Volume 205 — Massachusetts Reports

<p>Tort for injuries received by the plaintiff, a girl five years and eight months old, by being pushed down a stairway by a crowd in the defendant’s department store in Fall River. Writ dated October 16, 1907.</p> <p>The case was tried before Bishop, J. The plaintiff’s evidence tended to show that the accident to the plaintiff happened on a Saturday, that the plaintiff’s mother, with the plaintiff, had come to the store to buy ribbon, and that the store was crowded. The ribbon counter was on a balcony, which was between the first and second floors of the store. The only access to this balcony from the first floor was by means of a stairway four feet five inches wide, composed of two flights and a landing. In the lower flight there were five risers, and in the second flight seven. The landing was four feet four inches by six feet two inches. There was some evidence that the stairs were poorly lighted. A corresponding stairway ran from the balcony to the second floor.</p> <p>From the top of the stairway from the first floor an aisle ran toward the right along the balcony. The area of the balcony was forty by one hundred feet. About six feet from the head of the stairs and running from them parallel to the aisle, stood a counter upon which on the day of the accident was displayed jewelry, of which there was a special sale.</p> <p>The plaintiff’s mother had finished her purchases and, taking hold of the plaintiff’s left hand with her right, was proceeding toward the stairway leading to the first floor, when the superintendent of the store, standing at the head of the stairs, announced in a loud voice, “ Here’s where you get your seventy-five cent and one dollar jewelry for nine cents.” The plaintiff’s mother testified that thereafter, as she was going down the stairway holding the balustrade with her left hand and the plaintiff’s hand with her right, a crowd rushing upon her from behind to get away from the crowd collecting at the jewelry counter pushed the plaintiff from her, and the plaintiff fell down the stairs to the landing and was injured.</p> <p>At the close of the evidence the presiding judge ordered a verdict for the defendant; and the plaintiff alleged exceptions, which after the death of Bishop, J., were allowed by Stevens, J.</p>

<p>Evidence, Best and secondary. Landlord and Tenant, Tenant’s liability for rent.</p> <p>The declaration in an action of contract alleged that one F. leased certain premises to the defendant, who covenanted in the lease with F. and his assigns to pay a certain rent monthly; that F. conveyed the premises to the plaintiff by a deed, a copy of which was annexed to the declaration and in which F. assigned his ¡rights under the defendant’s lease to the plaintiff; and that the defendant had .failed to pay certain portions of the rent. At the trial, the plaintiff was the only witness and testified, among other things, without objection that he was •the owner of the premises, that after he purchased them he collected rent from the defendant under the lease and that the defendant continued to occupy the premises until a day in May when he vacated them and had paid no rent since. The deed containing the assignment by F. to the plaintiff was not introduced in evidence. Held., that there was evidence which warranted a finding that the plaintiff was the owner of the reversion of the premises ; and that as owner of the reversion he could maintain an action in his own name for the rent due under the lease.</p>

<p>Contract upon an account annexed for the price of cards called “ transfer signs,” letters from which could be used in substitution for painted letters on signs for advertising. Writ dated July 27, 1906.</p> <p>The case was tried before Stevens, J. There was evidence tending to show that the defendants were engaged in the manufacture and sale of shoe polishes and furnished boot blacking stands which were placed in charge of bootblacks in various parts of the country; that one Smith, an agent of the plaintiffs, solicited an order from the defendants, for the transfer signs, that the question whether the signs would stand exposure to all kinds of weather was discussed between Smith and one Pessels, the defendants’ purchasing agent, Smith asserting that the signs would do so, and that finally the following letter was written to the plaintiffs by the defendants’ purchasing agent:</p> <p>“Cambridge, A. Mass., U. S. A., March 29, 1904. Messrs. Palm, Pechteler & Co., New York, N. Y. — G-entlemen: You can enter our order for 4000 sets at 20/' a set 2000 to be sent when ready, 2000 six months after the first shipment. It is understood and agreed that you are to send us not more than 25 sets as soon as ready, and after a thorough trial we find that they do not work satisfactorily, this order is to be cancelled without cost to Whittemore Bros. & Co. Yours truly, Whittemore Bros. & Co. Pessels.”</p> <p>Fourteen sets of cards were then sent to the defendants by the plaintiffs and on August 23,1904, were put upon some of the defendants’ stands by Smith. Two thousand and seventy-six sets of the cards were sent to the defendants on August 24,1904, which the defendants refused to receive, contending that the cards had not received the test stipulated for in the letter of March 29, and the defendants informed the plaintiffs by letter that “ your shipment of August 24 will be left at the depot ... at your risk and expense.”</p> <p>After some extended correspondence, the plaintiffs wrote to the defendants on October 1, 1904, a letter containing the following : “We have shipped you these goods in perfect good faith. If, now, you want a trial of six months, we are perfectly willing to give it to you; all that we ask is, that you accept these goods that we have shipped so as to take them from the railroad company — whose notice we send you here. We will date your bill six months ahead, and if at that time you are satisfied with these goods and they are exactly what you contracted for, and as per reading of your contract, we will then expect you to make settlement. If they are not according to contract, you can ship them back to us at that time just as well as the present time. In plain words, we want you to know and feel that we are not trying to do anything, or want to do anything that is not in accordance with our contract, and we trust that you will meet us in the same spirit; you are perfectly good for what you contract for, and we are perfectly good for what we contract for, so that there is no difference on this score, and we look forward to your advices.” No further letter being received from the defendants meantime, a further shipment of two thousand cards was made to the defendants on March 31,1905, which the defendants refused to accept, referring by letter to what they had written to the plaintiffs during the previous year.</p> <p>At the close of the evidence, the defendants asked for the following rulings:</p> <p>“1. On all the evidence the plaintiffs are not entitled to recover on their declaration.”</p> <p>“ 8. Under the terms of the letter of March 29, 1904, the defendants were not called upon to accept a shipment of more than twenty-five sets until after those twenty-five sets had worked satisfactorily after a thorough trial, or that condition had been waived by the defendants.”</p> <p>“16. If two thousand or more sets of transfer signs were shipped addressed to the defendants within a day or two after the defendants were first shown how to apply the signs by the plaintiff’s agent, such shipment was not a performance of the defendants’ order of March 29, 1904.”</p> <p>“19. A mere delivery of the signs to a railroad company would not be a delivery to the defendants.</p> <p>“ 20. A mere delivery of the signs to a railroad company would not be a delivery to the defendants, unless it appeared that the defendants assented to such a delivery as a delivery to them.</p> <p>“ 21. There is no evidence that the defendants assented to a delivery of the signs to a railroad company as a delivery to the defendants.</p> <p>“22. Under the letter of March 29, 1904, the defendants were under no obligation to pay any freight upon the sets.</p> <p>“ 23. If the defendants did not agree to pay any part of the cost of carriage, the delivery of the signs to a freight station in Boston or Cambridge will not constitute a delivery to the defendants.”</p> <p>“ 31. The defendants were under no obligation to accept the second lot of approximately two thousand sets of letters at the time when they were shipped on or about April 1,1905.”</p> <p>“36. The burden is upon the plaintiffs to show that the twenty-five sets, after a thorough trial, worked satisfactorily, or that the defendants expressly or by their conduct waived the condition that they should work satisfactorily.”</p> <p>The rulings were refused and the judge charged the jury as stated in the opinion. The jury found for the plaintiffs; and the defendants alleged exceptions.</p>

<p>Two actions of tort, the first for personal injuries received by the plaintiff while in, the employ of the defendant at its box factory and caused by his hand being cut off by a circular saw as he was freeing his coat which had become caught on something as he was passing through a passageway beside which the saw was. The second action was by the father of the plaintiff in the first for loss of services and for expenses caused by the son’s injury. Writs dated August 13, 1907.</p> <p>The cases were tried together before White, J. There was evidence tending to prove the following facts;</p> <p>There was a well lighted passageway three or four feet wide which was the principal and usual exit from the second floor of the factory to the office. On the left hand side of the passageway as one went out of the room were lockers. On the right hand side and bounding it was a bench three to three and a half feet high, to which the circular saw upon which the plaintiff was injured was attached. There was a carriage on rollers on top of the bench about an inch high, on which the boards to be cut were placed. The method of operation was for the workman to push the carriage away from him along the bench parallel to the passageway toward the saw. The carriage ran just inside the saw. The saw was circular, about a foot in diameter, and was on the outer side of the bench next to the passageway. About four or five inches of its diameter was above the bench. The lower half of the saw was covered with a blower which reached out about a foot. From the bench on either side of the saw to the floor of the passageway were strips of board at such an angle that they reached the floor about a foot out into the passageway from the bench. These strips were for the purpose of deflecting the sawed boards. There was a guard provided for the upper half of the saw. It was bolted to the bench and had a hinged top. It left an opening of an inch or so on the side toward the operator, but completely covered the saw edge on the top and the other side, that is, the edge toward a person using the passageway as an exit. The end of the bench to which one using the passageway as an exit first came made a corner around which persons using the passageway had to pass, and the saw was between that corner and the operator and about two to four feet from the corner.</p> <p>In the ordinary use of the saw it was operated with the guard in place. Occasionally, however, particularly when large boards were to be cut, the guard was removed. The saw was operated by a belt from a pulley on the ceiling of the floor below. There was no “ shipper ” or other similar device directly in connection with the saw, and when once started it could not be stopped without going to the floor below.</p> <p>The plaintiff was thirteen years and ten months old at the time of the accident. He went to work for the defendant on July 1, 1907. On Saturday morning, July 6, 1907, the factory was to close at half past twelve. The plaintiff with his hat and coat on was going down to the office to get his pay. As he came around the corner, turning to the right, his coat in some way caught on the bench. On what it caught or just how it caught, he did not know. He started to release himself with his left hand, turning from left to right, and the saw took off his left hand at the wrist. Until he was cut he did not know that there was a saw there. ¡Nobody had ever called his attention to this saw or warned him about it in any way, and on the day he was hurt nobody had said anything to him about, or had called his attention to, the guard being removed from the saw. When he was hurt the saw was still running though there was no workman at the bench.</p> <p>At the close of the evidence the presiding judge ordered verdicts for the defendant, and reported the cases as stated in the opinion.</p>

<p>Negligence, Street railway, Gross, Causing death, Bes ipso loquitur. Evidence, Presumptions and burden of proof, Opinion: experts. Practice, Civil, Conduct of trial. Witness, Cross-examination.</p> <p>The declaration in an action against a street railway company under R. L. c. Ill, § 267, to recover for the death of a passenger who received injuries resulting in death because he jumped from the front seat of an open car of the defendant when there was an explosion in the electric controller, alleged that the death resulted from gross negligence on the part of the defendant’s servants or agents. At the trial the plaintiff introduced evidence of the happening of the explosion, but did not introduce any independent evidence to show that there was anything defective or improper in the construction or operation of the car, although he did introduce evidence tending to show that previous to the explosion the car had been running smoothly, that it had stopped and started in the ordinary way, and that there was nothing unusual about it. Held, that under the circumstances it could not be said that the explosion of itself furnished evidence of such conduct on the part of the defendant’s servants or agents as to constitute gross negligence.</p> <p>While the general rule is that the final decision of the question, whether a witness is qualified as an expert, is for the judge presiding at the trial, nevertheless, when the facts upon which the decision depends are undisputed, the question becomes one of law, and the decision may be reviewed.</p> <p>The fact that a witness is not offered as an expert by the party calling him will not prevent the other side from using him as such if it turns qut that he has the necessary qualifications.</p> <p>At the trial of an action against a street railway company for personal injuries . alleged to have been caused by an explosion of the electric controller on one of the defendant’s cars on a certain evening, a witness for the defendant, besides testifying at length in description of the electrical equipment of the car and of the controller in question, stated that he had examined the controller on the evening of the accident and “found it O. K.” He also testified in direct examination that he was employed by the defendant as foreman of its electrical equipment from 1892 to 1903. and had been working as an electrician in the employ of another person since 1903. In cross-examination he was asked as to his experience with a controller and stated that he could take it apart and put it together again and that he understood its principle and mechanism “ to a certain extent. I don’t know as I understand it the same as an expert xyould.” He then was asked certain questions which called for his opinion as an expert. The presiding judge subject to an exception by the plaintiff excluded “ anything in the nature of an opinion.” Held, that the facts regarding the qualifications of the witness were not so clear and undisputed that it could be said as a matter of law that the trial judge was wrong in excluding the opinion of the witness as evidence.</p>

<p>Negligence. Street Railway. Carrier, Of passengers. Evidence, Of assent by silence.</p> <p>In an action against a street railway corporation for personal injuries alleged to have been sustained while the plaintiff was boarding a car of the defendant as a passenger, if there is evidence tending to show that at a signal from the plaintiff the car had come to a stop at a usual stopping place, and that when the accident occurred the plaintiff was in the act of entering the car with one foot upon the step without any objection or warning froni the conductor, who was standing in the doorway which the plaintiff was about to enter, a finding is warranted that the plaintiff was a passenger when he received his injuries.</p> <p>In the use of the kind of street railway car which is called semi-convertible and in which the doors are opened and shut by a device operated by the motorman, it is not necessary that the door to admit passengers should be entirely open in order that an assent to the entrance of a passenger may be inferred from the silence of the conductor who is standing in the doorway. It is enough to warrant such an inference of assent if the door is open so far that the person proposing to enter as a passenger is justified in believing that the opening is intended to afford him an opportunity to enter and no objection to his doing so is made by the conductor.</p> <p>In an action against a street railway corporation for personal injuries alleged to have been sustained while the plaintiff was in the act of entering a car of the defendant as a passenger, if it appears that the car was of the kind which is called semi-convertible and in which the doors are opened and shut by a device operated by the motorman, and the evidence tends to show that the door when nearly open came to a stop and then started to open farther, that the plaintiff, believing that the doorway was ready for him to enter, it being in the evening and very dark, in feeling for the handle of the door or the rail put his hand upon the door itself and that the door in opening the rest of the way cut off the end of his finger, and if it also appears that during this time the conductor was standing in the doorway and was silent and gave the plaintiff no warning, it cannot be ruled as matter of law that the plaintiff was not in the exercise of due care in placing his hand upon the door instead of upon the handle of the door or upon the rail next to it to assist him in entering.</p> <p>It cannot he stated as a general proposition of law that a conductor of a street railway car is not bound to warn a person intending to enter the car not to place his hand on a door that is in the process of opening, because the circumstances may be such that the conductor has reason to apprehend that a person intending to enter the car may sustain an injury in entering it by placing his band on the door which is in the process of opening, if he is not warned, and in that case it is the duty of the conductor to give such a warning.</p> <p>In an action against a street railway corporation for personal injuries alleged to have been sustained while the plaintiff was in the act of entering a car of the defendant as a passenger, if it appears that the car was of the kind which is called semi-convertible and in which the doors are opened and shut by a device operated by the motorman, and the evidence tends to show that the door when nearly open came to a stop and then started to open farther and in opening the rest of the way cut off the end of the plaintiff’s finger, there being other evidence tending to show that the plaintiff in placing his hand on the door was in the exercise of due care, a finding is warranted that the plaintiffs injury was due either to negligence on the part of the motorman who operated the lever which opened and shut the door or to some defect in the construction of the car.</p>

<p>Name. Assignment. Words, “Future earnings,” “ Future wages.”</p> <p>In the absence o£ fraud and where both parties act in good faith, an individual contractor may make a lawful contract to furnish materials to a city under a name which purports to be that of a corporation and may make a lawful assignment in writing of the money which he is to receive under the contract, signing it in such corporate name by a certain person as president, although there is no corporation of that name and the only connection with the contract of the person named as president is that of a foreman employed by the contractor.</p> <p>The money to be received under a contract to furnish a city with sand, gravel and crushed stone is not “ future earnings ” within the meaning of St. 1905, c. 308, nor “ future wages ” within the meaning of St. 1906, c. 890.</p> <p>H a person, who holds an assignment in writing of the price to be received by a contractor under a contract to furnish a city with certain materials, causes the assignment to be recorded in the office of the city clerk of the city where the assignor resides, this has no effect upon the construction of the assignment and cannot convert it into an assignment of "future earnings ” within the meaning of St. 1905, c. 308, which requires such a recording to make an assignment of future earnings valid against a trustee process.</p>

<p>Tort for personal injuries received on June 8, 1905, by reason of falling into the space between a car forming part of an elevated railway train of the defendant and the platform in the Seollay Square station in the subway in Boston, when the plaintiff was attempting to enter the car, as described in the opinion. Writ dated August 8, 1905.</p> <p>In the Superior Court the case was tried before Fessenden, J., who ordered a verdict for the defendant, and by agreement of the counsel for the parties and at their request reported the case for determination by this court npon the terms of reservation which are stated in the opinion.</p>

<p>Bill in EQUITY, filed in the Supreme Judicial Court on March 4, 1909, by the executor of the will of Maria Elizabeth J ones, who died on June 4, 1908, without issue, leaving an estate of which the residue, after the payment of all debts and all legacies apart from those contained in the residuary clause and the expenses of administration, amounted to about $500,000, for instructions as to the distribution which should be made of the residue of the estate.</p> <p>The will was as follows:</p> <p>“ I, Maria Elizabeth Jones, wife of Jerome Jones of Brookline, in the County of Norfolk and Commonwealth of Massachusetts, make this my last will and testament. After the payment of debts and funeral charges if any, I devise and bequeath as follows:</p> <p>“ It is my will and I hereby appoint under the power contained in the will of William H. Dutton of Boston dated the fifth day of February, A. D. 1875, that of the property now held by trustees under the said will of William H. Dutton, and whereof I have the disposition by this will, two hundred shares of the capital stock of the Boston Transcript Company shall become the property of the grandchildren of Henry W. Dutton in equal proportion, the issue of any deceased grandchild to take by right of representation, provided however that the persons in whom said shares of capital stock would vest under the above provision or some person or persons in their behalf shall within one year after the allowance of this will, pay to my said husband, Jerome Jones, or his personal representatives, or, if my said husband is not living at my decease, then to his heirs at law, one third of the value of the real estate now held by said Boston Transcript Company as ascertained by the last assessed valuation for taxation prior to my decease, and in default of such payment it is my will and I hereby appoint that said two hundred shares of said capital stock shall become the property of my said husband, Jerome Jones, or, if he is not living at my decease, the property of his heirs at law.</p> <p>“I give to my brother, George A. Gane of Charlottetown, Prince Edwards Island, twenty-five thousand dollars and in the event that he is not living at my decease I give ten thousand dollars to his widow and fifteen thousand dollars to the children of my brother Thomas Frederick Gane, deceased, the issue of any deceased child to take by right of representation the share of such deceased child.</p> <p>“ I further give to the children of my said brother Thomas Frederick Gane, deceased, fifty thousand dollars, the issue of any deceased child to take by right of representation as above.</p> <p>“I give to Ellen A. Jones of Athol, Mass., five thousand dollars.</p> <p>“ I give to Louise Palmer Chard of New York City five thousand dollars.</p> <p>“ I give to the American Unitarian Association, a corporation established by law in Massachusetts, ten thousand dollars.</p> <p>“ I give to the Young Men’s Christian Union of Boston ten thousand dollars.</p> <p>“ I give to the Transcript Mutual Aid Society of Boston ten thousand dollars.</p> <p>“ I give to the Free Hospital for Women, located in Brookline, ten thousand dollars.</p> <p>“ I give to the Industrial School for Crippled and Deformed Children, in Boston, ten thousand dollars.</p> <p>“I give to the Kindergarten for the Blind, in Boston, ten thousand dollars.</p> <p>“ I give to the Children’s Hospital, in Boston, ten thousand dollars.</p> <p>“ I give to the Home for Aged Couples, in Boston, five thousand dollars.</p> <p>“ In the event that my said husband, Jerome Jones, is not living at my decease I give to his heirs at law all property, real or personal, to which I shall have become entitled from his estate.</p> <p>“It is my will that my jewelry, keepsakes, personal ornaments, trinkets and other articles named in a certain writing or list which I leave among my effects marked and designated as the writing or list referred to in this will, shall not be included in the residue of my estate to which reference is made in the clause herein next following, but shall be disposed of as directed in said writing or list which said writing or list is hereby made part of this will.</p> <p>“ It is my will that my said husband, Jerome Jones, shall have the same share in the residue of my estate which he would have had by law in the entire estate, had no will been made, and, if he is not living at my decease, it is my will that the share which he would have had under this clause shall go to his heirs at law.</p> <p>“ I hereby nominate my said husband, Jerome Jones, to be the executor of this will, and request that he be exempt from giving surety or sureties on his official bond.</p> <p>“ Witness my hand this twenty-eighth day of November, in the year nineteen hundred and three, the word ‘ that ’ being erased and the words ‘ the share which ? being interlined in the residuary clause before signing.”</p> <p>Here followed the signature of the testatrix and an attesting clause with the signatures of three witnesses.</p> <p>The defendants, besides Jerome Jones in his personal capacity, were George A. Gane, a brother of the testatrix, Henry Stewart Gane, Gertrude Gane and Marjorie Gane, children of Thomas Frederick Gane, deceased, who was a brother of the testatrix, and Kathrene Gane, then the widow of Frederick M. Gane, deceased, who was the son of Thomas Frederick Gane.</p> <p>The answer of the defendants other than Jerome Jones was in part as follows:</p> <p>“ 2. And they say that by law and under the true construction of the will of Maria Elizabeth Jones, one half of the residue of her estate passed to her husband, and the other half to her next of kin.</p> <p>“ 3. And for further answer they say that they have been informed that the petitioner is now claiming that by the legal construction of said will he is entitled to three quarters of said residue, and that these defendants as next of kin of the testatrix are entitled to only one quarter.</p> <p>“ 4. The defendants deny that such is the legal construction of said will, but they say that if such is the legal construction of said will, the petitioner holds one third of said three quarters, namely, one quarter of said residue, in trust for these defendants for the following reasons:</p> <p>“5. The testatrix acted greatly under the influence and advice of her husband. She wished to leave one half of the residue of her estate to him, and the other half to her next of kin, and was willing that the share which- would come to him if he survived her, should go to his heirs in case he should die before her. He thereupon, knowing her intentions, caused or allowed this will to be prepared, representing to her that the will as drawn expressed her said intentions, namely, that one half of the residue of her estate should go to him or his heirs, and the other half to her next of kin. She relying on his representations executed said will.</p> <p>46 6. After the death of the. testatrix, but before the probate of the will, the petitioner assured these defendants that by said will one half of the residue of the estate of the testatrix was devised and bequeathed to them. These defendants relied on this assurance, and forebore to contest the probate of the said will.</p> <p>44 7. And the defendants say that if the court decrees that by the legal construction of said will three quarters of the residue of the testatrix’s estate come to the petitioner, the petitioner after those representations and assurances to the testatrix and to these defendants is trustee for one third of said three quarters, namely, one quarter of said residue, in trust for these defendants, and they pray the court so to decree.”</p> <p>The case was heard by Braley, J., who reported it for determination by the full court as follows:</p> <p>44 The defendants, George A. Gane, Henry Stewart Gane, Gertrude Gane, Marjorie Gane and Kathrene Gane, desiring to offer evidence in support of the allegations made in the fifth and sixth paragraphs of their answer, Jerome Jones, individually, by separate counsel, and also as executor and plaintiff in this case, objected to the admission of any evidence upon the issues sought to be raised by said allegations. At the request of the executor, I ruled that no evidence upon said issues was admissible. And now, with the consent of all parties, I report the case for the determination of the full court, upon the question of the true construction of the will, and also upon the question of the exclusion of evidence, if after determining the true construction of the will, the evidence appears to be material.</p> <p>44 If the court decide that on the proper construction of the residuary clause in the will the defendant Jones is entitled only to $5,000 and one half of the remaining residue of said estate, and that the defendants Gane, as the next óf kin of the testatrix, are entitled to the other half of the remaining residue, a decree is to be made in accordance with such construction.</p> <p>44 If the court decide that on the proper construction of the residuary clause of the will, Jerome Jones is entitled, whether under the will or under the statutes regulating the descent and distribution of intestate property, or partly under the will and partly under said statutes, to more than $5,000 plus one half of the remaining residue of the whole estate, then, but not otherwise, my ruling upon the exclusion of evidence is to be considered by the court, and if the ruling is wrong, the case is to stand for further hearing before a single justice solely upon the issues raised by the allegations of the defendants under the fifth and sixth paragraphs of their answer. If the ruling was right, such decree is to be entered as justice and equity require. The words ‘ remaining residue ’ in this report are to be taken to mean that part of the whole estate of the testatrix remaining after the payment of debts, charges of administration, legacies bequeathed by clauses prior to said residuary clause, and said $5,000.”</p>

<p>Negligence, In use of highway.</p> <p>At the trial of an action against a telephone company by a boy sixteen years of age to recover for injuries alleged to have been received by him because, while he was driving a covered grocery wagon in a street in a city, the top came into collision with a rope which the defendant had stretched across the street, there was evidence tending to show that the rope was about an inch in diameter and extended diagonally across the street from the top of a pole, on the left hand side of the street as the plaintiff was driving, into the branches of a tree in full bloom on the right hand side of the street, where it was fastened at a point about seven feet from the ground; that the plaintiff was assisting his father in the grocery business by taking and delivering small orders and collecting bills, that at the time when the accident happened he was driving a safe horse at an ordinary trot, and that “ for a minute and a half or two to three minutes or something like that ” before the wagon struck the rope, he was turned around on the seat of the wagon, arranging some baskets behind him and was not looking ahead, that he held on to the reins while so doing, and that “ the first thing lie knew he felt out of the wagon.” Held, that under the circumstances it could not be said as matter of law that the plaintiff was wanting in due care because as he drove along he was not looking ahead all of the time in anticipation of such a defect in the highway, or that he was negligent in turning around and arranging the baskets in the wagon behind him.</p>

<p>Evidence, Of speed, Experiments, Competency, Best and secondary. Automobile.</p> <p>At the trial of a complaint for operating an automobile at a rate of speed exceeding twelve miles an hour in violation of a lawful regulation of a board of park commissioners, the Commonwealth offered in evidence an instrument called a photo-speed-recorder, which had been used by the witness who produced it to ascertain the speed at which the defendant’s automobile was moving at the time in question, and which consisted of two photographic cameras set side by side, provided with a mechanism which automatically exposed one of the cameras one second before the other one, and also provided with a chronometer arranged as a stop watch. To determine speed by the use of the instrument a formula was employed which made it necessary to know the distance of the external object from the lens of the camera and the distance of the image on the photographic plate from the lens as well as the size of the object and the size of the image. The Commonwealth offered to show that the witness who tested the speed of the defendant’s automobile by the use of the instrument, before making the test, had been furnished with and knew the distance of the image from the lens in each camera and that he had photographed ten times with each camera an object at distances varying from thirty to three hundred feet, that he had measured the length of the object and by means of the formula had calculated the distance of the object from the camera, and that afterwards he bad measured this distance with a tape and found it to be the same as shown by the estimate. The defendant objected to the evidence of the experiments as inadmissible because of the insufficiency of the experiments and because of the difference of the conditions from those under which the speed of his automobile while in motion was tested by the use of the instrument. Held, that the question whether evidence of experiments should be admitted depends largely on the discretion of the trial judge, and that this court could not say as matter of law that the evidence did not justify the judge in coming to the conclusion that the experiments would be useful in determining the speed of the car.</p> <p>In order that experiments made by means of a machine or mechanical instrument should be admissible in evidence it is not necessary that the machine or instrument should have been operated by an expert, if there is evidence tending to show that accurate results can be reached by the use of the machine by one not an expert.</p> <p>At the trial of a complaint for operating an automobile at a rate of speed exceeding twelve miles an hour in violation of a lawful regulation of a board of park commissioners, the Commonwealth offered in evidence an instrument called a photo-speed-recorder, which had been used by the witness who produced it to ascertain the speed at which the defendant’s automobile was moving at the time in question, and which consisted of two photographic cameras set side by side, provided with a mechanism which automatically exposed one of the cameras one second before the other one, and also provided with a chronometer arranged as a stop watch. The Commonwealth offered to prove that the chronometer contained in the instrument had been compared by the witness with stop watches carried by two other witnesses and alk> with the standard chronometer in the physical laboratory of the Massachusetts Institute of Technology and had been found in eacli case to be accurate. Held, that this evidence was admissible and justified the trial judge in submitting the question of the accuracy of the chronometer to the jury, and that the evidence also was sufficient to warrant a finding by the jury that the chronometer was a correct recorder of time.</p>

<p>Contract, Validity. Watch District. Improvement District. Fire District. Municipal Corporations, Officers and agents. Quasi Corporations.</p> <p>No contract involving the incurring of expense can be binding upon either a watch district, established under Gen. Sts. c. 23, § 8, now R. L. c. 31, §§ 8-19, or upon an improvement district, established under St. 1870, c. 332, now R. L. c. 25, § 44, or upon a fire district, established under Gen. Sts. c. 24, § 33, now R. L. c. 32, §§ 49-70, until some provision has been made, by vote at least, to raise and appropriate the money to meet the expense; and therefore, although such a district votes to employ a certain person at a stated salary as a watchman and police officer, and such person accepts the appointment and serves as such officer, he cannot recover for such services if at the time of the vote there was no money in the treasury of the district and no further vote making an appropriation for the officer’s salary was passed.</p>

<p>Negligence, Employer’s liability. Evidence, Opinion: experts, Admissions, In rebuttal. Practice, Civil, Conduct of trial.</p> <p>Where, at the trial of an action against the proprietor of a woodworking establishment by an employee therein to recover for -injuries alleged to have been caused by a defective buzz planer, there was evidence tending to show that there was a vibration and uneven motion on the part of the machine, that • boards which went through it came out, not well planed, but rough like a washboard, and that such facts would indicate that something was loose about the fastening of the cylinder of the machine, which condition would cause a board being planed to draw the operator’s hand in toward the knives, and that the plaintiff was injured by having his hand drawn in by a board which he was pushing into the planer, it is proper for the presiding judge to refuse a request for a ruling that “ the mere fact that there was vibration or uneven motion in the machine furnishes no evidence of a defect in the machine.”</p> <p>The mere fact, that the proprietor of a woodworking establishment caused a defective buzz planer to be repaired by a reputable maker, does not exempt him from liability for injury to an employee which occurred during a month after the repairs were made.</p> <p>Where, at the trial of an action against the proprietor of a woodworking establishment by an employee therein, who was injured by having his hand drawn into a buzz planer, there was evidence that just before the accident the planer “ jarred and would not allow the cutter to cut smoothly, making a washboard effect,” the following questions were held to be proper to put to one who was an acknowledged expert in woodworking and woodworking machinery,,and the answers were held to be responsive and admissible : “ Q. Assume that a person is at work operating a buzz planer and planing stock two inches wide and five eighths of an inch thick, and that said stock when planed appears to be rough and of a washboard effect as testified to, what in your opinion does that indicate to be the matter with the machine, if anything 1 A. It would indicate something was loose about the fastening of the cylinder of the machine. — Q. What in your opinion would be the effect upon a board passing over the knives of the planer with a loose cylinder ? A. In my opinion the board would ride upon and jump in cross-grain or anything, and if a man’s hand was anywhere near, it would pull his hand in towards the knives according chiefly to the way he had hold of it.”</p> <p>At the trial of an action against the proprietor of a woodworking establishment by an employee therein to recover for injuries alleged to have been due to a defective condition of a buzz planer, the plaintiff’s evidence in chief had tended to show that the machine was defective as alleged, and one who had acted as superintendent of the defendant had testified as part of the defendant’s case, that at the time of the accident to the plaintiff the machine was not out of repair. In rebuttal, the plaintiff was allowed to call a witness who testified that, after the accident, the defendant’s superintendent, who previously had testified, had stated, “I will see that no one else runs that machine but myself until it is fixed.” Held, that, while the testimony was not competent to show an admission which was binding upon the defendant, it was admissible as tending to contradict the previous testimony of the superintendent.</p>

