place in which to work and in failing to keep its machinery in a reasonably safe condition. Writ dated October 13,1906.</p> <p>In the Superior Court the case was tried before Wait, J. The plaintiff’s evidence is described in the opinion. The defendant offered no evidence. At the request of the defendant, the judge ruled that the plaintiff was not entitled to recover, and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Practice, Civil, Exceptions, Findings and rulings by judge sitting without jury, Judge’s memorandum, Conduct of trial. Evidence, Presumptions and burden of proof, Admitted die bene, Relevancy and materiality.</p> <p>A judge sitting without a jury for the hearing of an action at law has a right, where the evidence is conflicting, to disbelieve all or any part of the testimony of the defendant’s witnesses and to adopt one of two inconsistent statements testified to by the plaintiff's witnesses; and an exception to the exercise of that right must be overruled.</p> <p>Where, as to certain requests made of him by the defendant at the trial of an action of contract, for rulings of law based upon certain assumed findings of fact, a judge sitting without a jury states in a memorandum filed by him that he “ gave the . . . requests, so far as they were applicable to the evidence,” if he also found for the plaintiff, which he could not have done if he had found the facts as they were assumed to be in the requests, an exception by the defendant “to the modified ruling” on the requests cannot be sustained, since the-meaning of the judge’s memorandum is that he did not find the facts as stated in the requests.</p> <p>At the trial before a judge sitting without a jury of an action of contract for the board of horses, the defendant asked the judge to rule “ that the act of the plaintiff in charging the board of the horses to ” the defendant “ was unauthorized by’’the defendant “and cannot bind him.” In a memorandum as to the request the judge stated, “I excluded the books of the plaintiff on the question of the party liable, and did not consider them on that question. ... I denied the . . . request, unless it be held to ask for a ruling as above, in which case (or in any case) I gave the above ruling, viz.: that the entries in the plaintiffs books, made by the plaintiff, or under his authority, are not competent on the issue of the party liable.” The finding was for the plaintiff, and the defendant excepted. Held, that the exception must be overruled, since the judge without doubt meant that he recognized the correctness of the legal proposition contained in the request, but found as a fact that the act of the plaintiff in charging the board of the horses to the defendant was authorized by him.</p> <p>Where, at the trial of an action before a judge sitting without a jury, evidence, subject to an exception by the defendant, is admitted de bene on the statement of the plaintiff’s counsel that he would by evidence subsequently to be introduced make it competent, if such further evidence is not introduced subsequently, but the defendant does not move to have the evidence admitted de bene stricken out, his exception to its admission must be overruled.</p> <p>At the trial of an action of contract for the board of horses, a matter in issue was whether an agreement which was made as to the board between the plaintiff and the defendant was understood by the plaintiff to be made by the defendant on his own behalf or on the behalf of one S., and, subject to exception by the defendant, evidence was admitted tending to show that at the time the agreement was made the defendant was holding himself out as the person carrying on the business in which the horses were used. Held, that the evidence was admissible and important in determining whether the plaintiff had a right to understand and did understand that the defendant was acting for himself in the negotiations.</p>

<p>Negligence, Employer’s liability. Statute, Construction. Practice, Civil, Declaration, Verdict, Exceptions, Amendment. Damages, Remission.</p> <p>In an action by a workman in a mill against his employer for personal injuries from the falling of a grease cup upon his head, there was evidence warranting a finding that a sagging of the floor of the mill had caused a settling of an overhead shaft to which the cup was attached and a disturbance of its alignment, in consequence of which there had been a shaking or jarring of the cup in its bearings, which had resulted in its fall. It also could have been found that the sagging of the floor and the consequent disturbance of the shaft had lasted so long that the defendant ought to have known of the defect and have remedied it, and was negligent in not having done so. The defendant contended that the plaintiff had assumed the risk of the accident. Held, that, although the plaintiff might have been aware of the sagging of the floor of the mill, he could not from that fact be charged absolutely with notice that the sagging was likely to cause the grease cup to fall upon him, and that it was a question for the jury whether the risk of such an accident was so obvious that the plaintiff must be taken to have assumed it.</p> <p>St. 1906; c. 370, permitting a count at common law against an employer for the conscious suffering of an employee of the defendant from an accident resulting in his death to be joined with a count under R. L. c. 106, § 72, for causing his death, is a remedial statute relating merely to the form of procedure by which existing rights are to be enforced and applies to actions which were pending at the time of its passage as well as to those which were brought after it took effect.</p> <p>Where the plaintiff in an action of tort against his employer for personal injuries dies before the case is tried and the administrator of his estate is admitted as a party to prosecute the action, whether under R. L. c. 106, § 72, as amended by St. 1906, c. 370, now St. 1909, c. 514, § 128, the new plaintiff should be allowed, against objection, to amend his declaration by adding a count for the death of his intestate, here was not passed upon, as it did not appear that any objection was made to the allowance of the amendment and no contention was presented that the administrator could not recover in that action for the death of his intestate because it occurred after the action was brought.</p> <p>Under R. L. c. 106, § 74, now St. 1909, c. 614, § 131, providing that the damages recoverable from an employer for causing personal injury to and the death of an employee cannot exceed in all $5,000, if a jury in such an action return a verdict for an administrator in the total amount of $6,000 and apportion $4,000 for the death and $2,000 for the conscious suffering of the plaintiff's intestate, and afterwards the plaintiff remits $1,000 of this amount, which is applied by deducting one sixth part from each of the sums apportioned, the error of the presiding judge in allowing the recovery of the larger sum is cured by the remission of the excess.</p> <p>In an action by an administrator against the employer of his intestate for causing personal injuries to and the death of the intestate, in which the jury returned a verdict for the plaintiff, it appeared that the presiding judge had erred in failing to instruct the jury that the damages for the death were to be assessed with reference to the degree of the defendant’s culpability, but it also appeared that the only ruling on the question of damages asked for by the defendant was that the amount which the plaintiff- could recover was limited to $5,000. The bill of exceptions, after quoting the charge, stated that “the defendant’s counsel excepted generally to so much of the charge as related to damages, but did not call to the court’s attention, or make any particular request for rulings relating to the assessment of damages with reference to the degree of culpability of the employer,” that “ the court then asked if there were any objections by either party to the charge as given other than those indicated and he was informed that there were none,” and that “ the case was submitted to the jury on instructions not otherwise excepted to.” At the end of the bill of exceptions it was stated that the defendant excepted to so much of the “ charge relating to damages as was inconsistent with the defendant’s requests for rulings.” Held, that upon this bill of exceptions the defendant could not complain of the judge’s failure to instruct the jury to assess damages for the death with reference to the degree of the defendant’s culpability, an omission which probably was due to inadvertence and was not inconsistent with any request made by the defendant.</p>

<p> Husband and Wife. Damages. Actionable Tort. </p> <p>The right of consortium is a right growing out of the marital relation which the husband and wife respectively have to enjoy the society, companionship and affection of each other in their life together.</p> <p>A married woman cannot maintain an action for a loss of consortium occasioned by physical and mental injuries of her husband, which were caused by the negligence of a person from whom her husband has recovered compensation in damages. It seems, that the same rule would apply in an action by a husband for a loss of consortium from an injury to his wife through the negligence of one from whom she has recovered damages, and that anything to the contrary in Kelley v. New York, New Haven, & Hartford Railroad, 168 Mass. 308, is overruled.</p>

<p> Negligence. Street Railway. </p> <p>In an action by a woman against a street railway company for personal injuries caused by the starting of an open electric car of the defendant while the plaintiff was in the act of getting upon the car as a passenger and had one foot upon the running board, if the conductor of the car testifies that when he gave the signal to start the car he was standing at the front end of the car on the opposite side, where he could not see whether anybody was trying to get upon the car from the side where the plaintiff was, and that at this stopping place passengers were accustomed to get on upon either side of the car indifferently, this is evidence of negligence on the part of the conductor.</p> <p>In an action against a street railway company for personal injuries caused by the starting of an open electric car of the defendant while the plaintiff was in the act of getting upon the car as a passenger, if it appears that the conductor gave the signal to start the car when he was standing at a place on the car where he could not see whether an intending passenger was boarding the car, the question whether it was negligent for the conductor to give the signal for starting the car without going where he could see whether any one was getting upon it is for the jury, even if the car had made a reasonably long stop and the plaintiff had had ample opportunity to get on the car and the conductor’s position was not shown to have been an improper one.</p> <p>A woman who is attempting to board an electric car which in response to her signal has been stopped to accept her as a passenger is not bound to anticipate that the car will be started while she is in the act of getting upon it, and therefore she is not negligent as matter of law in attempting to board such a car without paying attention to the ringing of a bell to start it, although the car already has stopped a reasonable time to afford her ample opportunity to have boarded it.</p>

<p>Evidence, Presumptions and burden of proof, Negative testimony, Opinion: experts, Experiments. Custom,. Negligence, Employer’s liability.</p> <p>Where it is material to show that a caretaker in charge of a yard of a manufacturing corporation, who was run down and killed by a switching engine operated in the yard, knew of a custom to ring the bell whenever the engine was started, it is not necessary to show such knowledge by direct testimony, because it may be assumed from the fact that the deceased was the caretaker of the yard that he had a general knowledge of the way in which the business of the yard was carried on, and, the existence of such a custom having been proved, an inference that he knew of the custom is warranted.</p> <p>Upon the issue of the due care of a caretaker in charge of a yard of a manufacturing corporation, who was run down and killed by a switching engine operated in the yard, although, if unexplained, it would be conclusive evidence of the negligence of the deceased to show that he placed himself upon the track with his back to the engine and a short distance from it without taking any precautions for his safety when he knew that the engine was likely to move toward him at any time, yet, if it further is shown that in doing this he relied on a custom to ring the bell whenever the engine was started, the'question of his due care is one to be determined by the jury.</p> <p>Upon the issue whether an engineer operating a switching engine in the yard of a manufacturing corporation, where it was customary to ring the bell whenever the engine was started, started the engine without ringing the bell, and therefore was negligent in running down and killing a caretaker in charge of the yard, the fact that some of the testimony relied on to show that the bell was not rung is negative in form does not render it worthless, and only affects its weight, which depends on the degree of attention which the witnesses are shown to have paid at the time to the ringing or not ringing of the bell and is a matter to be passed upon by the jury.</p> <p>Upon the issue whether a person run over and killed by a switching engine experienced conscious suffering before his death, a physician, who saw the body of the deceased after his death but only a short time after the accident happened, may be permitted to testify that in his opinion the deceased suffered consciously.</p> <p>At the trial of an action against a manufacturing corporation for causing the death of a caretaker in charge of its yard, who while at work there was run down by a switching engine belonging to the defendant, upon the question how close to his engine the engineer in charge of the engine could see the rails of the track behind his engine, which was movingjrockward, the witnesses answered questions which were confined to what they had observed in that respect in regard to the engine which was in use at the time of the accident. On cross-examination it turned out that they had made no measurements of that engine but that the measurements which they had made were of another engine of the same type and dimensions. Held, that this did not render inadmissible the evidence of what the witnesses actually had observed in connection with the engine in use at the time of the accident, and that the weight of the testimony depended on the similarity of the conditions which existed at the time when the observations were made to those whicli existed at the time when the accident occurred, which was to be determined by the jury.</p>

<p>Negligence, Employer’s liability. Practice, Civil, Conduct of trial, Requests and rulings. Evidence, Relevancy and materiality, Opinion: experts.</p> <p>At the trial of an action by a boy seventeen years of age against his employer, the proprietor of a general wood-working establishment, to recover for the loss of the fingers of one hand which were cut off while he was operating a rip saw as a cut-off saw to cut pieces of wood across the grain, there was evidence tending to show that such use of a rip saw was attended by dangers, not apparent, due to the consequent jumping of the wood being sawed, or the throwing of it away by the saw, that it was reasonably necessary, in order to insure safety in such use of a rip saw, to use a gouge, that the plaintiff, who previously had had no experience in the use of circular saws, had been set at work with the saw by the defendant’s foreman only four hours before the accident, that neither had the plaintiff been warned or instructed of the danger attending the use of the saw, nor had a gouge been furnished for his use although there were gouges near at hand which might have been used. Held, that there was evidence which would warrant findings, that the plaintiff had not been properly instructed and warned regarding the dangers incident to his work, and that suitable appliances had not been furnished for his work, and therefore that the plaintiff’s injury was caused by negligence for which the defendant was liable.</p> <p>An employer is not relieved from liability at common law for injuries resulting to an employee because he is set at a work which is attended by dangers, not apparent, without adequate instruction or warning, by reason of the fact that the employer delegated to a superintendent the duty of instructing and warning the employee and it was due to the negligence of the superintendent that the duty was not performed.</p> <p>An employer is not relieved from liability at common law for injuries resulting to an employee because he is set at work on a machine which lacked appliances to insure his safety, by the fact that the employer furnished such appliances to be used on the machine and entrusted the duty of putting them on the machine to a superintendent, to whose negligence was due the fact that they were not used.</p> <p>A judge presiding at a trial cannot be called upon to give to the jury instructions Upon the effect of a possible finding of a particular evidential fact in the case.</p> <p>At the trial of an action by an employee in a general woodworking establishment against his employer to recover for the loss of the fingers of one hand alleged to have been due to his being set at work upon a rip saw at sawing pieces of wood across the grain, there was evidence tending to show that, to insure his safety, a gouge should have been furnished to use on the saw, but that none was furnished. Evidence was admitted, subject to the defendant’s exception, tending to show that there were gouges found the next morning near the saw covered with laths. Held, that the evidence was competent as tending to show that one of the gouges was intended for use on the saw and should have been attached.</p> <p>At the trial of an action by a boy seventeen years of age against his employer, the proprietor of a general wood-working establishment, to recover for the loss of the fingers of one hand, which were cut off while he was operating a rip saw as a cut-off saw to saw pieces of wood across the grain, in which the plaintiff contends both that, being inexperienced, he was not properly instructed or warned as to the hidden dangers of his employment, and that he was not furnished with appliances proper to insure his safety, it is proper to ask a witness, qualified as an expert on the subject, to state the dangers, not apparent to an inexperienced workman, attending the use of rip saws and cut-off saws in general, and what appliances are “ reasonably necessary ” to insure safety in the use of a rip saw as the plaintiff was directed to use it.</p>