<p>Replevin, Bond. Damages, In action on replevin bond. Practice, Civil, Costs. Interest. Estoppel. Evidence, Presumptions and burden of proof.</p> <p>In an action upon a replevin bond, the condition in which is that the obligor “ shall prosecute said action of replevin to final judgment, and shall pay such damages and costs as the said [defendant in replevin] shall recover against [the obligor], and shall also return the property replevied, in case such shall be the final judgment,” there can be no recovery for the expenses, including counsel fees, which the defendant in the replevin suit was obliged to incur in defense of that suit and in the prosecution of the suit upon the bond, both because the bond includes no provision for the payment of such expenses, and because the taxable costs which are recovered in such cases are in the contemplation of the law a full indemnity for all the expenses incurred in defense and in prosecution.</p> <p>In an action upon a replevin bond, the plaintiff cannot recover interest upon the value of the property detained for a period previous to the judgment in the replevin suit.</p> <p>All the damages up to the time of judgment, which the defendant in a replevin suit in case he is successful may recover for the taking and detention of the replevied property, including interest upon the value of the property, if such interest is taken to be the damages for the detention, and also including the interest at the rate of twelve per cent allowed by R. L. c. 190, § 11, in case at the time the goods were replevied they were under attachment and the service of an execution is thereby delayed, should be assessed in the replevin suit, and if such damages are not included in the judgment in the replevin suit, they cannot be recovered at all/</p> <p>In an action upon a replevin bond, the defendant, who was the plaintiff in the replevin suit, is not estopped to prove that the value of the goods replevied was less than $5,000 by the facts that the replevin writ contained an order that the officer should deliver the replevied property to the plaintiff named in the writ if the plaintiff “ shall give bond ... in the sum of $10,000, being twice the value of ” the property replevied, and the fact that such bond for $10,000 was given and accepted by the officer who served the writ and was delivered to the defendant, such recitals being evidence but not conclusive evidence.</p> <p>In an action upon a replevin bond where it appears that the defendant, who was the plaintiff in the replevin suit, has failed to return the property which he seized by virtue of the replevin writ and which the judgment in the replevin suit directed him to return, the plaintiff is entitled to recover, besides the amounts awarded to him as damages by the judgment in the replevin suit and interest thereon a.t six per cent from the date of such judgment, the fair market value of the property in as good order and condition as it was at the date of the final judgment in the replevin suit; plus interest on such amount at the rate of six per cent.</p>

<p>Tort for personal injuries sustained in a collision of an electric street car of the defendant and an express wagon in which the plaintiff was being driven. Writ dated December 31,1902.</p> <p>The case was tried before Harris, J. The evidence as to the relations between the plaintiff and the driver of the express wagon tended to show that about two years previous to the accident the plaintiff had been engaged in the express business for about two years, that at that time he sold out his express business to Alexander Dwyer and Nelson S. Dwyer, and, after the sale, remained in Lexington about six months, and then went to Sheffield, Vermont. Shortly before the accident be came from Vermont to do some business with one of the Dwyers, and met Alexander Dwyer in Boston and they rode out on the train together. On arriving at Lexington he proceeded to the stable of the Dwyers and was driven by Alexander about two miles to Holbrook’s store, which is the store referred to in the opinion, and waited there until Nelson S. Dwyer came out from Boston, driving an express wagon drawn by two horses and owned by the Dwyer Brothers, loaded with goods to be delivered at various points in Lexington and East Lexington. A small portion of the goods was taken off at Holbrook’s store, and then the plaintiff and Alexander Dwyer got upon the loaded wagon. Alexander Dwyer took the reins and drove away from the store with the plaintiff sitting upon the seat of the wagon beside him, Dwyer on the right hand of the seat and the plaintiff on the left. Dwyer continued driving the wagon until the collision occurred.</p> <p>Other facts are stated in the opinion.</p> <p>At the close of the evidence, the presiding judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Evidence, Extrinsic affecting writings. Contract.</p> <p>At the trial of an action of contract where the declaration alleged that the defendant, in consideration of the plaintiff’s forbearance to sue him for injuries resulting from alleged negligence on the part of the defendant, promised to pay the plaintiff §100 and certain wages until he had fully recovered, but, after paying the wages for a time, refused to do so further, evidence of the plaintiff tended to show that an oral agreement to such effect was made between the plaintiff and an agent of the defendant, that then the defendant's agent drew up what he said was a memorandum of the agreement which, after the plaintiff had started to sign it, he finally refused to sign because it did not contain the agreement for the payment of future wages, and that thereupon the defendant’s agent tore up the memorandum and drew one containing the agreement as to wages properly stated, which the plaintiff signed and gave to the agent, who paid him §100. The evidence of the defendant contradicted that of the plaintiff. No such memorandum as that testified to by the plaintiff’s witnesses was produced by the defendant, but the defendant did produce a paper purporting to be signed by the plaintiff by which he acknowledged the receipt of “ wages in full, medical attendance, and §100 settlement in full.” The defendant’s agent testified that the plaintiff signed such paper and that it was the only one that he did sign. The plaintiff’s witnesses denied that the plaintiff signed it. At the close of the evidence the defendant asked that all of the evidence as to the oral agreement made between the plaintiff and the defendant’s agent be stricken out. The presiding judge refused to order that the evidence be stricken out, and instructed the jury that, if the negotiations resulted in a written agreement between the parties, the action could not be maintained. The jury found for the plaintiff. Held, that the evidence warranted a finding that the agreement between the parties liad not been reduced to writing, that the jury must have found so, and therefore that the ruling asked for by the defendant was refused rightly.</p>

<p>Contract, What constitutes., Evidence, Presumptions and burden of proof. Agency, Undisclosed. Husband and Wife. Practice, Civil, Election between defendants, Election between counts, Exceptions.</p> <p>At the trial of an action against a woman for the purchase price of stone alleged to have been furnished by the plaintiff for the building of a cellar upon the defendant’s land, there was evidence tending to show that the land upon which the cellar was being built was the defendant’s, but that the plaintiff did not know that fact until the action was commenced, and that the defendant’s husband had told him that he owned the land and that he would pay for the stone. The defendant’s husband testified that he had told the defendant that he was building the house upon her land and “ that she knew what was being done there in a general way and she objected to my building it.” Held, that the jury might • have disbelieved the testimony of the defendant’s husband that the defendant objected to the building of the house, and that the facts warranted a finding that the husband was the wife’s agent in procuring the stone for the cellar, and that the agreement with the plaintiff was made by her authority.</p> <p>At the trial of an action of contract against a husband and a wife, where the evidence is conflicting and, if the husband is found to have made a contract with the plaintiff as the wife’s agent, the husband should not be held liable, but the wife should be, but, if such agency is not found to exist, the husband should be held liable but not the wife, an exception of the'defendant to a refusal by the presiding judge to compel the plaintiff to elect as between the defendants will not be sustained if the jury are told in the charge that the plaintiff can recover against only one of the defendants.</p> <p>The declaration in an action of contract against a husband and a wife contained three counts. The first count alleged that the defendants owed the plaintiff $90 for stone sold and delivered by the plaintiff to the defendants. The second count alleged that at the request of one F., an agent of the defendants, the plaintiff delivered a part of the stone and then ceased delivery because he was not paid; that thereupon the defendants promised the plaintiff to pay $90 for the stone if he would complete the delivery, and also promised that, if the plaintiff would release E. from any claim on account of the stone and would procure an order for $90 from F. and would deliver it to them, they would pay the plaintiff $90; that the plaintiff delivered the stone and procured the order and delivered it to the defendants but that the defendants had not paid the $90. The third count, added by amendment at the trial of the case and at the close of the evidence, alleged that the defendants agreed with the plaintiff that, “ in consideration that he would procure from E. an order on the defendants for §90, they would pay him $90,” and that the plaintiff procured the order and delivered it to the defendants. The counts were alleged all to be for the same cause of action. At the trial, there was evidence tending to support the allegations of all the counts except that it appeared that the plaintiff did not know the defendant wife in the transaction until the action was commenced, and the jury were correctly instructed that they could find against only one of the defendants. At the close of the evidence, the defendant asked that the plaintiff be requested to elect which count he would proceed upon. The request was refused. The jury found for the plaintiff against the defendant wife only. Held, that the different counts were not so at variance with one another that the plaintiff should have been precluded from relying upon them to meet such a view of the evidence as the jury might take.</p> <p>The declaration in an action of contract against two persons, a husband and wife, contained three counts, all alleged to be for the same cause of action. The evidence introduced at the trial would have supported a verdict against either the husband or the wife on either of the first two counts according to the view which the jury took of the facts; but on the third count the verdict could be against the husband only. At the close of the evidence, the wife asked for a ruling that “ on all the evidence the plaintiff could not recover against ” her. The request did not refer to any particular count. The ruling was refused and the jury were instructed that they could find against only one of the defendants. The jury found generally against the wife. Held, that a request for an instruction that the wife could not be held under the third count could not be raised for the first time after the general verdict because under the judge’s charge it must be assumed that the verdict was returned upon the count or counts to which the evidence was applicable, and therefore that it could not have been upon the third count.</p>

<p>Sills and Notes, Rights of holder in due course.</p> <p>Under R. L. c. 73, §§ 69-74, one who purchases a foreign bill of exchange for cash before maturity and without notice of any infirmity is a holder in due course, and in an action on the bill against the acceptor by one having the rights of such a holder, the defense that the drawer of the bill secured its acceptance by fraud or misrepresentation is not open to the defendant; nor in such an action is the bill subject to a counter claim or set-off against the drawer.</p>

<p>Insurance, Fire. Agency. Estoppel.</p> <p>One who has been appointed by the authorized agents of a fire insurance company a “subordinate agent” and has received from the insurance commissioner a license, still existing, stating that he has complied with the laws relating to agents of such companies and is authorized to transact within this Commonwealth, for the company in question, “ the business of fire insurance so far as he may be legally empowered to do so by the aforesaid company as its sub-agent,” but who has not been authorized by the insurance company nor by its agents who appointed him, nor by any other person acting for the company, to make contracts of insurance or to make indorsements on policies or to assent to removals of property, cannot bind the insurance company by his assent to the removal of certain household furniture covered hy a policy issued by the company in the Massachusetts standard form upon such property in a certain building, by receiving such policy from its holder and agreeing to have it changed to cover the property when removed to another building, and his acts and promises in this regard cannot estop the insurance company, when sued upon the policy, from setting up the defense that the insured property when destroyed by fire had been removed from the premises described in the policy without the assent in writing or in print of the company when such removal was not necessary for the preservation of the property from fire.</p>

<p>Railroad Commissioners. Electric Railroad. Certiorari. Words, “Refusal.”</p> <p>Under St. 1906, c. 516, § 5, which provides that the directors named in a written agreement of association for the formation of an electric railroad company may apply to the board of railroad commissioners for a certificate that public convenience and necessity require the construction of a railroad as proposed in sucli agreement, and further provides that, “ if said board refuses to issue such a certificate, no further proceedings shall be had, but the application may be renewed after one year from the date of such refusal,” the dismissal of such an application without prejudice at the request of the applicants is not such a refusal, nor is the dismissal of an application for an informality upon a like request, the word “refusal” in the statute meaning an adjudication against the application founded upon a determination of the question whether in the public interest it ought or ought not to be granted; and after the dismissal of such an application for an informality at the request of the applicants, the application may be renewed in proper form before the expiration of a year.</p> <p>Upon a petition for a writ of certiorari to correct alleged errors of law in proceedings before the board of railroad commissioners, the only facts outside the original record which can be considered by the court are those set up in the official answers of the commissioners.</p> <p>In a petition for a writ of certiorari to correct alleged errors of law in proceedings before the board of railroad commissioners, the clerk of that board, whose duties are defined by St. 1906, c. 463, Part I. § 1, should not be joined as a respondent, the records which it is his duty to keep being subject to the control of the coraraissioners so far as is essential to the proper administration of justice in the proceedings before them.</p> <p>Whether a writ of certiorari is the proper .remedy to correct errors of law made by the board of railroad commissioners upon an application under St. 1906, c. 516, § 5, by the directors named in a written agreement of association for the formation of an electric railroad company for a certificate that public convenience and necessity require the construction of a railroad as proposed in such agreement, or whether the proper remedy would be in equity, here was not considered, because it was held that the commissioners liad made no error.</p>

<p>Mortgage, Of real estate.</p> <p>A portion of R. L. c. 182, § 15, which originally was St. 1882, c. 237, provides that when the record title of land is encumbered by an undischarged mortgage, and the mortgagor and those having his estate therein have been in uninterrupted possession of the land for twenty years after the expiration of the time limited in the mortgage for the full performance of the condition thereof, he or they may apply to the court by petition setting forth the facts, and if, after such notice by publication or otherwise as the court orders, no evidence is offered of a payment on account of the debt secured by such mortgage within twenty years after the expiration of the time limited for the performance thereof or of any other act in recognition of its existence as a valid mortgage, the court may enter a decree reciting the facts and findings, which shall be recorded in the registry of deeds for the county or district in which the land lies, and no action to enforce a title under the mortgage shall thereafter be maintained. Upon a petition in the Land Court under this statute the petitioner introduced evidence tending to prove the averments of his petition, and the respondent introduced evidence tending to show that a payment was made on account of the mortgage less than twenty years before the filing of the petition, and introduced other evidence tending to show that the mortgage had been recognized by the mortgagor as valid within twenty years. The judge dismissed the petition, and ruled that upon the introduction of this evidence by the respondent the court had no authority to enter a decree for the petitioner under the statute. Held, that the petition was dismissed rightly, and that the ruling of the judge was correct, the court having no jurisdiction to make a decree where evidence is offered of a payment on the mortgage or of a recognition of it within twenty years.</p>

<p>Cambridge, City solicitor. Municipal Corporations. Elections.</p> <p>In the provision of the revised charter of the city of Cambridge, contained in St. 1891, c. 364, § 20, as amended by St. 1907, c. 491, that in the year 1908, and every third year thereafter, in the month of April the city council shall elect a solicitor for the city of Cambridge, the mention of the month in which the election shall be held is merely directory, and, upon a petition for a writ of mandamus contesting the validity of the election of a city solicitor by the city council of that city, it was conceded that the first election after the amendment of 1907 could take place lawfully on June 29, 1909.</p> <p>A provision contained in the Joint Rules and Orders of the City Council of the city of Cambridge that every ordinance and every order requiring concurrent action shall, after passing one board, remain in the possession of the clerk of that board for thirty-six hours, to give an opportunity for a motion for reconsideration, has no application to the election of a city solicitor by a concurrent vote of the city council of that city taken orally as required by E. L. c. 26, § 7, such a proceeding not being an ordinance or an order.</p> <p>A rule of the common council of a city providing that “ in the absence of the president, the clerk, and in his absence, the senior member present, shall call the council to order, and preside until a president pro tempore is chosen by ballot," applies only to the organization of a meeting in the absence of the president, and has no application where, after a meeting has been organized and has been doing business, the president abandons his post, leaving the meeting without a presiding officer. In such a case the meeting properly may choose a presiding officer in any reasonable way.</p> <p>Section 20 of St. 1891, c. 364, of the revised charter of the city of Cambridge, as amended by St. 1907, c. 491, provides that at the times there directed the city council shall by concurrent vote, the board of aldermen acting first, elect a solicitor for the city. The board of aldermen acting under this statute voted to elect a certain person city solicitor and sent a communication to the common council giving notice of the election. On the receipt of this communication, a member of the common council moved to adjourn. The president declared that this motion was carried, “ and immediately left the chair.” The vote ,on the motion was doubted. A member of the council at once assumed the chair, and upon the motion of another member was chosen president pro tempore. A committee which was appointed to wait on the president and request him to resume his duties reported that they were unable to find the president. The communication from the board of aldermen giving notice of their election of a city solicitor then was read by the president pro tempore, and the council upon motion proceeded to the election of a city solicitor, the roll being called and the vote taken viva voce as required by E. L. c. 26, § 7. A majority of the members present, who also were a majority of all the members of the common council, voted for the same person elected by the board of aldermen, the person voted for was declared to have been elected city solicitor, and notice to this effect was sent to the board of aldermen. A rule of the common council was as follows: “ The president shall declare all votes. If any member doubts the vote, the president, without further debate upon the question, shall require the members voting in the affirmative and negative to rise and stand until they are counted.” Upon a petition for a writ of mandamus contesting the validity of the election of the city solicitor, it was held, that upon the election of a temporary presiding officer, it became his duty to resolve the doubt on the motion to adjourn, and that, although in doing this the temporary president and the council did not follow the rule, yet, by proceeding to do business apparently by common consent and without objection from anybody, they resolved the doubt in regard to the vote on the motion to adjourn, their action being inconsistent with any other conclusion than that the motion was not carried; that this action, appearing to have been taken by the unanimous consent of all the members present and its meaning being plain, was as effectual as if it had been regular; and that the president’s declaration before leaving the chair that the motion to adjourn was carried became of no effect when the vote was doubted without delay; therefore, that the election of the city solicitor was valid.</p>

<p>Negligence. Street Railway. Carrier, Of passengers.</p> <p>In an action by an administrator against a street railway corporation under St. 1907, c. 392, for causing the death of the plaintiff’s intestate while a passenger on a car of the defendant by reason of the negligence of a servant of the defendant, evidence offered by the defendant, to show that at the time of the accident the intestate was riding on the front platform of the car where printed notices were posted stating that passengers riding on the front platform did so at their own risk and that the intestate knew of the existence of these notices and had discussed their effect with the motorman, is not admissible, any lack of due care on the part of the intestate being immaterial, and the evidence having no tendency to show that the intestate was not a passenger and having no bearing on the degree of culpability of the defendant affecting the assessment of damages.</p> <p>The provisions of St. 1907, c. 392, which impose a fine and civil liability upon a corporation operating a street railway for causing the death of a passenger by reason of the unfitness or negligence of its agents or servants while engaged in its business, are penal in their character and this liability of the corporation is not affected by the question whether the passenger was in the exercise of due care.</p>

<p>Police. Officer. Witness, Fees in criminal cases.</p> <p>Whether a police officer of a town, who is entitled to witness fees under R. L. c. 204, § 44, for attending as a witness in criminal cases at a place other than his residence, can recover such fees in an action against the clerk of the court in which the cases were tried, or whether he should bring his action against the town, here was not determined, because the plaintiff was held to be entitled to no fees.</p> <p>Under R. L. c. 204, §§ 42, 44, the chief of police of a town, who is receiving a salary as such chief and as a police officer and whose duty it is to be the prosecuting officer for the town and to have charge of all criminal complaints and to prosecute offenders, is not entitled to witness fees for attendance “ as a witness at a place other than his residence” in cases which it is his duty to prosecute.</p> <p>Whether under the provision of R. L. c. 204, § 44, that any of certain officers attending court “as a witness at a place other than his residence ” shall be allowed a witness fee, which applies only to such attendance as is outside the performance of the duties for which such officer is paid, a police officer of the town of Dedham, who resides in the town of Norwood, when attending as a witness at the District Court of Northern Norfolk, which sits at Dedham and includes in its jurisdiction the town of Norwood, is attending “as a witness at a place other than his residence,” here was not determined, because the attendance of the plaintiff was in the performance of the duties which he was paid a salary for-performing, so that he was not entitled in any case to recover under the statute.</p>

<p> Guardian, Ad litem. Prohibition. Jurisdiction. </p> <p>It is the duty of a court, in which proceedings are pending, to appoint a guardian ad litem whenever a party to the proceedings by reason of minority or mental unsoundness requires such representation, and the court has jurisdiction to consider and decide the question whether such a guardian is required. •</p> <p>A writ of prohibition is granted only to restrain a tribunal from acting in matters outside its jurisdiction, and does not lie to correct the errors of a tribunal acting within its jurisdiction.</p> <p>Where a court in which proceedings are pending exercises its jurisdiction by appointing a guardian ad litem for one of the litigants, and such appointment is irregular or informal for want of a previous notice to the litigant to appear and show cause why such a guardian should not be appointed or for any other reason, the remedy for the correction of the error is not by a writ of prohibition but by appeal or exception or in some cases by a writ of certiorari.</p>

<p>Agency, Scope of apparent authority. Evidence, To show apparent authority.</p> <p>In an action by a native of Finland against an ocean steamship company for a sum of money entrusted to an employee of the defendant for transmission to a person in Finland, it appeared that the employee of the defendant to whom the money was entrusted appropriated it to his own use and shortly afterwards disappeared. The plaintiff had been in this country about ten years and could not read, write or speak English. The employee of the defendant to whom the plaintiff entrusted the money also was a Finn, and the plaintiff had known him for about four years, having met him first at the defendant's office, when the plaintiff went there with a friend who had business with the defendant. At the time of entrusting the money the plaintiff went into a basement office at the defendant’s principal place of business in this Commonwealth, where the defendant’s name was displayed and where also was a notice that foreign money orders were for sale. Inside the office was a counter behind which were five persons, all at desks, one of whom was the Finnish employee. The plaintiff addressed himself to this employee, and explained to him that lie wished to send the sum of money to a certain person in Finland. The employee undertook in behalf of the defendant to send the monéy for the plaintiff and said, “In between six and seven weeks, if the money should not reach Finland, you could come here in this office and get your money back.” Thereupon the plaintiff told the employee where to send the money and counted.it out to him, and the employee gave the plaintiff a receipt for the money on a memorandum form of the defendant signed in his own name. The business was conducted openly before the other persons present. There was evidence that the Finnish employee, with the approval of a person who was or represented himself to be the defendant’s agent, previously had acted for the defendant in forwarding to a person in Finland tickets from Finland to America and that his letters in this transaction were copied in the letter books in the defendant’s office, also that an advertisement in Finnish had been inserted by the defendant in a newspaper in another city which referred to the employee in question in connection with the defendant’s passenger business from Finland as “ Manager of the Finnish department.” The head of the department in which this man was employed testified on cross-examination that the defendant sometimes sent tickets to Finland for Finnish customers, and that if a Finnish customer came in, the business, whether relating to the sale of tickets or drafts, ordinarily would be turned over to the defendant’s Finnish representative and that he himself would not appear in it at all. Held, that as between the plaintiff and the defendant the actual authority of the employee to whom the plaintiff entrusted the money was immaterial, if the defendant suffered him to exercise an authority which he did not in fact possess or negligently failed to prevent him from doing so and the plaintiff thereby was led to deal with him as with one having the authority which he purported to have; and that there was evidence warranting a finding that the defendant’s employee in receiving the plaintiff’s money was acting within the scope of his apparent authority as agent of the defendant and that the plaintiff was justified in dealing with him accordingly.</p> <p>In an action to recover the amount of a sum of money which was entrusted by the plaintiff to an employee of the defendant, who professed to receive it as the agent of the defendant for transmission to a foreign country, where the case of the plaintiff depends on his showing that the employee of the defendant to whom he entrusted the money was acting within the scope of his apparent authority as agent of the defendant, evidence of the history of the transaction, including the receipt in writing for the money given to the plaintiff by the employee whose apparent authority is in question, and evidence tending to show that such employee was undertaking to act as agent of the defendant and not on his own account, including his card which he gave to the plaintiff at the defendant’s office with the name and address of the defendant upon it below his own name, are pertinent and competent. So also evidence, that such employee made use of the defendant’s letter book to copy letters written by him in regard to a previous transaction with another person in which he had undertaken to act for the defendant, properly may be admitted as bearing, although slightly, on the scope of the apparent authority of the employee and on the defendant’s means of knowledge in regard to such apparent authority.</p>

<p>Mandamus. Practice, Civil, Report by judge. Corporation, Foreign, Inspection of books by stockholder.</p> <p>Where a petition for a writ of mandamus comes before a single justice of this court, who after a hearing orders that the writ should issue, but at the request of the respondents reports the case for decision by the full court, the report brings before this court only questions of law, and the decision of the single justice must be given effect unless some error of law appears, the proceeding being one at law and not in equity.</p> <p>The right of a stockholder in a corporation to inspect its books and records for good reasons and under proper conditions, which was recognized and enforced by this court in Varney v. Baker, 194 Mass. 239, will be enforced in this Commonwealth against a corporation organized in another State, when its books and the officer having custody of them are here and it has a usual place of business in Massachusetts.</p> <p>Where at the hearing upon a petition for a writ of mandamus against a corporation to enforce the plaintiff’s right to inspect the books and records of the respondent for good reasons and under proper conditions, if the petitioner shows that he asked the president of the respondent and also its treasurer, who was the custodian of the books, to be allowed to inspect them, and that the books and records on one occasion were taken from the petitioner’s possession by force after he had begun to examine them, it cannot be said as matter of law that the petitioner did not make a sufficient effort to obtain the books for examination before filing his petition.</p> <p>A writ of mandamus is the proper remedy to enforce the right of a stockholder in a corporation to inspect its books and records for good reasons and under proper conditions.</p>

<p>Complaint, received and sworn to in the District Court of Northern Norfolk on February 22,1908, charging the defendant with maintaining a nuisance in using a tenement in Norwood for the illegal sale and illegal keeping for sale of intoxicating liquors.</p> <p>On appeal to the Superior Court, the case was tried before . Lawton, J. The defendant manufactured cider in a cider mill back of his house from apples which he purchased. The alleged illegal sales were made in the cider mill. Other facts are stated in the opinion. The jury found the defendant guilty ; and the defendant alleged exceptions.</p>