<p>Insurance, Life. Evidence, Presumptions and burden of proof, Admissions, Declarations of deceased persons. Practice, Civil, Exceptions.</p> <p>An applicant for insurance described himself in the application as of “ good health.” A provision of the application was that it should “ become a part of the contract for insurance hereby applied for.” A provision of the policy was that a part of the consideration for the agreement of the insurance company was “the application for this policy, which is hereby made a part of this contract.” In the application the insured agreed “ that the policy . . . shall not take effect until the same shall be issued and delivered by the said company, and the first premium paid thereon in full, while my health is in the same condition as described in this application.” Held, that the burden was upon the plaintiff to show that the first premium was paid while the insured was in good health.</p> <p>Although, on exception by the plaintiff in an action upon an insurance policy to a ruling by the trial judge directing a verdict for the defendant on the ground that there was no evidence to submit to the jury on the question whether the plaintiff was in good health at the time of the payment of his first premium, the evidence set out in the bill of exceptions seems very convincing for the defendant, and it is not to be supposed that upon it the jury would have found for the plaintiff, nevertheless the question before this courtis as to the existence or non-existence of evidence which, taken by itself alone, would warrant an inference that the plaintiff was in good health at the time of the payment of the first premium, and on that question the plaintiff is entitled to have the case considered by this court as it was before the defendant’s witnesses were called.</p> <p>The questions, whether, where an application for insurance, which was a part of the contract of insurance between an insurance company and the applicant, provides that, in order to give the policy effect, the first premium is to be paid while the insured is in good health, and the promise of the company contained in the policy is in consideration of the application “ and of the payment, in the manner specified, of the premiums,” the words “ in the manner specified ” mean, while the insured was in good health, so that an acceptance of the first premium and delivery of the policy by the company would be evidence in the nature of an admission, although not binding, that when the premium was accepted the insured was in good health, and whether, the foregoing facts having been put in evidence at the trial of an action on the policy, an exception to a ruling by the presiding judge, that there was no evidence that, at the time of the payment of the first premium, the insured was in good health, should be sustained, here were not argued by either party and were not decided, since there was other evidence on which the exception Was sustained.</p> <p>It is a matter of common knowledge that an insurance company does not issue a policy upon the life of an applicant until it has received what it regards as satisfactor)' evidence that the person to be insured is in good health.</p> <p>Evidence that an insurance company, after an investigation satisfactory to itself, wrote, issued, received payment of a first premium upon, and delivered a policy insuring the life of one in whose application for insurance was a stipulation that the policy should not take effect “ until the same shall be issued and delivered by the said company, and the first premium paid thereon in full, while my health is in the same condition as described in this application,” in which the condition of his health was described as “ good health,” and that the agent of the company, who to a certain extent was charged with the duty of ascertaining whether the policy ought to be delivered, called at the home of the applicant on the day of the payment of the first premium, and, not finding the applicant at home, made some inquiries of his daughter and was assured by her that the applicant “ was all right,” would warrant a jury in finding that, at the time of the payment of the first premium, the applicant was in good health.</p> <p>The questions, whether a declaration in an application for life insurance, that the applicant is in good health, is admissible as evidence at the trial of an action on a policy issued in consideration of the application upon the life of the declarant, as being a declaration such as is described in R. L. c. 176, § 66, which was made in good faith upon his personal knowledge by a person who died before the commencement of the action, and whether the trial judge, if requested, might have instructed the jury under the circumstances not to consider the declaration as evidence, on the ground that he was not satisfied that it was made in good faith, here were not decided.</p>

<p>Way, Alteration. Street Railway.</p> <p>Under St. 1906, c. 463, Part I, §§ 23, 26, relating to alterations in the crossings of public ways with railroads which do not involve the abolition of a crossing at grade, a street railway company which has tracks in a way is a party interested in an alteration of a railroad crossing on or over the way, and is liable to pay its proper part of the expenses of the alteration, whether or not it is authorized to lay and use tracks upon any bridge in the highway.</p>

<p> Voluntary Association. Partnership. Co-operative Store. Agency. </p> <p>A voluntary unincorporated trading association, made up of persons whose proportions of ownership in the assets are represented by certificates of shares, is a partnership, and is none the less so because the income which may be received by the shareholders is limited by the by-laws to six per cent per annum, with a provision in another by-law for the establishment of a sinking fund, which, if kept intact and regularly increased, in case of the winding up of the association would be distributed among the shareholders.</p> <p>A voluntary unincorporated trading association was formed for the purpose of carrying on a general country store. By-laws were adopted, which provided among other things for the issuing and transfer of an unlimited number of “shares of stock,” each of the par value of $5, for the general conduct of a store business through a salesman under the supervision of an executive committee, for interest on the capital at the rate of six per cent per annum, payable semiannually, for the setting apart of five per cent on the net profits as a sinking fund, and the quarterly payment of the balance of such profits to purchasers as “ dividends ” in proportion to the amounts of their respective purchases, for the accumulation of uncollected interest or dividends to the credit of the several members of the association, and for the transfer of uncollected dividends on purchases by non-members to the sinking fund, which in case of the winding up of the association would be distributed among the shareholders. Held, that the only members of the association were the shareholders, and that the device of distributing the balance of the profits among the purchasers did not make them members of the association.</p> <p>In an action against representative members of a voluntary unincorporated trading association, to hold them liable as partners for goods sold and delivered to the association by the plaintiff, it appeared that the association, in which the defendants were shareholders, was organized for the purpose of carrying on a general country store, and the by-laws provided for the general conduct of a store business through a salesman under the supervision of an executive committee, that one M., who had represented the association in buying the goods from the plaintiff, was in the employ of the association as salesman when it began business and so continued until it ceased to do business, that before the transactions with the plaintiff he was elected at a regular meeting of the shareholders a member of the executive committee and the treasurer of the association, and continued to hold these offices without subsequent election, that he did all the buying and issued shares of the association and received the money for them, that the plaintiff, who was doing business under the name of a beef company, previously had dealt with the store for a number of years, and from time to time had taken notes which always were signed in the name of the association by M. as treasurer, and that such notes had been paid, that the account on which the action was brought extended back for a period of three or four years before the time when the store went out of business, and that the plaintiff at no time had given credit to M. but always to the association of which M. was treasurer, that M. was accustomed to buy goods upon credit and to give notes of the association in payment, and that during the whole time that M. had conducted the business no objection was made on the part of any shareholder to the manner in which he was conducting it. A statement of the account on which the plaintiff sued was approved in writing by M. as correct. A judge who heard the case without a jury found that M. had authority to pledge the credit of the store and to give notes. Held, that a finding was warranted that M. was empowered in behalf of the association to incur such indebtedness as the ordinary conduct of the business required, and that his authority to execute commercial paper might be inferred from his course of conduct in buying on credit and paying by notes, which must have been with the knowledge and consent of those members who took any interest in the business, that, if the others did not avail themselves of their right of supervision as partners, they could not complain that M. had exceeded his authority after the goods had been purchased from the plaintiff without any knowledge by him of any limitation upon M.’s authority, and that for the plaintiff to recover, it was not necessary for him to show any knowledge of the particular transactions on the part of the defendants.</p> <p>In an action against representative members of a voluntary unincorporated trading association, formed for the purpose of carrying on a general country store, to hold them liable as partners for goods sold and delivered to the association by the plaintiff, one of the defendants contended that there was not sufficient evidence to support a finding that he was a member of the association. It appeared that the by-laws of the association provided, among other things, for the issuing and transfer of an unlimited number of “ shares of stock,” each of the par value of $5, for the general conduct of a store business, and for interest on the capital at the rate of six per cent per annum, payable semiannually, and that the defendant in question paid $5 for a share at about the time the store was started. He testified that he never received cash interest on the share but that lie might have received it in the way of goods, that he never attended meetings nor received notices of them, that he had no copy of the by-laws, that he “ never saw the stock ” and did not remember that he ever had a certificate or had forgotten it. Held, that the payment for the share of the so called stock was all that was necessary to make this defendant a partner entitled to share in profits and responsible for losses, and that on the question of his liability it was immaterial whether he received a certificate of stock or attended a meeting of the association or had any knowledge as to the business of the store.</p>

<p>Tort for personal injuries sustained, by the plaintiff, while in the employ of the defendant as a carpenter, from the breaking of a corner board alleged to have been in a dangerous and defective condition. Writ dated February 15,1908.</p> <p>In the Superior Court the case was tried before Bishop, J. The facts shown by the evidence are stated in the opinion. One Picard was the other carpenter referred to in the opinion, who was working with the plaintiff as a fellow employee at the time of the accident. Picard testified that he had worked as a carpenter for twenty-five years. Having testified that the corner board that broke was of pine, which was shown by his other testimony to mean native white pine, he was asked by the plaintiff whether “ boards of that character were ordinarily used for finish.” Upon objection by the defendant, this question was excluded. The plaintiff also asked this witness the question, “ Was it necessary for Mr. McNulty [the plaintiff] to catch hold of the board in the manner in which he did in order to nail that piece of studding on the roof ? ” Upon objection by the defendant, the judge also excluded this question.</p> <p>At the close of the plaintiff’s evidence, the judge ruled that the plaintiff was not entitled to recover, and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Negligence, Employer’s liability. Practice, Civil, Exceptions, Conduct of trial. Evidence, Of intent.</p> <p>In an action for personal injuries sustained by the plaintiff while at work in the lumber yard of the defendant, by reason of a part of a pile of lumber falling upon him, it appeared that the plaintiff had worked in the defendant’s lumber yard for fifteen years, that on the day of the accident the plaintiff and another workman of the defendant were directed by a superintendent, whose duty it was to see that the lumber was piled properly, to come with him and be shown where to pile lumber, that there was a long open shed for piling the lumber, divided into spaces called bays, that they came to a bay in which there were three tiers of planks, and, there being more room in it, the superintendent said, “You got to pile on that bay, too,” to which the plaintiff replied, “That pile is pretty high,” and, being then several feet away, started to walk toward the pile, that the superintendent said, “ Never mind that pile, it is all right and safe. Come; I will show you some other pile,” whereupon the plaintiff did not examine the pile, but went with the superintendent, that when in the course of his work he returned to this bay to pile lumber in it, one tier of lumber about nine feet in height fell upon him, causing his injuries, that it was customary in the defendant’s yard, when tiers were piled as high as this in a bay only partially filled, to use cross-pieces to bind the tiers together, and that there were no cross-pieces on the tier in this bay, that lumber had been in this bay for several weeks and some had been taken out a week before, and that, so far as appeared, none had been taken out or put in after that until the time of the accident. It appeared also that from time to time men were at work about the yard straightening up piles of lumber so that they would be safe, and the duty of the defendant’s superintendent might have been found to include a general inspection of the piles of lumber to see that tiiey were safe and continued to remain so. Held, that there was evidence of negligence on the part of the defendant’s superintendent; and also, that the question of the due care of the plaintiff was for the jury, because, even if the plaintiff at first thought that the pile was so high that it was likely to fall, he might have been found to be justified in yielding his own view and accepting that of the defendant’s superintendent, when assured by him of its safety, especially as the plaintiff did not know of the absence of cross-pieces on the tiers.</p> <p>No exception lies to the exclusion of a question by a presiding judge where the party asking the question did not state what answer he expected.</p> <p>Where the plaintiff is recalled as a witness, in a trial in which the evidence appeared to have been closed on the previous day, and the question put to him is the same as one previously addressed to him by his counsel on his direct examination, which then was excluded and which at that time was not accompanied by any offer of proof, the presiding judge in his discretion may exclude the question and an offer of proof accompanying it, because not proffered seasonably.</p> <p>In an action for personal injuries sustained by the plaintiff while at work in the lumber yard of the defendant, by reason of a part of a pile of lumber falling upon him, it appeared that the plaintiff, on seeing the particular pile of lumber which afterwards fell on him, and which then was several feet away, said, “ That pile is pretty high,” and started to walk toward the pile, that the defendant’s superintendent said “ Never mind that pile, it is all right and safe. Come; I will show you some other pile,” whereupon the plaintiff did not examine the pile but went with the superintendent. The plaintiff’s counsel asked the plaintiff, why he started toward the pile, and stated that the answer he expected was, “ To see if it was a good pile.” The presiding judge excluded the evidence, which was not offered seasonably. It was said, that, had the evidence been offered seasonably, it would have been competent upon the issue of the plaintiff’s due care in relying upon the assurance of safety given him by the superintendent and in giving up his own investigation when directed to go with his superior.</p> <p>Where a person’s state of mind is material to an issue on trial he may testify about it himself.</p>