<p>Homicide. Pleading, Criminal, Bill of particulars. Practice, Criminal, Motion to dismiss indictment, Motion to quash indictment, Opening statement to jury, Judge’s charge. Evidence, Judicial notice, Relevancy and materiality, Remoteness, Affecting credibility of witness. Witness, Impeachment.</p> <p>Three counts in an indictment for murder respectively charged as the means by which the murder was committed that the defendant “ with his hands or some instrument to the jurors unknown did choke and strangle ” a certain woman, “ did throw and push her into a certain river by means of which throwing and pushing she . . . was . . . drowned,” and “ with his hands or some instrument to the jurors unknown, or by some other means to the jurors unknown, did suffocate her.” The defendant moved that the Commonwealth be ordered to file a bill of particulars under each count setting forth in detail the time and place of the alleged crime and “ the manner and means by and in which ” the crime “ is alleged to have been committed.” The trial court thereupon ordered that as to each count the Commonwealth file forthwith “a statement of such particulars as shall give to the defendant reasonable knowledge of the time and place of the alleged crime and means and manner by and in which it is alleged" that the crime was committed and “ a statement of sucli particulars as may be necessary to give the defendant and the court reasonable knowledge of the nature and grounds of the crime charged.” In response thereto, the Commonwealth filed a statement that the time of the commission of the murder upon which it relied was between 10 p. M. on September 19 and 12.30 p. m. on September 20 of a certain year, that the place was “ in or about that part of the town of Dartmouth called Padanaram,” but that it was unable to file as to either of the counts of the indictment any further particulars which would “ give the defendant or the court further knowledge of the means and manner whereby the crime was committed.” The defendant thereupon filed motions that the particulars be adjudged insufficient and the indictment therefore be dismissed, and that each count he quashed and dismissed because of the insufficient bill of particulars. The motions after a hearing were overruled, and the defendant excepted and appealed. Held, that the exceptions must be overruled and the appeals dismissed, because the only reasonable interpretation of the record was that the final view of the trial court was either that the particulars furnished were a sufficient compliance with the court’s final order, or that no full compliance was possible and therefore that none was to be required.</p> <p>Where there is no statement in an indictment for murder of the time when the crime is alleged to have been committed, but the caption of the indictment . states that the indictment was presented by the jurors on the “first Monday of November in the year of our Lord one thousand nine hundred and eight,” and a bill of particulars filed by the Commonwealtli states that the time it relied on was “ between ten o’clock in the evening of September 19 and twelve thirty o’clock in the afternoon of September 20 ” of a certain year, an exception to and an appeal from the denial of a motion to quash the indictment because in connection with the bill of particulars it did not “plainly and concisely, or sufficiently, describe the ” time of the crime, respectively must be overruled and dismissed.</p> <p>Where there is no statement in an indictment for murder of the place where the crime is alleged to have been committed, but the caption of the indictment states that the indictment was presented in the county of Bristol, and a bill of particulars filed by the Commonwealth states that the place relied on was “ that part of the town of Dartmouth commonly called Padanaram,” tills court will take judicial notice of the fact that there is only one town called Dartmouth in Bristol County, and an exception to and an appeal from the denial of a motion to quash the indictment because in connection with the bill of particulars it did not “ plainly and concisely, or sufficiently, describe the ” place where the crime was committed, respectively must be overruled and dismissed.</p> <p>Each of three counts of an indictment for murder charged an assault and alleged that by reason of the acts described therein the victim instantly died. One count charged that the defendant “ with his hands or some instrument to the jurors unknown did choke and strangle ” the victim, a woman; another charged that the defendant " did throw and push her into a certain river, by means of which throwing and pushing she . . . was . . . drowned,” and the last count charged that the defendant “'with his hands or some instrument to the jurors unknown, or by some other means to the jurors unknown, did suffocate ” the victim. In response to an order that the Commonwealth file a statement of such particulars as would give to the defendant reasonable knowledge of the means and manner by and in which it was alleged that the crime was committed, the Commonwealth filed a statement that it was “ unable to file as to either of the counts . . . any further particulars which will give the defendant or the court further knowledge of the means and manner whereby the crime was committed.” The defendant moved that all the counts be quashed on the ground that they did not, in connection with the bill of particulars, “ plainly and concisely, or sufficiently, describe the ” act constituting the crime charged or the manner and means by which it was committed. The motion was denied and the defendant excepted and appealed. Held, that the exception must be overruled and the appeal dismissed, because each count, taken in connection with the bill of particulars, contained such particularity of allegation as might be of service to the defendant in enabling him to understand the charge and to prepare his defense.</p> <p>In an opening statement to the jury at the trial of an indictment for murder, the district attorney stated, as facts which he expected to prove, matters as to which it was at least doubtful whether they might not be material in certain aspects of the other evidence. After such matters were stated, counsel for the defendant asked that the statement “ be struck out as an improper statement, not properly evidence in the case.” The trial court stated in the presence and hearing of the jury that the jury and counsel understood that “ the opening is not evidence. ... It is not to affect the jury except as supported by evidence later. If the jury so understand it, I will let it stand.” And later in the charge to the jury they were instructed accordingly. Held, that there was no error in the action of the court.</p> <p>At the trial of an indictment charging the defendant with the murder of his wife on September 19,1908, it appeared that no one saw the alleged crime committed. There was evidence tending to show that at the time of the alleged murder the defendant was between twenty-five and thirty years of age; that on October 3, 1907, a second period of enlistment in the United States army had expired, for three years before which he had been stationed at Fort Rodman in New Bedford and had had very close, even illicit, relations with a girl named G., in whose presence the defendant had shot a man and who had been the only eyewitness of that act; that on October 3, 1907, the defendant went- to Tennessee where on October 26, 1907, he married; that soon afterward he re-enlisted and returned to New Bedford, his wife later joining him; that, by agreement between himself and his wife, she was introduced as his sister because they feared that they might arouse the hostility of G. which might result in the defendant’s arrest for homicide; that the wife therefore boarded away from the barracks and the defendant lived in the barracks; that subsequently the defendant and his wife quarrelled and she told of his having shot the man in the presence of G., which resulted in the defendant’s arrest, trial and discharge in the District Court in July, 1908; that at this time G. learned of the defendant’s marriage; that shortly after the trial the defendant was arrested and convicted of non-support of his wife. There was conflicting evidence as to whether the relations between the defendant and his wife were affectionate. Further evidence tended to show that on Saturday, September 19, 1908, the defendant’s wife went upstairs to her room early and got into bed, that after a few minutes she rose from the bed, left the house by stealth and, after making a call upon a friend, took a car to Padanaram, a part of the town of Dartmouth a few miles distant, arriving there a little after ten o’clock in the evening. The next day her dead body was discovered floating in water two feet in depth near the bridge at Padanaram, with no mark upon it excepting a slight scratch near one eye; that at the time of her death she was from three and a half to four months advanced in pregnancy. Subject to exceptions by the defendant, the Commonwealth was allowed to introduce testimony of various witnesses as to interviews between the defendant and his wife in July and August, 1908, when he had used vile and abusive epithets toward her; evidence that the defendant had brought to his wife a bottle of laudanum, a bottle of larkspur, and a bottle containing another liquid, saying “I want to get rid of that baby ”; testimony of one who stated that the defendant had said to him after the proceedings for non-support that he did not like giving his wife “$12 out of his pay because he wouldn’t have enough money for himself”; testimony of a member of the New Bedford police that he had asked the defendant in the presence of his wife, “ if it wouldn’t be better for him to give the money' to his wife instead of spending it where he was spending it,” and that the defendant used vile, abusive and threatening language toward his wife; and letters which passed between S. and the defendant from October 29, 1907, to September 10, 1908, which showed that G. was infatuated with the defendant and was loyal to him even after she learned of his perfidy, which letters the defendant had kept and had not destroyed. Held, that the evidence excepted to was none of it too remote and was relevant and material as tending to show the defendant’s attitude of mind toward his wife and a motive on his part for desiring to get rid of her.</p> <p>At the trial of an indictment which charged that the defendant murdered his wife at Padanaram, a part of the town of Dartmouth, there was evidence tending to show that the defendant was seen at Padanaram at a certain time, and that, about five minutes before, the defendant’s wife also was seen there, that previous to the time when she was seen at Padanaram the wife had left a house where she was boarding and had called on a friend. Subject to an exception by the defendant, the friend was allowed to testify that the wife on previous occasions had seemed depressed in spirits, but that on the occasion in question she had seemed happier, and that she had stated that she then was on her way to Padanaram to meet her husband to look at a cottage which they could have for the winter. One of the grounds of defense was that the wife committed suicide. Held, that the evidence was admissible as tending to show the state of mind of the wife just preceding her death, following Commonwealth v. Trefethen, 157 Mass. 180.</p> <p>At the trial of an indictment which charged that the defendant murdered a woman by choking or strangling or suffocating her “ with his hands or some instrument to the jurors unknown,” it appeared that the body of the woman was found floating in two feet of water, that there were no marks of violence thereon and that no one saw the alleged crime committed. Medical experts for the Commonwealth, in answer to a hypothetical question, which assumed as true the facts placed in evidence by the Commonwealth, stated it as their opinion that the cause of the death was suffocation or strangulation, not drowning. There also was evidence tending to show that the defendant and the woman were both in the vicinity of the place where the body was found late in the evening preceding the time when it was found; that the defendant had been a private in the United States army for many years, and was illiterate. Subject to an exception by the defendant, the Commonwealth was allowed to introduce in evidence a soldier’s handbook which was found among the defendant’s effects and contained instructions and diagrams, among others, for the compression of the carotid artery, the pages where such instructions and diagrams were found being turned down when the book was found. There also was evidence that the defendant had received oral instructions on the same subject and had been warned that if both the carotid arteries were compressed simultaneously, “ there is liable to be something happen.” Held, that the evidence was relevant and material and was admitted rightly.</p> <p>At the trial of an indictment for murder, the defendant introduced evidence tending to show that, at the time of the alleged murder, he was with one W., a woman, at a place some distance from the place where the crime was alleged to have been committed, and offered to prove by another witness that he interviewed the witness on the afternoon of the day preceding that of the alleged crime and sought to engage a room at the witness’s home for W. The evidence was excluded. Held, that it was excluded rightly, since it had no tendency to show that the defendant was not at the place of the alleged crime at the time when it was alleged to have been committed.</p> <p>At the trial of an indictment for murder, a woman, W., testified on behalf of the defendant that at the time of the alleged murder the defendant was with her. Subject to an exception by the defendant, the Commonwealth was •allowed to introduce in evidence letters from W. to the defendant which •tended to show intimacy and friendly feeling between them. Held, that the letters were admissible as tending to show bias of the witness in favor of the •defendant.</p> <p>At the trial of an indictment for murder, it appeared that after the defendant’s arrest lie was examined by the chief of police of a certain city, who was a witness for the Commonwealth. The defendant sought to show that a certain woman, whose deposition afterwards was taken at the request of the defendant and was in evidence, came to the chief of police before the trial and told him that she was thinking of leaving the Commonwealth, and that he said that she need not stay, and that he did not communicate her intention to the defendant. The trial court excluded the evidence offered, without prejudice to the right to renew the offer if the evidence should “ become competent later,” and the defendant excepted. The offer was not renewed. The evidence taken by deposition, in connection with the other evidence in the case, was as favorable to the Commonwealth as to the defendant. Held, that the act of the chief of police fell far short of any tendency to show bias, and that the action of the trial court in excluding it was proper.</p> <p>At the trial of an indictment for murder, it appeared that the deceased was the wife of the defendant, and that there was no eyewitness to the alleged crime, but that the wife’s body was found floating in two feet of water near Padanaram bridge in the town of Dartmouth shortly after noon on a Sunday. A witness for the Commonwealth, who maintained a pavilion near Padanaram bridge, testified that a woman, dressed as was the wife when her body was found, came up the steps of the pavilion shortly before ten o’clock on Saturday night and turned away, and that about five minutes later a man walked up the platform and looked in over the counter, that he saw the same man the following day, that his accurate recollection of first speaking of the occurrence was the following Monday evening, while talking with one S. and two others; that on the following Wednesday or Thursday he identified the defendant, then in custody, as the man whom he had seen on Saturday and Sunday. S. then was called as a witness and testified, subject to an exception by the defendant, that on Sunday afternoon he had seen the defendant come into the pavilion referred to, and that that evening he had had a conversation with the proprietor of the pavilion, the previous witness. He then answered affirmatively the question, “ Whether or not the defendant that Sunday evening was the subject matter of conversation between you í ” Held., that the evidence rightly was admitted.</p> <p>An indictment for murder charged in various counts respectively that the alleged crime was accomplished by pushing the victim, a woman, into a river whereby she was drowned, by choking and strangulation, and by suffocation. There was no eyewitness to the crime. The body of the victim was found in a river in two feet of water, with no marks of violence upon it. There was evidence tending to show that the defendant and the victim were in the vicinity of the place where the body was found on the night before it was found, and that previously the defendant liad been studying and receiving oral instruction with regard to the production of unconsciousness by compression of the carotid arteries. Medical experts called by the Commonwealth, in answer to hypothetical questions based on the facts in evidence, testified that the cause of the death was strangulation or suffocation. Medical experts for the defendant testified that the cause was drowning. The defendant’s contention was that the deceased committed suicide. There was ample evidence of motive for the murder. The trial court refused to rule that on the evidence the verdict should be “not guilty” as to ail the counts. Held, that the ruling was right, because the evidence was ample to warrant a verdict of guilty on each of the counts.</p> <p>At the trial of an indictment for murder where the evidence is circumstantial and there is testimony by medical experts, it is proper to refuse to rule as matter of law that “ opinion evidence is to be received with caution and where there is an honest difference of opinion among qualified experts the jury ought not to convict.”</p> <p>At the trial of an indictment for murder it is proper to refuse" to rule as matter of law that “ Evidence as to oral statements alleged to have been made by the defendant should be received with caution.”</p> <p>At the trial of an indictment for murder the following instructions contained in the charge to the .jury on the question of evidence which tended to show a motive for the alleged crime were held to be clear and correct: “Motive is no part of the offense charged, and the Government is not obliged in any case to prove a motive for murder, yet, evidence tending to' show a motive is always competent, because if a motive for the crime is clearly Shown, it may help to confirm the conclusion reached from all the other evidence, that the accused has committed the offense charged. While motive is not an essential ingredient of the crime of murder and it may be committed without a motive, yet it never can be committed without an intent, and as bearing upon the question of intent, motive or absence of motive may present considerations of the utmost importance. Motive often furnishes corroboration of intent in a case depending upon circumstantial evidence, and as this case depends upon circumstantial evidence, where a motive is shown and clearly established, such evidence of motive is competent for the consideration of the jury in connection with all the evidence in the case as bearing upon the intent with which the crime was committed, and on the other hand, absence of motive even if not conclusive may be considered as bearing upon the question of intent.”</p> <p>At the trial of an indictment charging the defendant with the murder of a woman who was his wife, there was evidence tending to show that the defendant and his wife had quarrelled, that he was annoyed at the approaching birth of a child and had attempted to induce her to procure an abortion, and that he had used vile epithets and abusive language toward her and had threatened her, and that he had been convicted on a complaint by her charging him with non-support. The following instructions, contained in the charge to the jury as to such evidence, were held to be clear and correct: “ There has also been some evidence introduced tending to show that the prisoner had tried to induce his wife to take certain medicines or drugs for the purpose of procuring her miscarriage ; and also evidence tending to show that the prisoner had been arrested for failure to support his wife. All the evidence on these various matters is not competent except so far as it bears upon the relations of the prisoner with his wife, in so far as it tends to show a motive for the offense for which he is now being tried. The jury should not consider any of this evidence as having any bearing upon the case except so far as it may or may not indicate a motive on his part to kill his wife. The fact, if it be a fact, that a person has committed a crime is not evidence that lie lias committed another crime.”</p> <p>At the trial of an indictment charging the defendant with the murder of his wife, there was evidence tending to show that before his marriage he had had intimate, even illicit, relations with one O. whom he liad deceived as to his marriage, and that he liad continued such intimate relations after the marriage; that, after G. discovered how lie liad deceived her, and after the defendant liad quarrelled with his wife, G. still remained faithful to him. Letters between G. and the defendant were introduced in evidence. The following instructions, contained in tlie charge to the jury on the subject of such letters, were held to be clear, correct and sufficient: “ Certain letters claimed to have been written by the prisoner to G., and other letters claimed to have been written by G. to the prisoner have been admitted in evidence. All these letters were admitted solely, so far as they had any bearing upon the relations existing between the prisoner and G., as bearing upon the question whether the prisoner did or did not have any motive for committing the offense charged. These letters should not be considered by the jury for any other purpose.”</p>

<p>Practice, Criminal, Appeal, Suspension of sentence. Police, District and Municipal Courts. Jurisdiction.</p> <p>The right of appeal in a criminal case in a police, district or municipal court is only from the sentence after conviction.</p> <p>One, who on a January 6 was convicted in a police court of assault and battery and was sentenced to pay a fine of §10 and to stand committed until it was paid, when informed of his right to take an appeal, stated in open court that he did not wish to appeal and waived his right to appeal, and requested a suspension of the execution of the sentence. Thereupon under St. 1905, c. 338, amending R. L. c. 220, § 1, the judge ordered that the execution of the sentence be suspended and that the defendant be placed on probation until the sitting of the court on January 12 upon the condition that the fine should be paid during the period of probation. On January 12 it appeared that the fine still was unpaid. The defendant then for the first time claimed an appeal from the sentence but the judge refused to allow it. Held, that the defendant’s appeal came too late.</p> <p>Where, after a conviction in a criminal case in a police, district or municipal court and a sentence to pay a fine of §10 and to stand committed until the fine is paid, the judge finds that the defendant is unable to pay the fine when it is imposed, and probably will not default, and that it will not be detrimental to the interests of the public to suspend the execution of the sentence and place the defendant on probation, and therefore in accordance with St. 1905, c. 338, amending R. L. c. 220, § 1, suspends the sentence for six days on condition that the fine shall be paid meanwhile, and at the end of such six days, on representations of the probation officer, the judge finds that the fine has not been paid and that the defendant is able to pay it, and thereupon revokes the suspension of the execution of the sentence, the defendant has no right of appeal from such finding and revocation.</p> <p>Where jurisdiction is given to a court or magistrate by a statute, and there is no provision for an appeal, the decision of the court or magistrate is final.</p>

<p>Contract or tort for the sum of $400 paid by the plaintiff to the defendant as a deposit under an agreement in writing dated June 17, 1907, by which the defendant agreed to sell to the plaintiff and the plaintiff agreed to purchase from the defendant a lot of land with a frame dwelling house thereon numbered 287 on West Fifth Street in that part of Boston called South Boston; with three counts, the first alleging fraud on the part of the defendant, the second alleging the conversion by the defendant of $400, the property of the plaintiff, and the third alleging that the defendant owed the plaintiff $400 received by the defendant to the plaintiff’s use. Writ dated July 12,1907.</p> <p>In the Superior Court the case was tried before Lawton, J. It appeared that a second agreement of the same date between the defendant and the plaintiff for the sale and purchase of the same house and lot on different terms was signed by the plaintiff and that the first agreement was returned by the plaintiff to the defendant and subsequently was destroyed. The plaintiff contended that the second agreement was obtained from him by fraud on the part of the defendant, and the case was submitted to the jury on this issue. The evidence is described in the opinion.</p> <p>At the close of the evidence the defendant asked the judge to make the following rulings:</p> <p>“ 1. On all the evidence, a verdict should be found for the defendant.</p> <p>“ 2. There is no evidence of fraud or misrepresentation, as alleged in count 1, on the part of the defendant, and a verdict should be found in his favor.</p> <p>“ 3. There is undisputed evidence that the plaintiff entered into a written contract with the defendant to purchase the defendant’s property; that the plaintiff deposited $100 under the terms of said contract, and that he neglected and refused to carry out that contract, whereby under the terms thereof he forfeited said $400, and a verdict should be found for the defendant on all three counts.</p> <p>“4. There is undisputed evidence that the plaintiff entered into a second written agreement with the defendant for the purchase of the defendant’s property, and waived, cancelled and discharged the defendant from the first written agreement, and accepted the second agreement as a substitute therefor, and that in said transaction there was no deceit practised, or misrepresentations made by the defendant, and verdict should be found for him on all three counts.”</p> <p>The judge refused to make any of these rulings and submitted the case to the jury, who returned a verdict for the plaintiff. The defendant alleged exceptions.</p> <p>The case was argued at the bar in November, 1909, before Knowlton, C. J., Morton, Braley, Sheldon & Bugg, JJ., and after-wards was submitted on briefs to all the justices.</p>

<p>Negligence. Street Baüway. Practice, Civil, Verdict, Exceptions.</p> <p>A young woman, who is ignorant of a custom existing in a city where she recently has arrived of entering the rear vestibule of a street car by the door on the right hand side while other cars are being operated on a parallel track at the left of the car, is not necessarily a trespasser in attempting to enter such a car as a passenger by standing upon the step leading to the left hand door of . the vestibule, which is closed while the right hand door is open, and rapping on the closed door for admission, and, if she is on the car lawfully, the conductor, when he sees her on the step and knows her evident purpose of entering the car, owes her the duty of exercising reasonable care for her protection until at least an opportunity has been given her to step down in safety.</p> <p>If a young woman, who is suffering from a dislocation of the hip and is carrying crutches which have been furnished to her to lessen the weight upon her hip in walking, being in a city where she is ignorant of a prevailing rule and custom as to entering the rear vestibule of a street car by the door on the right hand side while cars are being operated on a parallel track at the left of the car, stands upon the step leading to the left hand door of the vestibule of such a car with both hands on the grab irons, holding her crutches, and raps upon the closed door for admission, whereupon the conductor, seeing her there, shakes his head and immediately gives the signal to start the car, and the car starts, throwing the young woman to the ground, in an action brought by her against the corporation operating the railway, for her injuries thus caused, it cannot be ruled as matter of law that the plaintiff was negligent in being upon the step at the time of the accident, as it could not reasonably be anticipated that, if the plaintiff was refused admission on that side of the vestibule, the car would be set in motion instantly without allowing her time to step off.</p> <p>In an action against a corporation operating a street railway, it appeared that the plaintiff was a young woman, who was suffering from a dislocation of the hip and was carrying crutches which had been furnished to her to lessen the weight upon her hip in walking, and that, being ignorant of a prevailing rule and custom that where there are parallel street railway tracks in a street a person must enter the rear vestibule of a street car from the right hand side, she got upon the step leading to the left hand door of the vestibule of such a car with both hands upon the grab irons, holding her crutches, and rapped upon the closed door for admission, and that the conductor, seeing her there, shook his head and immediately gave the signal to start the car, whereupon the car started, and the plaintiff after being carried a short distance, was unable to retain her footing and fell into the street and was injured. Held, that there was evidence of wilful misconduct on the part of the conductor, in giving the signal to start the car in such a way as to cause the plaintiff in her crippled condition to fall into the street while it was in motion, which would make the defendant liable even if the plaintiff was a trespasser.</p> <p>In an action against a corporation operating a street railway, for injuries sustained by the plaintiff in falling from the step of a car of the defendant when the plaintiff had been attempting to enter the car by the left hand door of the rear vestibule, which was closed in accordance with a rule of the defendant, and the conductor on refusing to open the door had given at the same time a signal to start the car, which, being obeyed by the motorman, caused the accident, the jury should be instructed that, if they find that the plaintiff was not in the exercise of due care or was a trespasser upon the car, they can find the defendant liable only by finding that the acts of the conductor amounted to wilful and wanton recklessness toward the plaintiff.</p> <p>In an action against a corporation operating a street railway in Boston, for personal injuries from being thrown from a step of an electric street car of the defendant, it appeared that the plaintiff was a young woman who suffered from permanent lameness owing to a dislocation of the hip and had been furnished at a hospital, from which she -was returning, with crutches to lessen the weight upon her hip in walking. It could have been found that the plaintiff was not familiar with the methods of entering street cars in Boston, that she crossed the street and approached from the left hand side a vestibule car of the defendant which was stopping at a street crossing for the admission of passengers, that the left hand door of the rear vestibule of the car, on the side toward the parallel track, was closed and locked in accordance with a rule of the defendant and some persons were getting on or off on the right hand side of the vestibule where the door was open, that the plaintiff approached the car with the intention of entering it as a passenger, that she stood upon the step leading to the door on the left hand side of the vestibule with both hands on the grab irons, holding her crutches, and rapped upon the closed door, asking for admission, that the conductor saw her, but shook his head and did not open the door and at the same time rang the bell for the car to start, which it did, carrying the plaintiff a short distance, when being unable to retain her footing she fell off into the street and was injured. It further could have been found that the conductor must have understood that the plaintiff was attempting to enter the car for the purpose of becoming a passenger. Held, that the plaintiff’s mistake as to the method of entering the car, which the jury could find was owing to her ignorance of the rule and custom as to entering from the right hand side, did not necessarily make lier presence on the car unlawful, and that, if she was on the car lawfully, the conductor, knowing of her presence and of her evident purpose, owed her the duty of exercising reasonable care for her protection until at least an opportunity had been given her to step down in safety; that it could not be ruled as matter of law that the plaintiff was careless, as it could not have been reasonably anticipated that the car would be set in motion instantly without allowing the plaintiff time to step off ; and that there was evidence of wilful misconduct on the part of the conductor in giving the signal to start the car in such a way as to cause the plaintiff in her crippled condition to fail into the street while the car was in motion, which would make the defendant liable even if the plaintiff was not in the exercise of due care or was a trespasser; but that the defendant was entitled to have the jury instructed that to find the defendant liable on this ground the acts of the defendant’s servant must be shown to have amounted to wilful and wanton recklessness toward the plaintiff; and, on account of a refusal of the presiding judge to give such an instruction, exceptions of the defendant were sustained after a verdict for the plaintiff.</p> <p>In an action by a crippled young woman against a corporation operating a street railway, for injuries sustained by the plaintiff in falling from the step of a car of the defendant when the plaintiff had been attempting to enter the car by the door on the left hand side of the rear vestibule, which was closed in accordance with a rule of the defendant, and the conductor on refusing to open the door had given at the same time a signal to start the car, which, being obeyed by the motorman, caused the accident, the declaration contained two counts, the first count seeking to recover on the ground that the plaintiff was upon the step of the car lawfully and was in the exercise of due care and was injured by reason of the negligence of the conductor, and the second count seeking to recover on the ground that, even if the plaintiff was not in the exercise of due care or was a trespasser, the defendant should be held liable because the accident was caused by the wilful misconduct of the conductor in starting the car while the plaintiff was upon the step without giving her time to get off. There was evidence on which it could have been found that the plaintiff was upon the step of the car lawfully and on which it could have been found that the plaintiff was in the exercise of due care. There also was evidence on which it could have been found that the conductor was negligent or it could have been found that he was guilty of wilful misconduct toward the plaintiff. The presiding judge refused to instruct the jury that, if the plaintiff was not in the exercise of due care or was a trespasser upon the step of the car, the defendant could be held liable only in case the acts of the conductor amounted to wilful misconduct toward the plaintiff. The case was submitted on both counts to the jury, who returned a general verdict for the plaintiff. Held, that, as each of the counts stated a good cause of action and the verdict was general, there was no means of knowing on which count the jury had found the defendant liable and had assessed damages; and that, although there was no error as to the first count, the jury might have returned the verdict improperly on the second count, by holding the defendant liable for mere negligence of the conductor, even in case they had found that the plaintiff was not in the exercise of due care or was a trespasser; and therefore that an exception by the defendant to the refusal of the ruling requested must be sustained.</p>

<p>Tobt for personal injuries sustained by-the plaintiff while in the employ of the defendant at its foundry at East Cambridge on October 14,1903, by reason of one of his hands being caught and crushed between a car about which lie was working and the door of an oven, with two counts, both at common law, the first alleging that the plaintiff’s injuries were caused by reason of the negligence of the defendant, through its agents and servants, in failing to supply him with safe and suitable apparatus, tools and appliances for the performance of the work upon which he was engaged, and the second alleging that his injuries were caused by reason of the negligence of the defendant, through its agents and servants, in failing to give him sufficient warning of the dangers incident to the work which he was performing, and that the defendant, through its agents and servants, knew, or ought to have known of such dangers, but that the plaintiff was wholly ignorant of such dangers. Writ dated April 14, 1904.</p> <p>In the Superior Court the case was tried before Bond, J.</p> <p>At the trial it appeared that, at and before the time of the accident, the plaintiff was in the employ of the defendant, and that the defendant had in the part of its foundry known as the core room six or eight ovens side by side, which were used for the baking of cores. These cores were made of sand mixed with flour and other substances, and were shaped to go inside of moulds, so that the molten metal might be poured in between the mould and the core in making hollow castings. The cores were mixed and put in shape in another part of the core room at a considerable distance from the ovens. After this was done, they were carried by the workmen to the place where the ovens were. If small and light they were carried by hand or on trucks, but if large and heavy they were carried by movable cranes. Upon reaching the place where the ovens were they were placed by the workmen upon carriages or cars, and when the carriages were loaded they were run into the ovens, where the cores received the necessary baking.</p> <p>The ovens were built of brick and each had a large doorway opening toward the carriage. This doorway was about six or seven feet wide and eight or nine feet high. The oven was nine or ten feet deep. The carriage was of iron and was supported by four wheels or trucks which ran on iron tracks or rails, leading into the oven. The carriage was nine or ten feet long and six or seven feet wide. It consisted of an iron framework resting on the wheels or trucks, and supporting two iron platforms, one above the other, made of iron slats or rails, upon which the cores were placed. At each end of the carriage was attached a large iron door, of a proper size to shut up against the doorway of the oven and close it. When the carriage was drawn out of the oven as far as it would go, the iron door upon the end of the carriage nearest the oven came up against the inside of the doorway, thus closing it. When the carriage was run into the oven as far as it would go the iron door at the other or outer end came up against the outside of the doorway, closing it. The doorway thus was closed at all times by one or the other of the doors attached to the ends of the carriage, except while the carriage was being moved out or in.</p> <p>The carriage was operated by compressed air, the mechanism for doing this being as follows: A piston rod was bolted firmly to the end of the carriage farther from the oven. This piston rod ran into a cylinder where a piston head was attached to it, the length of the rod and the length of the cylinder being such as to give the piston a backward and forward stroke equal to the entire length of the carriage. The bore of the cylinder was eight inches in diameter and the piston head was fitted closely into this by leather packing. The piston rod fitted closely the head of the cylinder towards the carriage, and was made tight by packing.</p> <p>Compressed air was let into either end of the cylinder through tubes. When the air was let into the end of the cylinders farther from the carriage it drove the piston forward, pushing the car into the oven. When the air was let into the other end of the cylinder it drove the piston backward, pulling the carriage out from the oven. Valves, operated by hand, permitted the workman operating the carriage to let the air into or out of the cylinder at either end, at will. These valves were on the face of the oven wall, near the doorway, within convenient reach. The tubes through which the air was let into the cylinder were one inch in diameter.</p> <p>Upon the ends of the cylinder there were also pet cocks three quarters of an inch in diameter, through which, when opened, the compressed air in the cylinder could escape. The air was compressed by the engine into tanks or holders, which were in the engine room some distance away. From these tanks it was carried to the carriages, above described, as well as to many other machines in different parts of the foundry by tubes. There were three of these compressed air tanks ordinarily in use, but there was evidence tending to show that only two of them were in use on the day of the accident, the other being under repair.</p> <p>The plaintiff testified : “ I am somewheres around fifty years old, and had worked for the last thirty years off and on as a core maker. I have worked in foundries most of the time for thirty years. Before I came to work for the defendant I had worked for the Slater Engine Company, in Warren, Massachusetts. I had charge of the core room there about five years. I worked at five or six different foundries before I went to the defendant’s, —• in most of them at core making. In the places I worked before the defendant’s, they had ovens for baking cores, but the cores were put into the ovens by hand, or if we could not shove them in by hand we had to use a bar. The cores are made of a sand mixture, and we use molasses or stale beer with flour or rye meal to make the sand stick together. After the cores are made, they are dried and put in the oven. Then they are taken out and pasted. If the core is hot enough so you can paste it, it will dry the blacking and there is no need of putting it back again ; but if the core is cold they generally put it back.</p> <p>“ This core was what we call a main core, for a steam cylinder. I would take it to be about twenty or twenty-four inches in diameter. It was round, with a small end which extended out from it about six or eight inches. It was about the size of a flour barrel, but straight, and the small projection led out from the centre of each end. I had nothing to do with making the core. I first saw it when it came back.</p> <p>“ I had charge of what they call the pasting department of the core room. I had nothing to do with making cores at that time. I had worked at core making from the latter part of July until som6 time in September. For about a month before the accident I had charge of the pasting. There were five or six men under me.”</p> <p>The evidence in regard to the happening of the accident is described in the opinion.</p> <p>At the close of the evidence, the defendant asked the judge for twenty-six rulings or instructions. Among those which were refused by the judge were requests to rule that upon all the evidence the plaintiff was not entitled to maintain his action, that the plaintiff was not entitled to maintain his action on the first count, and that he was not entitled to maintain it on the second count. The fourth instruction requested by the defendant, which it was stated in the bill of exceptions that the judge gave in substance, was that the defendant could not be held responsible in this action for any negligence of James O’Leary, a fellow workman of the plaintiff who is mentioned in the opinion. The twentieth and twenty-first instructions requested, the exceptions to the refusal of which were not argued by the defendant, were as follows:</p> <p>66 20. Upon the evidence in this case, unless the jury find that the valve used for shutting off the air pressure was in a leaky and defective condition, they would not be warranted in finding that there was a defect in the machine which caused the injury to the plaintiff.</p> <p>“21. In order to entitle the plaintiff to maintain his action, upon the first count, the jury must be satisfied by a fair preponderance of the evidence that the valve by which O’Leary attempted to shut off the air pressure, was in a leaky condition and that this leaky condition of the valve caused the injury to the plaintiff.”</p> <p>With the exception of the fourth instruction requested, the judge refused to give any of the instructions requested by the defendant except so far as they were incorporated in a portion of his charge set forth in the bill of exceptions.</p> <p>Near the beginning of the portion of the charge thus set forth was the following: “ The plaintiff must show by a fair preponderance of the evidence that at the time he was injured he was acting in the line of his duty as an employee; that in all which he did which related to ins injury he was in the exercise of due care; that the accident was not due to some risk or danger which he assumed while so employed, and that his injury was due to the failure of the employer to perform the duties imposed by law upon the employer for the safety of the plaintiff ; and if he fails to satisfy you upon either one of these propositions, then he is not entitled to recover.”</p> <p>The portion of the charge set forth concluded as follows : “ So that you will consider here fully all the evidence, and say whether or not the plaintiff has made out all these different propositions. I have repeated to you the propositions twice, so that I think you will be able to keep them all in mind: Whether or not he was acting in the line of his duty, whether he was in the exercise of due care, whether it was a danger that he knew of and assumed when he was working, and whether or not he has satisfied you that this injury to him was caused by a failure of the defendants to perform the duty which the law imposed upon the defendants with reference to the safety of the plaintiff when he was doing his work. If you say that he has made out all these, then he is entitled to recover. If he has not made them all out, then he is not entitled to recover, and you must find for the defendant.”</p> <p>At the close of the charge the defendant further excepted to that portion of the charge in which the judge “charged the jury in substance that when an appliance fails to work in the way it was intended to work, when used as it was intended to be used, that that is some evidence that the machine is in a defective condition, and some evidence of negligence in some person not keeping it in repair.”</p> <p>The judge submitted the case to the jury, who returned a general verdict for the plaintiff in the sum of $3,500. The defendant alleged exceptions.</p>

<p>Negligence, In use of highway.</p> <p>If a servant of a farmer, who is driving a pair of large and heavy horses attached to a wagon containing a heavy load of swill, turns diagonally across the single track of a street railway for the purpose of entering a driveway leading from the street to the farm of his employer, and as he turns looks back and sees a coal car on the street railway near the top of a hill about four or five hundred feet distant, which is approaching from behind on a down grade with an unobstructed view, and, instead of attempting to turn back, he continues to cross the track, still looking at the approaching car, and nods his head to the motorman in a way that can be interpreted to mean that, he, having miscalculated the distance or having failed to appreciate the rate of speed of the car, hopes that the motorman can stop or retard the car so as to avert a collision or lessen its force, and thereupon the car, moving at an excessive rate of speed which is not diminished, strikes the team, killing one of the horses and injuring the wagon, in an action by the farmer against the corporation operating the car for the loss of and injury to Ms property, the question whether the plaintiff’s servant was in the exercise of due care is for the j ury.</p>

<p>Agency, Broker’s commission, Double employment. Broker.</p> <p>In an action by a real estate broker to recover a commission for procuring a tenant for certain premises of the defendant, where the plaintiff introduces evidence tending to prove that the defendant employed him to procure such a tenant and that the plaintiff brought to the defendant a person who was able, willing and ready to become a tenant of the premises on the defendant’s terms, and that the ' defendant agreed to accept this person as a tenant but afterwards refused to give him a lease, if the person thus alleged to have been procured by the plaintiff as a tenant testifies that, when the premises in question were occupied by another tenant, he told the plaintiff that he would give him $500 if he would secure a lease of the premises for him, this is not a sufficient ground for ordering a verdict for the defendant, because the jury may not believe the testimony, or may find that there was merely a promise or an offer of a promise which never was accepted by the plaintiff, so that at most the question whether there was a double employment which would prevent the plaintiff from recovering is one of fact for the jury.</p> <p>A real estate broker, who is employed by a landowner merely to procure a tenant for certain premises, becomes entitled to a commission if he procures a customer who is able, willing and ready to become a tenant of the property upon the terms fixed by the owner and the owner accepts the customer as a tenant, and if the owner afterwards refuses to give a lease or otherwise to carry out the transaction, this does not affect the broker’s right to his commission.</p> <p>In an action by a real estate broker to recover a commission for procuring a tenant for certain premises of the defendant, there was evidence on which it could have been found that the plaintiff was employed by the defendant to see a certain person and bring him to the defendant and that it was agreed that, if the defendant accepted this person as a tenant when brought to him by the plaintiff, the plaintiff should be paid the ordinary broker’s commission, that the person was so brought by the plaintiff and was accepted by the defendant as a tenant, who began to make out a lease to him which the proposed tenant was ready to accept and comply with, but that, objection being made to the proposed tenant by other tenants in the defendant’s building, the defendant refused to give him any lease or to let him into the building. Held, that the plaintiff was entitled to go to the jury.</p>

<p>Contract. Writ dated January 23, 1907.</p> <p>The declaration was upon an account annexed which in substance was as follows :</p> <p>(1) July 3, 1905. For architectural services in drawing plans for proposed buildings for registry of deeds and probate court at Salem, . . . 3-|% on an estimated cost of $275,000 $9,625.00</p> <p>(2) June 1, 1904. For architectural services in drawing plans showing proposed alterations in registry of deeds building at Salem, . . . 1% on estimated cost of $50,000 .... 500.00</p> <p>(3) June 1, 1905. For architectural services in drawing plans showing a separate boiler house at Salem.......... 300.00</p> <p>(4) For disbursements for sundry travelling expenses in connection with the drawing of said plans ........... 37.53</p> <p>Total......$10,462.53</p> <p>Credits............... 2,000.00</p> <p>Balance due .... $8,462.53</p> <p>The answer, besides containing a general denial and an allegation of payment, alleged “ that if the plaintiff shall show that he was ever employed to render services, as set forth by him in his declaration, such employment, and all contracts or agreements made by the county commissioners concerning the same, were entered into in violation of the provisions of statute concerning the same, and were not binding upon the defendant; and that the furnishing or drawing or procuring of any plans, either for alteration or for the erection of any building for the registry of deeds and Probate Court at Salem . . . were done under the provisions of St. 1902, c. 266, and that by said act the amount which the county commissioners were authorized to expend for the acquiring of land and preparing plans for a building for the registry of deeds for the southern district and for the probate court of said county was limited to the sum of $50,000, and that all of said sum has been properly expended for the purposes as set forth in said act long prior to the bringing of the plaintiff’s</p> <p>The case was tried before Hardy, J. The facts are stated in the opinion.</p> <p>At the close of the evidence the plaintiff requested the following rulings:</p> <p>1. The vote of the county commissioners of December 12, 1904, to employ the plaintiff to prepare plans under St. 1902, c. 266, and the performance of work by the plaintiff under said vote constituted a valid contract between the parties and, the contract being made and the liability of the defendant incurred at a time when there was sufficient money under appropriation to discharge said liability, the plaintiff is entitled to recover whatever the jury find to be the balance due under said contract with interest thereon.</p> <p>2. All liabilities incurred by the defendant under St. 1902, H c. 266, are entitled to be paid in the order in which said liabili- ■ ties were incurred, and the defendant could not exhaust the H appropriation under said act by the payment of liabilities ■ incurred subsequent to that incurred with the plaintiff and H thereby deprive him of the right to recover. H</p> <p>8. The payments of the liabilities incurred by the defend- H ant subsequent to the contract with the plaintiff not having ■ been made in conformity with the provisions of R. L. c. 21, § 9, were illegal, and the appropriation is not therefore legally ■ exhausted.</p> <p>4. The liability incurred by the defendant under its contract with the plaintiff constituted a charge upon the fund appropriated under St. 1902, c. 266, and it was the duty of the commissioners to reserve sufficient moneys from that fund to discharge said liability when its amount should become determined and not exhaust the fund by paying liabilities subsequently incurred.</p> <p>5. The plaintiff was chargeable with knowledge only of such payments or liabilities under the appropriation as were made or incurred before his contract and such as were then matters of record, and he was not bound to know of payments or liabilities subsequent to the date of his contract.</p> <p>The presiding judge refused to rule as requested, ruled that the plaintiff was not entitled to recover on the second item of the account annexed to the declaration, and instructed the jury in regard to the third item that if they were satisfied that those services were rendered before May 19,1905, then they had the right to consider the value of the services in connection with the other items in this case.</p> <p>Questions then were submitted to the jury, which they answered as follows:</p> <p>What was the fair and reasonable value of the services rendered by the plaintiff for the defendant county, described in the declaration ? To which the jury answered, $9,962.53. .</p> <p>(2) Were the bills for such services presented for payment to the treasurer of the defendant county within a reasonable time after they were approved by the county commissioners?</p> <p>To which the jury answered, Yes.</p> <p>(3) What was the amount unexpended of the appropriation of $50,000 under St. 1902, c. 266, at the time of the last payment on account of such bills on April 3,1905 ? To which the jury answered, $20.35.</p> <p>(4) What was the amount unexpended of the appropriation of $12,000 and the proceeds of the sales of buildings and materials under St. 1905, c. 430,-at the time of the presentation of the plaintiff’s bills on May 23, 1906 ? To which the jury answered, $2,041.50.</p> <p>The presiding judge thereupon ordered the jury to find for the plaintiff in the sum of $20.35, and, the plaintiff having excepted, reported the case for determination by this court, the parties agreeing that, if on the facts found the rulings on questions of law and of fact, were correct, the verdict was to stand and judgment was to be entered on the verdict; but that otherwise a verdict was to be ordered on the findings of the jury in their answers to the first and the fourth questions.</p>

<p>Three actions op tort by travellers upon Shawmut Avenue in Boston, who were injured by an explosion in a manhole of the defendant at the southeast corner of Pleasant Street and Shawmut Avenue. Writs dated, two on July 2 and one on July 9, 1906.</p> <p>The cases were tried together before Fessenden, J. The facts are stated in the opinion.</p> <p>The defendant offered no evidence. At the conclusion of the plaintiffs’ evidence, the defendant asked for a ruling that there was not sufficient evidence of negligence on the part of the defendant to warrant verdicts for the plaintiffs. After conference with counsel, the presiding judge submitted the cases to the jury, counsel for all parties agreeing that if the jury should return verdicts for the plaintiffs, such verdicts should be set aside and verdicts should be ordered for the defendant, and that the cases should be reported to this court with the stipulation thiff, if there was sufficient evidence of negligence on the part of the defendant to warrant verdicts for the plaintiffs, judgment should be entered in the amounts found by the j ury; otherwise, that judgments should be entered on the verdicts for the defendant. Accordingly the cases were submitted to the jury, who found verdicts for the several plaintiffs and assessed damages for the plaintiff O’Donnell in the sum of $2,000, for the plaintiff Ford in the sum of $350 and for the plaintiff Reid in the sum of $10, which last sum was by agreement increased to $30. These verdicts were set aside and verdicts for the defendant were ordered and the cases were reported in accordance with the agreement.</p>

<p>Contract for a commission of $35 alleged to be due for services as real estate broker rendered to the defendant. ' Writ in the Municipal Court of the City of Boston, dated August 18, 1908.</p> <p>On appeal to the Superior Court, the case was heard by Law-ton, J., without a jury. The facts are stated in the opinion.</p> <p>At the close of the evidence, the defendant asked for a ruling that on the evidence the plaintiff could not recover. The judge refused so to rule and found for the plaintiff; and the defendant alleged exceptions.</p>

<p>Trespass, 'Ab initia. Trover. Conversion. Evidence, Memorandum. Witness, Cross-examination. Practice, Civil, Conduct of trial, Requests and rulings, Verdict.</p> <p>At the trial of an action of tort with a declaration containing three counts, the first for the conversion of the furniture and provisions in a restaurant, the second for the conversion of “ divers bank notes and coins to the value of $85,” and the third for trespass in wrongfully excluding the plaintiff from his restaurant, there was evidence tending to show that the defendant, who was a constable, entered the plaintiff’s restaurant to make an attachment under a writ and placed a keeper in charge, and that then, the plaintiff desiring to continue the business, it was arranged that the business should not be interrupted, but that the money taken in should be paid to the defendant; that, when the usual time for closing the store at night arrived, the defendant told the plaintiff that he would have to lock up the store himself unless the plaintiff was willing to surrender to him possession thereof and to give to him the keys; that the plaintiff thereupon gave the keys to the defendant; that at the usual opening time the next morning the defendant opened the store and left his keeper in charge; that during the day, because the defendant insisted that the waitresses pay to him money which they received, they all departed and the restaurant was left in the sole charge of the defendant; that at closing time the defendant, still retaining possession of the plaintiff's keys, against the objection of the plaintiff fastened the door with a padlock and staple and put a sign upon it, saying, “ Closed. M., constable ”; that the premises remained in that condition until, five days later, the plaintiff gave a bond dissolving the attachment, whereupon the defendant returned to the plaintiff the keys of the store, but did not return $27 which he had taken possession of. Held, that upon the evidence the jury properly might have found that the plaintiff surrendered the premises to the defendant only upon condition that the restaurant should be kept open during business hours, and therefore that the defendant properly might have been found to have been a trespasser ab initia and to be liable under all of the counts of the declaration.</p> <p>An action of tort in the nature of trover will lie for the conversion of money.</p> <p>A request for a ruling properly may be refused by the judge presiding at a trial if it singles out only one of several circumstances bearing upon a certain issue and asks for a ruling as to its effect apart from the other circumstances in evidence on the same issue.</p> <p>At the trial of an action of tort where evidence as to the nature and extent of the plaintiff’s business was admissible as bearing upon the question of damages that might be recovered for the alleged tort of the defendant, the plaintiff produced no books of account, but testified as to his business from certain memoranda in pencil, which he had drawn up on the morning of the trial with the assistance of his counsel. The counsel for the defendant took from the plaintiff the memoranda and cross-examined him with regard to them. On redirect examination of the plaintiff, the plaintiff’s counsel offered the memoranda in evidence and they were admitted subject to an exception by the defendant. Held, that it could not be said that the presiding judge acted improperly, since he might well have thought that the memoranda would help the jury to understand the cross-examination better.</p> <p>The declaration in an action of tort contained three counts, one for the conversion of the furniture and provisions in a restaurant, the second for the conversion of “ divers bank notes and coins to the value of $35,” and the third for trespass in wrongfully excluding the plaintiff from the restaurant. At the trial it appeared that the money described in the second count was in the restaurant and that it and the furniture and provisions described in the first count were seized by the defendant under circumstances which could have been found to have made him liable as a trespasser ab initia, so that there was evidence which warranted a verdict for the plaintiff on each of the counts. The presiding judge was not asked to instruct the jury to find a verdict as to each count and did not do so. The jury returned a general verdict for the plaintiff. The defendant moved for a new trial on the ground that the jury should have been ordered to find separately as to each count. The motion was overruled. Held, that the motion properly was overruled, because, if the defendant wished that separate verdicts should be returned, he should have asked for an instruction to that effect, and also because as respected the question of damages the three counts of the declaration were closely connected with each other and described acts substantially forming parts of one transaction, so that the presiding judge well might have thought that it was best that damages should be assessed in one general sum.</p>

<p>Sale, Conditional. Contract, Performance and breach, Validity.</p> <p>The owner of certain chattels made with one desiring to purchase them an agreement in writing whereby the chattels were to be delivered to the prospective purchaser, the title remaining in the vendor “ until the same shall have been fully paid for,” the vendee to have the use of them meanwhile and to care for them and keep them in repair, to give to the vendor access to them at any time for purposes of inspection and repair but not to permit any one else to use them, to keep them insured for the vendor’s benefit, and to pay a certain sum down and certain other sums making up the balance of the purchase price with interest in quarterly instalments. It also was provided that the vendee should give certain notes corresponding in amount and times of payment and rate of interest to the quarterly payments to be made by him, “ as collateral to the payment for said chattels,” and that "on the payment of any one of the said notes the instalment corresponding thereto shall be deemed paid, and the said ” vendor is “ at liberty to dispose of any or all of said notes before or after maturity.” On full performance of the agreement, the title to the chattels was to vest in the vendee, but " on failure ” by the vendee “ to keep the terms ” of the agreement, the vendee was to give the vendor access to the chattels and to make no opposition to a removal of them. After having failed to pay several of the instalments, the vendee assigned his rights under the agreement to one who knew of its terms and to whom, through a third person, he also conveyed and gave possession of the premises where the chattels were. The vendor, while still retaining possession of the vendee’s notes, replevied the chattels, and the vendee’s assignee brought an action' of tort or contract against the vendor, contending that the taking was wrongful. Held, that the agreement could not be said to be in violation of morality or against public policy, that, the notes being given “ as collateral,” the vendor did not have to deliver them up or rescind the contract before taking possession of the chattels, and that the taking, having been made after the vendee had broken the terms of the contract, was lawful.</p>

<p>Tax, On inheritances, Exemption. Charily.</p> <p>Under R. L. c. 15, § 1, as amended by St. 1905, e. 470, and St. 1906, c. 436, defining the kinds of property which are subject to a legacy and succession tax, a legacy to the trustees under a will for the maintenance of a free Latin school for the education of youths in a certain province of the Empire of Turkey is not exempt from the tax, although the trustees are authorized by the terms of the legacy to form a corporation to maintain such a school if it seems wise to them to do so, and after the death of the testator exercise this authority by forming a charitable corporation under R. L. c. 125, for the purpose of carrying out this clause of the will. Whether a legacy for the same purpose would be exempt from the tax if made to a charitable corporation in existence in this Commonwealth at the time of the death of the testator, here was not considered.</p>

<p>•Agency, Duty of broker. Trust, Constructive.</p> <p>A broker, who undertakes to procure a loan for an owner of land which is subject to a mortgage either by the giving of a new mortgage or by a pledge and assignment of the existing mortgage as security, if he honestly and continuously tries to obtain such a loan and is unsuccessful, is not precluded from buying the mortgaged property in good faith in his own behalf at a sale in foreclosure of the mortgage and procuring a new mortgage on it for his own benefit, his employment as a broker, which created a fiduciary relation between him and the owner of the land, having been terminated without fault on his part when it became too late to prevent the foreclosure sale.</p>

<p>Equity Jurisdiction, To reach and apply equitable assets. Bankruptcy. Trust. Devise and Legacy.</p> <p>In a suit in equity under R. L. c. 159, § 3, cl. 7, to reach and apply to the payment of a debt due to the plaintiff from the principal defendant the interest of that defendant under the will of bis grandfather, such defendant's share as one of his father’s children in a fund of which his father, who is living, enjoys the income, which will pass to such defendant in case he survives his father but not otherwise, is a present equitable interest, which, although it may be lost by the death of such defendant before the death of his father, is assignable property, the value of which can be ascertained by sale, appraisal or some other means within the ordinary procedure of the court, and which therefore can be reached and applied under the statute.</p> <p>Under § 70 a (5) of the bankruptcy act of 1898, which provides that the trustee of the estate of a bankrupt shall be vested with the title of the bankrupt to all property which “ he could by any means have transferred,” the interest of the bankrupt under a will in a fund of which his father, who is living, enjoys the income, and a share of which will pass to the bankrupt in case he survives his father but not otherwise, vests in the trustee.</p> <p>In a suit in equity under R. L. c. 159, § 3, cl. 7, to reach and apply to the payment of a debt due to the plaintiff from the principal defendant the interest of that defendant under the" will of his grandfather, it appeared that that will gave the residue of the testator’s property to trustees, and, after providing for certain trusts, directed that all the residue of his estate should be divided into as many equal shares as there should be at the time of his decease children of his then living or deceased leaving issue, and then, after providing for the management of the trust and the payment of its expenses, proceeded as follows: “ to pay over the residue of the income of such share to the child for whose benefit such share is held, . . . for and during the term of such child’s natural life and upon such child’s death to convey transfer and pay over the principal of the share so held for such child’s benefit to such child’s lawful issue then living by representation ; but if such child shall die without leaving lawful issue living at the time of such child’s death then upon such child’s death to add the principal of the share held for such child’s benefit equally to the shares held for the benefit of my other children then living . . . provided however that the lawful issue then living of any other child of mine who shall have theretofore deceased shall take and have (and there shall be paid and conveyed to such issue) — by right of representation the same part of such principal which would have been added to the share which would have been held for the benefit of such issue’s deceased parent if such issue’s deceased parent was then living.” When the bill was filed the father of the principal defendant was living. That defendant had two unmarried sisters, who as well as he were born before the death of the testator. He had had five aunts who were living at the death of the testator, one of whom had died, leaving issue, one of whom was a childless widow, two of whom were married, each of them having a married son without issue, and one of whom was married and had a minor unmarried son. Held, that the interest of the principal defendant in his share of the fund of which his father enjoyed the income, although his enjoyment of it was contingent on his surviving his father, was assignable property which could be reached and applied under the statute, but that his interest in the funds of which the incomes were enjoyed respectively by his aunts, and a part of which would come to him if after his father’s death and during his own lifetime any of his aunts should die without leaving issue, was not property but a mere possibility of property, which could not be reached under the statute.</p>

<p>Negligence, Employer’s liability. Partnership. Evidence, Admitted without objection. Joint Tortfeasors.</p> <p>In an action by a foreman plumber against his employers for personal injuries, there was evidence that between daylight and dark on a cloudy night in June the plaintiff’s employers sent him to a pump house to try the valves which controlled the water supplied for a chute, and to see what the matter was which prevented the water from flowing down the chute as it should; that the valves were turned from a window in the pump house and to reach this window it was necessary to pass along a passageway inside the pump house about eighteen inches wide between the side of the pump house and unguarded cog wheels in motion ; that the pump house had been built and the machinery installed in it after the plaintiff was employed by- the defendants; that he had not been to the place for fifteen days and never before had seen-the pump in operation nor had had anything to do with opening or closing the valves; that there were certain glass oil cups on the machinery from which the oil dripped slowly on the machinery, when it was in motion, that about a week before the accident one of these cups on the crank shaft, holding about a gill of oil, was cracked from top to bottom and had a piece nicked out of it; and that the oil from this cup ran down upon the floor in such quantities as to be tracked about; that notice of this condition had been given to the defendants, but that the cup was not changed before the accident; that the plaintiff, coming from the greater light out of doors and walking in the dark toward the window to regulate the valves, slipped by reason of the oil on the floor and his arm was caught on the revolving cog wheels and was mangled; that within a few minutes after the accident there was oil on the floor for the width of the passageway and for a length of four or five feet; that the passageway “ was pretty well covered with oil ” and there were marks as if a man had slipped; that oil was dripping on the floor from the cracked cup and that no oil came upon the floor from any other source. Held., that the question whether the plaintiff was in the exercise of due care was for the jury, and that it was for the jury to say whether in the dusk he could have seen the condition of the floor or should have procured more light before proceeding toward the window. Held, also, that the plaintiff did not assume the risk of such an injury by his contract of employment, because the broken oil cup and the slippery floor had come into existence after his contract of employment was made and he did not in fact know of the danger which caused his injury.</p> <p>A workman can be barred on the ground of assumption of risk from recovery against his employer for injuries resulting from perils which have been created since the making of his contract of employment only when he voluntarily has continued in the service after appreciating the nature and extent of the added exposure to danger.</p> <p>In an action by a foreman plumber, employed by a firm consisting of two members who were performing certain work under a contract with a corporation conducting an amusement park, against his employers and the corporation, for injuries received by slipping upon an oily floor in the passageway of a pump house so that his arm was caught by the revolving cog wheels of the pumping machinery, when he had been sent to the pump house by one of his employers and also by an agent of the defendant corporation in order to try the valves and to see what the trouble was that prevented the water from flowing down a chute which was operated by the defendant corporation, it appeared that the slippery condition of the floor, of which the plaintiff had no previous knowledge, was due to the leaking of oil from a cracked and broken glass oil cup on the crank shaft of the pump, that the defendant corporation had used this cracked and leaky oil cup for several days in such a place that a large part of its contents continually flowed upon the floor of the passageway of the pump house near the machinery, where it was or might become necessary for others than those in charge of the machinery to pass, that, although the plaintiff’s employers did not own the pump house nor operate the machinery, yet it might have been found to have been a part of their work to regulate the flow of the water down the chutes and to test the valves, and in order to do this it was necessary to go to the place where the plaintiff was injured. There was evidence tending to show that each of the plaintiff’s employers knew of the leaking oil cup several days before the accident, and that one of them had promised to remedy it. Held, that there was evidence of negligence not only on the part of the defendant corporation but also on the part of the plaintiff’s employers, who might have been found to be negligent in setting the plaintiff at work in a dangerous place of which he was ignorant without giving him any warning, and that, even if they had no right to change the oil cup, they had a knowledge of the danger which imposed upon them the duty to warn the plaintiff of its existence.</p> <p>In an action by a foreman plumber for personal injuries against his two employers, alleging that they were copartners doing business under a firm name and in that name had a contract with another defendant, a corporation, for doing certain work, the plaintiff’s employers raised the objection that there was no evidence of the existence of a copartnership between them. Their names were respectively A. and S. It was not questioned that a person or persons doing business as the A. and S. Construction Company had a contract with the defendant corporation for doing the work upon which the plaintiff was employed. It appeared that both A. and S. were upon the premises every day, and that A. had referred to S. as his partner, that S. hired men, gave directions indicative of a master’s power and, when notified of the defective appliance which was the cause of the plaintiff’s injury, “ said he would have it seen to.” A printed letter head used by A. bore the names of both A. and S. Several witnesses in testifying referred to “ A. and S.” as a firm, and this testimony remained in evidence without objection. Held, that there was evidence sufficient to warrant a finding of the existence of the copartnership.</p> <p>Evidence, which would have been excluded as incompetent upon objection, if it is admitted and remains in the case without objection, should be given its probative force.</p> <p>Wrongdoers acting independently, whose tortious acts or omissions concurrently contribute to the injury of a person, are liable to such person jointly.</p>

<p>Tort against the city of Everett for injuries to the plaintiff’s person and damage to his property as the result of acts alleged to have been committed by the defendant’s agents and servants. Writ dated March 9, 1908.</p> <p>In the Superior Court the case came on to be tried before Sanderson, J.</p> <p>After the formal opening of the case by the plaintiff, the judge asked the plaintiff to make an offer of proof of the facts he intended to show and upon which he relied to maintain his action. In compliance with the judge’s request the plaintiff offered to show that on July 16, 1902, a riot took place in the city of Everett; that several persons were engaged in the riot; that there were some police officers engaged in the riot; that those who were engaged in the riot laid hands on the plaintiff and committed robbery from the plaintiff’s person by taking from him all of his valuables, which consisted of certain certificates of stocks, his money, and the keys to his house and post office box.</p> <p>The plaintiff also offered to prove that the assessors of the city of Everett committed robbery and conspiracy against the plaintiff by making a false assessment of the plaintiff’s waste land, and had levied and collected taxes upon and from, the plaintiff’s waste land by reason of the false and fraudulent assessment made by the assessors of the city of Everett. The plaintiff offered to show and contended that by reason of the collection of those taxes fraudulently assessed the defendant, having derived a benefit therefrom, was liable.</p> <p>The judge ruled that, if the plaintiff should prove the facts as stated in his offer of proof as to the acts of the assessors of the defendant in respect to the assessment of the plaintiff’s property and as to the officers’ acts in respect to the alleged assault and riot, the defendant would not thereby become liable to the plaintiff in this action.</p> <p>It is to be inferred that the judge ordered a verdict for the defendant, although this1 is not stated in the bill of exceptions. The plaintiff alleged exceptions.</p>

<p>Negligence, Employer’s liability. Witness, Cross-examination.</p> <p>If an inexperienced boy sixteen years of age is put at work upon a press for cutting narrow strips of copper, called wire, and the knife which cuts the wire is started by pressing a treadle, but the machine is out of order so that the knife sometimes comes down two or more times when the treadle has been pressed only once, and sometimes comes down without any pressure at all, and the boy sees this happen, but, being ignorant of machines, does not know whether the press is out of order or not, and if the reel from which the wire is fed into the cutting press requires constant attention to prevent the wire from spreading out and sometimes gets stuck so that the operator has to take hold of the wire and pull it, and if this boy, having been given no warning of danger, after he has worked upon the cutting press less than three hours, of which the first two hours were at night on the day before the accident, takes hold of the wire to pull it because the reel has stuck, and his hand slips off the wire and comes under the knife of the press just as it is descending automatically without the boy having pushed the treadle, in an action by the boy against his employer for his injuries thus caused, it cannot be ruled as matter of law that this was an accident of which the plaintiff accepted the risk by continuing at the work, and, assuming that there is evidence of negligence on the part of the defendant, he is entitled to go to the jury, his knowledge that on some previous occasions the knife which caused his injuries had come down without pressure on the treadle not being decisive against his recovery, because appreciation of the significance of the event as well as knowledge of it is necessary to charge him with assumption of the risk.</p> <p>In an action for personal injuries, which were received while the plaintiff was in the defendant’s employ more than six years before the time of the trial and when the plaintiff was an inexperienced boy sixteen years of age, if certain answers of the plaintiff upon his cross-examination, when separated from his other testimony, appear to indicate a comprehension on his part of the danger which he incurred in the defendant’s employ, but some of the defendant’s questions were so phrased as to appear to refer to the time of the trial, others were ambiguous in this regard, and still others by trifling changes referred to the time of the accident, it is proper for the jury to consider whether the plaintiff’s expressions apparently manifesting appreciation of the danger were intelligent assertions of a knowledge possessed at the time of the injury or were the result of an acute cross-examination addressed to a wearied or confused intellect and eliciting acquiescence by skilfully framed questions.</p> <p>To set an inexperienced boy sixteen years of age at work upon a machine press used for cutting narrow strips of copper by a knife, which when the machine is in order comes down only upon the pressing of a treadle, but which at the time that the boy is put at work also comes down without such pressure, and to furnish the hoy with a reel from which the strips of copper are fed into the cutting press which is defective and frequently gets stuck so that the operator has to pull the strip of copper with his hand, and to give the boy no warning of the dangerous character of his employment, although the defects in both the press and the reel have existed during a period of two months and the employer frequently has been notified of their existence, is evidence of negligence toward the boy on the part of his employer in an action brought by the boy against the employer for having his fingers cut off by the knife coming down automatically, when the boy’s hand had slipped from the strip of copper in pulling at it, because the reel had stuck, and was directly under the knife.</p>

<p>Carrier, Of goods. Interstate Commerce.</p> <p>The provision contained in § 20 of 24 U. S. Sts. at Large, c. 104, called the interstate commerce act, as amended by 34 U. S. Sts. at Large, c. 3591, § 7, that “no contract, receipt, rule, or regulation shall exempt ” a common carrier receiving property for transportation from a point in one State to a point in another State from any liability imposed by the act, does not invalidate nor apply to an agreement contained in a receipt given in good faith by an express company to a shipper of goods and accepted by him with a complete understanding of its provisions, by which it is stipulated that unless a greater value is declared and is stated in the receipt the value of the goods shall be taken to be $50.</p> <p>In an action against a common carrier of goods engaged in carrying on an interstate express business, for the loss of a package of hides of the value of about $160, which were delivered to the defendant for transportation from the plaintiff’s tannery in the State of New Jersey to the plaintiff at. his shop in Massachusetts, it appeared that the package was lost and that its loss was unexplained, that the contract of carriage contained in the receipt accepted by the plaintiff contained the following provision: “ In consideration of the rate charged for carrying said property, which is regulated by the value thereof and is based upon a valuation of not exceeding fifty dollars unless a greater value is declared, the shipper agrees that the value of said property is not more than fifty dollars unless a greater value is stated herein and that the company shall not be liable in any event for more than the value so stated, nor for more than fifty dollars if no value is stated therein.” It further appeared that the package was delivered by the plaintiff to the defendant without any statement of its value or of its contents, although the agent of the defendant asked whether any value was to be declared, that the methods and precautions used by the defendant for carrying and delivering the package safely were based upon the plaintiff’s agreement that its value did not exceed $50, and that, if the value of the package had been given, an additional charge would have been made for transportation and additional precautions would have been taken against loss. Section 20 of 24 U. S. Sts. at Large, c. 104, called the interstate commerce act, as amended by 34 U. S. Sts. at Large, c. 3591, § 7, provides as follows: “That any common carrier, railroad, or transportation company receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may he delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.” The defendant admitted its liability for $50 and paid the money into court, and the only question was whether the plaintiff could recover for the value of the package in excess of that sum. Held, that the agreement of the parties, contained in the receipt accepted by the plaintiff, as to the value of the package in the absence of a declaration, was not a contract or receipt exempting a common carrier from liability within the meaning of the provision of the interstate commerce act above quoted, and, being a contract deliberately entered into by both parties in good faith, was binding upon both, so that the plaintiff could recover nothing in excess of the sum of $50.</p>

<p>Equity Jurisdiction, For appointment of receiver of insolvent corporation organized under R. L. c. 125, Remedy at law, Multiplicity of suits. Corporation, Organized under R. L. c. 125 as social club, By-laws. Receiver. Equity Pleading and Practice, Appeal.</p> <p>Upon the averments of a bill in equity, it here was assumed upon demurrer, that, because the provisions of R. L. c. 163, §§ 143-149, relating to proceedings in insolvency by and against insolvent corporations, are suspended by the bankruptcy law of the United States, and because § 4 (b) of the bankruptcy act of 1898 does not include among the corporations which may become bankrupts under that act a corporation organized under R. L. c. 125 as a social club, a suit in equity may be maintained by a judgment creditor of such a corporation so organized, which has become insolvent, for the benefit of himself and other creditors, for the appointment of a receiver to collect all the assets of the corporation and all moneys due to it from its members.</p> <p>In a suit in equity for the appointment of a receiver of the property of an insolvent corporation organized as a social club under R. L. c. 125, a receiver was appointed by the court and was directed to collect all the assets of the corporation and all moneys due to it from its members. The receiver filed two petitions in the suit in equity, one for the collection of the regular assessments due from the members and of the debts due from them to the club for food and refreshments, and the other for the collection of a special assessment made under a by-law of the club by its executive committee. Upon the first petition an order was made that service of process should be made upon twelve respondents designated as representatives of a class consisting of the three hundred and forty-three members of the club. A final decree was entered against the twelve designated respondents, ordering the payment of the sums of money found to be due from them respectively. From this decree the respondents appealed. Upon the second petition a decree was entered dismissing the petition. Erom this decree the receiver appealed. A question being raised whether these appeals were ripe for hearing by this court or whether they must await a final decree in the receivership suit ordering a distribution of the property of the corporation among its creditors, it was held, that the appeal from the decree upon the receiver’s first petition plainly was ripe for hearing, because the rights of the appealing respondents could not be protected if the hearing was postponed to any later time, and that the appeal of the receiver from the disallowance of his claims founded on the special assessment comprised such substantive elements in the litigation that under the special circumstances of the case that appeal well might be heard with the others.</p> <p>A receiver of the property of an insolvent corporation, organized under R. L. c. 125 as a social club, who had been appointed in a suit in equity brought by a judgment creditor for the benefit of himself and other creditors against the corporation, and who, had been directed'by the court to collect all the assets of the corporation and all moneys due to it from its members, filed a petition in the suit in equity, upon which process was ordered to be served on twelve respondents designated as representatives of a class consisting of three hundred and forty-three members of the club, to collect assessments due from all the members under a bylaw of the corporation and also debts due from many of the members for food and other refreshments. Held, that the petition could not be maintained, and that the receiver’s remedy was at law, the remedy at law not being inadequate by reason of the multiplicity of the actions required to be brought, because such multiplicity was necessary to accomplish the ends of justice on account of the divers interests of the several respondents. It was intimated, that the same conclusion might have been reached, even if the receiver had confined his petition to the claims for annual dues against all the different members of the corporation, and had not included the claims against a large number of the members for food and refreshments, which had no more in common than the bills of any one tradesman against his customers.</p> <p>A by-law of a corporation, organized under R. L. c. 125 as a social club, provided that an assessment upon the members might be made by a majority of the executive committee. The executive committee consisted of twenty members, fifteen of whom were chosen specially and five of whom were members ex-officiis as officers of the club. A by-law, other than that authorizing the assessment, provided that five members of the executive committee should constitute a quorum. A vote imposing a special assessment on the members of the club was passed at a meeting of the executive committee when a quorum was present and was voted for by a majority of those present which was not a majority of the whole committee. Held, that the attempted assessment was invalid, the power to impose such an assessment being given to a majority of the whole committee and not to a majority of a quorum of five.</p>