<p>Trust, Accounting by trustee, Powers of trustee, Compensation of trustee. Waiver. Probate Court, Jurisdiction, Notice to parties. Election. Notice. Infant. Guardian ad Litem,. Words, “ Wilful neglect or default.”</p> <p>On an appeal from a decree of the Probate Court confirming a finding in a report of an auditor, to whom had been referred accounts of trustees under a will covering a period of five years, to the effect that one, who was entitled to a certain share of the income of the trust estate during his life and who was objecting to a certain conveyance by the trustees to one of their own number made five years before the period covered by the earliest account, and to a consequent diminution of, income as shown by the accounts in question, at the time of the conveyance had full knowledge of the transaction, a single justice of this court, after an extended hearing, stated that he was unable to find in the evidence that the finding of the auditor had been controlled, and this court, for whose determination the case was reserved by the single justice with a report by a commissioner of all the evidence, ruled that the objecting life beneficiary not only had full knowledge of the transaction, but also had acquiesced in it, and therefore held, that such life beneficiary had waived his right to object.</p> <p>At hearings on accounts filed by trustees under a certain will for a period of five years, before an auditor appointed by the Probate Court, before a judge of the Probate Court after the filing of the auditor’s report and before a single justice of this court on an appeal from a decree of the Probate Court confirming the auditor’s report, persons interested in the estate after the death of certain life beneficiaries objected to a certain sale and transfer, made by the trustees five years before the earliest of the accounts, of a part of the trust estate to one of their own number and requested that such part of the estate be reconveyed rf> the trustees. After the accounts had been referred to the auditor, the objecting beneficiaries brought a bill in equity in the Circuit Court of the United States seeking such reconveyance, and, after the filing of the auditor’s report but before the decree of the Probate Court, brought a bill in equity for the same purpose in the Superior Court of this Commonwealth. Held, that the question, whether or not the objecting beneficiaries should be put to their election between the proceedings in the Probate Court and the suits in equity brought by them, was for the determination of the courts where those suits were pending; that, having raised and prosecuted their objections in the proceedings in the Probate Court, they could not withdraw therefrom, but must submit to a determination of the question whether the trustee who had purchased and had received from his co-trustees the conveyance of a part of the trust property should account in whole or .in part for the property thus received by him.</p> <p>On a reservation by a single justice of this court for determination by the full court of the question whether a decree of the Probate Court allowing certain accounts of trustees under a will was right, the record included the report of an auditor to whom the accounts were referred in the Probate Court, all the testimony and evidence given before the single justice and a memorandum of findings by the single justice. One matter in issue was whether one of the trustees should be held to account for an interest in real estate of the trust sold and through a third party conveyed to him by the trustees. The evidence was held by this court to show as to the real estate in question that the trustees, being desirous of buying it, found that, if they took title to themselves only, they would have to take it subject to a mortgage of $115,000, which was too large a mortgage for the trust estate "wisely to carry, that it therefore was contemplated that one of the trustees should sell some property which he individually owned and from the proceeds thereof should purchase a portion of the estate which the trustees contemplated buying, and that with the money thus realized the trustees should reduce the mortgage; that the sale of the trustee’s individual property was delayed and, in the meantime, the trustees, without agreeing definitely to convey any of the property to one of their number and without having determined upon what portion thereof they desired so to convey, purchased the real estate subject to the mortgage of $115,000; that thereafter, the trustee having sold his individual property, the trustees sold to him for an adequate price one third of the real estate they had purchased and used the money they received from him to reduce the mortgage, he assuming one third of the mortgage obligation; that the trustees all acted in good faith and that under the circumstances it was proper for them not to desire any one except one of their own number to be a co-owner with them of the property in question, jHeld, that the sale and conveyance to one of the trustees of the one third interest could not be avoided.</p> <p>A trustee under a Massachusetts trust is justified in tearing down an old building owned by the trust and in erecting a new one in its place when a prudent business man would do so to secure a fair return by way of income and at the same time to maintain the corpus of the portion of the principal so invested intact, having regard to the relation which such an investment, when made, would have to the amount of the principal of the trust fund as a whole.</p> <p>An application to the Probate Court under R. L. c. 147, § 18, by a trustee under a will for leave to mortgage real estate belonging to the trust for the purpose of erecting, altering, completing, repairing or improving a building on such estate, is in the nature of a proceeding in rem for the conservation of the trust estate as a whole, and in such a case personal service on those interested in the estate is not necessary, but reasonable notice only need be given; nor is the appointment of a guardian ad litem for minors interested in the estate necessary in the absence of a legislative requirement.</p> <p>The entire amount of a trust under a Massachusetts will amounted to $920,000, and one item was a piece of real estate on Tremont Street in Boston worth $375,000. The trustees, of whom there were three, purchased adjoining property for $28,000, purchased the rights of lessees in possession of the premises under written leases for $13,750, with leave of the Probate Court obtained $450,000 by mortgaging trust property, tore down old buildings on the property and erected a large office building in their stead. The will gave the trustees power, “ in case any of said trustees shall see fit, to sell or dispose of or change the investment of any of the property at any time held by them in trust,” and provided that the trustees “ shall each be liable only for his own receipts, payments, and wilful defaults in the premises . . . nor be answerable for any loss or damage which may happen to the trust property without their respective wilful neglect or default.” Held, that, while the acts of the trustees with regard to the erection of the building could not be justified as done in the exercise of a sound discretion, the trustees were not chargeable for the investment, since, in acting as they did, they were not guilty of “ wilful neglect or default.”</p> <p>The term “ wilful default,” occurring in a will providing that trustees should not “ be answerable for any loss or damage which may happen to the trust property without their respective wilful neglect or default,” means intentionally making away with the trust property, and “ wilful neglect ” means such reckless indifference to the true interests of the trust as to amount to or partake of the nature of a wilful violation of duty.</p> <p>Trustees under a will, who are to pay the income of the trust property to certain persons during their lives, and, as they die, divide the principal from time to time among their descendants, and who by the provisions of the will are given power, if any of them should “ see fit, to sell or dispose of or change the investment of any of the property at any time held by them in trust,” have not power to borrow money to add to the amount of the investments of the trust, without first obtaining leave from the Probate Court.</p> <p>The trustees under a will, whose provisions did not specifically give them power to borrow money for the purposes of the trust, were to pay the income from the trust property to certain persons during their lives and, as they died, to divide the property among their descendants. One of the life beneficiaries dying and a partial distribution of the trust property occurring, the trustees gave to two of those entitled to share in the distribution trustees’ notes bearing interest at four per cent for a part of their share, and thereafter paid interest on such notes from 4rust funds. Held, that the shares should have been paid outright when due, and that the trustees therefore were chargeable in their accounts with all amounts paid on the notes by way of principal and interest.</p> <p>It is proper for trustees under a will, by whose provisions they are not specifically given power to borrow money for the purposes of the trust, to pay interest on temporary loans, which were made on the security of bonds and other securities and which were to be paid out of the proceeds of the sale of the bonds and securities, the loans being procured to get money that was needed immediately and at a time when a sale of the bonds and securities would be disadvantageous.</p> <p>In a will creating a trust, it was provided that the trustees “ shall each be liable only for his own receipts, payments, and wilful defaults in the premises . . . nor be answerable for any loss or damage which may happen to the trust property without their wilful neglect or default.” The trustees made an investment of trust funds, which this court held was unauthorized but in the making of which the trustees were not guilty of wilful neglect or default. In their accounts the trustees sought to be credited with certain items as commissions on sums paid out in the investment and also with an item of extra compensation for services in the matter, and at a hearing on the accounts did not elect to take over the unauthorized investment and make its amount good to the trust, but availed themselves of the defense that there had been no wilful neglect or default on their part. Held, that the items for commission and compensation should be disallowed.</p>

<p>Evidence, Competency.</p> <p>At the trial of an indictment for carnally knowing and abusing a female child less than thirteen years of age, evidence, which is competent to explain delay of the complainant in informing her mother of the acts of the defendant, is none the less admissible because it consists of a threat made by the wife of the defendant in his absence on the day after the crime was committed, which for other purposes would not be admissible.</p>

<p>Tort for personal injuries received, by the plaintiff, a boy less than fifteen years of age, while employed by the defendant and assisting in the operation of a machine called a “ cylinder planer,” as stated in the opinion. Writ in the Superior Court dated May 28, 1908.</p> <p>The declaration was in three counts, all at common law, the negligence of the defendant alleged in the first count being the furnishing of dangerous, improper and defective machinery and implements for the plaintiff to work with, that in the second count being the placing of the plaintiff in an unsafe place to work, and that in the third count being a failure to warn and instruct the plaintiff as to dangers attending his work.</p> <p>The case was tried before Crosby, J. The facts are stated in the opinion. At the close of the evidence the presiding judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Contbact. Writ dated May 21, 1904.</p> <p>The original declaration contained one count, as follows:</p> <p>“ And the plaintiff says the defendants owe him the sum of nine thousand and five dollars, according to the account hereto annexed.</p> <p>“ Account Annexed.</p> <p>“ Lydia E. Kimball, et al,</p> <p>To Samuel Dodge, doing business under the firm name of Dodge & Devanny, Dr.</p> <p>“ Items</p> <p>(1) To amount of the contract price for erecting and fin-</p> <p>ishing a business block on Main Street in ¡North Adams, $96,500 Cr.</p> <p>(2) By cash at different times, 87,195</p> <p>Balance due, $9,305 ”</p> <p>The declaration afterwards, and before trial before the referee, was amended by adding the following two counts:</p> <p>(2) “ And the plaintiff says that pursuant to said contract he furnished all the material and labor and did all other things required by the contract and specifications in building and constructing a business block in North Adams the property of the defendants and performed said contract as modified, directed and required by the defendants, but that the defendants have wholly failed to perform their part of the contract and have neglected and refused to pay the plaintiff the amount due upon said contract. And the plaintiff says that there is now due and owing to him the sum of $9,305, with interest thereon from the date of this writ.”</p> <p>(3) “ And the plaintiff says that he made a contract with the defendants, a copy of which contract with the specifications is hereunto affixed and made a part of this declaration. And the plaintiff says that he was always ready and willing and did perform all the terms of said contract as required by the defendants but that the defendants wholly failed to perform their part of the contract, and did not furnish a heating plant as they had promised to do, whereby the said building could be heated when in the process of construction, and did not select the brick and other material when called upon by the plaintiff as they had promised to do, but wholly failed and neglected so to do, and wholly failed to furnish an elevator as they had agreed to do, and did not select hardware upon the request of the plaintiff as was required of them, and failed to select the colors with which the walls were tinted, and wholly failed and refused to comply with the stipulations contained in said contract and specifications, whereby the plaintiff was greatly delayed, hindered and damaged in the performance of said contract. But the plaintiff, nevertheless, under the direction and at the request of the defendants proceeded with said work in the construction of the building described in said contract and specifications with all possible expedition and did everything required of him by said contracts, as directed by the defendants, and did all other things required thereunder as directed and required by said defendants and when not prevented from so doing by the defendants.</p> <p>“And the plaintiff further says that in the excavation for the foundation of said building, quicksand was found which caused great delay through no fault of the plaintiffs, and that the defendants directed further and other excavation and granted extensions of time therefor.</p> <p>“ And the plaintiff says that the architect employed by the defendants unreasonably and without cause refused to sign an order for payments which are justly due and payable to the plaintiff and which are required by the terms of said contract, to the great damage of the plaintiff, as he says, to the sum of $9,305, with interest thereon from the date of this writ.”</p> <p>Annexed to the amended declaration was a copy of the building contract and specifications.</p> <p>The action originally was brought by Samuel Dodge. After entry, the plaintiff was adjudged a bankrupt and Albert L. Bowen was appointed his trustee in bankruptcy, and as trustee was admitted to prosecute the action.</p> <p>The case was referred to John W. Mason, Esquire, as referee, as stated in the opinion. After the filing of his report, the case was heard by King, J., who ordered judgment for the defendant. The plaintiff appealed.</p>

<p>Petition, filed in the Superior Court on June 29,1907, under R. L. c. Ill, § 153, for damages resulting from the discontinuance, in the course of the abolition of a grade crossing of a railroad with East Main Street in Great Barrington, of a portion of that street upon which, it was alleged, the petitioner’s premises abutted.</p> <p>The case was tried before Aiken, C. J.</p> <p>A copy of the material portion of the plan, .upon which the decree as to the abolition of the crossing and discontinuance of the portion of the street in question was based, is printed below:</p> <p>The bill of exceptions states that it appeared at the trial “ that the railroad runs in a northerly and southerly direction past the petitioner’s premises, which premises are situated on the easterly side of the railroad track and location. The petitioner’s premises extend along the east side of the railroad location about twenty rods, and are bounded westerly on the railroad location. . . . The highway runs in thé same direction as the railroad and lies between the petitioner’s buildings and the railroad.</p> <p> </p> <p>“ The location of the highway is on the westerly part of the petitioner’s premises, the westerly line of the highway location, so far as the highway location is outside of the railway location, being the easterly line of the railroad location. The highway location terminates at the southerly end at a point, or angle, formed by the east line of the railroad and the east .line of the highway. Within about eight rods southerly of the petitioner’s hotel, and while still on the petitioner’s premises, the highway (before the abolition of the grade crossing) turned and crossed the location and track of the railroad at grade.</p> <p>“ The decree of the Superior Court abolished this grade crossing and discontinued the highway between the easterly and westerly lines of the railroad location.”</p> <p>This discontinued portion of the highway is indicated on the map as “ parcel A,” which is shaded. The language of the report of the commissioners, which the decree of the Superior Court confirmed, was a,s follows, on one page of their report: “ That part of East Main Street at the southerly crossing included between the easterly and westerly side lines of location of the Berkshire Railroad Company shall be discontinued ”; and as follows at another page of the report: “ The Commissioners find that it is necessary to take land for railroad purposes, as follows: ‘ parcel A,’ That part of East Main Street between the easterly and westerly side lines of location of the Berkshire Railroad Company herein discontinued.” It was agreed that the same piece of land was referred to in both of the above paragraphs. The remaining portion of the highway on the petitioner’s premises and passing her buildings was left unchanged.</p> <p>At the close of the evidence the respondent’s counsel asked the Chief Justice to rule as follows:</p> <p>“ 1. Upon the whole evidence the petitioner cannot recover.</p> <p>“ 2. The petitioner can recover no damages for the discontinuance of the street within the location of the Railroad Company even though her actual damage from such discontinuance is very great.</p> <p>“ 3. It is immaterial to the petitioner’s right to recover that a small portion of land of which she owns the fee, subject to the public right of way, touches the discontinued part of the street, or that a corner of the petitioner’s land outside of the highway location touches the discontinued portion of the way. The test is, — has the access to the system of public streets been substantially impaired.</p> <p>“ 4. The land taken having been taken for railroad purposes, the suit should have been against the railroad and not against the town, and petitioner cannot recover in an action against the town.”</p> <p>The rulings were refused, there was a verdict for the petitioner ; and the respondent alleged exceptions.</p>

<p>Bill in equity, filed in the Probate Court for the county of Hampshire on August 8,1908, by the trustees under the will of Whiting Street, late of Northampton, for instructions, as stated in the opinion.</p> <p>On appeal by Clarissa S. H. Chapman from a decree of the Probate Court made by Bassett, J., the case was heard by Eammond, J., who confirmed the decree of the Probate Court and reported the case for determination by the full court.</p>

<p>Negligence, Street railway, Trespasser. Trespass.</p> <p>A trespasser upon a street car, who is injured while voluntarily jumping from the car to avoid the conductor, by whom he had no reasonable ground for apprehending that he was about to be assaulted, has no right of action against the corporation operating the car.</p> <p>At tile trial of an action against a street railway company by a newsboy thirteen years of age to recover for injuries caused by his hand being run over after he had jumped from a car of the defendant as it was moving rapidly, it appeared that the plaintiff had got upon the running board on the left hand side of an open electric street car of the defendant, outside of an adjustable rail placed there by the defendant to prevent persons from entering the car on that side, and that he was a trespasser upon the car, that the car was running on the right track of double tracks, that after the car started the defendant’s conductor, from his position on the rear platform of the car, shouted to the plaintiff and made a motion with his hand which the plaintiff rightly understood to be an order for him to get off the car, that the plaintiff did not obey and the conductor went along the running board on the right hand side of the car to a point opposite the plaintiff, put his foot into the car, spoke again to the plaintiff and motioned with his hands, that the plaintiff still remained on the left hand running board, that thereupon, the plaintiff testified, the conductor “ was about to put his right foot in and he hollered something to me again, and he could almost reach me witli his hand, and I jumped off.” The plaintiff also testified that the conductor looked “ mad” and that he thought the conductor was going to push him off. The car was running with some speed when the plaintiff jumped. A verdict was ordered for the defendant and the plaintiff alleged exceptions. Held, that the exceptions must be overruled, since there was nothing in the conduct of the conductor as shown by the evidence which justified on the part of the plaintiff a reasonable apprehension of violence, or would have warranted the jury in finding that the conductor wilfully or recklessly and wantonly exposed the plaintiff to danger.</p>

Tort for the total loss of sight of the plaintiff’s left eye, alleged to have been caused by the collision of a car of the defendant with the plaintiff’s horse and sleigh, whereby the plaintiff’s horse became frightened and ran away, throwing the plaintiff against a pole set in the highway, at about twenty minutes after seven o’clock in the evening of December 28,1906, on Chicopee Street in Chicopee. Writ dated February 11, 1907.

<p>Bill in equity, filed in the Superior Court on November 9, 1905, and amended on October 6, 1906, by Bridget Duffy, alleging that she was a legatee under the will of Michael Hogan, late of Pittsfield, that said will was allowed in the Probate Court for the county of Berkshire on January 26,1901, and that by it the plaintiff was given a legacy of $500, which she never had received; that an appeal was taken from decrees of the Probate Court allowing the will, and that, during the pendency of the appeal in the Supreme Judicial Court, a settlement was reached and an agreement in writing was entered into between certain of the legatees, as follows: “ This agreement made and entered into by and between Maria Hogan Barry and Daniel Hogan, James D. Hogan and Bridget Duffy, all legatees under the will of Michael Hogan, witnesseth. It is agreed that there shall be paid by the administrator with the will annexed, of said Michael Hogan as soon as he shall be appointed to E. M. Wood, Esquire, the sum of five hundred dollars, to Honora Davis the sum of seventeen hundred dollars, in all twenty-two hundred dollars; that the above named sums together with the amount due our respective counsel for services in our behalf and in behalf of said will shall be paid by said administrator with the will annexed and that the sum so paid shall be apportioned and paid out of our respective shares in proportion to the amount received by us under said will of Michael Hogan.” Here followed an attesting clause and the signatures of the parties named above and of two witnesses. The bill further alleged that the defendants Maria Hogan Barry, Daniel Hogan and James D. Hogan had neglected and refused to carry out their part of the agreement and had failed to agree on the value of their respective shares and on the manner of determining the value of their shares ; that Charles L. Frink, of North Adams, who was made a defendant, was the administrator with the will annexed of the estate of Michael Hogan aforesaid, deceased, and had partially administered that estate, and had paid certain sums of money in accordance with the aforesaid agreement, but that there was not sufficient money or personal property belonging to the estate in the hands or possession of the administrator to pay the expenses of administration and the legacy in the will to the plaintiff; that by the terms of said agreement the parties thereto, who were the defendants, ought and should be ordered and directed by the court to pay over to Charles L. Frink, administrator as aforesaid, all the sums provided in the agreement and in accordance therewith. The bill prayed that the parties to the agreement should be ordered and directed by the court to pay to the administrator such sum or sums as might be found due and payable by the terms of the agreement; and that Charles L. Frink, as such administrator, should be ordered and decreed out of the sums of money so paid to him to pay to the plaintiff whatever sums might lawfully be due to her as provided by the agreement and in the will.</p> <p>By an order of the Superior Court the case was referred to Edward T. Slocum, Esquire, as master, “ to hear the parties and their evidence and find the whole amount that is to- be paid under the agreement set out in the plaintiff’s bill of complaint; the value of the respective shares .received by the parties to said agreement under the will of said Michael Hogan and also find the amount which each of said parties to said agreement must contribute under said agreement to the payment of the sum found due as aforesaid, and report all said findings to the court with any evidence which either of the parties may desire to have reported and may request at or before the hearing on the preliminary draft report together with such questions of law as may arise on said hearing or hearing on draft report.”</p> <p>The master filed a report making findings in favor of the plaintiff which are stated in the opinion.</p> <p>The defendant James D. Hogan filed certain objections and exceptions to the master’s report, which were overruled by Bishop, J., because “ no objections were filed before the master within five days as required by the rule.”</p> <p>The case was heard upon the master’s report by Bishop, J., who made a decree confirming the master’s report and ordering that a final decree should be entered in conformity with_ the master’s report, and directing that there should be paid to Charles L. Frink, administrator with the will annexed of Michael Hogan, by the defendants Maria Hogan Barry and Daniel Hogan the sum of $538.10, by the defendant James D. Hogan the sum of $2,647.84, and by the plaintiff Bridget Duffy the sum of $163.06.</p> <p>The defendant James D. Hogan moved “that the report be recommitted to the master with instructions to ascertain and report to the court: 1. All the evidence which he has heretofore heard and which may be hereafter heard by him upon the question of the title of the said Michael Hogan to the real estate devised by him to the respondents, Daniel Hogan and Maria Hogan Barry. 2. The fair value of said real estate assuming first, that said real estate was owned in fee simple by said Michael Hogan at the time of.his decease, and second, assuming that he had only a life estate in a portion thereof and owned the balance in fee simple.” This motion was denied by the judge.</p> <p>Thereafter a final decree was made by the judge in accordance with his order stated above. The defendant James D. Hogan appealed from the order of the judge refusing to consider exceptions filed by that defendant to certain rulings and findings of the master, from the order of the judge denying his motion to recommit the master’s report, and from the final decree.</p>

<p>Contract by Albert R. Willard and Walter Austin, copartners doing business under the name of the “ Wolfskiel Real Estate Bureau,” to recover $375 as a commission for procuring a purchaser for a trucking and ice business in Greenfield belonging to the defendants, copartners doing business under the name of George H. Wright and Company, by reason of which the defendants sold such business to such purchaser for the sum of $15,000. Writ in the District Court of Franklin dated October 8, 1907.</p> <p>On appeal to the Superior Court, the case was tried before King, J. The evidence is stated or described in the opinion. The judge refused to order a verdict for the defendants, and submitted the case to the jury, who returned a verdict for the plaintiffs in the sum of $392.24. The defendants alleged exceptions, raising the questions which are disposed of in the opinion.</p>

<p>Equity Jurisdiction, To vacate decree, To enforce implied negative contract. Equity Pleading and Practice, Decree. Good Will. A ssignment. Sale. Patent. Estoppel.</p> <p>After a final decree in a suit in equity has been entered, the court which made the decree has no power to vacate it.</p> <p>Where the owner of a patent for improvements in a certain kind of machine, who is engaged in manufacturing and selling the machines made under his patent, makes an assignment of the patent, and also by the same instrument assigns the good will of his business “ with the exclusive use of any and all words, indicating that the business is carried on in succession or continuation thereof and trademarks and trade names connected therewith,” this grants no exclusive right to use, after the expiration of the patent, the words by which the machines made under the patent were designated, such right ceasing with the termination of the patent.</p> <p>If one who is the owner of the good will of a business of manufacturing and selling to paper manufacturers a certain kind of machine for reducing pulp to paper, and of repairing and furnishing parts of such machines, who has brought his machines to the attention of the public by advertising them in trade journals, sells and assigns the good will of his business, with the exclusive use of any and all trade names connected therewith, to a corporation organized to acquire and carry on that business, the sale of the good will includes an agreement not to carry on a competing business anywhere, the business not being local, and if, after such a sale, the seller, with the intention of injuring and defrauding the purchaser, advertises in a journal, published in connection with the paper trade, a machine which he describes as having all the valuable features of the machine which he manufactured formerly with certain new and valuable features, and makes and sells machines under the old trade name, and otherwise attempts to carry on his former business, he can be restrained in equity from doing these things.</p> <p>An agreement never to engage in the business of manufacturing or selling a certain kind of machine, even though unlimited in time arid space, is valid if it is coupled with the sale of a business and is necessary to give the purchaser what he has bought, and therefore such an agreement can be implied as a necessary part of the sale of the good will of a business.</p> <p>It seems, that one who, describing himself as the owner, sold and assigned by an instrument in writing a certain patent and the good will of a business, for a valuable consideration which he received, in a suit in-equity against him by the purchaser founded on the instrument of sale and assignment is estopped to show that he did not own the patent or the good will which he assigned.</p>

<p>Negligence. Street Railway. Carrier. Practice, Civil, Rulings and instructions, Conduct of trial. Evidence, Remoteness, Opinion: experts.</p> <p>In an action by a woman against a street railway company for personal injuries from being thrown to the ground by reason of the negligence of the defendant’s servants in suddenly starting a car when the plaintiff was attempting to board it as a passenger, the plaintiff testified that, when the accident occurred, she had put both feet on the step and with both of her hands on the grab irons was in the act of raising her left foot from the step to the floor of the vestibule. The defendant introduced evidence to show that after the car had started the plaintiff grabbed the handles and tried to board it and was thrown down. The judge, in instructing the jury, told them that if the plaintiff, as the defendant contended, was “ attempting to get on to the car after it started, not having touched the car at all, no matter how near she was, until it started, then you might or might not say she was in the exercise of due care.” After having retired, the jury returned for further instructions upon the question, “ What constitutes becoming a passenger, with regard to taking hold of the handles.” The judge only answered the question in the language of a former opinion of this court by saying, “ When there has been an invitation on the part of the carrier by stopping for the reception of a passenger any person actually taking hold of the car and beginning to enter it is a passenger.” The defendant did not except to this portion of the charge, unless it was inconsistent with some ruling requested by the defendant and refused by the judge, which was found by this court not to have been the case. It was stated, that, if an exception had been taken to this portion of the charge and the judge had left it unamended, the exception must have been sustained on the ground that the instructions given were deficient in not telling the jury that, if they believed that the plaintiff undertook to seize the grab handles after the car had started and without her having been seen either by the motorman or the conductor, she was not a passenger.</p> <p>It is proper for a presiding judge to refuse to give an instruction which, even if correct, would mislead the jury as to the issue on which their verdict is to be rendered.</p> <p>If a person wishing to board a street car approaches it from the rear or somewhat diagonally from the rear, without being seen by the motorman, and does not come into view of the conductor until after the signal to start has been given, and such person in attempting to board the car is injured from being thrown to the ground by the starting of the car before he is firmly upon it, he cannot recover for his injuries thus caused, although he took hold of the car before it started.</p> <p>Attempting to board a street car which has just started and is barely moving is not negligence as matter of law, even if the person thus attempting to board the car is encumbered with bundles.</p> <p>In an action by a woman for personal injuries alleged to have been caused by the negligence of the defendant, upon the question of damages the plaintiff introduced evidence tending to show that as a result of the accident she was paralyzed on the right side and “ had lost the sense of smell, taste, sight and hearing.” The defendant introduced evidence to show that the plaintiff had not in fact become paralyzed or lost the senses mentioned, but by reason of hysteria, a suggestive disease, thought that she had. A physician testified, as a witness for the defendant, that he had treated the plaintiff professionally for six years before the accident, and that in his opinion she was suffering from hysteria, “ that heredity plays a part in the matter of hysteria,” and that hysteria and other neurotic diseases may be transmitted from parents to offspring. It appeared from the defendant’s evidence that the plaintiff was one of a family of ten children. The physician had testified that “two or three of the sisters of the plaintiff were neurotics.” At the close of the evidence the judge ordered that this testimony be stricken out, saying, “If there had been evidence that a father or a mother had it, .1 might have ruled differently; but two or three — whether brothers or sisters — out of ten, in my judgment, under the circumstances, does not warrant my having received that evidence.” Upon an exception by the defendant, it was held, that the testimony stricken out well might have been found by the presiding judge to be too remote from the issue on trial.</p>

Tort for personal injuries alleged to have been received by the plaintiff because, as an open electric street car of the defendant was passing her, under the circumstances stated in the opinion, the draft of air thus created caused her dress skirt to be caught upon something on the car and she was thrown down and dragged. Writ in the Superior Court dated September 10, 1907.

<p>Negligence, Railroad, Employer’s liability. Custom. Evidence, Relevancy.</p> <p>Discussion by Hammond, J., of the decisions of this court with regard to the extent to which a person may rely upon the customaty warnings of the approach of a car or engine.</p> <p>At the trial of an action under R. L. c. 106, § 71, cl. 3, against a railroad company by a person employed by it and injured by being run upon by an engine in a roundhouse, it appeared that the plaintiff for some time before the accident had worked in and about the roundhouse and was perfectly familiar with it, that just before the accident he was at work shovelling ashes from an ashpit between the rails of one of four tracks which were in one section of the roundhouse and were not separated from one another by any partition, that the track, under which the pit was,, was next to a wall which was on the left hand side of the section as one faced the roundhouse, that the pit was about three and a half feet deep and about eight feet long, the side toward the front of the roundhouse being about thirty feet from a turntable; that the plaintiff was a strong, healthy, active man forty-one years of age and of good eyesight and hearing, and that the accident happened in the late afternoon of a day in November, when it was dark. There was evidence tending to show that there was a custom in the yard of the defendant, of which the plaintiff was informed, that, whenever an engine was backed from the turntable into a stall of the roundhouse after dark a bell was rung and a light was placed upon the tender, that when the defendant’s foreman placed the plaintiff at work in the ashpit, he warned the plaintiff to look out for the engines, telling him that when they “ were to come they would ring the bell,” that the plaintiff was right handed, and, as he shovelled from the ashpit, it being necessary for him to throw the ashes on the side of the pit away from the wall, it was easier for him to, and he did, work with his back toward the turntable, throwing the ashes out on his right side and turning his body and head partly as he did so. While he thus was working, an engine with no light on its tender and without its bell being rung backed in on the track under which he was working, he noticed it just before it reached him, sprang part way out of the pit, caught his leg and was injured. He testified that while he was working before the accident, “I always looked out with my eyes and listened with my ears for the engines.” The presiding judge ordered a verdict for the defendant. Held, that the verdict was ordered wrongly, since the question of the due care of the plaintiff was for the jury, as it could not be said as matter of law that the plaintiff did not make a reasonable use of his eyes and ears, or that he must have looked carelessly.</p> <p>Where, at the trial of an action against a railroad company under R. L. c. 106, § 71, cl. 3, by an employee, who alleged that, as he was working in an ashpit in a roundhouse of the defendant, after dark, he was run upon by an' engine of the defendant by reason of negligence on the part of the engineer, there is evidence tending to show a custom of the defendant to display a light on the tenders and to ring the bell of engines backing into the roundhouse under such circumstances, but that no light was displayed and no bell was rung on the engine which ran upon the plaintiff as it backed into the roundhouse, the plaintiff should be permitted to answer the question, “ Did you rely on the ringing of the bell there [while he was in the ashpit] to notify you 1 ”</p>

<p>Negligence, In driving a horse, In use of private way. Evidence, Eelevancy.</p> <p>At the trial of an action by a girl seven years of age against the owner of a horse for personal injuries resulting from the plaintiff’s being run over by the horse driven with a sleigh by a servant of the defendant in a private driveway which had a travelled way about five feet wide with banks of snow on each side and with no sidewalk, there was evidence tending to show that the owner of the driveway had given to the tenants in tenement houses at one end of the driveway, and to the plaintiff’s father and his family specifically, permission to use the driveway as a means of access to the street into which it ran, that the plaintiff wore glasses and was hard of hearing, that, just before the accident, which was in the early morning, she had preceded her father from the tenement house out on to the driveway and had gone to the end where it entered the public street to wait for him, standing with her face in the direction from which he was to come and with her back toward the public street, when the defendant’s servant, driving the horse and sleigh at a rapid rate and shouting to her, ran over her. Portions of the foregoing evidence were controverted by the evidence of the defendant. Held, that the questions, whether the plaintiff was in the exercise of due care and whether the defendant’s servant was negligent, were for the jury.</p> <p>At the trial of an action by a girl seven years of age who, while standing upon a private driveway waiting for her father who was to go with her to a street into which the driveway ran, was run upon and injured by a horse and sleigh driven by a servant of the defendant, testimony by the owner of the driveway that he had given to the plaintiff’s father and his family, tenants of his, permission to use the driveway as a means of going to and from their home, is admissible to show that the plaintiff was on the driveway in the exercise of a right, although neither the defendant nor his servant knew that such permission had been given.</p>