<p>Toet under the employers’ liability act for personal injuries received on May 18, 1907, while in the employ of the defendant, a corporation. Writ dated August 13, 1907.</p> <p>The declaration contained three counts, of which the first and.second were waived by the plaintiff. The third count, on which the case was tried, alleged that the plaintiff’s injuries were caused by reason of the negligence of some person in the service of the defendant who was entrusted with and was exercising superintendence, and whose sole or principal duty was that of superintendence.</p> <p>In the Superior Court the ease was tried before Jenney, J. The findings which were warranted by the evidence are stated in the opinion. At the close of the evidence the judge ruled that upon all the evidence the plaintiff could not recover and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Damages, In contract, Assessment by trial judge. Practice, Civil, Findings of trial judge.</p> <p>In an action to recover damages for the alleged breach of an agreement in writing for the exchange of real estate, whereby, among other things, the defendant agreed to sell and the plaintiff, who was described as the party of the second part, agreed to buy “the new three family apartment house . . . shown to the party of the second part all completely finished and all rented, 31^36-34 dollars per month,” it appeared that in making the exchange under the contract this property at the request of the plaintiff was conveyed by the defendant to a third person, and tliat later, when the plaintiff sold the property, it was conveyed by this third person to tile purchaser. It f urtiier appeared that when the property was conveyed by the defendant two of the three apartments in the house were vacant, that one of these apartments the plaintiff never was able to let, up to the time lie sold tile property about four months after its purchase, and that the other vacant apartment remained unlet for three months, after which by incurring expense in employing a broker tile plaintiff succeeded in letting it. Held, that the measure of damages was the difference between the value of the property in tile condition in which it was represented by the contract to be and its value in its actual condition at the time of the delivery of the deeds under the contract, and that the fact that the deed of this property was made to another person at the plaintiff’s request instead of to the plaintiff was immaterial ; that the plaintiff was entitled to recover substantial damages, and that, upon the question of the value of tile house when partly occupied as compared with its value when wholly occupied, all reasonable probabilities as to the length of the period which would elapse before tile house would be wholly occupied and the probable loss of rents during that period properly might be considered. Held, also, that evidence as to tile difficulty of procuring tenants and as to the loss incurred by the plaintiff in failing to procure them under tile circumstances of tile case might f urnish tile best standard for measuring the difference in value between tile property as it was agreed by tile defendant that it should be and as it actually was, and therefore properly might be considered.</p> <p>Where a judge, before whom an action of contract is tried without a jury, finds for tile plaintiff and assesses the damages in a certain sum without stating the rule which he adopted as to the measure of damages, it will be assumed that he proceeded upon the true rule.</p>

<p>Bill in equity, filed on October 30, 1909, by the trustee under written agreements of trust which are described in the opinion, for instructions as to whether or not an inheritance tax should be paid upon a fund in its possession under the agreements; and</p> <p>Information, filed on the same day by the Attorney General at the relation of the treasurer and receiver general, seeking that the trustee be ordered to pay the inheritance tax to the treasurer and receiver general.</p> <p>The two cases were ordered to be heard together, and were reserved by jHammond, J., upon the bills and answers for determination by the full court. The facts are stated in the opinion.</p>

<p>Negligence, Employer’s liability.</p> <p>It is proper for the judge presiding at the trial of an action of tort by an employee of a corporation, engaged in constructing a steel bridge over the tracks of a railroad, against his employer to recover for injuries caused by a temporary staging, upon which the plaintiff was working, being struck by a locomotive engine passing on the railroad, the declaration in which contained two counts at common law, one alleging as the cause of the injury a failure to warn the plaintiff of the approach of the locomotive engine and the other alleging as the cause the negligent placing of the plaintiff at work in a dangerous place without taking proper precautions for his safety, and also contained counts under R. L. c. 106, § 71, cl. 2, alleging as the cause of the injury negligence of a superintendent of the defendant, to rule that the plaintiff cannot recover, if on the view of the testimony most favorable to the plaintiff it appears that the plaintiff and certain of his fellow workmen constructed the temporary staging, that at the time the plaintiff knew that if it was not high enough passing trains would hit it, and that the defendant’s superintendent repeatedly told the plaintiff to be sure to have the staging high enough to be out of the way of passing engines and trains, and if there is no evidence that the superintendent or any of the men suspected that the staging was too low for safety, and there was affirmative evidence that it could not have been put any higher and be of use, and if, as to warnings of approaching engines and trains, the testimony is that such warnings were given by the railroad company's flagman, who is not shown to be acting for the defendant, and occasionally by any one, superintendent or workmen, who happened to see a train approaching.</p>

<p>Tobt for personal injuries received by the plaintiff while working upon a machine called a “ matcher ” in the defendant’s box factory. The third count of the declaration, which was the only count upon which the case was submitted to the jury, alleged as the cause of the injury a failure of the defendant to give to the plaintiff sufficient instructions or warnings. Writ dated October 22, 1904.</p> <p>The case was tried before Sanderson, J. Besides the facts stated in the opinion, it appeared that the plaintiff at the time when he was injured was eighteen years old and had been working for the defendant for six or seven weeks, for the most of that time being employed upon the machine upon which he was injured.</p> <p>That machine was used to cut a tongue and groove in thin boards such as are necessary for the construction of boxes, and it consisted of an iron table about forty inches in length and sixteen inches in width, supported on four iron legs. Through this iron table there were two slots about one inch in width and ten inches long, through each of which passed a circular saw six inches in diameter. Three eighths of an inch of one saw extended through the slot above the surface of the table. Four and five eighths inches of the saw were beneath the table. The saws, revolving on the same axis, were operated by a belt next to the table which runs directly up and down to loose and tight pulleys directly overhead. This belt was manipulated by a shipper, by the management of which the belt was shifted from the loose to the tight pulley. The shipper was exactly at the right of the machine and almost overhead, and, if the operator stood at the head of the table, he could work the shipper with his hand and so move the belt from the loose to the tight pulley. Beneath the table was a box, so built that it fitted between the four legs, the purpose of which was to gather the shavings as the saw cut the tongue and groove in the boards. When the machine was at a standstill, the teeth of the saws could be seen extending through the slots, and when the machine was in operation, while the teeth were not individually visible, the saw itself was visible as revolving and in operation. It was conceded that there was a sufficiency of light there.</p> <p>Other facts are stated in the opinion.</p> <p>At the close of the evidence the defendant asked for a ruling, among others, that a verdict be ordered for the defendant. The ruling was refused, the jury found for the plaintiff in the sum of $4,000; and the defendant alleged exceptions.</p>

<p>Equity Pleading and Practice, Report, Appeal. Evidence, Competency. Insurance. Gift.</p> <p>While it is the general rule that objections to rulings of a single judge at the hearing of a suit in equity as to the admission or exclusion of evidence can be brought before this court only by exceptions and not by an appeal with a report of the facts found or of the evidence, nevertheless where the judge files a “ memorandum of facts ” containing the facts found by him and also an explicit statement as to the nature of certain evidence offered by the plaintiff and excluded, with two reasons for excluding it, and states that, “ after consultation with counsel I excluded [the evidence] on the latter ground, so that the rights of the plaintiff might be saved,” and, after a decree was entered dismissing the bill, the plaintiff appealed, this court held that the correctness of the ruling excluding the evidence was before them for determination.</p> <p>The provision of B. L. c. 118, § 73, that “ every policy which contains a reference to the application of the insured . . . must have attached thereto a correct copy of the application, and unless so attached the same shall not be considered a part of the policy or received in evidence,” was intended solely to regulate the rights of policy holders and of the insurance companies against each other, and does not apply so as to exclude an application, a correct copy of which has not been attached to the policy issued upon it, where such application is offered in evidence in a suit between persons claiming ownership of the policy and the insurance company is not a party to the suit.</p> <p>On appeal from a final decree of a judge of the Superior Court, if the judge filed a memorandum containing his findings of facts, this court can draw such inferences from the facts so found and reported as are reasonably to be made from the facts found and are not inconsistent with any of them.</p> <p>A father made application to an insurance company for insurance on the life of his son, a minor, and the company issued thereon a policy in which no beneficiary was named but the company agreed to pay the amount of the policy “ upon receipt of proofs of the death of the insured and upon surrender of the policy and all receipt books.” The father paid the premiums upon the policy for several years until the son became of age, whereupon he delivered the policy to his son and thereafter the son paid the premiums until his death. After the son’s death his widow, who also was the administratrix of his estate, refused to deliver the policy to the father, and the father by a suit in equity attempted to compel such delivery. Held, that the suit should be dismissed, since the ownership of the policy had passed by a completed gift to the son.</p>

<p>Bill in equity filed on October 9, 1908, alleging that the defendants induced the plaintiff to pay money and to give a note and mortgage for a quitclaim deed of land in the State of Maine, by representing to him that the defendant Scott had a title from the State of Maine which was unimpeachable and which they had been told was unimpeachable by legal advisers, which representations they knew to be false.</p> <p>The case was referred to James D. Colt, Esquire, as master. The substance of his report is as follows:</p> <p>On September 21, 1904, the treasurer of the State of Maine sold to the defendant Scott for $29.16 at public auction for nonpayment of taxes land which in the advertisement of the sale had been described as containing fifteen hundred and seventy-seven acres of land lying in Fryeburg Academy Grant in the county of Oxford. The deed which he made to Scott described the land as being “ situate in the county of Oxford ” and as containing “ 1577 acres in Fryeburg Academy Grant.” There was no other description. The Fryeburg Academy Grant contained about four thousand acres of land.</p> <p>After he had paid taxes for several successive years upon what he supposed had been conveyed to him, Scott was told by various persons in official positions that in their opinions the State could not have given him title, owing to the insufficiency of the description of the lands in the assessor’s office. He testified that thereafter he consulted counsel in Portland, Maine, who told him in substance that he might select any fifteen hundred and seventy-seven acres of land in the Fryeburg Academy Grant and remove the timber therefrom until he was stopped by some one who could show a better title than he.</p> <p>As Scott became convinced that his title to the fifteen hundred and seventy-seven acres was at least doubtful, he became correspondingly desirous of selling out, and took steps to find a purchaser. In the summer of 1908, while he was trying to find a purchaser for his title, he talked with one William M. Torrey, who afterwards called it to the attention of the defendant Murdock.</p> <p>As a result of his conversation with Torrey, Murdock went to Maine and visited the property. At that time Murdock was not acquainted with Scott. He was afterwards introduced to Scott by Torrey, and became sufficiently interested to make a second trip to Maine for the purpose of ascertaining the value of the timber on the property. After inspecting the property, Murdock visited the State House in Augusta in order to find out whether Scott had paid the taxes. While there, Murdock was informed by the clerk of the State board of assessors that, in his opinion, Scott’s title was worthless and that any tax title given by the State of Maine to land in the Fryeburg Academy Grant was worthless for the reason that the land in the grant had never been legally divided into lots. After making this visit to Maine, Murdock decided not to purchase from Scott.</p> <p>The plaintiff is a native of Sweden. He is an attorney at law, having been admitted to the bar in 1903. Since his admission he has practised his profession in Boston.</p> <p>In August, 1908, the defendant Scott was introduced to the plaintiff. At the ensuing interview Scott told the plaintiff that he had the land for sale and that his price was $3,500, but that he would sell for $2,500 cash. There were a number of interviews during the next two weeks and Scott made certain statements about the land and his title to it, in answer to inquiries of the plaintiff. He represented that he had a good title to fifteen hundred and seventy-seven acres of land in the Fryeburg Academy Grant, and in support of this representation showed his deed from the State of Maine and certain of the tax receipts and the statutes of the State of Maine which provide that where a tax title is not redeemed within one year the fee becomes absolute in the owner of the tax title. He allowed the plaintiff to take the tax title deed for examination and urged him to go and look at the property itself. The plaintiff stated that he wished time in which to examine the title, but Scott said there were others who wished to buy the property, with whom he was talking, and he would therefore give no option. He stated that a prominent attorney in Portland, Maine, had told him he could select fifteen hundred and seventy-seven acres of land in the grant and cut the timber and that his title, coming from the State, was the best or as good as any title in the grant. Scott also called the plaintiff’s attention to the fact that there was a ready market for the timber not far from the grant, and said that he was selling because he was too old to look after it himself. He also told the plaintiff, in response to inquiry, that he had given him all the information he had regarding the property and his title thereto. He did not tell the plaintiff, however, of the opinions which the Maine officials had expressed as to the infirmity of his title, nor did he tell him of the fact that the register of deeds of Oxford County had exhibited to him a plan of the Fryeburg Academy Grant which showed the grant divided into lots and had told him who occupied or claimed to own some of the lots.</p> <p>At one of the early interviews regarding the purchase, Scott brought the defendant Murdock to Johnson’s office and introduced him as a man who had personally examined the property and knew its value. From that time on the plaintiff had frequent interviews with Murdock who represented that he was acting as a broker for Scott in the sale of his land, that he had examined the timber and considered the property of great value. He s bated that, if it were not that he was interested in a mining proposition in Nova Scotia, the plaintiff would not have had the chance to buy the land, and that he would recommend the property to his father or brother or a brother mason. The plaintiff told Murdock that he had not had time to investigate the property and must rely upon what he and Scott told him. He asked Murdock if he knew of anything out about the property, and Murdock replied that he did not. This was after Murdock had visited the State House in Augusta and learned that the title was very doubtful. Murdock was Scott’s agent throughout the negotiations and as such agent did what he could to promote the sale to the plaintiff.</p> <p>The plaintiff believed the representations made to him by both Scott and Murdock, including the representation that the price to be paid Scott for the land was $2,500 in cash. He was able to raise but $1,200 of the necessary $2,500. Scott refused to accept a mortgage as part payment and the plaintiff so informed Murdock on September 25, whereupon Murdock said he would endeavor to borrow $1,300 from his sister, and if successful would lend it to Johnson, taking back a mortgage on the land for that amount as security. Murdock then went to his sister and obtained from her, not $1,300 but $600, which money was represented by a savings bank check.</p> <p>On September 26, Scott, Murdock and Torrey came to the plaintiff’s office late in the afternoon. The plaintiff handed $1,200 in cash to Scott, and Murdock handed Scott a savings bank check which the plaintiff supposed was a check for $1,300, but which was the check for $600 above mentioned. Scott then delivered the deed to the plaintiff, and the plaintiff delivered a mortgage and a note secured thereby for $1,299, and one dollar in cash to Murdock, and the transaction was completed.</p> <p>A short time after he had received the deed from Scott, Johnson discovered the fraud.</p> <p>The report continues: “No court having jurisdiction over the land in question has, so far as appeared from the evidence, held Scott’s title to be invalid, nor has any one appeared claiming an adverse or superior title, and the respondents therefore urged that Johnson had obtained all that he sought to buy, an undivided interest amounting to fifteen hundred and seventy-seven acres of the Fryeburg Academy Grant, and so has no cause for complaint. This would probably be true if the State of Maine had owned the entire grant at the time it made its deed to Scott. The deed undertakes to convey a definite number of acres in a much larger tract, no part of which, so far as appears, belonged to the State, and its right to make the conveyance is a statutory right arising out of the failure of the real owner or owners of those acres to pay the taxes assessed upon them, yet nowhere does it appear who the real owners were, nor is there anything to indicate what lands were meant by the description in the deed. 1 There were other owners of land in the Fryeburg Academy Grant, whose titles the State had not disturbed by tax sales or otherwise. From all of which it seems clear that the deed from the State of Maine to Scott had no value as it conveyed no ascertainable interest in land located in Fryeburg Academy Grant.</p> <p>“No reason exists for any one’s making an adverse claim to the fifteen hundred and seventy-seven acres which the State attempted to convey. The recording of Scott’s deed was not notice to any of the owners of land in the grant that he claimed or could claim an interest in their land. It is therefore not surprising that neither Scott’s nor Johnson’s so called title has been disputed or passed upon by a court having jurisdiction over the land.</p> <p>“ I find that the deed from Scott to Johnson conveyed no title as Scott had nothing to convey by virtue of his deed from the State of Maine. It is apparent from the facts found that a fraud was intentionally perpetrated on Johnson and that both Scott, Murdock and Torrey participated therein. . . .</p> <p>“ Furthermore, Johnson was deceived in regard to the mortgage. He was led to believe that an actual cash consideration of $1,300 was being paid for the mortgage while in reality only $600 was paid. Murdock had told him that he would try to obtain from his sister the $1,300 which with Johnson’s $1,200 would make up the $2,500 required by Scott. He told him later that he had been successful in obtaining the necessary money from his sister. He did not say that all he obtained was $600 but left Johnson to infer that it was $1,300. The Savings Bank check which was handed to Scott when the papers were passed was not shown to Johnson, although he might have seen it by asking for it, and he supposed and was allowed to believe that it was for the larger amount. He could not have been more deceived, if $600 in good and $700 in counterfeit money had been handed to Scott. Johnson’s note and mortgage were given to Murdock on the understanding that Murdock was to advance the full consideration therein mentioned and he supposed and had a right to suppose that this had been done when he delivered the note and mortgage to Murdoch.”</p> <p>The defendants filed exceptions to the master’s report, material among which are the following:</p> <p>“12. To the finding of the master that ‘it seems clear that the deed from the State of Maine to Scott had no value,’ ” the stated ground of the exception being that “ this is a matter of law and not of fact and outside the rule to the master and without jurisdiction of this court to hold invalid the deed of the State of Maine which has not been so held by the Maine courts.”</p> <p>“ 13. To the finding of the master that ‘ the deed from Scott to Johnson conveyed no title, as Scott had nothing to convey by his deed from the State of Maine,’ ” the stated ground of the exception being the same as that of the twelfth exception.</p> <p>“ 14, To the finding of the master that ‘ it is apparent from the facts that a fraud was intentionally perpetrated on Johnson and that both Scott and Murdock and Torrey participated therein,’ ” the stated ground of the exception being “ that the finding is a matter of law and not of fact and is outside the rules of the master and furthermore that the facts in the case as found by the master and on the evidence before him, are not sufficient to constitute an assumption of fraud.”</p> <p>“ 16. To the finding of the master that ‘Johnson was deceived in regard to the mortgage and that he was misled by Murdock ’ and to the master’s finding which compared the transaction to a possible deception by the passing of counterfeit money,” the stated ground of the exception being “ that the evidence shows and the master’s own findings show that Johnson knew and understood that Murdock and Torrey were to receive what Johnson called a commission out of the $2,500 purchase money for the property and the fact that Murdock paid Scott in Johnson’s presence $600 and retained his profit, commission or recompense for raising the money and as claimed assisting in the sale of the property, was no deception to Johnson. It is immaterial whether Murdock paid $1,300 to Scott in Johnson’s presence and then received $700 back, or whether he retained it when the transaction was closed, especially as no false representation was made to Johnson and according to the master’s finding, Johnson might have seen the check by asking for it.”</p> <p>“ 17. To the failure of the master to find that under the tax title deed of the State of Maine, the grantee therein would have the right to go on, cut and remove timber therefrom,” the stated ground of the exception being “ that a tax title deed is prima facie evidence of title and as such is a title of value giving the owner the right to take possession and exercise acts of ownership.”</p> <p>“20. To the failure of the master to find that the quitclaim deed from Scott to Johnson conveyed something of value,” the stated ground of the exception being “ that Scott was the owner of an undisputed title to fifteen hundred and seventy-seven acres in Fryeburg Academy Grant as evidenced by a tax title deed from the sovereign State of Maine which at least barred the State of Maine from objecting to Scott or his assigns entering the property and cutting the timber or exercising other acts of ownership over it.”</p> <p>The ■ exceptions were heard and overruled and a final decree was ordered for the plaintiff by Pierce, J. The defendant Murdock appealed.</p>

<p>Six actions on contract, the first five by the receiver appointed by a decree of the Supreme Judicial Court under St. 1907, c. 576, § 8, of the property of the China Mutual Insurance Company, a corporation created by St. 1853, c. 262, which was extended by St. 1875, c. 34, brought upon five several promissory notes given for marine insurance premiums by policy holders of that company, and the sixth action by a policy holder against the receiver for a part of a premium which had been paid by him and was alleged to have been unearned when his policy was - cancelled by the decree of the Supreme Judicial Court perpetually enjoining the company from further proceeding with its business. Writs in the first and second actions in the Municipal Court of the City of Boston dated respectively November 3 and November 10, 1908, these cases afterwards coming by appeal to the Superior Court; writs in the third and fourth actions in the Superior Court for the county of Suffolk dated respectively April 16, 1908, and September 15, 1909: writ in the fifth action in the Superior Court for the county of Essex dated October 7, 1908, and writ in the sixth action in the Superior Court for the county of Suffolk dated January 12, 1909.</p> <p>In the Superior Court by agreement of the parties the cases came on to be tried together before Pierce, J., without a jury. In accordance with an agreement of the parties the judge found for the defendants in the first five cases, and in the sixth case found for the plaintiff, and reported the cases for determination of the full court. If his rulings were correct, judgments were to be entered for the defendants without costs in the first five cases, and in the sixth case for the plaintiff in the sum of $17.50, without costs; otherwise, such judgments were to be entered as law and the facts required.</p> <p>The policy in the case against Wing began as follows:</p> <p>“By the China Mutual Insurance Company. Incorporated April 30, 1853. William R. Wing a member of said Co. on account of whom it. concerns.</p> <p>“In case of loss to be paid to him do make insurance, and cause to be insured, lost or not lost</p> <p>“ One thousand dollars on Bark Alice Knowles, at and from April 3rd 1907 at noon, to continue wherever she may go on a whaling voyage, with all the usual privileges, until April 3rd • 1909 at noon. Prohibited from the Arctic Ocean, Hudson Bay and Cumberland Inlet.</p> <p>“ If on a passage at the expiration of the term, and the Company receives on or before that time a written request from the assured (but not otherwise), this insurance shall continue until noon of the day after arrival at first port of discharge; or, if the vessel has no cargo on board, then until noon of the day after arrival at the first port at which the said vessel may arrive and be moored twenty-four hours in safety, and no longer, either on hull or freight, the assured paying pro rata monthly premium for each month entered upon. If insured for a special voyage, this insurance shall continue only until the vessel shall be arrived and moored twenty-four hours (or the number of days, if any, specified in port), counting from noon of the day of arrival and on freight until landed.”</p> <p>The provision concerning the premium was as follows:</p> <p>“The consideration for this insurance is hereby fixed at the rate sixteen per cent for two years, to return for months not entered upon if no loss is claimed, warranting 12%.</p> <p>“To add one quarter per cent per month for each month entered upon after ninety days while lying in any port or anchorage.”</p> <p>A memorandum in the margin of the policy stated that the sum insured was $1,000, that the vessel was valued at $14,000 including premium, and that the premium was $160.</p>

<p>Undue Influence. Fraud,. Will. Practice, Civil, Exceptions. Probate Court.</p> <p>Undue influence sufficient to invalidate a will may be exerted upon the testator either by fraudulent means or devices or by physical or moral coercion practised upon him without any actual deception.</p> <p>Where an exception was taken by the contestant of a will to an instruction given to the jury by the justice who presided at the trial of issues framed for the jury upon a probate appeal, on the ground that the instruction amounted to a state-merit “ that undue influence must savor of fraud,” and the bill of exceptions merely states that “ there was evidence tending to show that the execution of tire will was procured through the fraud or undue influence of ” a certain person, and there is no further description of the evidence, the excepting party has not shown that he was aggrieved by the instruction, whether as an abstract proposition it was correct or not, because all the evidence may have related to undue influence exerted by fraudulent devices, in which case the instruction would be exactly appropriate as applied to the facts in evidence.</p> <p>Undue influence sufficient to invalidate a will, even when it does not involve active deception or fraud and consists merely of a dominating and controlling influence exerted over the mind and will of the testator by means of excessive importunity or the mastery which one mind may sometimes gain over a weaker one, is a fraud upon the testator in causing him to make a disposition of his property different from that which he would have made voluntarily, and also is a fraud upon his heirs or those whom he otherwise would have made the subjects of his bounty, and in this sense, when speaking of undue influence which paralyzes the will of a testator and substitutes for his will the will of the person who exercises the influence, it is correct to say that an influence to be undue must partake of the nature of fraud.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action by a workman against his employer for personal injuries sustained by the plaintiff from being struck by a car which was run upon a track laid on a trestle and was used to bring the product of the defendant from the defendant’s factory to its warehouse, if it appears from the plaintiff's evidence that the accident was caused by the negligence of a fellow servant of the plaintiff in starting the car before the signal for starting it had been given, and there is no evidence of a failure of the defendant to instruct this servant fully as to his duties or that the servant failed to comprehend the instructions given to him or that he was incompetent to do the work assigned to him, and if also there is no evidence that any negligence of the servant was known to the defendant or to its superintendent and no evidence of any negligence in continuing to employ him, a verdict must be ordered for the defendant.</p>

<p>Three actions of contract, the first two brought by Hanson and Parker, Limited, a corporation engaged in the wholesale coal business in Boston with a branch office in New York, against C. J. Wittenberg of New York, an agent for certain West Virginia coal mines, and the High Carbon Coal and Coke Company, one of these actions being for damages for an alleged breach of a contract to deliver to the plaintiff coal of a certain kind and quality and the other action being on an account annexed for SI,483.53 for money paid for insurance, freight, towing and shifting, and the third action brought by C. J. Wittenberg and the High Carbon Coal and Coke Company against Hanson and Parker, Limited, with counts for the price of coal sold and delivered and for damages for a breach of contract in refusing coal on its delivery. Writs in the first two actions dated May 7 and May 23, 1900, and writ in the third action dated September 10, 1903.</p> <p>By agreement of the parties the three cases were referred to Roland W. Boyden, Esquire, as auditor, and also by agreement of the parties C. J. Wittenberg and the High Carbon Coal and Coke Company were treated as one and the same person and were referred to as C. J. Wittenberg alone. Later the three cases were heard together by Fessenden, J., without a jury, and the only evidence offered by either party was the auditor’s report.</p> <p>In the first two actions Hanson and Parker, Limited, sought to recover damages for the delivery of two cargoes of inferior coal which were accepted and paid for; for the non-delivery of the remainder of the coal called for by the first contract, three cargoes having been tendered and refused on account of their inferior quality; for expenses paid upon two of these cargoes; and for loss of profits upon resales of part of the coal. In the third action Wittenberg sought to recover damages for the failure of Hanson and Parker, Limited, to receive and pay for the entire quantity of coal specified in the two contracts.</p> <p>Hanson and Parker, Limited, and Wittenberg entered into two contracts. The first, which was made on April 7,1900, pro- ' Tided for the sale by Wittenberg to Hanson and Parker, Limited, of ten thousand tons of New River coal at $2.50 a ton, f. o. b. vessel at Newport News, to be delivered five thousand tons in April and five thousand tons in May. The second, which was made on April 13,1900, provided for a further sale of ten thousand tons of the same kind of coal at $2.57 per ton, to be delivered five thousand tons in May and five thousand tons in June.</p> <p>The auditor’s report contained the following finding in regard to the custom in the coal trade: “ The custom of the coal trade requires, in case of sales of coal for shipment f. o. b. Newport News, that the purchaser shall charter vessels to receive the coal at the railroad loading piers at Newport News, and shall notify the seller. The coal received from the mines by the railroad, and transported to its piers, is loaded in such vessels by the railroad upon instructions from the seller. A certain leeway is allowed either party upon a contract for a definite number of tons, a variation of five to ten per cent either way being permitted. The purchaser is not expected to inspect the coal at the time of loading.”</p> <p>The following facts and also others which are stated in the opinion appeared by the auditor’s report:</p> <p>Hanson and Parker, Limited, ordered from Wittenberg six cargoes of New River coal, amounting to about twelve thousand tons, and sent the vessels to Newport News to be loaded. Wittenberg loaded five of these vessels with an inferior grade of coal not New River coal. Hanson and Parker, Limited, paid for the first two cargoes, which arrived at Boston about April 27, and were broken into before it appeared that they did not contain New River coal. A custom of the coal trade prevents the return of a cargo by the buyer to the seller after bulk has been broken, and Hanson and Parker, Limited, retained the first two cargoes. At the time the quality of the coal in these cargoes was discovered, the third, fourth and fifth vessels were loaded, and had left Newport News for Boston. Hanson and Parker, Limited, then had the bills of lading for the third and fourth cargoes, but never received a bill of lading for the fifth cargo. At this time the sixth vessel had not arrived at Newport News. As soon as the quality of the coal in the first two cargoes was discovered, Hanson and Parker, Limited, and Wittenberg had a conference, in which it appeared that the third, fourth and fifth cargoes consisted of coal like that in the first two vessels, and that Wittenberg could not deliver New River coal in accordance with his agreements. Hanson and Parker, Limited, thereupon refused to accept the third, fourth and fifth cargoes or any coal similar to them, sent the sixth vessel to another mine agent for her cargo, and cancelled the contract of April 13. Wittenberg took back the bills of lading for the third and fourth cargoes, did not tender that for the fifth, and acquiesced in the cancellation of the second contract.</p> <p>The fair market value of New River coal at Boston was $3.40 per ton between April 19 and May 10,1900, $3.35 per ton between May 10 and May 31, 1900, and $3.25 per ton between June 1 and June 30,1900, and at Newport News the fair market value was seventy-five cents per ton less. The fair market value of the inferior coal in the first two cargoes was $2.40 per ton at Boston. There was no evidence of its value at Newport News. Hanson and Parker, Limited, paid out in necessary expenses upon the third and fourth cargoes, which were sold by Wittenberg for his own benefit, the sum of $1,453.07.</p> <p>At the close of the evidence, as contained in the auditor’s report, C. J. Wittenberg asked the judge to make the following findings and rulings, which were disposed of by the judge as stated after each:</p> <p>“1. Where two contracts between the same two parties are distinct and to be performed at different times, the non-perform-once of one is no defense to an action on the other.” This ruling was made by the judge.</p> <p>“ 2. The contract, of April 13th was a different and separate contract to that of April 10th.” This ruling was made by the judge.</p> <p>“ 3. No failure on the part of Wittenberg to perform the contract of April 10th afforded a right to Hanson and Parker, Limited, to refuse to perform the contract of April 13th.” This ruling was made by the judge.</p> <p>“ 4. Hanson and Parker, Limited, had no right to require Mr. Wittenberg’s assurances as to the manner of his performing the' contract of April 13th before the time of performance had arrived according to the terms of said contract.</p> <p>6 5. Wittenberg was not obliged to give any assurances or make any promises as to his manner of performing the contract of April 13th at any time before the time for performance on his part had arrived according to the terms of said contract.”</p> <p>As to requests 4 and 5 the judge found and ruled that Hanson and Parker, Limited, was justified in calling for assurances from Wittenberg.</p> <p>“6. Where contracts for the sale of personal property are broken, by a vendor failing to deliver the property according to the terms of the bargain, the measure of damages is the difference between the contract price and the market price of the article at the time when and the place where it should have been delivered.” As to this request the judge ruled that, although it stated the general rule correctly, the present case did not come within that general rule.</p> <p>“ 7. The measure of damages for the failure of Wittenberg to deliver the coal to Hanson and Parker, Limited, is the difference between the contract price and market price at Newport News at the various times when it was his duty to deliver it.” Refused.</p> <p>“ 8. Where coal has been accepted and delivered by Wittenberg to Hanson and Parker, Limited, under these contracts, if the coal delivered did not comply with the terms of the contract, the measure of damage is the difference between the value of the coal delivered at the place and time when it was so delivered, and the value of the coal which should have been delivered according to the terms of the contract.” Refused.</p> <p>“ 9. The measure of damages to be awarded to Hanson and Parker, Limited, for failure to deliver coal according to contract in barges 11 and 16,* is the difference between the price of New River coal at Newport News at the time of the loading of said barges and the value or market price of the coal actually delivered in said barges.” Refused.</p> <p>“10. There being no evidence as to the value of the coal delivered at Newport News the court cannot award any damages to Hanson and Parker, Limited, upon the cargoes in barges 11 and 16.” Refused.</p> <p>“ 11. The market price of New River coal and other coals in Boston is immaterial and furnishes no measure of damages in this case.” Refused.</p> <p>“ 12. The measure of damages for failure of Wittenberg to deliver coal to Hanson and Parker, Limited, is the difference between the contract price and the market price of New River coal at Newport News.” Refused.</p> <p>“ 13. The measure of damages with reference to the cargoes in barges 11 and 16 is the difference between the market value at Newport News of the coal actually delivered, and the market value of New River coal, and there being no evidence as to such difference, there can be no recovery as to the coal delivered in barges 11 and 16.” Refused.</p> <p>“ 14. Hanson and Parker, Limited, are not entitled to recovery for loss of profits.” This was found and ruled by the judge. .</p> <p>The requests numbered from 15 to 19 inclusive related to loss of profits, and were ruled by the judge to be immaterial in view of his finding and ruling upon request 14.</p> <p>“ 20. Hanson and Parker, Limited, are not entitled to recover any of the expenses incurred by them in connection with the coal after it left Newport News.” Refused.</p> <p>The requests from 21 to 29 inclusive were for rulings .that Hanson and Parker, Limited, were not entitled to recover damages against Wittenberg under any of nine different items of the auditor’s report. Each of these requests was refused.</p> <p>“ 30. Even if the court should find that the two letters of April 10th and April 13th constituted but a single contract between Hanson and Parker, Limited, and Wittenberg, then the same was a divisible contract, and a failure of the vendor to deliver the coal on certain instalments of the contract in accordance with the terms thereof is not such a breach of the entire contract as to excuse the vendee from taking and paying for the coal on the remaining instalments.” Ruled to be immaterial in view of the finding and ruling under request 2.</p> <p>“ 31. Wittenberg is entitled to recover as damages the difference between the contract price and the market at Newport News on ten thousand tons of coal which Hanson and Parker, Limited, refused to accept and pay for in accordance with the order of April 13th.” Refused.</p> <p>“ 32. The contract of April 13th has never been cancelled.” Refused.</p> <p>The judge found for the plaintiff Hanson and Parker, Limited, in the sum of $5,944.09 as damages in the first action and in the sum of $2,270.79 as damages in the second action, and found for the defendant Hanson and Parker, Limited, in the third action.</p> <p>In assessing damages, the judge allowed Hanson and Parker, Limited, in the first action the difference between the values at Boston of the coal delivered in the first two cargoes and of New River coal, and the difference between the value of New River coal at Boston and the contract price plus the cost of transportation of the amount of coal in the third, fourth and fifth cargoes; and in the second action he allowed the expenses paid by Hanson and Parker, Limited, upon the third and fourth cargoes.</p> <p>To the refusals to find and rule as requested and to the findings and rulings made by the judge, C. J. Wittenberg alleged exceptions.</p>

<p>Way, Defect in highway. Automobile. Negligence. Practice, Civil, Exceptions, Actions tried together, Verdict. Evidence, Presumptions and burden of proof.</p> <p>No action can be maintained against a city for injuries received, while being driven in an automobile, by reason of a defect in a highway of the defendant, if the negligence of the driver of the automobile contributed to the accident, regardless of the relation of the plaintiff to the driver and of any question of imputed negligence ; because in such a case the defect in the way could not be found to be the sole cause of the injury, which under our decisions is necessary for a recovery under the highway act. The same rule applies to an action by the owner of the automobile for injury to his property.</p> <p>In an action against a city for personal injuries received, while the plaintiff was being driven in an automobile, by reason of a defect in a highway of the defendant, an exception to a refusal of the presiding judge, to rule that the plaintiff could not recover if the driver of the automobile was not in the exercise of due care, will not be sustained although the ruling asked for was correct, if the refusal has been made immaterial by a verdict of the jury for the plaintiff in another action brought by the owner of the automobile and tried at the same time, which under the instructions given establishes the fact that the driver of the automobile was not negligent.</p> <p>In an action against a city for personal injuries received, while the plaintiff was being driven in an automobile, by reason of a defect in a highway of the defendant, a refusal of the presiding judge, to rule that if a defect in the automobile contributed to the accident the plaintiff could not recover, will not be sustained although the ruling asked for was correct, if the refusal has been made immaterial by a verdict of th'e jury for the plaintiff in another action brought by the owner of the automobile and tried at the same time, which under the instructions given establishes the fact that a defect in the automobile did not contribute to the accident.</p> <p>A person who is being driven upon a highway in an automobile which is not registered as required by law is not a traveller lawfully upon the way within the meaning of the highway act, and if he is injured by reason of a defect in the highway he cannot recover from the city or town maintaining it.</p> <p>Under St. 1903, c. 473, § 1, as amended by St. 1905, c. 311, § 2, and St. 1906, c. 412, § 8, the registration of an automobile expires upon a transfer of ownership, and an automobile which after such a transfer bears the number of its former registration and no other, cannot be lawfully upon a highway.</p> <p>In actions against a city, for personal injuries received by reason of a defect in a highway of the defendant while the plaintiff was being driven thereon in an automobile, and by the owner of the automobile for injury to his property, where the defense relied upon is that the automobile was not registered and numbered as required by law and therefore was upon the highway unlawfully, the burden of proving this fact is upon the defendant; but, if the defendant introduces evidence that the automobile was duly registered by a former owner, that this registration had expired about three months before the accident, and that the car still bore the number of the old registration, and the plaintiffs, of whom one is the owner, put in no evidence of any later registration, it cannot be said as matter of law that the evidence of the defendant may not be found by the jury to be sufficient to sustain the burden of proof upon this issue.</p>

<p>Tax, Exemption. Charity.</p> <p>The charter of a corporation stated that it was organized “ for the purpose of founding a hospital or charitable asylum ... for the care and relief of indigent or other sick or infirm persons, at which institution may be received also patients and patrons who are able to and who pay for the benefits therein received and which institution shall devote the funds and property acquired . . . exclusively to maintain itself, improving its conditions and facilities, extending its benefits and usefulness and facilitating and promoting its purposes by such sanitary, dietetic, hygienic and philanthropic reforms and efforts as are germane or auxiliary thereto. ■ All of its said purposes being undenominational, non-sectarian, philanthropic, humanitarian, charitable and benevolent and in no manner directly or indirectly for profit or dividend paying to any one.” The corporation, from contributions, supplemented by loans and mortgages from friends, purchased land, built thereon several buildings and conducted a modern sanitarium with physicians, nurses and attendants. Besides the sources above mentioned, the expense of maintenance was paid by sums paid by various patients and others who came to visit patients. During the year 1907, one and seven one hundredths per cent of those who received accommodations were free patients, four and seven one thousandths per cent were part paying patients, and the rest paid the full rate named in an advertised schedule which ranged from §12 to §35 per week. None of the officers of the corporation, except the treasurer, who also was the manager, received any remuneration. Free patients, before they were admitted, had to be passed upon by a committee as to their character and financial standing. Held, that the personal property and real estate of the corporation was exempt from taxation under the provisions of R. L. c. 12, § 5, cl. 3, which exempts from'taxation the personal property of benevolent and charitable institutions and such of its real estate as is owned and occupied by it for the purposes for which it was incorporated.</p>

<p>Automobile. Statute, Construction. Way, Public. Street Commissioners.</p> <p>Review by Hammond, J., of statutes regarding the operation of automobiles in this Commonwealth.</p> <p>A statute, which relates only to the regulation of the operation of motor vehicles in this Commonwealth, contains a provision, “ No ordinance, by-law or regulation now in force in any city or town or in any park or parkway which regulates the speed at which motor vehicles shall run upon its ways, or which excludes such vehicles therefrom or which governs or restricts the use of such vehicles shall hereafter have any force or effect.” Previous to the enactment of the statute, an elaborate code of regulations had been adopted by the street commissioners of the city of Boston under the authority of an act of the Legislature which made no reference to motor vehicles. If the statute were held to have made of no effect the regulations of the street commissioners, the result would be to allow to those operating motor vehicles the use of the streets of Boston without observance of the code and thus to impair and probably eventually substantially to destroy the efficiency of the code. Held, that before the statute could be given such effect, the intent of the Legislature therefor must be shown plainly by the language of the statute interpreted in the light of the circumstances at the time it was passed and of the history of the legislation of which it formed a part.</p> <p>In St. 1909, c. 634, relating to the operation of motor vehicles, that part of § 17, which provides that “No ordinance, by-law or regulation now in force in any city or town or in any park or parkway which regulates the speed at which motor vehicles shall be run upon its ways or which excludes such vehicles therefrom or which governs or restricts the use of such vehicles shall hereafter have any force or effect,” was intended by the Legislature to refer only to those regulations which theretofore had been made under St. 1903, c. 473, and St. 1905, c. 366, referring to the same subject, and was not intended to refer to or to affect a code of “ street traffic regulations and rules for driving ” which previously had been established by the street commissioners of the city of Boston as to all vehicles on its public streets under the authority given to them by St. 1908, c. 447, to “ pass ordinances, by-laws or regulations relative to street traffic, or to the movement, stopping or standing of vehicles,” and “ to pass, and to amend or change from time to time, all regulations for such purpose, not inconsistent with law, which they shall deem needful to prevent the congestion and delay of traffic, and for other purposes and therefore those of such rules which are not inconsistent with the statute remain in force as to motor vehicles as well as to other vehicles therein described.</p>

<p>Evidence, Relevancy and materiality. Fraud. Descent and Distribution. Devise and Legacy. Will. Conflict of Laws. Equity Jurisdiction, Statute of limitations. Tax, Cancellation of tax deed. Constitutional Law, Obligation of contracts. Statute, Amendment. Limitations, Statute of.</p> <p>Where, in a bill in equity, fraud on the part of the defendant is averred and is made one of the grounds for relief sought in the impeaching and setting aside of a certain transaction, evidence tending to show the relation of the parties to the alleged fraud and their conduct and their motives is admissible to explain the nature of the transaction which it is sought to impeach and set aside.</p> <p>It seems, that land in this Commonwealth, undertaken to be devised by the will of one, who died domiciled in another State and whose will has been proved only in that State, may be treated as intestate property in a suit to redeem it from a tax sale.</p> <p>A statute which attempted to extend the time within which land could be redeemed from tax sales already made under R. L. c. 13, §§ 58, 75, would be unconstitutional as impairing the obligation of contracts.</p> <p>R. L. c. 13, § 75, giving to the Supreme Judicial Court and to the Superior Court jurisdiction in equity in all cases of taking or sale of land for the payment of taxes “if relief is sought within five years after the taking or sale,” was amended by St. 1905, c. 325, § 3, which was approved on April 21,1905, so that the period of limitation was made six years instead of five years. A suit in equity was begun on December 11, 1907, to cancel and discharge a tax deed given after a sale which occurred on January 10, 1902. Held, that the suit must be dismissed, because the amendment to the statute is applicable only to tax sales made after its passage.</p>

<p>Bill iu equity, filed in the Supreme Judicial Court on September 28, 1908, and amended on October 1, 1908, and October 5, 1909, by the trustee in bankruptcy of the estate of Edward A. Bangs against the executors of the will of S. Gannett Wells, late of Boston, and by the later amendment against the defendants Hayes and Wing individually, to compel the defendants to pay and turn over to the plaintiff certain deposits in Boston banks amounting to about $27,000 standing in the names of the defendants as executors and a deposit of about $11,000 in the National Shawmut Bank standing in the names of the defendants individually, or such portion of such funds as might be found to be partnership property of the firm of Bangs and W ells, to be administered by the plaintiff as a part of the estate of the bankrupt as the surviving member of that firm.</p> <p>An interlocutory decree was made ordering that the persons named therein for whom the firm of Bangs and Wells were acting as trustees, agents or attorneys or in any other fiduciary capacity at the time of the death of Wells should be made parties defendant.</p> <p>The case was referred to Ethelbert Y. Grabill, Esquire, as master, “to hear the parties and their evidence, to find the facts and report the same to the court.” The master filed a report, and later filed a supplemental report upon certain matters in regard to which the report had been recommitted to him. The essential facts reported by the master are stated in the opinion.</p> <p>The case came on to be heard, upon the pleadings, the' master’s report and supplemental report and the exceptions thereto, before JBraley, J., who reserved it for determination by the full court.</p>

<p>Negligence, Employer’s liability. Conflict of Laws. Evidence, Foreign law, Presumptions and burden of proof.</p> <p>In an action of tort by an employee against his employer to recover for personal injuries received while the plaintiff was at work for the defendant in another State, the declaration contained counts under R. L. c. 106, § 71, and a count at common law. The defendant did not raise the objection that the defendant’s liability should be determined by the law of the place of the accident but was content to rest his liability upon both the common and the statutory law of this Commonwealth. No evidence, therefore, of the law of the State where the injury to the plaintiff was received was introduced, but it was said that, in the absence of evidence to the contrary, the common law of the place of the accident would be presumed to be the same as that of this Commonwealth, although such presumption would not arise as to the statutory law of the other State.</p> <p>In an action by an employee against his employer, a bridge building corporation, the declaration contained a count at common law alleging a negligent failure of the defendant to provide the plaintiff with safe and proper tools and appliances to use in his work. At the trial there was evidence tending to show that the plaintiff was at work with three fellow employees in hammering iron rivets into an iron bridge by the use of a pneumatic hammer, that when in its proper condition the piston of the hammer would remain at rest unless a trigger upon it was pressed, that a pneumatic hammer requires frequent cleaning in order to keep particles of dust from getting under the valve and setting the piston in motion without the trigger being pressed, that, also, the hammer should be inspected frequently because a spring which keeps the trigger up and the valve closed is likely to become weak and to cause a leaking which would put the piston in motion. There was further evidence tending to show that the hammer had not been cleaned or inspected for a considerable period before the accident, and that, previous to the accident, the hammer, when not in use but lying on the ground, had been seen to move and twist, but there was no evidence that the plaintiff understood the inner mechanism of the hammer or was qualified to or did attach any significance to such fact. There also was evidence that, while a fellow workman of the plaintiff was holding the hammer and when there was no pressure on the trigger, the piston suddenly started and struck and destroyed the plaintiff’s eye. Held, that it could not be ruled as matter of law either that the plaintiff was wanting in due care or that, having anticipated what occurred, he voluntarily exposed himself to the danger; and also, that there was evidence from which the jury would have been warranted in finding the defendant negligent in failing to perform its common law duty of providing safe appliances for the plaintiff’s use and to use due diligence in keeping those which were supplied in repair.</p>

<p>Damages, In suit in equity to rescind sale for fraud. Sale, Rescission.</p> <p>Where, in a suit in equity to rescind a sale to the defendant by the plaintiff of shares of the capital stock of a corporation because the sale was procured by fraud on the part of the defendant, it appears that the sale should be rescinded, but that the defendant, because he had parted with the shares before the commencement of the suit, is unable to return them to the plaintiff, and the court of equity therefore retains jurisdiction of the case for the purpose of awarding to the plaintiff the damages which he suffered from the defendant’s fraud, the amount of such damages is the difference between the value of the shares on the day when the sale was made and the amount paid by the defendant to the plaintiff for them, with interest at six per cent thereon from the date of the sale to the date of the final decree. Whether a different rule would apply and, if so, what rule, in a case where the defendant after the filing of the bill had disabled himself from returning the shares to the plaintiff, here was not considered.</p>

<p>Mortgage, Of real estate. Adverse Possession. Limitations, Statute of. Payment. Evidence, Presumptions and burden of proof.</p> <p>If a man makes a mortgage of a farm, purporting to convey the whole title, whereas his interest in it is a remainder after the death of his father who holds it as tenant by the curtesy, and if after the making of the mortgage the mortgagor continues to live upon the mortgaged property operating the farm in connection with his father until a period of more than twenty years has elapsed after the maturity of the mortgage note, during which no payment of principal or interest has been made upon the mortgage and no acknowledgment of the mortgage or promise to pay has been made, such sharing by the mortgagor in the occupation by his father is not possession of the property by the mortgagor, and cannot be relied upon to establish a title in him at common law by adverse possession against the mortgagee, nor can it be made the basis of proceedings under R. L. c. 182, § 15, to have the mortgage declared to be discharged.</p> <p>The fact that an action upon a note secured by a mortgage is barred by the statute of limitations does not affect the validity of the mortgage securing the payment of the note.</p> <p>The presumption that a witnessed promissory note has been paid when it has been due for more than twenty years is a presumption of fact which can be rebutted by any legal evidence showing that the note has not been paid.</p> <p>In a suit in equity against the assignee of a mortgage on the plaintiff’s land seeking the cancellation and discharge of the mortgage, which had been given to secure a witnessed note, which was payable more than twenty years before the filing of the bill and on which no payment of principal or interest had been made during that time, the plaintiff contended that it must be presumed that the note had been paid. It appeared that, when the plaintiff gave the mortgage, his interest in the land was that of a remainderman, subject to a life estate in his father who was a tenant by the curtesy, and that the plaintiff after giving the mortgage lived with his father upon the land until the death of his father, which occurred less than three years before the filing of the bill, and that thereafter the plaintiff occupied the land as his own, that ever since the making of the mortgage the mortgage and the note were and continued to be in the custody of the mortgagee or of the defendant as his assignee, that the mortgagee and the defendant frequently wrote to the plaintiff and received no answer, and that they had refrained from taking steps to foreclose the mortgage because they were informed by counsel that they could do nothing until the death of the life tenant, that upon the death of the plaintiff’s father they demanded payment from the plaintiff, who made no pretense that the note had been paid, although he refrained from making any promise or any express recognition of the validity of the mortgage, and spoke of his hard luck and his poverty, that the plaintiff was present at the trial and did not take the stand to testify, and it did not appear by the record that he ever had said that the note was paid. Held, that, giving due weight to the presumption of payment arising from the lapse of time, the evidence showed so strongly that the note had not been paid, that a finding of a trial judge to the contrary would he reversed as clearly wrong; and that, the note not having heen paid, the mortgage stood as security for the debt.</p>

<p> Milk. Constitutional Law. </p> <p>The provisions of R. L. c. 66, §§ 56, 57, making it a crime to sell or have in possession with intent to sell milk which is not of good standard quality, as amended by St. 1908, c. 643, which provides that “milk which, upon analysis, is shown to contain less than twelve and fifteen hundredths per cent of milk solids or less than three and thirty-five hundredths per cent óf fat, shall not be considered of good standard quality,” are constitutional.</p> <p>In a prosecution under R. L. c. 56, §§ 66, 57, as amended by St. 1908, c. 643, for having in possession with intent to sell milk which contained eleven and sixty-five hundredths per cent of milk solids and no more, evidence offered, to show that the defendant did not know and had no reason to know that the milk in his possession contained less than the prescribed quantity of milk solids, is immaterial.</p> <p>In a prosecution under R. L. c. 56, §§'66, 57, as amended by St. 1908, c. 643, for having in possession with intent to sell milk which contained eleven and sixty-five hundredths per cent of milk solids and no more, evidence offered, to show that the milk in the defendant’s possession was not deleterious or injurious to health and that it was nutritious and beneficial as an article of food, is immaterial.</p> <p>In a prosecution under R. L. c. 66, §§ 56, 57, as amended by St. 1908, c. 648, for having in possession with intent to sell milk which contained eleven and sixty-five hundredths per cent of milk solids and no more, evidence offered, to snow that the milk in the possession of the defendant was without adulteration and just as it came from properly fed cows in sound health, is immaterial.</p>

<p> Domicil. Marriage and Divorce. </p> <p>One, who has come into this Commonwealth with the intention of residing here permanently and without any intention of returning to a former place of abode and remains with his wife at a hotel in a city in this Commonwealth for about two weeks, entertaining friends and looking around to find a suitable house in which to live permanently in the suburbs of the city, has acquired a domicil in this Commonwealth, although in no particular city or town.</p> <p>If a man comes here with his wife after their marriage in New York for the purpose of making his home permanently in this Commonwealth, although he is undecided as to the city or town in which he will reside, and remains at a hotel in a city of this Commonwealth for less than two weeks, looking around for a house in the suburbs in which to live permanently, after which he and his wife leave for a health resort in another State at the request of his mother, who is ill there, and he, before leaving the city in this Commonwealth, authorizes his wife’s sister to find a suitable apartment for him and his wife in a certain town adjoining that city, and she does so, and he afterwards sends his clothes there, .but when he is on his way there with his wife stops off in New York, and thereafter never rejoins his wife or returns to this Commonwealth, he has acquired a domicil in this Commonwealth; and, at the trial of a libel against him for divorce, a finding by the trial judge that the libellee and his wife never “ lived together as husband and wife in this Commonwealth” within the meaning of B. L. c. 152, § 4, is not warranted in law.</p>

<p>Tort for personal injuries sustained by the plaintiff on October 14, 1904, while in the employ of the defendant as a saleswoman on the second floor of the defendant’s store on Washington Street in Boston. Writ dated February 14, 1905.</p> <p>In the Superior Court the case was tried before Bishop, J. The facts shown by the evidence are stated in the opinion. The judge ruled that there was not sufficient evidence to warrant a jury in finding for the plaintiff, and ordered a verdict for the defendant. The plaintiff alleged exceptions, which after the death of Bishop, J., were allowed by Pierce, J.</p>

<p>Equity Jurisdiction, Specific performance. Statute of Frauds. Fraud. Estoppel.</p> <p>A bill in equity, which sought to enforce specific performance of an oral contract by which the defendant agreed to convey and the plaintiff, a woman, agreed to purchase a farm called the “ H. place,” alleged that included in the “ H. place ” was a valuable orchard called the “ T. lot,” that the defendant dissuaded the plaintiff from having the title examined before delivery of the deed and by false and fraudulent representations executed and delivered and induced the plaintiff to accept a deed which omitted from its description the “ T. lot,” that for the deed the plaintiff paid some cash and gave a note secured by a mortgage, supposing that the deed included in its description the whole of the “ H. place,” that the plaintiff took possession under the deed believing “ that she had taken possession of the whole of” the “ H. place,” that she moved her household furniture and belongings from another town to the buildings upon the “ H. place,” and in further reliance upon the representations of the defendant gave up a comfortable home and a profitable employment and business, that after taking possession she had made valuable improvements upon the place, and that thirteen days after taking possession she discovered that the “ T. lot ” was not included in the defendant’s deed. It was not distinctly averred that the improvements were made by the plaintiff before she discovered the defendant’s fraud. The defendant demurred on the ground that the bill sought the enforcement of a contract for the sale of lands without the memorandum required by R. L. c. 74, § 1, cl. 4. Held, that since the plaintiff when she took possession thought she was taking possession of the whole " H. place,” according to the agreement of the parties which the defendant by his own fraud failed to express in the deed, the defendant might be presumed to have given up, and the plaintiff to have taken, possession of the whole “ H. place,” that the removal by the plaintiff to the place newly purchased must have been contemplated by the defendant, and that the giving up of her business by the plaintiff might have been found to have been induced by the act of the defendant, and therefore that the case was distinguishable from Glass v. Hulbert, 102 Mass. 24, there having been a part performance and a change of situation on the part of the plaintiff which estopped the defendant from setting up the statute of frauds, and that the defendant’s demurrer should be overruled.</p> <p>Where an oral agreement for the sale of land, which originally was unenforceable by the purchaser by reason of R. L. c. 74, § 1, cl. 4, has been partly performed by the purchaser by paying the purchase price, by taking possession of the land, and by suffering substantial loss either through a change in his situation or the making of improvements upon the estate, and where the purchaser cannot be restored to his original situation, he may maintain a suit in equity for specific performance of the contract.</p>

<p>Automobile. Evasion of Carriage Hire. Words, “Carriage.”</p> <p>Under R. L. c. 208, § 55, which provides that “ whoever . . . with intent to cheat or defraud the owner thereof . . . refuses to pay for the use of a horse or carriage the lawful hack or carriage fare established therefor by any city or town, shall be punished” as therein provided, a complaint cannot be maintained for refusing to pay the lawful fare for the use of an automobile.</p>

<p>Tort for personal in jarles which were received on the evening of August 31, 1904, when the plaintiff was a passenger on a short four wheeled box car of the defendant on Dorchester Street in that part of Boston called South Boston, and were due to the car’s running off the track and down an embankment. Writ dated October 20, 1904.</p> <p>The case previously was before this court upon exceptions of the defendant after a verdict for the plaintiff, and is reported in 197 Mass. 367. It was tried a second time before Sherman, J.</p> <p>That part of the bill of exceptions which relates to the testimony of the defendant’s medical expert, Dr. Howard A. Lothrop, referred to in the opinion, stated that the witness “ testified among other things on direct examination that at an examination made by him of the plaintiff within three or four weeks after the accident, in the presence of Dr. Devine, the plaintiff’s attending physician, and one of her witnesses at the trial, Dr. Devine had taken from his pocket a paper which he stated was a letter that he had received from Dr. Timothy J. Reardon, a throat and nose expert, who had examined the plaintiff’s nose, and that Dr. Devine stated that he would read to the witness Lothrop a portion of said letter, and that he then did read what purported to be a portion of said letter, but that Lothrop did not see the letter, and that he (Lathrop) took notes of what Dr. Devine read. On the cross-examination of Dr. Lothrop, the plaintiff’s counsel held in his hand a written paper in the form of a letter, and the following questions were asked and answers given: Q. Well, you did take down, at all events, what he wrote to Dr. Devine ? A. I took down what Dr. Devine read to me. — Q. Well, you said6 swelling.’ If Dr. Devine read a6 marked swelling,’ you did n’t get that ? (Objected to by counsel for the defendant. The plaintiff’s counsel stated: 61 am testing the witness’s recollection.’) A. I have no recollection. (The defendant excepted.) — Q. You are not sure you took down everything Dr. Devine read ? A. I took down the gist of what he read to the best of my ability. — Q. Will you swear he did not say 6 marked swelling ’ ? A. I won’t swear one way or the other. I am telling you the truth as well as I can. — Q. You wouldn’t say that he didn’t say ‘ marked swelling ’ ? A. I can’t say anything different from what I have said.”</p> <p>The defendant offered the testimony of one Delia Lynch, who at the time of the accident and until some time after the first trial of this case had been a neighbor of the plaintiff, and who testified at both trials to some of the plaintiff’s actions after the accident. The defendant in opening the case had stated in reference to the witness Delia Lynch that it would offer evidence tending to show that after the first trial she had been subjected by the plaintiff and by members of the plaintiff’s family, with the knowledge and consent of the plaintiff, to certain indignities and threats amounting to intimidation, and had interrogated Delia Lynch and other witnesses with a view to connecting the plaintiff herself with the alleged intimidation of Delia Lynch, but had failed to show such connection. On the direct examination of Delia Lynch she was asked : “ Can you connect her in any way — is there any way — did you, in consequence of these events, her following you on the street and other events which took place in connection with her family, did you come to me and make a complaint?” and “Did you, in consequence of anything that was said, go to an attorney? ” Both questions were excluded subject to exceptions by the defendant.</p> <p>The eighth, twentieth and twenty-seventh rulings asked for by the defendant and referred to in the opinion were as follows:</p> <p>“ 8. The plaintiff is not entitled in this case to the benefit of the rule of res ipso loquitur.”</p> <p>“ 20. If the jury believe the defendant’s explanation of this accident, namely, that it was due to a combination of the ordinary tilting of the car in such a position as it was when it was derailed, such tilting, however, not being sufficient in itself to cause the derailment, with the presence on the track of some obstruction or thing which was of such a size and character, a'nd which got there at a time and under such circumstances that its presence could not have been foreseen, prevented or detected, or its consequence avoided by the exercise of that high degree of care which the law required of the defendant, its servants or agents, including the motorman and conductor, then the jury should not hesitate in finding a verdict for the defendant.”</p> <p>“ 27. If the jury believes the explanation of this accident offered by the defendant, that is to say, that the derailment of this car was caused by the presence of some small obstruction on the track in combination with an oscillation not in itself dangerous, and that said small object got there after the passage of the car next previous to the car in which the plaintiff was riding, and could not be perceived by the motorman by the exercise of that high degree of care which he was under an obligation to use, and that after the car struck said obstruction the motorman did all he could to obviate the consequences of the accident, then the plaintiff cannot recover.”</p> <p>Other facts are stated in the opinion. There was a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p> Mechanic’s Lien. </p> <p>Where three persons, each of whom has a lien under B. L. c. 197, § 1, upon certain real estate for labor performed in the erection of a building thereon, file in the registry of deeds for the county where the real estate is situated within the time allowed by § 6 of that chapter a certificate containing a description of the real estate upon which the liens are claimed, the opening statement of which is “ We hereby certify that the following is a just and true account, with all just credits given of the amount due us for labor performed in the erection of a building ” upon the lot described, followed under the word “ Account ” by three separate statements of the labor performed by each of the lienors, which certificate is signed and sworn to by an attorney in behalf of all of the lienors, the liens are preserved and the three lienors may maintain a joint petition to enforce them under § 11 of the same chapter.</p> <p>The inversion, in the caption of the statement of account included in the certificate filed by a lienor under B. L. o. 197, § 6, to preserve a mechanic’s lien, of the names of the lienor and of the contractor, which is an obvious error in the manner of stating the account, does not affect the validity of the lien.</p>

<p>Negligence, Street railway, Due care of plaintiff.</p> <p>At the trial of an action against a street railway company for injuries caused by a collision between an electric street car of the defendant and a top buggy in which the plaintiff was driving, there was evidence tending to show that the collision occurred at about 9.30 p.m. on a July 31 upon a city street fifty or sixty feet wide running northerly and southerly with double street railway tracks in the middle, that just previous to the collision the plaintiff, driving in a southerly direction with the flap at the back of the buggy up so that he had an unobstructed view of the street and tracks behind him, stopped at the curbing on the westerly side of the street to allow a guest to alight, that thereafter he looked behind him and saw a car approaching at a distance of three or four hundred feet, struck the horse with a rein, turned his buggy toward the east and was crossing the street in a semicircle turning toward the south, when the car struck the buggy between the front and rear wheels, breaking the whiffletree and both front wheels, dishing the rear wheels, breaking the box and the top of the buggy and pushing the buggy along ten or twelve feet before the car came to a stop. The plaintiff testified that he did not remember whether he heard a bell or gong before the car struck the buggy, that he was familiar with the locality and knew that cars ran there every three or four, and sometimes every five or ten minutes, and that lie could easily have seen up the track as he was crossing it. There was no evidence as to whether the gong of the car was sounded. There was evidence tending to show that the car at the time of the collision and immediately before was going very rapidly. Held, that it could not be said as matter of law that the plaintiff was not in the exercise of due care, or that the motorman was not negligent, and that the case was for the jury.</p>

Tort for personal injuries sustained by the plaintiff on November 8,1903, by reason of the negligence of one Duggan, who was driving in a funeral procession a pair of horses attached to a hack belonging to the defendant, a stable keeper, and ran into a buggy belonging to one Bakeman, in which Bakeman was driving with the plaintiff as his guest, the funeral procession being in charge of one Hogue, an undertaker. Writ dated February 1, 1904.