<p>Bill in equity, filed in the Superior Court on March 16, 1909, seeking a mandatory injunction commanding the defendant to desist from further completing a building resting on a wall which, it was alleged, was built by the defendant within the boundaries of Webster Court, a private way the fee of which was in the plaintiff and over which the defendant had a right of way, “ and that the defendant be further compelled to restore the land of the plaintiff, which [had] been disturbed by the defendant in the erection of said wall to its natural condition so far as possible.” In its answer the defendant offered to pay to the plaintiff whatever sum the court should adjudge to be due to it as compensation for any damages suffered by it by reason of the extension of the wall into and under Webster Court, and disclaimed any right to an easement in the land under the way.</p> <p>The case was referred to T. H. Gage, Jr., Esquire, as master, and, after the filing of his report, was heard by Pierce, J., who, at the request of the parties, “ reserved and reported ” it upon the pleadings and master’s report for determination by this court. The facts are stated in the opinion.</p>

<p>Two ACTIONS OF TORT growing out of the death of one James A. Slattery at the crossing at grade of Plymouth Street in Worcester by eight railroad tracks,- as stated in the opinion. Writs in the Superior Court dated December 19, 1907.</p> <p>The cases were tried together before GrasJcill, J. The facts are stated in the opinion. At the close of the evidence for the plaintiff, the presiding judge ordered verdicts for the defendant; and the plaintiff alleged exceptions, which, after the death of GrasJcill, J., were allowed by Lawton, J.</p>

<p>Negligence, Due care of plaintiff, Imputed negligence.</p> <p>If one driving in a milk wagon before daylight in the morning is approaching a grade crossing of a railroad over a private way, where the corporation operating the railroad maintains gates and keeps a flagman, and, knowing that a train is due from the direction at his right hand, pulls his horse down almost to a stop at a point about a rod and a half from the nearest of the tracks, and, having the crossing plainly in sight by means of electric lights near it, sees that the gates are open unattended, and, while his horse walks on slowly for a distance of from six to ten feet, puts his head out at the right hand side of the wagon and looks to see whether a train is coming and sees and hears none, but knows that his view to the right at this point is obstructed by a building and two piles of lumber and also knows that after passing a point within forty feet of the farther rail of the second track he will have an unobstructed view of the railroad to the right for so long a distance that he would see the headlight of an engine of an approaching train in time to avoid a collision, and if without looking again he proceeds and after crossing two tracks ip safety is struck by a train on the third track coming from his right, he is negligent as matter of law.</p> <p>One approaching a railroad grade crossing when a train is due, who looks for the train at a point where he knows that his view is obstructed and fails to look for it later where he knows that if the train is coming he can see it plainly, has looked carelessly.</p> <p>If a boy in the employ of the proprietor of a milk route is sitting on the left hand side of a milk wagon of his employer, while the employer, who is driving, is sitting on the right hand side, and in approaching on a private way a grade crossing of a railroad the boy keeps a lookout only for trains approaching from the left while his employer is looking out only for trains approaching from the right, each trusting entirely to the other to look out for trains coming from his side, and if the wagon is struck on the crossing by a train coming from the right and the boy is killed in consequence of the failure of his employer to look to the right with due care, the negligence of the employer is a bar to an action for the death of the boy, who voluntarily surrendered to his employer all precautions against any danger coming from that side.</p>

<p>Contract for the sum of $1,950, which the plaintiff alleged that he paid for two thousand shares of the stock of the West Side Sumatra Tobacco Company upon the alleged promise of the defendant to pay the plaintiff that sum if at any time thereafter the plaintiff should become dissatisfied with the stock or should want his money, provided the plaintiff should give the defendant one month’s notice thereof. Writ dated June 24,1907.</p> <p>The answer contained a general denial, and set up the defense of R. L. c. 74, § 5, in the language quoted in the opinion. In the Superior Court the case was tried before G-askill, J., who refused to make the rulings requested by the defendant which are stated in the opinion, and submitted the case to the jury. The jury returned a verdict for the plaintiff in the sum of $2,241.37; and the defendant alleged exceptions.</p>

<p>Bill in equity, filed in the Superior Court on September 13, 1909, by William L. Davis, of Chelsea, against the Hew England Railway Publishing Company, a corporation organized and existing under the laws of the State of Connecticut and having a usual place of business in Boston, Robert J. Kelley, having a usual place of business in Boston, and Edward J. Sampson of Boston. The bill was as follows:</p> <p>“ First. The plaintiff is the owner and holder of a lease of the premises known as 30 India Street, in the city of Boston; said premises are now fitted up as and for a general office for local expresses and such premises are in the actual possession of the plaintiff. The plaintiff, doing business under the name of the Horthern Express Company, is the owner of an express business between the said city of Boston and the cities and towns hereinafter stated, to wit: Dover, Cocheco, Conic, Rochester, Somersworth and Portsmouth, Hew Hampshire, Berwick and South Berwick, Maine, and Amesbuiy, Salisbury, Hewburyport, Ipswich, Hamilton, Wenham and Salem, Massachusetts. The plaintiff also subleases portions of said premises to various other persons, doing an express business between the said city of Boston and the cities and towns hereinafter stated: Samuel and Frank Flaherty, doing business under the name of Flaherty’s Express, in the South End and Roxbury districts of said Boston; Herbert W. Rockhill, doing business under the name of Chapman’s Express, in Malden, Massachusetts; Cornelius Keefe, doing business under the name of Keefe’s Express, in Watertown, Massachusetts; Stephen Torney, doing business under the name of the Winthrop Despatch Company, in Winthrop, Massachusetts; Arthur B. Hall, doing business under the name of Hall’s Express, in Charlestown District of said Boston. The plaintiff and each of his subtenants has expended large sums of money in purchasing the necessary equipment for his said business and in developing its good will, and each is now actually engaged in the lawful prosecution of such business.</p> <p>“ Second. The defendants Kelley and Sampson jointly or severally conduct, manage and control a large number of local general express offices in said Boston; they have acquired a dominating influence in that business in Boston, and they seek to obtain an absolute monopoly of that business to the exclusion of the plaintiff. Several express businesses controlled by Kelley and Sampson, jointly or severaEy, or whose owners have offices in the local general offices controlled by Kelley and Sampson, jointly or severaEy, are in competition with the businesses of the plaintiff or of some of his said subtenants.</p> <p>“ Third. The defendant, the New England Railway Publishing Company, is engaged in the business of publishing a certain pubEcation known as the ‘ABC Pathfinder and Dial Express List.’ This publication is the only one of its kind issued or in circulation in Boston. The publication is in a form intended and calculated to create in the minds of the pubEe the belief that it contains the names of all the reputable local expresses doing business in Boston and vicinity. It has created, and does now create, such belief in the minds of the pubEc. This beEef is the main, if not the sole, reason inducing purchases of the pubEcation by the public. This belief has enabled the defendant corporation to obtain a large circulation among the business houses and general public in Boston and vicinity. The publication is usually and frequently consulted by persons having occasion to employ a local express. It has come to be accepted by the general public as the recognized directory of local express companies.</p> <p>“ The publication, as heretofore issued, contains on its face in very heavy black type the words ‘ Express List.’ The reading matter within is headed by the words, — ‘ABC Pathfinder and Dial Express List.’</p> <p>“ It then states: ‘ To find the express running to a given town or city consult the alphabetical list in the narrow columns.’</p> <p>“ ‘ To ascertain office and hours of departure of any express, see list of expresses in the wide columns.’</p> <p>“ It then prints in a conspicuous place and in heavy type a list entitled ‘Local General Express Offices and Telephone Nos.,’ and specifies the street address and telephone number of some twenty (20) local general express offices. This is followed by an alphabetical list of nearly four hundred (400) expresses, stating also the location of their offices and the hours of departure of their expresses. This is followed by an alphabetical list of several thousand cities and towns in New England, New York, and elsewhere, followed by the names of the expresses doing business in such cities and towns. All of which will more fully appear from a copy of the said publication issued on June 15, 1909.</p> <p>“ Fourth. The plaintiff is informed and believes, and therefore alleges, that the defendant corporation derives an income from the advertisements asserted in said publication, and from the sale of copies thereof; that it makes no charge to the owners of the express businesses mentioned in its lists but that such owners furnish the necessary data regarding their respective businesses for publication. By the receipt and publication of this data a business relation is constituted between such owners and the defendant corporation which is to their mutual advantage and profit.</p> <p>“ Fifth. The defendant corporation intends to bring out another issue of said publication on or about September 15, 1909, substantially in the form of the issue of June 15,1909, and the plaintiff has requested the defendant corporation to include in the list of general express offices and telephone numbers the location of 30 India Street, and the number of the telephone at said address, and to make such reference to the express businesses of his subtenants as is made to other express businesses in said list. The defendant corporation has refused and still refuses to make such reference in the said publication.</p> <p>“ Sixth. . The plaintiff and each of his subtenants is conducting his express business in a lawful and proper manner, and to the convenience and satisfaction of his patrons, and no good reason exists why the defendant corporation should discriminate against them, or any of them, or should exclude reference to them, or any of them, from its publication.</p> <p>“ Seventh. The defendant corporation utterly refuses to assign any reason for so excluding reference to the plaintiff and his subtenants in its publication.</p> <p>“ Eighth. The plaintiff is ready and willing, and the defendant corporation well knows that he is ready and willing, to pay to it such sum, if any, as is charged to other express companies for the reference to them in said forthcoming publication, provided similar reference is given to the plaintiff and his subtenants, but the defendant corporation persists in its refusal to make such reference. The plaintiff hereby offers to this honorable court to do all acts in the premises which this court shall determine that he in equity ought to do.</p> <p>“ Ninth. The exclusion of such reference to the plaintiff and his subtenants in said publication of the defendant corporation will enure greatly to the advantage of the defendants Kelley and Sampson.</p> <p>“ Tenth. The defendants Kelley and Sampson jointly or severally control a majority of the general local expresses listed in said publication. The plaintiff is informed and believes, and therefore alleges, that Kelley and Sampson have conspired together to induce the defendant corporation to exclude such reference to the plaintiff and his subtenants in said publication, and, in pursuance of such conspiracy, have induced the defendant corporation to refuse to make any such reference; that they have induced the defendant corporation so to refuse partly by stating to the defendant corporation that the business of the plaintiff or his subtenants is not conducted in a proper and reliable manner, all of which statements are wholly false and without warrant in fact; and partly by threatening, in case the corporation does not so refuse, that they will not longer cooperate with the defendant corporation in furnishing data for such publication, and that they will diminish the advertising obtainable by such publication, and that they will in other manners injure the business of the defendant corporation; that the defendants Kelley and Sampson will continue in like manner to induce the defendant corporation to boycott the plaintiff unless they are stayed by the hand of this court.</p> <p>“ Eleventh. The plaintiff is informed and believes, and therefore alleges, that the publication and sale of said publication, in substantially the form of the issue of June 15,1909, and without reference to the business of the plaintiff or his subtenants is calculated to deceive the public, for the profit of the defendants Kelley and Sampson, and is intended so to deceive the public; and that such exclusion of reference to the plaintiff and his subtenants will, in and of itself, work a fraud upon the public to the inconvenience and damage of the public, and to the great damage of the plaintiff, and that this fraud will be practised unless the defendants are stayed by the hand of this court.</p> <p>“ Twelfth. If the defendant corporation is permitted hereafter to issue the said publication in the form intended, it will work an injury to the plaintiff irreparable and not readily computable in money, and the plaintiff has no adequate remedy at law for said injury.</p> <p>“ Wherefore, the plaintiff prays:</p> <p>“ (1) That the defendants Kelley and Sampson may be enjoined from inducing the defendant corporation, the New England Railway Publishing Company, not to make reference to the business of the plaintiff and his subtenants in the said publication by any fraud, misrepresentation, threat, intimidation, or in any other unlawful manner.</p> <p>“ (2) That the defendant corporation, the New England Railway Publishing Company, its officers, agents and servants, may be enjoined from making any further issues of its said publication without (a) containing such reference to the express businesses of the plaintiff and his subtenants as is made to the express businesses of other persons (provided the plaintiff furnishes the appropriate data and does all other acts properly to be required from him in the premises), or (b) by so altering the form of such publication that it will no longer be calculated to create the impression in the minds of the public that it contains a complete list of the reputable express companies having offices in Boston.</p> <p>“ (3) That an injunction, pendente lite, may forthwith issue, restraining the defendants in the manner stated in the first and second prayer.</p> <p>“ (4) That the plaintiff may have damages against the defendants for the unlawful injury worked to his respective businesses.</p> <p>“ (5) That the plaintiff may have such other and further relief as to the court may seem just.”</p> <p>By an amendment, allowed on September 15, 1909, a copy of the “ABC Pathfinder and Dial Express List,” dated June 15, 1909, was made a part of the bill.</p> <p>The defendants demurred to the bill on the grounds that the plaintiff was not entitled to relief in equity, that he had an adequate and complete remedy at law and that the bill was multifarious.</p> <p>■ The case came on to be heard upon the demurrers by Fessenden, J., who, being of opinion that the questions presented so affected the controversy that the matter ought before further proceedings to be determined by this court, reported the case for such determination. If the demurrers were sustained, the bill was to be dismissed. If the demurrers were overruled, the case was to be remanded to the Superior Court and the defendants were to have lea-ye to file answers.</p>

<p>Pledge. Corporation, Transfer of shares, Attachment of shares. Attachment. Execution. Estoppel, By record. Pledge. Equity Pleading and Practice, Demurrer, Decree, Taking pro confessa. Equity Jurisdiction, Interpleader, Subrogation.</p> <p>Under St. 1903, c. 437, § 28, if a bona fide pledgee of shares in a Massachusetts corporation, to whom the shareholder has delivered the certificate of stock representing the shares with a power of attorney to transfer them as security for a note, makes a further loan of money to the shareholder upon a second note with the agreement that the lender shall hold the shares of stock, for which he' already has the certificate, as security for the new loan as well as for the former one, this creates a valid pledge for the second loan which is good against an attempted attachment by a creditor of the pledgor and against an attempted sale on execution by such creditor.</p> <p>The provisions of R. L. c. 167, §§ 69, 70, in regard to the attachment of personal property which is subject to a mortgage, pledge or lien, apply only where there is an attachment of goods by actual seizure, and have no application to an attachment of shares of stock in a corporation.</p> <p>If a bona fide pledgee of shares in a Massachusetts corporation, to whom the shareholder has delivered the certificate of stock representing the shares with a power of attorney to transfer them as security for a note, makes a further loan of money to the shareholder upon a second note with the agreement that the lender shall hold the shares of stock, for which he already has the certificate, as security for the new note as well as for the first one, and if, upon the advertisement of an attempted sale on execution of these shares by a judgment creditor of the shareholder, the pledgee files a bill in equity to enjoin the sale, in which he alleges that he holds the shares as security for the first note and does not mention the second note, but does not allege that the first note is the only one for which he holds the shares as security, this does not estop the pledgee, in a1 suit in equity brought against him later by the same judgment creditor, after such creditor has paid the amount due on the first note and thus has acquired by subrogation the rights of the pledgee as to that note, to insist upon his right to hold the shares as security for the second note.</p> <p>The provisions of St. 1903, c. 437, § 28, that “a pledgee of stock transferred as collateral security shall be entitled to a new certificate if the instrument of transfer substantially describes the debt or duty which is intended to be secured thereby,” and that “such new certificate shall express on its face that it is held as collateral security, and the name of the pledgor shall be stated thereon, who alone shall be liable as a stockholder, and entitled to vote thereon,” were enacted to enable a pledgee to procure a certificate in his own name without assuming the liabilities of a stockholder, and do not deprive a bona fide pledgee for value, to whom a certificate of shares in a Massachusetts corporation has been delivered with a power of attorney to transfer the shares, but without any description of the debt which is intended to be secured thereby, of his right to receive a new certificate as a stockholder with full liabilities in accordance with the transfer authorized by the power of attorney.</p> <p>Upon a bill of interpleader, after an interlocutory decree has been made ordering all the defendants to interplead, one defendant cannot demur to the answer of another.</p> <p>In a suit of interpleader by a Massachusetts corporation to determine whether a certificate for certain of its shares should be issued to a savings bank, which claimed them as a judgment creditor of the shareholder and had attempted to them on execution, or to one who claimed them as pledgee, it appeared that the alleged pledgee held the shares rightfully as security for the payment of a certain note and that the savings bank had a right to redeem them from the pledge, and a decree was made that the pledgee should hold the shares as collateral security for the note unless the savings bank, within ten days after final determination of the case, should pay to the pledgee such sum as was due on the note. Held, that, although the decree was right as to the title of the pledgee and the right of the savings bank to redeem, yet the savings bank was under no obligation to redeem the shares from the pledgee, and the decree should provide for the rights of the parties in case it should not elect to do so.</p> <p>How shares of the capital stock of Massachusetts corporations can be attached, levied upon or otherwise taken in payment of a debt due from their owner since the enactment of St. 1884, c. 229, now incorporated in St. 1903, c. 437, § 28, if no change is made by the Legislature in R. L. c. 177, §§ 46-51, is left an open question.</p> <p>Whether the equity of redemption in shares of stock subject to a pledge can be attached on mesne process in an action at law, here was mentioned as a question not passed upon by the court.</p> <p>In a suit of interpleader brought by a corporation to determine to-whom a certificate for certain of its shares should be issued, where the defendant in whose name the shares stand enters no appearance and the bill alleges that he “ claims no interest in said stock or certificate save as such are subject to the claims of the other defendants,” respectively a judgment creditor and a pledgee, if no decree has been entered that the bill has been taken pro confessa against such defendant, the fact thus alleged is not established as against him.</p> <p>In a suit of interpleader brought by a corporation to determine whether a certificate for certain of its shares should be issued to a savings bank, which as a judgment creditor had attempted to sell the shares on execution and to purchase them at the execution sale, or to one who claimed them as pledgee, the person, in whose name the shares stood and who was the judgment debtor and pledgor, also was made a defendant but entered no appearance. An interlocutory decree ordered that “ the defendants named in the plaintiff's bill ” should interplead. The defendant stockholder of record did nothing in pursuance of that decree. No order was made that the bill should be taken pro confessa against him, but a final decree was entered in favor of the pledgee and the savings bank, which was in effect a decree that the right of the defendant stockholder of record to redeem the shares from the pledge had passed to the savings bank as purchaser at the execution sale. The defendant stockholder of record took no appeal from that decree. Held, that the final decree stood as against the defendant stockholder of record, even if it was erroneous, and left the savings bank the general owner of the shares subject to the rights of the pledgee.</p> <p>Where a stockholder in a Massachusetts corporation lawfully has pledged his stock by delivering to the pledgee the certificate for his shares and a power of attorney to transfer them, as security for two notes made by him to the pledgee at different times, and a judgment creditor of the stockholder, who has attempted to take the shares on execution, pays to the pledgee the amount due on the first of the two notes, such judgment creditor acquires by subrogation all the rights of the pledgee as the holder of the first note, so that the pledgee to enforce his lien for the payment of the second note must redeem the shares by paying to the judgment creditor the amount of the first note with interest.</p>

<p>Evidence, Presumption and burden of proof. Practice, Civil, Ordering verdict.</p> <p>In an action for money had and received, the plaintiff testified to the effect that the defendant had made a contract in writing to sell the plaintiff an automobile on certain terms and that the plaintiff had made certain payments under the contract which were to be made before delivery, that, after differences and disputes as to the manner in which the contract should be performed, the plaintiff finally tendered to the defendant the full amount claimed by him, which the defendant refused to receive, stating that he had sold the automobile to another person, whereupon the plaintiff demanded a return of the money he had paid, and, upon the defendant’s refusal to pay it, brought the action. At the close of the plaintiff’s evidence, the defendant stated that he did not care to offer any evidence, and asked the presiding judge to order a verdict for him. This the judge refused to do, and ordered a verdict for the plaintiff. Held, that, although the refusal of the judge to order a verdict for the defendant was right, his action in ordering a verdict for the plaintiff was wrong; that the defendant by resting his ease and asking the judge to order a verdict for him did not waive his right to go to the jury on the question of the credibility of the plaintiff’s testimony, and that, in the absence of an agreement that the testimony was to be regarded as true, the judge could not properly order a verdict for the plaintiff.</p>

<p>Two actions OF tort; the first action by George Everett Searle against the Roman Catholic Bishop of Springfield, who as a corporation sole under St. 1898, c. 368, held the title to certain real estate in the town of Easthampton, which was bought as a site for a church edifice, alleging the conversion by the defendant of a one story and a half wooden building alleged to be personal property and to be the property of the plaintiff, having been built for the plaintiff by one Charles W. Smith, with the consent of Delia A. Strong, who then was the owner of the land; and the second action by the defendant in the first case against the plaintiff in the first case and certain other persons, for damages alleged to have been caused by an attempt to remove the building from the real estate, of which it was alleged to be a part, seeking also equitable relief by way of injunction. Writs dated respectively July 16, and July 15, 1907.</p> <p>In the Superior Court the cases were tried together before Dana, J. In the first case the jury returned a verdict for the plaintiff in the sum of 1800, and in the second case the jury returned' a verdict for the defendants. The Roman Catholic Bishop of Springfield alleged exceptions as the defendant in the first case and as the plaintiff in the second case, raising the questions which are disposed of in the opinion.</p>

<p> Devise and Legacy. Uniformity of Decision. </p> <p>A testator by his will, subject to certain legacies, provided for his son W. as follows: “ I give and bequeath one-fifth part of my estate to a trustee upon trust, to invest the same and appropriate so much of the income thereof as he, in his discretion, shall think needful for the support of my son W. It is my will that the trustee may pay over to my son his portion of my estate at such time and in such sums as he may deem expedient, desiring him to consult the interest and welfare of my son, and that my son, in case his portion of my estate is not paid to him as aforesaid, shall have power to dispose of the same by will in the family. I direct that at the decease of my son, if his portion of my estate should not have been paid over to him as aforesaid, or if he shall not have disposed of the same by will, the whole sum remaining in the hands of the trustee shall be divided among my other children, to wit: G., C., E. and F., in the same way, subject to the same trusts and provisos, upon which they respectively receive their portions of my estate.” The preceding clause of the will contained an exactly similar provision for tlie testator’s son F., the only difference in the two clauses being that in the preceding clause the name of F. was substituted for that of W. and the name of W. was substituted for that of F. By other clauses of the will the testator gave one fifth part of his estate to or for the benefit of each of the other three of his children mentioned in the clause quoted above. During the lifetime of W., F. died intestate, and a part of his share of the estate, which had not been paid over to him remained in the hands of the trustee. Later, W. died intestate, and a large amount of income from his share of the property remained in the hands of the trustee, who filed a bill for instructions in regard to the proper disposition of this income. Held, that no distinction could be made between the property which the plaintiff received originally as the share of W. and that which he received as W.'s part of F.’s share; that, under the language of the clause quoted and the like clause for the benefit of F., the property which either F. or W. left undisposed of in the hands of the trustee should he distributed equally among the other children of the testator named in these clauses, and would not pass as intestate property to the heirs at law or next of kin of F. or W., and that, on the death of the survivor of the two, the property in the hands of the plaintiff should be distributed among Gr., C. and E.</p> <p>Upon a question relating to the disposition of property under a trust created by a will, a previous decision of the highest court of another State in a suit between the same parties in regard to their rights under the same trust and affecting another part of the same property, although it is not binding upon this court, always should be given great weight, and nothing less than strong reasons would justify this court in establishing a different rule from that established by the other tribunal of co-ordinate authority.</p>

<p>Contract, against two defendants doing business under the name of the Worcester Dry Goods-and Wrapper Company, for two months’ rent of a store numbered 192 on Front Street in Worcester, under a covenant contained in a lease in writing, a copy of which was annexed to the declaration. Writ dated March 12, 1909.</p> <p>In the Superior Court the case was submitted to Aiken, C. J., upon an agreed statement of facts, of which those that are essential are stated in the opinion. The term of the lease was for two years from the first day of June, 1906. The covenant sued upon was to pay as rent #1,850 per annum by equal monthly payments in advance on the first day of every month during the term, “and at that rate for such further time as the said lessees, or any other person or persons claiming under them, shall hold the said premises.”</p> <p>The defendants moved out of the premises on or about January 28,1909, after which time the premises were vacant. On Januaiy 28, 1909, the defendants sent to the plaintiffs a notice in writing, stating that since the expiration of their lease they had occupied the store at sufferance, and that they sent therewith the keys of the premises and had paid their rent in advance to February 1. No rent was paid after the first day of January, 1909, when the rent for the month of January was paid. Before the bringing of the action, the plaintiffs demanded of . the defendants $225, as the amount due under the lease on the first days of February and March, $112.50 for each month. The covenant for a renewal of the lease is quoted in the opinion.</p> <p>The defendants asked the judge to make the following rulings :</p> <p>“ First: That after the first day of J une, 1908, the defendants held the premises as tenants at sufferance.</p> <p>“ Second: That the clause in the lease, 6 It is further agreed in consideration hereof the lessees shall have the privilege and right to renew this lease at its expiration for further term of two years upon the same terms and conditions of this lease,’ was a covenant of the plaintiffs for renewal.</p> <p>“ Third: That the word ‘ renew ’ imports the giving of a new lease like the old one, with the same terms and stipulations at the same rent and with all the essential covenants.</p> <p>“ Fourth: That defendants have done nothing which either directly or by implication can be held to have renewed the old lease.”</p> <p>The Chief Justice refused to make any of these rulings, and found for the plaintiffs in the sum of $230.85. The defendants alleged exceptions.</p>

<p>Equity Pleading and Practice, Master’s report, Appeal, Decree, Costs. Interest. Equity Jurisdiction, To redeem from mortgage.</p> <p>In a suit in equity to redeem from a mortgage certain buildings belonging to the plaintiff as personal property, it was found by a master that the mortgage was given by the plaintiff to secure the defendant for divers sums of money advanced by him to pay taxes assessed to the plaintiff, and the master charged the plaintiff with interest upon the payments which were shown to have been made before the giving of the mortgage from their respective dates to the date of the mortgage. The plaintiff contended that these items of interest ought not to have been allowed. The master’s report stated that there was no evidence of any agreement made by the defendant and the plaintiff as to interest, referring to interest after the date of the mortgage, but the master found that the mortgage was given to secure the repayment of the sums advanced to pay the plaintiff’s taxes “ and interest thereon up to the date ” of the mortgage. The mortgage was created by a bill of sale and an instrument of defeasance, neither of which was before this court, and the master did not report the evidence on which he made his findings. The report showed that the advances made by the defendant were made upon requests of the plaintiff. Held, that in the absence of a report of the evidence this court was bound by the findings of the master, and, moreover, that the rule was applicable that where one makes a payment upon the request of another he is entitled to interest from the date of such payment. Held, also, that for the same reasons a finding of the master charging the plaintiff with interest, after the giving of the mortgage, upon the amount of the taxes paid by the defendant, as the principal sum secured by the mortgage, must be upheld.</p> <p>In a suit in equity to redeem from a mortgage certain buildings belonging to the plaintiff as personal property, where it appears that the mortgage was given by the plaintiff to secure the defendant for divers sums of money advanced by him at the request of the plaintiff to pay taxes assessed to the plaintiff, the plaintiff is not entitled to diminish the amount which he must pay to redeem the property by deducting from it the amount of a net balance due to him from the defendant upon an open mutual account current entirely outside tile indebtedness secured by the mortgage.</p> <p>In a suit in equity to redeem certain buildings belonging to the plaintiff as personal property from a mortgage made by the plaintiff to one L., of which mortgage the original defendant, a bank, claimed to be the assignee, where by an order of the court L. had been made a defendant, and the judge who heard the case found, contrary to the report of a master, that the defendant bank was not the assignee of the mortgage, a final decree was entered providing, that, if the plaintiff wished to redeem upon the terms fixed by the court, his payment should be made to the defendant L. From this decree the plaintiff appealed, but the defendant bank did not appeal. Held, that, as the defendant bank had not appealed and appeared to be content that the payment should be made to the defendant L., it was not necessary to consider whether the payment ought to have been made to the defendant bank or whether the finding of the judge that the defendant bank was not the assignee of the mortgage was correct.</p> <p>In a suit in equity to redeem personal property from an equitable mortgage, the judge who heard the case made a final decree that the plaintiff was entitled to redeem the property from the mortgage upon payment to one of the defendants of certain sums of money with interest, and the plaintiff appealed from the decree on the ground that he should not be required to make certain of the payments ordered for the redemption of the property. This court, in deciding against the contentions of the plaintiff, ordered that the final decree appealed from should be so modified as to charge the plaintiff with the costs of the defendants upon the appeal, and that, so modified, the decree should be affirmed.</p>

<p>Lobsters. Fish and Game Commissioners. Statute, Repeal by implication. Words, “ Suspected places.”</p> <p>The provision of R. L. c. 91, § 91, that any one of the commissioners on fisheries and game or their deputy “ may search in suspected places for, seize and remove lobsters which have been unlawfully taken,.held or offered for sale,” when the portion of it relating to searches still was in force, did not give authority to take without a warrant sacks containing lobsters from the hands of a person carrying them, against the will of such person, for the purpose of opening the sacks and measuring the lobsters.</p> <p>The provision of R. L. c. 91, § 91, that any one of the commissioners on fisheries and game or their deputy “ may search in suspected places for, seize and remove lobsters which have been unlawfully taken, held or offered for sale,” so far as it relates to searches, has been superseded and repealed by implication by St. 1904, c. 367, covering the whole subject of searches by a commissioner or deputy commissioner on fisheries and game for game or fish believed to be taken or held in violation of law.</p>