<p>Negligence, Gross. Railroad.</p> <p>In an action by an administratrix against a railroad corporation under R. L. c. Ill, § 267, for causing the death of the plaintiff’s intestate by reason of the alleged gross negligence of the defendant's servants, it appeared that the plaintiff’s intestate was in the employ of the city in which the accident occurred, and for about three months had been at work with others under the charge of an assistant superintendent of the water works of the city in laying a water pipe across the location of tracks on which trains were operated by the defendant, at a place not far from a large terminal station and near a yard for passenger coaches and a coaling station for locomotives, that it was a very noisy place and there were many tracks there, that trains and locomotives constantly were passing and re-passing, both backing and going forward, and that from the place where the accident occurred trains coming from the terminal station were visible for about two hundred feet. There was evidence tending to show that when a locomotive was coming from the direction of the station with its tender forward, it was impossible from the cab to see the track where the plaintiff’s intestate was, that the workmen of the city had been warned repeatedly to look out for themselves, and that it was customary, when the gang of men to which the plaintiff’s intestate belonged was at work on the tracks, for one of the intestate’s fellow employees to be posted nearer the station, where he could see down the curve to give warning of approaching trains, but that at the time of the accident no such man was at this post for the reason that all the men of the gang, with the exception of the plaintiff’s intestate, had left the tracks for other work, that the plaintiff’s intestate remained behind and was bending over to pick up some blocking, when he was struck by the tender of a locomotive which was backing from the direction of the station and was drawing a train of cars on one of the main outward tracks. There was some evidence that it had been a custom for trains coming from the terminal station to ring a bell and that no one heard the bell of this engine ring, that the defendant knew that the work of the city was going on and that the train which caused the injury did not stop. Held, that there was no evidence for the jury of gross negligence of any of the agents or servants of the defendant.</p>

<p>Husband and Wife. Damages, In tort.</p> <p>In this Commonwealth there is no difference between a husband and a wife as to the right to recover for loss of consortium, and where a husband as administrator of the estate of his wife has recovered damages in an action of tort against a corporation operating a street railway for personal injuries sustained by his wife while a passenger in a car of the defendant, in an action brought by him per. sonally against the corporation for consequential damages arising from the same injuries to his wife, he can recover only for the expenses to which he was put in the care and attempted cure of his wife, and can recover nothing for loss ot consortium.</p>

<p>Tort for personal injuries received by the plaintiff from being run into from behind by an electric car of the defendant while the plaintiff was driving in a two horse caravan along Boylston Street in Brookline at about seven o’clock in the evening of January 15, 1907. Writ dated February 6, 1907.</p> <p>In the Superior Court the case was tried before Raymond, J. The circumstances of the accident, as shown by the evidence, are stated in the opinion. At the close of the plaintiff’s evidence, the judge ruled that on all the evidence the plaintiff could not recover, and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Contract on a policy of life insurance issued by the Provident Savings Life Assurance Society of New York, which company, as defendant, paid the amount in question into court, and was stricken out as a party to the action. Ammon P. Richardson, the husband of the insured, who had filed a petition as claimant of the fund, was made a party. The parties claiming the fund were the plaintiff, Mary A. French, the mother of the insured, and Ammon P. Richardson, the husband of the insured, each claiming to be the beneficiary under the policy. Writ in the Municipal Court of the City of Boston dated October 9, 1908.</p> <p>On appeal to the Superior Court the case was tried before jFox, J. The evidence showed that on or about September 9, 1905, the Provident Savings Life Assurance Society of New York made a contract of insurance on the life of Fannie A. French of Andover, wherein Mary A. French was made beneficiary; that the policy contained the provision in regard to a change of beneficiary which is quoted in the opinion; that on October 10, 1906, the insured, Fannie A. French, was married to Ammon P. Richardson of Andover; that on December 1, 1906, there was a change of beneficiary under the contract of insurance from the mother, Mary A. French, to Ammon P. Richardson, the husband of the insured ; that this change was made in strict conformity with the conditions of the contract; that the change was not known to the original beneficiary; that on or about May 2, 1908, there was a valid execution of a requisition for a change of the beneficiary from Ammon P. Richardson back to Mary A. French; and that the insured signed this requisition and delivered it to one Hinckley, an agent for the insurance company. The testimony of Hinckley was substantially as follows: That he was the general and soliciting agent for the insurance com-pony at the time this policy was issued; that he solicited the policy on the life of Fannie A. Richardson, and that it was duly issued to her with Mary A. French as beneficiary ; that he subsequently, at the request of the insured, completed the change of beneficiary from Mary A. French to Ammon P. Richardson; that on or about May 2, 1908, in response to a request by letter, now lost, from the insured to him, he went to Andover for the purpose of completing another change of beneficiary from Ammon P. Richardson back to Mary A. French; that the insured signed the required requisition form and acknowledged it before the witness as a notary, the acknowledgment showing the date of July 25,1908, which date was omitted by the witness through mistake at the time and later was filled in incorrectly; that it should have borne the date of May 2,1908 ; that after the completian of the requisition the insured on looking for the policy was unable to find it, and after searching said that she could not find it but that when she found it she would send it to the Boston office; that she was told by the witness that the policy must be surrendered to complete the change, or that a certificate of lost policy must be filed; that the requisition was taken to the Boston office of the company by the witness, and there remained until some time subsequent to the death of the insured, when it was forwarded to the home office of the insurance company, together with the policy. There was evidence tending to show that on or about May 7 a letter was sent to the insured enclosing a certificate for use in case of a lost policy to be filled out by the insured, together with a request to the insured so to fill it out and return it to the Boston office. The insured died on August 10, 1908.</p> <p>Upon these facts the judge ruled that the intended change of beneficiary from the husband to the mother was ineffectual under the provision in the policy, and that the husband, Ammon P. Richardson, therefore was entitled to receive the fund. He ordered a verdict for the claimant, and reported the case for determination by this court. If his ruling was correct, the verdict was to stand; otherwise, such judgment or order was to be entered as this court should determine.</p>

<p>Tort for personal injuries received by the plaintiff’s intestate and caused by a wagon which he was driving being run into from behind by a car of the defendant. Writ dated September 9, 1907.</p> <p>The case was tried before Hitchcock, 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>Tort for personal injuries received by the plaintiff while at work for the defendant at the power house of the Boston Elevated Railway Company in that part of Boston called Charlestown. Writ dated November 15,1907.</p> <p>The case was tried before Bond J. During the course of the trial the deposition of one Waterman, taken at the request of the defendant, was read. In the deposition it appeared that Waterman was a fellow employee of the plaintiff. He testified in direct examination with regard to a conversation with the plaintiff previous to the accident in part as follows: A. “ Well, I asked him [the plaintiff] if he had ever done it [the work of ‘skinning cables’]. He said he had. I said: ‘Have you ever done that kind of work’ ? He said he had. That is my recollection of it.” In cross-examination with regard to the same matter there was the following testimony: “Q. Mr. Waterman, tell us, if you will, what is the fact with reference to that ? Mr. Arnold [counsel for the defendant] understood you to say that Grebenstein told you that he hadn’t done the work. I understood you to say that Grebenstein told you that he had done the work. Which was it you said ? A. Mr. Grebenstein said — he did n’t say he had done the work. Now, I will tell you what he did say. He said, ‘We will fool them; we will show them we can do the work.’ That is Grebenstein’s words, now, exactly. ... — Q. When was it that you first told that to anybody, Mr. Waterman? ... A. I could not say that.— Q. Was it in Mr. Thompson’s* office in Boston ? A. I believe it was at Mr. Thompson’s office. ... — Q. And that was last January ? A. Yes, sir. — Q. Mr. Waterman, you made a statement to Mr. Moore, did you, and I am going to read the entire statement to you, Mr. Waterman, to see if you can recall the statement?” Subject to an exception by the defendant, the plaintiff’s counsel then was permitted to read to the witness a statement covering forty-two lines of the printed record. The first twenty-nine lines of the statement contained a description of the work which the plaintiff, the witness and others were doing immediately preceding the accident.. The remainder of the statement was as follows: “ The work was entirely new to Billy [the plaintiff] and he was not fit for such work. It requires men of experience to safely do such work. I knew how to do it and I was the first to show Billy. I cleaned the first cable and Billy watched me do it, to see how it was done. Billy had the hammer ... a screw-driver, the cable-knife we used between us, and I had it at the time of the explosion. Billy did not have the knife at the time of the explosion. I looked at the cable after the accident and it showed plainly that something had punctured the insulation. Billy never did such work before. I know because I showed him at the beginning, and I knew by the way he went about it and did it. A green man like him ought never to have been set at work on such a job. The company are liable for putting such a man at such work.”</p> <p>The testimony then continued: “ Q. Now, there is not anything in that, Mr. Waterman, is there, in that statement, about Billy having told you, ‘ We will fool them and show them how we do the work ’ ? A. There is not anything in that statement, no. — Q. So, that, seeing that it is not in that statement, would you say that the first time you told it to anybody was to Mr. Thompson? A. I believe it was, is my recollection.”</p> <p>The interrogatories of the defendant to the plaintiff, which are referred to in the opinion and which the plaintiff refused to answer, were as follows:</p> <p>“ 3. Is it not true that during the time that you worked at the Charlestown power house, prior to the said accident, said power house, so far as you have personal knowledge, was constantly in operation, that is to say, electricity was then being constantly generated ?</p> <p>“ 4. Is it not true that during the time you worked at the Charlestown power house, prior to your accident, electricity was being constantly generated and transmitted through cables to points outside said power house ?</p> <p>“ 5. Is it not true that during the entire time that you were working at the Charlestown power house, prior to your injury, so far as you have personal knowledge, one or more of the engines furnishing power to the machines generating electricity was constantly in motion ?</p> <p>“ 6. Is it not true that on the day you were injured, and at the time you began the job of stripping lead covers from the wires or cables, being the job in connection with which you received the injury for which this suit is brought, currents of electricity were passing through said wires or cables?</p> <p>“ 7. Is it not true that at no time after you began the job of stripping lead covers from the wires or cables, being the job in connection with which you received the injury for which you are now suing, was any new current of electricity sent through any of said wires or cables ?</p> <p>“ 8. Is it not true that at no time after you began the work of stripping lead covers from the wires or cables, being the job in connection with which you received the injury for which this suit is brought, was any new or greater current of electricity sent through the particular cable on which you were injured?</p> <p>“ 9. Is it not true that at the time you went to work stripping lead covers from the wires or cables, that is to say, at the time you began the particular job on which you received the injury for which this suit is brought, you believed that a current of electricity was passing through some or all the wires or cables from which you were intending to strip the lead cables ?</p> <p>6110. At the time you began the job of stripping lead covers from the cables, being the job in connection with which you received the injury for which you are now suing, did you believe that any current of electricity was passing through any of the wires or cables from which the lead covers were to be stripped ?</p> <p>“11. Did you at any time after you began the work of stripping lead covers from the wires or cables, and up to the time you received your injury, believe that no current of electricity was passing through any of the wires or cables on which you worked ?</p> <p>“12. Is it not true that you and one Waterman were alone together at the moment you received the injury for which this suit is brought ?</p> <p>“ 13. What was inside the lead covering, a portion of which you were engaged in removing or detaching at the time you were injured ?</p> <p>“ 14. Did you do any work upon or in connection with either the new switchboard or the old switchboard at the Charlestown power house prior to the time you received your injury, and if so, what was it ?</p> <p>“15. Were you, prior to the time you began to work at the Charlestown power house, familiar with the word or term ‘ electrician ’ as descriptive of a class or kind of workmen ?</p> <p>“ 16. Were you, prior to the time you received the injury for which you are now suing, working at the Charlestown power house principally or wholly as an electrician ? ”</p> <p>Other facts are stated in the opinion. The jury returned a verdict for the plaintiff in the sum of $30,000; and the defendant alleged exceptions.</p>

<p>Bill in equity, filed in the Superior Court on July 31, 1908, by Carleton Hunneman and the United Surety Company (hereinafter called the surety company) against the Lowell Institution for Savings (hereinafter called the savings bank) and Delia C. Phelps, alleging in substance that the plaintiff Carleton Hunneman on January 19, 1905, commenced an action against the defendant Delia C. Phelps and caused an attachment to be made of her real estate in the county of Suffolk to the amount of $2,500; that a default against the defendant Phelps was entered in said action, which subsequently was removed by order of the court upon the defendant Phelps’s giving a bond with the United Surety Company as surety in the penal sum of $2,000 conditioned upon her paying to the plaintiff any judgment which he might recover in the action, but that the attachment upon the defendant’s real estate was not dissolved; that on June 1, 1908, Hunneman recovered a judgment * amounting to $1,714.37 which the surety company paid, “ and by virtue of such payment became subrogated to all the rights of said Hunneman against said Phelps under said execution, and that further said execution was assigned to your petitioner United Surety Company by said Hunneman, the same at that time being satisfied in no part whatever by the defendant Phelps ”; that the assignment gave to the surety company the right to collect the amount of the judgment from the defendant Phelps in Hunneman’s name; that when the defendant Phelps procured the surety company to give the bond, she deposited with it $1,036.27 which had been applied toward paying the plaintiff Hunneman, and that there was still due to the surety company, because of what it paid to the plaintiff Hunneman and of expenses which it had incurred, $898.10 “ and further costs of collection ” ; that the defendant Lowell Institution for Savings held mortgages upon the real estate of the defendant Phelps in the county of Suffolk which were entitled to priority over the attachments of the plaintiff Hunneman, that the bank by a sale under the mortgages on July 28, 1908, foreclosed the mortgages and that it had in its possession a surplus; that within thirty days after the rendition of the judgment in the case of Hunneman v. Phelps and previous to the foreclosure sale a deputy sheriff of Suffolk County had commenced a levy under the execution, which “ levy had not been completed.” The plaintiffs’ statement of their legal conclusions from the facts alleged is in the opinion. The prayers of the bill were in substance that the savings bank be enjoined from paying the surplus in its hands to the defendant Phelps, that an accounting be had as to the amount of the surplus, and that the interest of the defendant Phelps in the surplus be determined and the bank be ordered to• pay to the surety company “the share of” the defendant Phelps, “or so much thereof as may be sufficient to satisfy said execution and the costs of this bill.” There also was a prayer for general relief.</p> <p>The defendants demurred. The demurrer was overruled by Wait, J., and the defendant Phelps appealed.</p> <p>The case was heard upon the merits by Dana, J., who found the facts to be substantially as they were alleged in the bill, and also found other facts stated in the opinion. A decree was entered directing that the plaintiff surety company recover from the defendant Phelps $974.38 and costs, “ the same to be paid by the” defendant savings bank “out of the surplus funds in its hands belonging to the defendant Phelps after the foreclosure sale.” The defendant Phelps appealed.</p>

Petition filed in the Land Court on April 4, 1907, for the registration of title to a parcel of land described in said petition, as follows: “A certain parcel of land situate in Winchester in the county of Middlesex and the Commonwealth of Massachusetts, forming a part of the bed of my mill pond and particularly described as follows: Beginning at the southwesterly corner of the premises at the location of the_ Boston and Lowell Railroad and land of Mary EL Miller, thence…

<p>Complaint received and sworn to in the First District Court ■ of Eastern Middlesex on September 13, 1909, under St. 1906, c. 421, § 1, charging the defendant with the illegal transportation of liquor into the city of Malden on September 11,1909.</p> <p>At the trial in the Superior Court before Morton, J., it was agreed that the city of Malden was a city in which licenses of the first five classes for the sale of intoxicating liquors were not granted, within the meaning of St. 1906, c. 421, § 1.</p> <p>The defendant was the employee of one Marotto, a licensed liquor dealer in the city of Boston. As a part of the defendant’s duties while in the employ of Marotto he was required to deliver liquor in the city of Malden, using a team owned by Marotto to carry the liquor. His other duties were to work about Marotto’s place of business in Boston and to drive a team of Marotto, delivering liquor in various parts of Boston. The defendant received regular weekly wages from Marotto for performing all of his duties, including the delivery of liquor into the city of Malden.</p> <p>Marotto had a sign in his store in Boston which said substantially, “All goods delivered free to Malden.” The tags upon the cases and barrels of liquor were marked “Paid” with the consignee’s name, and at the top was written “Ho charge made for delivery.”</p> <p>At the time of seizure, the defendant was conveying liquor under above conditions in the city of Malden. It was agreed that the defendant did not have a permit granted under St. 1906, c. 421.</p> <p>The judge instructed the jury in part, as follows : “ There is no dispute in this case that the defendant was hired by one Marotto and paid wages by said Marotto. His duties have been described to you, and as a part of them he delivered goods into the city of Malden. I instruct you then, as a matter of law, that if you find this to be so, then the receiving of wages from Marotto would be hire and reward for the transportation of liquors into the city of Malden.”</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions to the instruction given by the judge in the portion of his charge quoted above.</p> <p>The case was submitted on briefs at the sitting of the court in January; 1910, and afterwards was submitted on briefs to all the justices.</p>

<p>Land Court, Appeal. Superior Court. Constitutional Law, Right to trial by jury.</p> <p>Upon a petition in the Land Court for registration of title, after a decree for the petitioner has been entered in that court and the respondent has claimed an appeal to the Superior Court under St. 1904, c. 448, § 8, if the issues presented by the respondent for trial in the Superior Court are disallowed by the judge of the Land Court, the appeal has not been perfected and the Superior Court has •not acquired jurisdiction, so that a motion in the Superior Court for the framing of issues must be denied and a motion in that court to dismiss the appeal must be granted. ,</p> <p>Where the title to real property is put in issue in a proceeding at law, a trial by jury is not a privilege to be granted in the sound discretion of the court, as it is in the case of a probate appeal or of issues in a suit in equity, but is a right guaranteed by the Constitution.</p> <p>If, at the trial in the Land Court of a petition for registration of the title to certain • land, the boundaries of the land as described in the deeds conveying it cannot be ascertained without extrinsic evidence both documentary and oral, and the petitioner puts in such extrinsic evidence in support of his contention, the respondent by leaving this evidence uncontradicted does not lose his right to have the issues of fact presented to a jury, and, if upon the evidence of the petitioner the trial judge gives a judgment for the petitioner, from which the respondent appeals to the Superior Court and presents issues relating to the boundaries for trial before a jury in the Superior Court, and the judge of the Land Court disallows the issues on the ground that no questions of fact are involved, the respondent is aggrieved by such ruling and decision, which violate his constitutional right to have the issues of fact submitted to a jury, and exceptions alleged by him will be sustained,</p> <p>Where, on an appeal to the Superior Court from a decree of the Land Court under St. 1904, c. 448, § 8, the appellant presents issues of fact for trial before a jury in the Superior Court, and the judge of the Land Court certifies that the issues presented are framed in the form requested, but that they are disallowed by him as presenting only questions of law, and the appellant alleges exceptions to the order disallowing the issues, upon a subsequent decision by this court sustaining the exceptions on the ground that the order of the judge disallowing the issues was erroneous, the appellant does not lose his right of appeal to the Superior Court because the prosecution of his exceptions has extended the time of the final certification of the issues beyond thirty days from the date of the order appealed from, as limited by § 8, and the issues are to be remanded to the Land Court for certification and transmission to the Superior Court as they were framed and certified, and as of the date of that certification, with the certificate of the erroneous disallowance omitted.</p>

<p>Homicide. Evidence, Of motive, Competent for limited purpose, Of habits and character, Remoteness. Practice, Criminal, Exceptions.</p> <p>At the trial of an indictment for murder, where the motive for the commission of the crime relied on by the Commonwealth is the collection by the defendant of the amount named in a policy of insurance upon the life of the deceased, which was held by the defendant as security for a debt owed to him by the deceased, the Commonwealth may show that the defendant understood what a life insurance policy meant, and for that purpose may introduce evidence, which otherwise would be incompetent, that in the year before the alleged murder the defendant had made an application to a beneficiary organization of which he was a member for sick benefits during ten weeks.</p> <p>In a criminal case where the Commonwealth, for the purpose of showing a motive of the defendant for the commission of the crime, introduces evidence which except to show such motive would be incompetent, if the defendant wishes to have the jury instructed that the evidence is competent only for the limited purpose for which it has been admitted, he must ask for such an instruction. If he fails to do so, he afterwards cannot complain because no such instruction limiting the effect of the evidence was given.</p> <p>At the trial of an indictment for murder, where the defendant’s counsel disclaims having any evidence that the defendant knew of the character of the deceased and also disclaims offering evidence to show that the killing was done in self defense, it is proper to exclude evidence offered by the defendant to show that the habits and character of the deceased were such that he would be likely to have come to his death by having got into a fight when drunk.</p> <p>In a criminal case, as in a civil one, the fact that a person did an act cannot be proved hy evidence that his habits were such that he would have been likely to do it, and this rule applies to evidence offered by a defendant as much as to evidence offered by the prosecution.</p> <p>At the trial of an indictment for murder it appeared that the defendant passed the night of the day when the deceased was killed at the house of the defendant's brother in law, that the next morning as the family were about to sit down to breakfast a neighbor came in and told them that the deceased had been killed and that his body was at the undertaker's, that the brother in law said, “ Let us go and see him,” and that the brother in law's wife said, “ It is better to have breakfast and go to church; -it is too late.” It also appeared that there was one church service at 8.30 a. m. and another at 10.30 a. m. and that the defendant attended the service at 8.30 a. m. The defendant offered evidence that the seats at the 8.30 service were free while the 10.30 service was “ for those who had seats or pews.” The evidence was excluded against the exception of the defendant. In answer to an inquiry of the presiding judges the defendant’s counsel stated that he did not contend that the fact that the seats were free at the 8.30 service was given by the defendant as a reason why he “ did not go with the others to see the body immediately instead of going to church.” Held, that under the circumstances the evidence was excluded properly as too remote.</p>

<p>Petition, filed in the Probate Court for the County of Worcester on August 17, 1909, by the conservator of the property of John N. Bunnell, for and in the name of said Bunnell who was the husband of Harriet S. Bunnell, who died testate on June 11,1908, and whose will was allowed on June 30, 1908, alleging that the petitioner had waived the provisions of the will of his late wife as permitted by statute, and that there was a balance of the estate of his late wife in the hands of the exedutor of her will, and praying that a partial distribution of such balance might be decreed to be made among such persons as might be entitled thereto.</p> <p>The following stipulation was signed by the respective counsel for the petitioner and the executor and was filed in the Probate Court:</p> <p>“ In the matter of the above named petition, it is stipulated and agreed as follows:</p> <p>“ 1. That a partial distribution of the personal property of said estate can be now made without detriment thereto, and without endangering the rights of any creditors;</p> <p>“ 2. That the only question raised is whether or not the petitioner, John N. Bunnell, is entitled to any interest or share in his wife’s estate, he having signed his written consent to her will at the time of its execution, although he has duly waived any provisions that had been made in said will for him, and claimed such portion of her estate as he would have taken if she had died intestate, as is provided in B. L. c. 135, § 16;</p> <p>“ 3. That if it shall be found that having filed said waiver and claim, he is entitled to the portion of her estate provided in said section, the court may order a partial distribution to be made of $5,000 on account of the distributive share of said John N. Bunnell in said estate.”</p> <p>The will of Harriet S. Bunnell was executed on October 30, 1901. It contained no devise or legacy to her husband or for his benefit. At the end of the will was written the consent of her husband, signed by him, and attested by the same three witnesses who attested the signature of the testatrix. This consent was as follows: “ I John N. Bunnell husband of Harriet S. Bunnell hereby consent to the foregoing will.”</p> <p>In the Probate Court Forbes, J., made a decree that there should be a partial distribution as prayed for in the petition and that the executor of the will of Harriet S. Bunnell should pay to John N. Bunnell, her husband, the sum of $5,000. The executor of the will of Harriet S. Bunnell and other respondents interested in her estate as heirs at law and beneficiaries under her will appealed from the decree.</p> <p>The appeal was heard in the Supreme Judicial Court by Loving, J., who made a final decree affirming the decree of the Probate Court and remanding the case to the Probate Court for further proceedings. The respondents appealed.</p>

<p>Contract, Consideration, Validity. Mistake. Statute of Frauds. Executor and, Administrator.</p> <p>While forbearance from litigating a claim, which is known to the person forbearing to be frivolous or vexatious, is not a good consideration for a promise for the reason that the promotion of such litigation would be or could be found to be either fraudulent or wanting in good faith, yet, short of that, forbearance from litigation is a good consideration for a promise, and it is not necessary in an action upon a promise made for such consideration that it should appear that there was in fact a good cause of action or a fair and reasonable ground of success in the threatened litigation. \</p> <p>At the trial of an action of contract by a sister against her brother to recover a sum of money which the plaintiff alleged that the defendant promised to pay to her if she would not oppose the proof of the will of their father, there was evidence tending to prove the following facts : At his death the father left personal property amounting to about $300, all of which it was necessary to expend for the payment of taxes, expenses of the last sickness, of the funeral and of the administration of the estate, and real estate worth $7,300. The father’s will nominated the defendant as executor, gave a legacy of $1,000 each to the plaintiff and her sister, a legacy of $500 to another son, and by specific devises all of the real estate to the defendant and to his son. Previous to the death of the father he had lived in a tenement, an upper floor of which was occupied by the defendant and his family. Some member of the defendant’s family always was present when the plaintiff or others of the children and grandchildren called upon the father. A few months before the father’s death he drew $1,300 from a bank, which he used to pay off a mortgage on the premises specifically devised to the defendant's son. After the issuance of a citation upon a petition of the defendant for proof of the will, there was a family council at which the plaintiff expressed her dissatisfaction with the will and announced her intention of contesting it. The defendant thereupon promised to pay her the $1,000 given her in the will as a legacy if she would refrain from any contest. The plaintiff did refrain, relying on the defendant’s promise, and the will was proved without objection. Held, that it could not be ruled as matter of law that the plaintiff’s threat to contest the will was frivolous or vexatious, or that the promise of the defendant was without consideration.</p> <p>At the trial of an action by a sister against her brother to recover for breach of an agreement by the defendant alleged to have been made in consideration of forbearance on the part of the plaintiff from contesting the will of the father of the plaintiff and of the defendant, one issue was whether in making a threat to contest the will the plaintiff had acted in good faith, and there was evidence tending to show that she had so acted. The defendant asked the presiding judge to instruct the jury that “ the plaintiff must have acted in good faith in threatening to contest the will or there is not sufficient consideration to support the promise,” but no such instruction was given either in form or in substance, and the defendant alleged exceptions. Held, that the exceptions must be sustained, because the substance of the instruction asked for should have been given to the jury in some form.</p> <p>Where a sister is dissatisfied with the provisions of her father’s will and in good faith threatens to contest its proof and allowance but, in consideration of a promise on the part of her brother, who desired the will to be proved, to pay to her the amount of a legacy which was given to her in the will, forbears from contesting the will, the validity of the contract thus made by the brother is not affected by the fact that both the sister and the brother were acting under a mistaken idea as to their respective legal rights and obligations, so long as the brother was fully acquainted with the facts and there was no fraud or misrepresentation. If a brother, who was named as executor in the will of his father, who had died leaving personal estate which was not more than sufficient to pay the expenses of the last sickness, of the funeral and of the administration of the estate, and real estate all of which was devised specifically to the brother and to his son, before the will is proved promises his sister to pay to her the amount of a general legacy, which was given to her by the provisions of the will, in consideration of her forbearing from carrying out an intention to contest the allowance of the will, which she in good faith had entertained, and thus permitting the allowance of the will and the confirmation of the devises therein to the brother and to his son, such a promise is not wi thin the provision of R. L. c. 74, § 1, cl. 1, that without a memorandum in writing no action shall be brought “ to charge an executor . . . upon a special promise to answer damages out of his own estate,” both because the promise is made by the brother for his own benefit and is an original and not a collateral undertaking on his part and to permit him to avoid his promise to his sister by relying on the statute of frauds would be to permit him to perpetrate a fraud by means of the statute, and also because, all the real estate having been devised specifically and there having been no personal property sufficient to pay the legacy, there was no estate of the testator out of which a general legacy was payable and consequently there was no debt due to the sister from the estate.</p>

<p>Will, Effect of foreign will. Conflict of Laws, Interpretation and effect of foreign will. Devise and Legacy,What estate. Partition. Words, “Tested,” “Then living,” “Under lawful age and without issue,” “And.”</p> <p>Statement by Morton, J., of the rule of law that the will of a person who dies testate and domiciled in another State, leaving property in this Commonwealth, shall be interpreted according to the law of the State where the testator was domiciled at the time of his death, and of some of the exceptions thereto.</p> <p>A testator by his will devised certain real estate in this Commonwealth to trustees with directions that his brother might have the use of it during his life, that after the death of the brother one third of the income therefrom should be paid to the brother’s wife during her life “ and the remaining two thirds . . . shall be divided among the children of my said brother, in the proportion of three eighths thereof to his son A., and five eighths thereof equally to his other children, then living during the lifetime of their mother; and immediately after the decease of ” the brother and his wife “I direct that the said real estate . . . shall be vested in the children ” of the brother “ in the same proportions as above mentioned as to the income thereof. If any of the said children be then deceased, under lawful age and without issue, the surviving children ... to take the share of said decedent in the same proportions but if either of the said children be then deceased leaving lawful issue him or her surviving, such issue shall take and if more than one divide equally among them, the part or share his her or their deceased parent would have taken if then living.” At the time of the testator’s death, the brother and his wife and six of their children were living. One of the children died before the father and mother and before reaching the age of twenty-one, intestate and without issue. Another, E., after having been adjudged insolvent and after his property had passed to his assignee in insolvency under the laws of this Commonwealth, died without issue and of more than lawful age during the lifetime of his father and mother. The assignee in insolvency conveyed what interest he had to one who, after the death of the testator’s brother and his wife, petitioned for a partition of the real estate in question. Held, that the interest of the children of the testator’s brother in the real estate in question vested at the time of the testator’s death, and therefore that the petitioner received from E.’s assignee in insolvency an interest in common which gave him a right to a partition.</p>

<p>Two ACTIONS OE tort by the administratrix of the estate of Zephron Gagnon, the first to recover for the conscious suffering, and the second for the death of the plaintiff’s intestate due to his having fallen beneath and been run over by the second car in a two car surface train of the defendant in the Park Street station of the subway in Boston on October 28, 1905. Writs dated July 20, 1906.</p> <p>The cases were tried together before Brown, J. .After the plaintiff’s counsel had made an offer of proof in writing, setting forth evidence, the substance of which is stated in the opinion, the presiding judge ordered verdicts for the defendant; and the plaintiff alleged exceptions.</p> <p>The cases were argued at the bar in January, 1910, before Knowlton, C. J., Hammond, Braley, Sheldon, & Bugg, JJ., and afterwards were submitted on briefs to all the justices.</p>