<p>Tort under R. L. c. 106, § 71, cl. 2, the counts alleging other grounds of liability having been waived, for personal injuries received by the plaintiff while he was in the employ of the defendant and was wheeling on a truck a box of shovels down a rise board from the floor of a freight car to the station platform at the Fall River dock terminus of the defendant. Writ dated June 15,1908.</p> <p>In the Superior Court the case was tried before Hitehcoeh, J. The evidence is described in the opinion. No witnesses were called by the defendant except a medical expert. At the close of the evidence the defendant asked the judge to rule that there was no evidence of negligence for which the defendant was responsible, that there was no evidence of any negligence on the part of any person for whose negligence the defendant was responsible, that on all the evidence the jury must find in favor of the defendant, and that the plaintiff had failed to show that, when injured, he was in the exercise of due care. The judge refused to make any of these rulings, and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $8,000. The defendant alleged exceptions.</p>

<p>Tort to recover for personal injuries received by the plaintiff, while in the employ of the defendant in his laundry, by reason of her hand being drawn between the lower and middle of three rollers of a mangle, used for ironing collars, as she was testing the heat of the middle roller with her finger. Writ in the Superior Court dated June 10, 1903.</p> <p>The case was tried before Sanderson, J. It appeared that only the middle roller of the mangle was heated; that, when not being used for ironing, the upper and lower rollers were separated from the middle roller, but that they were pressed against it when a collar was ironed. That part of the surface of the middle roller which was in contact with the upper and lower rollers moved, as the rollers revolved, in the same direction as the surfaces of rollers which it touched, and consequently the whole middle roller revolved in a direction opposite to that of the other two. At the time when the plaintiff was injured, the middle roller was separated from the lower roller. 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>Sills and Notes, Proof of indorsement. Practice, Civil, Answer. Evidence, Proof of signature.</p> <p>Where, at the trial of an action by the holder of a negotiable promissory note, indorsed by the payee in blank, against the maker, the defendant relies upon an answer containing only a general denial, the plaintiff may introduce in evidence the note with the indorsement without further proof of the indorsement.</p>

<p>Nuisance. ' Negligence, Of one owning or controlling real estate. Ice and Snow.</p> <p>At the trial of an action for personal injuries- sustained by the plaintiff from a fall caused by slipping after dark on an evening in January upon ice on a public highway in front of the premises of the defendant, there was evidence tending to show that on the morning of the day of the fall there were several inches of fresh snow on the roof and veranda of the defendant’s house, that the roof and veranda were drained by a conductor which on other occasions, when the conductor was in the same condition as at the time of the accident, had discharged water freely and that such water had flowed “ all over the sidewalk ” at the place where the plaintiff fell, that there had been considerable thawing during the day of the injury to the plaintiff and that there was freezing at night, and that the plaintiff fell on ice at a point about two feet from the end of the spout. Held, that the question whether the plaintiff’s injury was caused by a nuisance created by the defendant was for the jury.</p>

<p>Boston, Publication of rules and regulations of street commissioners. Notice. Way, Public.</p> <p>The provision of St. 1908, c. 447, § 1, requiring advertisement “ for at least two weeks in two or more newspapers ” in Boston of a regulation of the street commissioners of Boston regarding street traffic, is satisfied by a publication in one of three papers beginning on a Tuesday, December 15, and lasting continuously until December 29, excepting for Sundays, December 20 and 27; in the second paper on the same dates as in the first, with the further exception of Christmas day; and in the third paper continuously from Tuesday, December 22, to January 4, excepting Sundays, December 27 and January 8, although two of the newspapers had Sunday editions.</p> <p>It seems, that the provision of St. 1908; e. 447, § 1, that the city clerk of Boston shall advertise “ for at least two weeks in two or more newspapers published in said city ” regulations of the board of street commissioners of Boston regulating street traffic, would be satisfied by such an advertisement in each of two weeks as may be reasonable notice to the public, and, per Rxtgg, J., it is conceivable that a publication in weekly newspapers or once a week in daily newspapers of sufficient circulation and public regard might be a compliance'with the law.</p>

<p>Negligence, Employer’s liability, In driving horse.</p> <p>At the trial of an action by a driver of a horse and wagon against his employer, the owner of the team and equipment, to recover for injuries caused by the plaintiff’s being dragged from the wagon by the horse because a part of the harness broke, there was evidence tending to "show that the plaintiff was of mature years and long experience as a driver, that it was no part of his duty to inspect the harness, and that it was his duty to use the harness which was given to him, that he thought the harness was sound and strong; that the defendant employed a superintendent, a foreman, and a harness maker as repairer; that on the end of each trace was a chain, which the plaintiff was accustomed to fasten into a hook on the whiffletree of the wagon so that, as he testified, it would not “ slip off,” although it was “ liable to get off the wagon some way or other ”; that on the occasion of the accident one of the traces slipped off from the whiffletree, the plaintiff pulled the horse up quickly on a level street, the back strap of the harness broke because it was defective, and the horse ran forward, dragging the plaintiff. Held, that the question whether the plaintiff was in the exercise of due care was for the jury; and also, that the duty of the defendant properly to repair the defective harness was not one of which the defendant could rid himself by delegating it to a fellow servant of the plaintiff.</p>

<p>Evidence, Extrinsic affecting writings. Contract, In writing. Practice, Civil, Eulings and instructions. Words, “ Estate.”</p> <p>In an action to recover damages for the breach of an agreement in writing, signed by the defendant, as follows: “I will sell you my estate [on Washington Street in Boston] containing thirteen hundred and eleven feet of land through to Devonshire Street for the sum of $125,000,” oral evidence of a conversatian which took place at the time that the agreement was signed and of a memorandum then delivered to the proposed purchaser is admissible to show that the word “ estate ” as used in the agreement meant the designated property of the defendant subject to a certain lease.</p> <p>A correct ruling of a trial judge as to the admission of evidence will be sustained although the judge gave a wrong reason for it.</p>

<p>Information in .the nature of quo warranta, filed in the Superior Court for the county of Bristol on April 15, 1909, by the Attorney General, at the relation of the civil service commissioners, to determine by what right Edward L. Tillinghast, junior, held the position or employment of assistant city auditor of the city of New Bedford.</p> <p>The answer of the defendant set forth the creation and character of the office of assistant city auditor of the city of New Bedford and the manner of the defendant’s appointment to that office, as stated in the opinion.</p> <p>The Attorney General demurred to the answer, and for causes of demurrer alleged:</p> <p>“ 1. That it does not appear from the answer that the defendant is entitled to have, use and enjoy the position or employment of assistant city auditor of the city of New Bedford, and the rights, privileges and emoluments thereof.</p> <p>“ 2. That it does not appear from the answer that the position or employment of assistant city auditor of the city of New Bedford is not within the civil service law and rules.</p> <p>“ 3. That it does not appear that the assistant city auditor of the city of New Bedford is an officer ‘ whose appointment is subject to confirmation by the . . . city council ’ of any city, within the meaning of R. L. c. 19, § 9, or that he is within any other of the exemptions from the application of the civil service rules, provided for in said section.</p> <p>“4. That it does not appear from the answer that the city council of the city of New Bedford had authority to create the office of assistant city auditor of said city.</p> <p>“ 5. That it does not appear from the answer that the assistant city auditor of the city of New Bedford holds an office as distinguished from a position or employment.”</p> <p>In the Superior Court Richardson, J., sustained the demurrer, and ordered a judgment of ouster against the defendant. This judgment was entered on September 30,1909 ; and the defendant appealed.</p>

<p> Negligence. Street Railway. </p> <p>' In an action against a street railway company for personal injuries, sustained by the plaintiff from being run into by a car of the defendant at the intersection of two streets of a city, while the plaintiff was riding a.motor cycle, it was admitted that the street on which the defendant’s car was running was pne of the principal streets of the city and that the plaintiff was familiar with the crossing. There was evidence warranting a finding that the defendant’s car was moving at the rate of forty miles an hour, and also warranting a finding that at the time of the accident a traveller could not reasonably be expected to anticipate that a car would come at that rate of speed along this street. It appeared that, as the plaintiff approached the crossing, his view of the track in the direction from which the car was coming was obstructed by a building on the corner, and the plaintiff testified that he was going on his motor cycle at the rate of about four or five miles an hour and was fifteen feet from the nearest rail when he first could see the approaching car, which then was seventy feet away, that he shut off the power of his motor cycle, but, finding that he could not stop before getting on the tracks, he put the power on again and bore off at as sharp an angle as possible in the direction away from the car, and that the car hit the back part of the hind wheel of his motor cycle just as he was leaving the car track. The plaintiff further testified that if he had turned completely away from the car without going upon the tracks he could not have made “ sure of staying on.” The defendant argued that by the plaintiff’s own story, he was riding “ at a speed at which it was impossible to stop or turn to one side after reaching a point where it was possible to see into the intersecting street and to learn whether or not a car was approaching,” and therefore that he was negligent as matter of law. Held, that the question of the plaintiff’s due care was for the jury, who might find that if the defendant’s car bad been coming at a rate of speed that reasonably could have been anticipated the plaintiff could have seen the car when it was much farther off, or if it was only seventy feet away would have had more time, and would have crossed the track in safety.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action by a workman in a machine shop against his employer for personal injuries caused by the breaking of an iron bracket supporting the arm of a crane, there was evidence that the bracket broke because it was made of stove iron instead of being made of machinery iron, and the defendant relied on the defense that the bracket was bought from a reputable maker and that it was in design reasonably adapted to the use to which it was put. It appeared that the bracket was bought by the defendant from a certain corporation, that this corporation had “a first class reputation” in both machinery and stove plate castings, but that up to a certain date it had a stove plate foundry only, and after that date maintained also a machine shop. The evidence was conflicting as to whether the bracket was bought by the defendant before the date when the corporation’s machine shop was established. Held, that it was for the jury to determine whether the bracket was cast by the corporation in question when it was operating a stove plate foundry only, and that, if the bracket was made at that time, the defense of purchase from a reputable dealer in cast iron machinery was not made out.</p>

<p>Corporation, Liability of stockholders. Trust Company. Receiver.</p> <p>Under R. L. c. 110, § 60, c. 116, § 30, as amended by St. 1905, c. 228, the receiver of an insolvent trust company subject to those statutes can enforce the personal liability of stockholders of the corporation for a debt of the corporation only when the corporation has neglected for thirty days after demand made on execution to pay the amount due or to exhibit property of the corporation subject to be taken on the execution sufficient to satisfy it, and the execution has been returned unsatisfied; and, if the return on the execution was made on the same day that the demand under it was made upon the corporation, a suit in equity by the receiver to enforce the liability of stockholders cannot be maintained, as such a return not only fails to show that the execution remained unsatisfied at the end of thirty days after the demand made under it, but shows affirmatively that the opportunity was not afforded for thirty days for the corporation to exhibit property that might be taken upon the execution.</p> <p>St. 1905, c. 228, amending R. L. c. 116, § 30, created no new liability of the stockholders of trust companies subject to that act, but merely extended to receivers of insolvent trust companies of the class designated the right to enforce, with the approval of the Supreme Judicial Court, the rights which the statutes without such amendment gave to any creditor of such corporations.</p>

<p>Adoption. Undue Influence. Fraud. Probate Court, Revocation of decree, Appeal, Objections to decree.</p> <p>Upon an appeal from a decree, which was made by a judge of the Probate Court and revoked a former decree made by him for the adoption by a married woman of a son of her husband by his former wife on the ground that the petition for adoption and the decree entered thereon were procured by the undue influence of the woman’s husband and were a fraud upon that court, a jury found upon an issue presented to them that the woman did not adopt her husband’s son “ of her own free will,” and upon the issue “ Was she unduly influenced in the making of said adoption by her [husband] or any other person ? ” answered “ Yes.” There was nothing in the evidence showing undue influence of any person other than the husband. The record before this court did not disclose what instructions were given to the jury in submitting this issue to them. Held, that the finding of the jury, in the light of the evidence on which it was founded, must be taken to be a finding, as if upon an issue framed in the usual form, that the adoption was procured by the undue influence of the ' woman’s husband; and that, in the absence of a statement of the instructions to the jury, they must be taken to have been, in accordance with the established law, that, to find that the husband exercised undue influence upon his wife in procuring the adoption of his son by. her, the jury must find that he so far dominated her will as to substitute his will for hers with the result that the adoption was not in reality the act of his wife but his act, and that, there having been evidence warranting such a finding, the findings of the jury on the two issues showed a fraud upon the court in procuring the former decree, which justified its revocation.</p> <p>Upon an appeal from a decree, which was made by a judge of the Probate Court and revoked a former decree made by him for the adoption by a married woman of a son of her husband by his former wife on the ground that the petition for adoption and the decree entered thereon were procured by the undue influence of the woman’s husband and were a fraud upon the court, a jury found upon issues presented to them that the woman did not adopt her husband’s son of her own free will and that the adoption was procured by the undue influence of the woman’s husband. At the trial of these issues the appellant did not ask for a ruling that the evidence did not warrant a finding that the adoption was procured by undue influence, nor did he except to the instructions of the trial justice under which the jury were allowed to find that the adoption was so procured. Later, upon an appeal from a final decree made by a single justice, affirming the decree of revocation of the Probate Court, the appellant sought to raise the point that the evidence did not warrant a finding that undue influence was exercised upon the woman by her husband. All the evidence which was before the jury was before this court and warranted a finding that the woman’s mind had been overpowered by her husband, and it was held, that, even if the appellant had the right to raise the question, which was doubted,, the evidence warranted a finding that the adoption was procured by undue influence.'</p> <p>Upon the question whether an act was procured by the undue influence of another person, if it appears that the mind of the person acting was overpowered by the other person so that the act in question was that of the dominating person, it does not matter how the domination over the mind of the person acting was acquired; if it was acquired and was exercised, that is enough to constitute undue influence.</p> <p>If a man so dominates his wife’s will as to force her against her will to bring a petition in court for the adoption by her of his son by a former wife, and procures a decree for such adoption, he commits a gross fraud upon his wife and such a fraud upon the court that upon the presentation of a proper case the decree will be set aside.</p> <p>The statement of objections to a decree of a Probate Court, which by R L. c. 162, § 10, is required to be filed with an appeal to the Supreme Judicial Court, is sufficient if it indicates clearly the questions intended to be raised.</p> <p>An objection to a decree of the Probate Court for a petitioner, contained in a statement of objections under R L. c. 162, § 10,- upon an appeal from such decree to the Supreme Judicial Court by the respondent to the petition, “ Because said decree was against the evidence and the law,” gives the appellee notice that the appellant contends that the facts do not entitle the petitioner to any relief, and enables the appellant to raise this question.</p> <p>Upon an appeal from a decree of the Probate Court revoking a former decree of that court for the adoption by a married woman of a son of her husband by a former wife, it appeared that the former decree was procured by the undue influence of the husband who so dominated his wife’s will as to force her to bring the petition and obtain the decree of adoption against her will, and that he procured the adoption in order to secure his wife’s property for his son, thinking that if his son got the property he himself would benefit thereby. The single justice who heard the appeal found that the husband had committed a fraud upon the court, and made a decree affirming the decree of revocation of the Probate Court. The petition for the revocation of the decree of adoption was filed, upon the death of the wife, by those who but for the adoption would have been her heirs and next of kin. The son of the husband, who was the subject of the adoption, accepted service of the petition and gave his deposition, and, before the hearing of the case, died unmarried and intestate. It did not appear that he left any creditors. The husband, as the sole heir and next of kin of his son and as the administrator of his son’s estate, appealed from the decree of revocation made by the Probate Court and from the decree made by the single justice. It was contended by the appellant that the decree of adoption could not be set aside after the death of both parties to it, that no fraud was committed by the son adopted, and that the appellant claimed only through his son and represented his son’s rights. Held, that this court would regard the situation of the parties at the time that the decree of revocation was made, when by the death of the son intestate the father had become entitled to all his property, and that the law will not allow a man to profit by his own wrongdoing, the only way to prevent this in the present case being to revoke the decree of adoption at a time when no reason existed why that should not be done; therefore, that the decree of revocation should be affirmed.</p> <p>In a case which comes to this court on an appeal from a decree of a single justice affirming on appeal a decree of the Probate Court, only those questions are open which appear in the statement of the objections to the decree of the Probate Court filed under R. L. c. 162, § 10, upon the entry of the appeal in the Supreme Judicial Court. In the present case, the contentions thus excluded were shown by the record before the court to be without merit.</p>

Two actions oe TORT, the first by a woman for personal injuries alleged to have been received, while she was a passenger on an electric street car of the defendant, by reason of a wagon carrying an extension tower swerving around and striking the car as it was passing and breaking windows immediately behind where the plaintiff sat in the car, and the second by the husband of the plaintiff in the first for loss sustained by reason of her injuries.

Tort, under R. L. c. 171, § 2, by the administrator of the estate of Carine Mathilda Wikne, who, the declaration alleged, lost her life by reason of gross negligence on the part of agents or servants of the defendant. Writ in the Superior Court dated May 31, 1906.

<p>Pleading, Civil, Plea in abatement, Answer, Demurrer. Executor and Administrator. Tax, Collection.</p> <p>The difference between a plea in abatement and a plea in bar is that the former goes to the writ and the latter to the cause of action.</p> <p>Where, in an action by the collector of taxes of a city under K. T. c. 13, § 33, the declaration alleged that a tax was assessed upon the estate of a deceased person and a demand therefor was made upon the defendant, the executor of his will, and that, after receiving money applicable thereto, the defendant did not pay the tax and therefore was liable therefor personally as for his own tax; and the defendant filed a plea in abatement stating that the will of the deceased person had not been proved in this Commonwealth, that no letters testamentary or of administration had been issued to the defendant, and that the defendant “is not and never has been executor or administrator of” such estate “ within this Commonwealth,” to which plea the plaintiff demurred, this court construed the demurrer to be a demurrer to the answer so far as it set up the fact that the defendant was not appointed an executor in Massachusetts.</p> <p>In an action of contract by the collector of taxes of a city under R. L. c. 13, § 33, in which the declaration alleged that a tax was assessed upon the estate of a deceased person and a demand therefor was made upon the defendant, the executor of his will, and that, after receiving money applicable thereto, the defendant did not pay the tax and therefore was liable personally therefor as for his own tax, the action being against the defendant as an individual and not as an executor, a defense that the defendant was not an executor as alleged in the declaration goes to the cause of action and therefore is a defense in bar and not matter for a plea in abatement.</p>

<p>Tort for injuries received by the plaintiff, while walking on Stage Street in Haverhill, by reason of her leg slipping through between iron bars covering a “ sewer drop ” in the highway, the plaintiff contending that the bars spread because of the rotten condition of a white oak frame in which they were set. Writ in the Superior Court dated March 1, 1906.</p> <p>The case was tried before Hardy, J. The material facts are stated in the opinion. At the close of the evidence, the defendant requested the presiding judge to order a verdict for the defendant 66 on the ground that it did not appear from the evidence that the defendant had had reasonable notice of the defect, or might have had reasonable notice thereof by the exercise of proper care and diligence.” The request was refused, the jury found for the plaintiff; and the defendant alleged exceptions.</p>

<p>Negligence, Due care oí passenger on street railway car, Street railway.</p> <p>If one, upon boarding an open electric street railway car, finds all the seats occupied and therefore stands upon .the running board, where the conductor collects his fare and thus recognizes him as a passenger, and if, while standing there, he is injured through negligence of an employee of the defendant, it cannot be ruled as a matter of law that by reason of his position he is guilty of contributory negligence.</p> <p>While a passenger upon an open electric street railway car, who lawfully is standing upon the running board, cannot disregard the usual conditions of travel arising from the concurrent use of the street by other travellers, he rightfully may assume that during transit the carrier will not expose him to the peril of injury from passing vehicles if by the exercise of reasonable diligence the movements of the car can be controlled so as to avoid collisions with vehicles; and if a passenger, standing upon the running board of such a car and facing forward, does not observe a wagon ahead of the car in a street so narrow as to allow little room on either side of it between the car and the curb, and therefore is struck by the hub of the vehicle as the car passes it and is injured, at the trial of an action against the street railway company to recover for such injury the question, whether or not he was in the exercise of due care, is for the jury.</p> <p>At the trial of an action against a street railway company by a passenger who rightfully was upon the running board of an open electric- car of the defendant, to recover for injuries caused by his being struck by the hub of a vehicle in the highway, which was facing in the same direction as the ear and which the car was passing, there was evidence tending to show that in the street at the side of the car where the plaintiff was standing there was not more space between the car and the curb than was sufficient for the car and a vehicle to pass safely if those in control of each took reasonable precautions, that the motorman saw the vehicle on the track as he approached it and rang a gong to cause the driver to turn off from the track, that the driver did so and that the motorman then caused the car to pass the vehicle and was part way by when a hub of the vehicle struck the plaintiff and caused the injuries complained of, and that the speed of the car was from ten to twelve miles an hour. Held, that there was evidence, warranting a finding that the employees of the defendant caused the car to go forward before they had ascertained fully and definitely whether they could do so without exposing the plaintiff to the danger of injury from the probable movements of the vehicle in the restricted space, and that therefore the question, whether they were negligent, was for the jury.</p>

<p>Complaint, received and sworn to in the First District Court of Southern Middlesex on February 8, 1908, under R. L. c. 100, § 72, for a warrant to search certain premises in South Framingham for “ a certain quantity of whiskey, being about, and not exceeding one hundred gallons,” and gin, rum, brandy, wine, ale, porter, lager beer and eider, each similarly described. A search warrant was issued and a seizure was made by a deputy sheriff. The officer’s return showed that a seizure was made, and that the following articles were taken:</p> <p>“ About 112 gallons of whiskey in 1445 bottles ;</p> <p>About 74 gallons of ale in 298 bottles ;</p> <p>About 1 pint of beer in 1 bottle;</p> <p>About 1 pint of wine in 1 bottle.”</p> <p>William B. Mahern, having claimed the liquors, was admitted as a party in accordance with R. L. c. 100, § 79.</p> <p>On appeal to the Superior Court, the case was tried before Lawton, J. The claimant excepted to a refusal of the presiding judge to rule in accordance with his contention, which is set out in the opinion, and to an instruction to the jury contrary thereto. In answer to a question put to them by the presiding judge, the jury found that all the liquors described in the officer’s return except so much whiskey as was in excess of one hundred gallons were “ owned or kept by ” the claimant “ in the premises described in the complaint, for the purpose of being sold” illegally. Such liquors thereupon were adjudged forfeited to the Commonwealth; and the claimant alleged exceptions.</p>

<p>Insurance, Fraternal beneficiary. Fraternal Beneficiary Corporation. Estoppel.</p> <p>At the trial before a judge without a jury of an action against a fraternal beneficiary corporation by a son, named as the beneficiary in a certificate of fraternal beneficiary insurance issued to his father and providing for a payment of money to the son in case of the death of the insured while in good standing, it appeared that the by-laws of the defendant provided that a member not paying an assessment within thirty days from the date of notice of it was suspended, that, on payment within the next thirty days thereafter, he might be reinstated, and that, if payment of the assessment was not made within the second period of thirty days, he was “ disconnected from the order.” An assessment at a new and increased rate was levied by the defendant and notice was given on July 1 of a certain year, the assessment being payable on or before July 81. A further assessment at the new rate was made and notice was given on August 1, the assessment being payable on or before August 80. On August 11 the plaintiff’s father notified the president of the defendant that he had decided to withdraw from the order and the president accepted the withdrawal. On August 22 and 29 the plaintiff paid the July and August assessments respectively. There was evidence, which was controverted, that such payments were made without the father’s consent and against his wishes. The payments were received by the collector of the subordinate lodge and forwarded to the defendant. There was no evidence that the collector knew that the payments were not made in behalf of the insured. The insured died on August 81. The judge found for the defendant. Held, that the finding was warranted, since the judge might have found that the father voluntarily had withdrawn from the order, and, the plaintiff having no right to reinstate his father against his wishes, the insured was not in good standing at the time of his death ; and, also, that the act of the collector in receiving the assessments front the son did not estop the defendant from denying that the payments were made for the father and had the effect of reinstating him, since there was no evidence that the collector knew that the payments were not made in behalf of the insured.</p>

<p>Mortgage, Of real estate, Construction, Foreclosure, Redemption.</p> <p>A mortgage of real estate, which secured the payment of a certain sum of money with interest in periodical instalments, contained a provision that, until default, the mortgagor and his heirs and assigns might hold and enjoy the granted premises and receive the rents and profits thereof, and, while it gave the mortgagee a power of sale upon default in the performance of its condition, it did not contain a stipulation that, upon a default in the payment of any instalment, the whole amount should become due immediately. The mortgagor having failed to pay an instalment, the mortgagee entered upon the premises, began the collection of rents and began arrangements for a foreclosure sale, which acts the mortgagor by a bill in equity sought to enjoin, after having offered to pay all instalments of principal and interest then due. The mortgagee insisted upon payment forthwith of the entire amount of the debt secured by the mortgage. Held, that the rights of the parties depended upon their contract and that, upon payment by the mortgagor of such part of the mortgage debt as then was due, with such costs as might be allowed by the court, due credit having been given for the rents received by the mortgagee, the mortgagor should be restored to his right of possession under the mortgage.</p> <p>Where a deed of mortgage of real estate, which was given to secure the payment of a certain amount of money in instalments, contained no provision that, upon a failure to pay an instalment of principal or interest, the entire amount of the debt should become payable immediately, a provision therein that, “ upon any default . . . the grantee . . . may sell the granted premises, . . . and out of money arising from such sale the grantee or his representatives shall be entitled to retain all sums then secured by this deed, whether then or thereafter payable, including all costs, . . . rendering the surplus, if any, to me or to my heirs or assigns,” is one that may be rendered inoperative, even after a default in the payment of an instalment, by the payment of the amount which is then due and payable, the mortgagee thus being put in the same position as if there had been no default.</p>

Verdicts were returned for the plaintiffs on December 19, 1907.

<p>Larceny from the Person. Statute, Construction of inconsistent provisions. Police, District and Municipal Courts. Superior Court. Jurisdiction. Practice, Criminal, Sentence, Appeal.</p> <p>Section 28 of R. L. c. 160, providing that police, district and municipal courts shall have jurisdiction of the crime of larceny if the property alleged to have been stolen is not alleged to exceed the value of $100, for which crime such courts may inflict a punishment by a fine of not more than $100 or by imprisonment for not more than two years, applies to aggravated larcenies and particularly to larcenies from the person, and, since the term of imprisonment provided as a punishment does not include confinement in the State prison, the statute is constitutional.</p> <p>Section 30 of R. L. c. 208 provides that a person convicted by a police, district or municipal court or before a trial justice of stealing money or goods not exceeding the value of $5 may be committed to the house of correction or workhouse for not more than six months or punished by a fine, and therefore the provision of R. L. c. 160, § 28, giving to police, district and municipal courts jurisdiction of the crime of larceny and power to punish by imprisonment for not more than two years, or by a fine, “ if the property alleged to have been stolen ... is not alleged to exceed the value of $100,” must be construed to give such jurisdiction and power to the police, district and municipal courts where the property alleged to have been stolen is alleged to exceed the value of $5 and is not alleged to exceed the value of $100.</p> <p>Where, on appeal to the Superior Court by a person convicted in the Municipal Court of the City of Boston of larceny from the person of goods of the value of $5, the defendant is tried and found guilty, the Superior Court cannot impose upon him a greater sentence than could have been imposed by the court appealed from, namely, the penalty provided by R. L. c. 208, § 30, either imprisonment for not more than six months or a fine of not more than $15.</p> <p>The crime of larceny from the person of property not exceeding $5 in value is included within R. L. c. 208, § 30, which provides that “ whoever is convicted by a police, district or municipal court or before a trial justice of stealing money or goods not exceeding the value of $5 may be committed to the house of correction or workhouse ... for not more than six months; or . .. punished by a fine of not more than $16, either with or without a condition, that, if it is not paid within a time specified, he shall be so committed for a term designated in the sentence.”</p>

<p>Complaint in two counts, received and sworn to in the First District Court of Essex on April 13, 1909, charging in the first count that the defendant “ with force and arms . . . did prevent, obstruct and interfere with the State board of health, its officers and agents, in the performance of its duties as provided in the laws of said Commonwealth, and did hinder, obstruct, and interfere with the examination and inspection of a certain carcass of a cow by removing said carcass after condemnation and refusing to deliver the same to properly authorized agent of said board, who demanded its surrender ”; and charging in the second count that the defendant “ did knowingly sell for food the carcass of a certain cow condemned as diseased by an authorized agent of said board of health, said carcass being unfit for food by reason of disease, against the peace of said Commonwealth, and contrary to the form of the statutes in such cases made and provided.”</p> <p>On appeal to the Superior Court, the case was tried before jFox, J. It seems that the facts, which are stated in the opinion, were admitted to be true. On such facts, the defendant asked the presiding judge to rule that the defendant was entitled to acquittal. The judge refused so to rule, but ruled that upon the admitted facts the defendant was guilty on the second count of the complaint. The jury accordingly returned a verdict of guilty; and the defendant alleged exceptions.</p>