<p>Contract against Abraham and Benjamin F. Bilafsky, with a declaration in three counts, the first on a special contract, made about July 30, 1902, for plumbing goods furnished for three houses being built on Addington Road in Brookline for one Louis Habelow, the second count on an account annexed for goods furnished outside the contract, and the third on an account annexed for the goods described in both the first and second counts. Writ dated December 18, 1902.</p> <p>The case was referred to George R. Blinn, Esquire, as auditor. He filed a report, in which he found that the plaintiffs had delivered the goods described in the declaration in accordance with an agreement made with the defendant Benjamin F. Bilafsky, and found for the plaintiffs against him. As to the defendant Abraham Bilafsky, he found as follows: “ I find that on the other hand the defendant Abraham had no knowledge of the making of said agreement and is not bound thereby ; that he never agreed to pay for said goods and that he is in no way liable therefor. The plaintiffs introduced evidence tending to show the existence of a partnership between the defendants at the time of the making of said contract for furnishing the said plumbing supplies, and I find that such partnership did then exist but that it was limited to the real estate and insurance business carried on by them and that the transactions in question did not come within the scope of said partnership, and that the defendant Abraham did nothing which would make bina liable as such partner to the plaintiffs. I consequently find that as against the defendant Abraham the plaintiffs are not entitled to recover.”</p> <p>The case was tried before Sanderson, J.</p> <p>The letter head on the letter dated October 14, 1902, which was a letter from Habelow to Rounds and Dennison Corporation requesting them to send “to Addington Road, Brookline, the finish plumbing,” was as follows:</p> <p>Notary Public. Justice of the Peace.</p> <p>A. Bilafsky & Son, Real Estate and Insurance 30 Court Street.</p> <p>Other facts are stated in the opinion.</p> <p>The jury found for the plaintiffs against both defendants; and the defendants alleged exceptions.</p>

<p>Tort under R. L. c. 51, § 18, for personal injuries alleged to tiave been caused by a defect in Washington Street in Winchester. Writ dated November 23, 1901.</p> <p>The case was tried before Pierce, J. There was evidence tending to prove the following facts:</p> <p>On October 2,1901, employees of the superintendent of streets of the defendant were engaged in renewing a portion of the surface of Washington Street, a public way, near its junction with Forest Street, and were using a steam roller. It was the duty of one of the employees to put out, at a point two or three hundred feet from the place where the roller was at work, a wooden horse or barrier six to seven feet long against which leaned a sign notifying travellers upon the 'highway of the presence of the roller. It was the duty of this employee at night, when the roller was removed from the street, to remove this barrier or horse, and it was not intended that it should be left in the street either with or without lights upon it. The employees of the street department on that date discontinued their work at five o’clock in the afternoon, but through the negligence of the employee charged with the duty of removing it, this horse or barrier with the sign upon it was left standing in Washington Street. No evidence was offered to show that the superintendent or the selectmen or any one of them had any personal knowledge of the fact that this horse or barrier had been left in the street. The defendant produced evidence tending to show that it was so left without the knowledge or consent of any other person connected with the work. Two witnesses called by the plaintiff, citizens of Winchester living near the scene of the accident, testified that they saw the barrier in the street after five o’clock and before the time of the accident, but both of them testified that they gave no notice to any one of this fact.</p> <p>Shortly after seven o’clock' the plaintiff, who was familiar with the locality, was returning upon his bicycle to his home, when he ran into the horse and was injured. The plaintiff testified that it was dark at the time and that he was riding at approximately seven miles an hour, that there were no lights at the place of the accident and that the horse could not be seen until he was close upon it.</p> <p>The defendant at the time of the accident had not authorized the election of road commissioners or surveyors of highways, but the streets were repaired by a superintendent of streets appointed by the selectmen of the town in accordance with the provisions of R. L. c. 25, §§ 85, 86. The repairs in progress upon Washington Street were under the supervision and direction of the superintendent of streets in accordance with a vote of the selectmen, and the expense thereof was paid out of the annual appropriations made by the town for the repair of highways and bridges. The men, including the employee through whose negligence the horse or barrier was left in the street, were hired by the superintendent and were discharged by him.</p> <p>The place where the accident occurred was about one hundred and seventy-five feet south of the junction of Forest Street and Washington Street at a point about a mile and a half from the centre of Winchester. Washington Street was a main thoroughfare with a sidewalk and a street railway upon it, and there were houses in the vicinity of the accident.</p> <p>At the close of the evidence the defendant asked the presiding judge to rule that upon all the evidence the plaintiff could not recover. The judge refused so to rule, the jury found for. the plaintiff; and the defendant alleged exceptions.</p>

<p>Mortgage, Of real estate. Constitutional Law. Limitations, Statute of. Statute, Construction.</p> <p>A portion of R. L. c. 182, § 15, which originally was St. 1882, c. 237, provides that when the record title of land is incumbered by an undischarged mortgage, and the mortgagor and those having his estate therein have been in uninterrupted possession of the land for twenty years after the expiration of the time limited in the mortgage for the full performance of the condition thereof, he or they may apply to the court by petition setting forth the facts, and if, after such notice by publication or otherwise as the court orders, no evidence is offered of a payment on account of the debt secured by such mortgage within twenty years after the expiration of the time limited for the performance thereof or of any other act in recognition of its existence as a valid mortgage, the court may enter a decree reciting the facts and findings, which shall be recorded in the registry of deeds for the county or district in which the land lies, and no action to enforce a title under the mortgage shall thereafter be maintained. Held, that this provision is a statute of limitation, which merely affects the remedy and does not change the substantive rights secured by the contract of mortgage, and applies to a mortgage where the time limited for the performance of the condition of the mortgage expired more than twenty years before the year 1882 when the statute was enacted. Held, also, that, so construed, the statute is not unconstitutional as impairing the obligation of contracts.</p> <p>Upon a petition under R. L. c. 182, § 15, St. 1882, c. 237, to remove a cloud from the title to the petitioner’s land by declaring the discharge of a mortgage on the land, which had been in the uninterrupted possession of the mortgagor and those holding under him for more than twenty years after the expiration of the time limited for the full performance of the condition of the mortgage, if after the notice required by the statute no evidence is offered of a payment on account of the debt secured by such mortgage within twenty years of the time limited for the performance thereof or of any other act within that period in recognition of its existence as a valid mortgage, the respondent cannot be allowed to show that the condition of the mortgage has not been performed; and, if it appears and is found as a fact that the condition of the mortgage has not been performed, the petitioner none the less is entitled to a decree, because possession by the mortgagor for twenty years without recognition of the mortgage, when the terms of the statute are complied with, is made an absolute bar to all claims under the mortgage.</p>

<p>Tax, Abatement. Practice, Civil, Appeal. Jurisdiction. Words, “Entering,” “Filing.”</p> <p>Under R. L. c. 12, § 78, St. 1909, c. 490, Part I. § 77, a complaint or petition entered in the Superior Court by a person aggrieved by the refusal of the assessors of a city or town to abate a tax is an appeal, and must be entered in the Superior Court on the first return day after the expiration of thirty days from the giving by the assessors of the written notice of their decision required by a preceding section of the statute. By R, L. c. 167, § 24, the return day in the Superior Court is the first Monday of every month, and the Superior Court has no jurisdiction of such an appeal first attempted to be entered on the Thursday following such first Monday of the month next after the expiration of such thirty days.</p> <p>It is a well established rule that where a remedy is created by statute the time within which it must be pursued is one of the prescribed conditions under which it can be availed of, and the court in which such remedy is sought has no jurisdiction to entertain proceedings for relief begun at a later time.</p>

<p>Negligence, Elevated railway, Invited person, Licensee, Trespasser.</p> <p>Where a corporation, which operates both an elevated railway and street railway lines, maintains a station at which cars and trains of both lines discharge and receive passengers and has provided for passengers therein a safe way of exit from its elevated trains to surface cars, it is the duty of such a passenger to use the way provided, and if, knowingly and without any invitation express or fairly to be implied from the situation and arrangement of the station and platforms, he leaves the way marked out by the carrier and proceeds to pass to a surface car by some other platform, lie ceases to be a passenger and becomes a trespasser or at most a mere licensee. It makes no difference that he uses a platform where other passengers before him have gone unless there is an invitation express or implied on the part of the carrier. Following Legge v. New York, New Haven, Hartford Railroad, 197 Mass. 88.</p> <p>An elevated railway company in Boston, which also operated a number of street car lines upon the surface of the streets, maintained a station at which passengers leaving an elevated train could pass across a well lighted platform and down a few steps to another well lighted platform two hundred and five feet long and twenty-one feet wide, which was covered and ran parallel to a track where surface cars discharged and received passengers. Surface cars approached this platform by passing first up an incline and around a large curve like a horseshoe. Erom the end of this covered platform which was adjacent to the part of the track where the track ceased to curve and came alongside of it, a narrow platform, uncovered and constructed of varying width along the curve of the track and of boards with spaces between them, was built for the use of employees of the company. It was not lighted in the evening. At a point ninety-five feet from the covered platform there was a rise of about six inches and the platform was narrowed about two feet, leaving an opening where the floor of the wider portion ceased. A passenger on an elevated train at half past ten o’clock at night passed down to the covered platform and, seeing a car which he desired to take approaching and being fearful lest, if he waited to take the car at the usual place, he would not be able to get a seat because of the number of passengers, walked out upon the narrow, unlighted, uncovered platform to a place With which he was not familiar, stepped off at the opening ninety-five feet from the passenger platform, and received injuries, to recover for which he brought an action against the elevated railway company. At the trial of the action there was evidence tending to show, besides the foregoing facts, that other persons had gone out upon the narrow platform to meet cars for the same reason that the plaintiff had. Held, that the plaintiff had not been invited to use the platform where he was when he was injured, that he had no right there as a passenger, but was at most a mere licensee, and that the only duty which the defendant owed to him was to refrain from wanton or reckless conduct that would put him in peril, which duty the defendant had not violated; and, also, that there was no evidence that the plaintiff was in the exercise of due care.</p>

<p>Negligence, Street railway. Carrier. Pleading, Civil, Declaration. Actionable Tort. Damages.</p> <p>At the trial of an action by a woman against a street railway company to recover for injuries alleged to have been received by the plaintiff while she was a passenger upon a closed electric car of the defendant, the plaintiff testified that, while she was sitting on a seat of the car, her ankles felt hot and, looking down, she saw flames “ gushing right out and my clothes got afire and I jumped very quickly aside . . . and in doing so I got a terrible stitch in my left side.” It also appeared, that a fellow passenger quickly “ clapped ” out the fire in the plaintiff’s clothing, and that her dress and boots were burned only slightly. The defendant introduced evidence tending to show that there was but a slight outburst of flame which caused the passengers to leave their seats only a short time, but offered no explanation of the presence of the flames. Held, that there was evidence which warranted the jury in finding that the presence of the flames was due to negligence for which the defendant was responsible, that the plaintiff acted reasonably in anticipating bodily injury from the flames and springing to her feet; and therefore that the injury to her side was caused by negligence for which the defendant was accountable.</p> <p>In order that an action may be maintained against a carrier by a passenger who was injured while attempting to avoid what at the time appeared to the passenger to be imminent peril, it is sufficient to show that, with a reasonable anticipation of bodily injury as the situation then appeared, the passenger acted on the urgency of the moment and was hurt, although afterwards it may be plain that all danger might have been avoided by mere inaction on his part.</p> <p>A declaration in an action of tort by a woman passenger against a street railway company alleged that the plaintiff “ was injured through the negligence of the defendant, its agents and servants, by means of fire being set to her clothing from the electric heating apparatus of the said car, or other appurtenances of the said car, so that the plaintiff received severe injury to body and mind.” The evidence of the plaintiff tended to show that, as the plaintiff sat upon a seat in the car, flames came from beneath the seat and set fire to her clothing, and that she sprang up and in doing so wrenched her side, that the injury to the clothing was slight, but that the injury to the side was severe. Held, that under the declaration the plaintiff could claim damages for the injury to her side.</p> <p>At the trial of an action by a woman against a street railway company to recover for personal injuries alleged to have been caused by flames which came from beneath a seat of a closed electric car of the defendant upon which the plaintiff was a passenger, the plaintiff testified that, as she was sitting in the car, her ankles felt hot and, looking down, she saw flames “ gushing right out and my clothes got afire and I jumped very quickly aside . . . and in doing so I got a terrible stitch in my left side.” There was evidence from which the jury would have been warranted in finding that the presence of the flames in the car was due to negligence for which the defendant was responsible. The flames only slightly burned the plaintiff’s clothing and in no way burned her person. The defendant asked the presiding judge to rule that “ there is no evidence of physical injury,” and that “ the act of standing up, not accompanied with physical contact with any part of the car, is not such physical injury or battery as will warrant the submission of the case to the jury.” The rulings were refused and there was a verdict for the plaintiff. Held, that the rulings were refused rightly, since, if the jury found, as they were warranted in finding on the evidence, that the plaintiff, acting as a reasonable person in the presence of danger, moved to one side quickly and in doing so wrenched her side and thereby suffered an external injury accompanied by a serious nervous shock causing severe pain, they might treat her injuries, in assessing damages, as the direct result of the accident.</p>

<p>Evidence, Remoteness, Opinion: experts. Practice, Civil, Conduct of trial.</p> <p>In an action by a workman employed in a hat factory against his employers, for personal injuries caused by a block on which hats were piled to preserve their shape falling from a table upon the feet of the plaintiff, while in the course of his , duty he was trying to take a pile of hats from the table, the jury returned a verdict for the defendants, and the plaintiff alleged exceptions to the exclusion by the presiding judge of evidence offered by the plaintiff to prove that the block had fallen in a similar way before. Held, that the evidence was objectionable as raising collateral issues, and properly could be excluded in the discretion of the presiding judge.</p> <p>In an action by a workman employed in a hat factory against his employers, for personal injuries caused by a block on which hats were piled to preserve their shape falling from a table upon the feet of the plaintiff, while in the course of his duty he was trying to take a pile of hats from the table, the jury returned a verdict for the defendants, and the plaintiff alleged exceptions to the refusal of the presiding judge to allow the plaintiff to ask the defendants’ superintendent whether the unfastened block was a dangerous appliance. Held, that the refusal was proper, because the question was one to be decided by the jury and was not a subject for expert testimony.</p>

<p>Two ACTIONS OF CONTBACT, each upon a mortgage note, dated September 23, 1902, payable to the plaintiff, or order, and indorsed by the defendant before delivery, the declarations alleging that each note was secured by a mortgage upon real estate, and that the real estate was sold under the power of sale in the mortgage for a sum less than the amount of the note. Writs dated respectively September 14 and 17, 1908.</p> <p>The defendant’s answer in each case was' a general denial, with averments that he indorsed the notes in question for the plaintiff’s accommodation and without consideration.</p> <p>In the Superior Court the cases were tried together before Hardy, J. The plaintiff introduced in evidence the two notes, the maker being a third person through whom the title to the mortgaged real estate was passed as a conduit, also the two mortgages, which were duly foreclosed for breach of the conditions thereof, and two deeds to the purchaser for the two parcels of real estate under powers in the mortgages.</p> <p>It also appeared in evidence that the defendant had made two payments of interest on each note, the first paying the interest to February 1, 1903, and the second paying the interest to August 1, 1904, and that these payments were indorsed on both notes.</p> <p>The defendant admitted that he signed his name upon the backs of the notes before delivery.</p> <p>After the plaintiff rested, the defendant made the offer of proof which is stated in the opinion.</p> <p>The judge excluded the evidence offered, and ordered the jury to return a verdict for the plaintiff in each of the cases. The defendant alleged exceptions.</p>

<p> Negligence. Street Railway. </p> <p>In an action against a street railway corporation for personal injuries from being run into by a car of the defendant, when the plaintiff was attempting to drive in a covered delivery wagon from an intersecting driveway across a single track of the defendant at the side of a road in a town, where it was necessary to cross the track to reach the main part of the road, there was evidence that for a distance of about eighty-five feet before reaching the track of the defendant the driveway by which the plaintiff was approaching the track was lined with trees and shrubbery in full foliage obstructing the view on the side from which the car was coming, but that before reaching these Obstructions at least three hundred feet of the track could be seen clearly. The plaintiff, who was familiar with the vicinity, testified that at this point he leaned forward and looked down the track and saw no car, that he then sat back and drove on at a moderate rate of speed, listening for vehicles whose approach might require him to change his coursp until he was run into by the car of the defendant, which was moving at a high rate of speed and was sounding no gong, that in the previous summer he had worked for the defendant as a motorman and had operated electric ears over the same track, and that the rule of the railway company was for the motorman to run the cars slowly and ring the gong when approaching a driveway or crossing. The plaintiff also testified that he acted upon his judgment that if a car came along at the usual rate of speed he had ample time to get over the track. Held, that the question whether the plaintiff was in the exercise of due care was for the jury, who were to say whether the plaintiff was justified in assuming that he had time to cross the track in safety or whether he should have stopped and alighted to ascertain whether a car was coming before attempting to cross the track, and also were to say how far the plaintiff, from his knowledge of the defendant’s method of operating its cars in reducing their speed and sounding the gong at intersecting streets and driveways, was justified in relying on an assumption that these precautions would be continued and that the motorman would not act carelessly.</p> <p>In an action against a street railway corporation for personal injuries from being run into by a car of the defendant moving at a high rate of speed along a single track of the defendant at the side of a road in a town, when the plaintiff was attempting to cross the track from an intersecting driveway, if there is evidence that the car of the defendant was moving at a rate of speed forbidden by the ordinances of the town and also that the motorman was violating a rule of the defendant which required him to run the car slowly and ring the gong in approaching a driveway or crossing, there is evidence for the jury of negligence on the part of the motorman for which the defendant would be responsible.</p>

<p>Harbor and Land Commissioners. Commonwealth Flats. Commonwealth. Deed, Covenant of warranty. Sewer. Tax, Sewer assessment. Constitutional Law. Statute, Unconstitutionality of part of statute. Contract, Construction, Performance and breach. Equity Jurisdiction, Of suits against Commonwealth.</p> <p>Under K. L. c. 96, § 3, formerly Pub. Sts. c. 19, § 3, which provides that the board of harbor and land commissioners “ may make contracts for the improvement, filling, sale, use or other disposition of the lands at and near South Boston known as the Commonwealth Flats,” and that “ all conveyances, contracts and leases made under the provisions of this section shall be subject to the approval of the Governor and Council,” such board has the power to make in a deed of a parcel of land included in the Commonwealth Flats covenants of seisin, that the land is free from incumbrances, of right to convey and of warranty.</p> <p>In January, 1899, the board of harbor and land commissioners, acting under the authority conferred upon them by Pub. Sts. c. 19, § 3, made a contract in writing to sell and convey to a certain person a parcel of land included within the Commonwealth Flats. In November, 1899, the city of Boston ordered the construction of a main sewer in a street abutting on the premises agreed to be conveyed. In November, 1901, the land was conveyed pursuant to the agreement by the board of harbor and land commissioners acting on behalf of the Commonwealth, the deed containing covenants of warranty and that the land was free from incumbrances. On December 1,1902, the city of Boston levied an assessment for the construction of the sewer, which the grantee in the deed was obliged to pay. Held, that, although the construction of the sewer and the assessment therefor were not made until after the deed was executed and delivered, the fact, that the order for the construction was made before the deed, created a liability which was sure to become absolute and enforceable against the land as soon as the work was completed and the expense ascertained and the Commonwealth had parted with its title, which liability constituted a breach of the covenant of freedom from incumbrances ; and also, that under the covenant of warranty the Commonwealth was bound to relieve the grantee from the charge upon the land, and that its failure to do so was a breach of that covenant.</p> <p>Section 4 of St. 1892, c. 402, which provides that when an assessment for the cost of a sewer in the city of Boston “ is made for a parcel of land for which the owner is by law exempt from being taxed,” the collection of the assessment shall be suspended, but “ after the day on which the parcel ceases to be owned by a person or corporation so exempt” the assessment “ shall be collected as if that day were the date of the passage of the . . . order for making the sewer,” does not apply until an assessment has been made; and therefore did not suspend the creation of an incumbrance created by an order of the city of Boston for the construction of a sewer on a portion of the Commonwealth Flats, which order was made while the portion of the flats in question was owned by the Commonwealth, nor cause the effect of the order not to be an incumbrance at the time of a conveyance made by the Commonwealth after the order for construction but before an assessment for the cost of the sewer was laid.</p> <p>There may be a question whether St. 1892, c. 402, § 4, which provides that when an assessment for the construction of a sewer in the city of Boston “is made for a parcel of land for which the owner is by law exempt from being taxed,” the collection of the assessment shall be suspended, but, “ after the day on which the parcel ceases to be owned by a person or corporation so exempt,” the assessment “shall be collected as if that day were the date of the passage of the . . . order for making the sewer,” should be treated as separable from other sections of the same statute which have been declared unconstitutional, per Knowlton, C. J.</p> <p>The board of harbor and land commissioners in a bond for a deed agreed on January 10, 1899, to execute and deliver to a certain person a “warranty deed or deeds” of a part of the Commonwealth Flats in South Boston bounded by Summer Street extension, E Street, Fargo Street and I) Street. On January 17, 1899, with the approval of the Governor and Council, the board made with the prospective purchaser a supplemental agreement in which it was recited that the contract for the sale of the premises was “ made with the expectation on their part that Fargo and E Streets will be forthwith constructed, paved, sewered and sidewalks laid without expense to the purchasers,” and in which was the following language: “We agree to use our best efforts during our continuance as members of the board of harbor and land commissioners to have such work done at an early date, either by the city of Boston, by the Commonwealth, or otherwise, without expense to the purchasers.” On November 26, 1901, the land was conveyed by the board on behalf of the Commonwealth to the purchaser by a deed containing covenants that the land was free from incumbrances, and of warranty. On December 16,1901, the city of Boston ordered the construction of certain inlet and connecting sewers joining to a sewer previously constructed in E Street. On October 7,1904, an assessment was made therefor to be paid in ten yearly payments. Upon the first assessment becoming due and the Commonwealth refusing to pay it, the purchaser by a bill in equity in the Superior Court sought to have it adjudged that the Commonwealth should pay the assessment, and to have the Commonwealth ordered to do so and also to pay all payments to become due in the future. Held, that, the order for the inlet and connecting sewers not having been made until after the delivery of the deed, the Commonwealth was under no obligation to pay the assessment by reason of the covenants therein; and that neither in the bond for the deed nor in the agreement supplemental thereto was there any express agreement to pay the tax; and therefore that the suit could not be maintained, even if, under the provisions of R. L. c. 201, relating to suits against the Commonwealth, the court had jurisdiction to entertain it, which was not decided.</p>

<p>Practice, Civil, Exceptions. Superior Court. Land Court, Appeal. Evidence, Presumptions and burden of proof. Clerk of Courts.</p> <p>Where a judge of the Superior Court, in a case which has been appealed to the Superior Court from the Land Court, has ordered that the respondent, who has alleged exceptions to certain rulings made in the Superior Court and whose exceptions have been allowed, shall enter his exceptions in this court on or before a certain day and that, if they are not so entered, the exceptions “ shall thereupon be overruled and the rulings and orders excepted to affirmed unless the court, for good reason, extends the time,” and the respondent, without procuring any extension of time, fails to comply with the order, and, upon his entering the exceptions in this court two days late, this court upon motion of the petitioner dismisses the exceptions, the case is still pending in the Superior Court, which still may revoke its former order and extend the time within which the exceptions must be entered in this court, and the petitioner has not an absolute right to have a motion allowed that “ the final decision of ” the Superior Court be “ certified to the Land Court,” there not having been any final decision.</p> <p>A report filed by a judge of the Land Court, on an appeal by a respondent from a decree granting a petition for the registration of the title to certain flats, stated: “ From a study of the report of the official examiner ... I found good record title in the petitioner. . . . The matter set forth in the issues on this appeal was not presented before me otherwise than as it might appear from the deeds in the chain of the petitioner’s record title and from the answers filed by the respondent. As to the latter, the case had been specially assigned for trial and the respondent had defaulted. As to the former, I found, from an examination of the records submitted to me, title in the petitioner as above stated.” Held, that, under the circumstances of the default of the respondent, the report was sufficient under St. 1906, c. 288, which required of the judge “a full report of his decision and of the facts found by him so far as they relate to or bear upon any questions involved in the appeal.”</p> <p>Under St. 1905, c. 288, which requires a judge of the Land Court, where an appeal is taken from that court to the Superior Court, to file in the Superior Court “ a full report of his decision and of the facts found by him so far as they relate to or bear upon any questions involved in the appeal,” the judge is not obliged to make specific findings upon issues framed for the Superior Court, because such issues are framed after the findings are made.</p> <p>The official act of a judge of the Land Court in framing issues for the Superior Court upon an appeal to that court for a jury trial on the facts, establishes prima facie the proposition that such issues are pertinent and ought to be tried.</p> <p>In determining whether issues, which were framed by a judge of the Land Court upon an appeal, by the respondent in a petition for the registration of the title to certain land, to the Superior Court for a jury trial on the facts, are material to the case, or whether an exception by the respondent to an order of the Superior Court allowing a motion of the petitioner that the appeal be dismissed because the issues were not material should be sustained, this court cannot consider matters in a decision and report made by the judge of the Land Court in granting another petition by the same petitioner for the registration of land contiguous to that described in the first petition, although such decision and report are a part of the same bill of exceptions in this court.</p> <p>The only place for making a record or for keeping a record of a case in the Superior Court is in the clerk’s office, except as such records may be made or kept for the time being in a place where the court is sitting.</p> <p>Where one, who has claimed an appeal to the Superior Court from a decree of a judge of the Land Court, after the office hours of the clerk of the Superior Court on the thirtieth day after the date of such decree, leaves with an assistant clerk of the court at his house and not at the clerk’s office the papers which, by R. L. c. 128, § 13, he should file within thirty days after the date of the decree, and on the next day the assistant clerk takes the papers to the office of the clerk and enters them there, dating the entry on the docket as of the day on which he received them at his house, there is no entry of the appeal in the Superior Court within thirty days after the decree, and therefore the record made by the assistant clerk should be amended and the appeal should be dismissed.</p>

<p>Negligence, Employer’s liability. Railroad. Practice, Civil, Conduct of trial, Exceptions. Evidence, As to appreciation of danger.</p> <p>In an action against a railroad corporation for personal injuries, sustained while in the employ of the defendant as a night conductor in one of the defendant’s freight yards, alleged to have been caused by the negligence of a day conductor of the defendant employed in the same yard when in charge or control of a train of the defendant, there was evidence for the plaintiff that, soon after 7.35 o’clock on a dark evening in April, the plaintiff in accordance with his duty and custom made an inspection of the tracks at the southerly end of the yard and ascertained that no cars were so near any adjoining track as to he struck by cars in motion upon it, and that on track number 4 there was room for three or more cars, that a few minutes later he boarded a locomotive, of which he had charge, and went to the northerly end of the yard, where the day conductor was at work with a switching engine and crew, that the day conductor said that he only had two or three more switches to make, after which lie was going to the roundhouse at the southerly end of the yard, and should stop work for the day, that thereupon the plaintiff told him that they were making up a train on track number 6 in the southerly end of the yard and told him to look out for them if he was to use any of those tracks which had switches to reach tracks 4 and 6 and others, that to this the day conductor replied that he would look out for them, that it was the duty of the day conductor to see that no cars which were moved under his orders were left where they could not clear cars moving on adjoining tracks, that there was a custom in the yard when a car was so placed that it would be struck by a car running on another track “ to notify anybody that would be liable to use that end of the yard,” that no such notification was received by the plaintiff, that by eight o’clock the day conductor had slopped work and his switching engine was put up for the night, that the plaintiff and his crew did not go upon track number 4, but that at 8.15 p. M., when going from the southerly end of the yard to track number 6, they came in collision with cars left on track number 4, and the plaintiff was injured. The plaintiff on cross-examinatian testified that it was his business “ to know that the cars cleared before ” he “ made a single switching movement.” The locomotives in charge respectively of the plaintiff and of the day conductor were the only ones in use in the yard that night. Held, that, although it was the plaintiff’s duty to know that the tracks were clear, it could not be ruled as matter of law that he was wanting in ordinary prudence in relying on his inspection made about half an hour earlier, when he had found that their condition was safe, and that the question of the due care of the plaintiff was for the jury. Held, also, that there was evidence from which negligence on the part of the day conductor might be inferred, and that the question of his negligence was for the jury.</p> <p>Where, at the trial of an action of tort for personal injuries, the plaintiff, in answer to a carefully prepared question addressed to him upon his cross-examination, assents to a statement of a custom in regard to which he has testified on his direct examination, which gives it a different significance less favorable for him than his own previous statement of it, and his attention is not specifically drawn to the possibly vital difference between the custom thus phrased and the statement of it given in his direct examination, it is proper for the presiding judge to refuse to give an instruction based on the assumption that the plaintiff’s latest statement of the custom is the correct one, and it is the province of the jury to weigh these apparent inconsistencies in the plaintiff’s testimony and determine what the custom was.</p> <p>At the trial of an action of tort for personal injuries, where the case is tried and submitted to the jury upon several counts, alleging different grounds for the defendant’s liability, it is proper for the presiding judge to refuse a request of the defendant for an instruction which is applicable to only one of the alleged grounds of liability but is not restricted by its terms to that issue.</p> <p>In an action against a railroad corporation for personal injuries sustained while in the employ of the defendant as a night conductor in one of the defendant’s freight yards, alleged to have been caused by the negligence of a day conductor of the defendant employed in the same yard when in charge of a train of the defendant, the plaintiff ma)' be asked by his own counsel the question, “Did you have when you were going up there that night on that train any knowledge or appreciation that there was any danger in so doing ? ” to which he answers “ No, sir ”; because whether the plaintiff knew or as a prudent person ought to have known of the risk he incurred is material upon the question of his due care.</p> <p>On the redirect examination of the plaintiff in an action of tort, against a railroad corporation under the employers’ liability act, in regard to the duties which he was required to perform in the service of the defendant, if the witness is asked, “ What he was supposed to do,” the use of this loose or objectionable phrase will not sustain an exception to the admission of the question against a general objection of the defendant, in the absence of any objection to the form of the question at the time it vyas asked.</p>

<p>Trust, Constructive. Frauds, Statute of. Burial Lot. Equity Pleading and Practice, Answer.</p> <p>In a suit in equity against one brother in a family by all of his nine brothers and sisters, in which the plaintiffs sought to have the defendant declared trustee for himself and them of a burial lot, which he had purchased and the title to which he had taken in his own name, the following facts appeared : In 1891 the plaintiffs and the defendant and their father were living together and jointly contributing to the family support. In that year a sister died, and, the family then being without a burial lot and the defendant not at that time having contributed his full share to the family expenses, it was agreed among them that the defendant should pay for a lot which they all selected and that the deed should be made to the father. The defendant paid for the lot, but the deed conveyed the lot to him individually. The making of the deed to the defendant was accidental, and the defendant acted in good faith in the matter. The deed was kept unconcealed in a desk used by and equally accessible to all members of the family. The father never learned of the state of the title, and died in 1895. The plaintiffs learned of it in 1896 or 1897 and then questioned the defendant, who told them that it was all right, that it did not matter, and used other similar expressions which they regarded as amounting to an oral promise to hold the lot for their benefit as well as for his own. In the meantime the body of the mother had been moved from a former home of the family and interred in the lot and another sister had died and had been buried there, as well as the father; and from an annuity provided by insurance of the sister a family monument had been erected upon the lot. In 1906, dissensions having arisen between the defendant and the plaintiffs, he asserted an absolute right in the lot, and the plaintiffs at once brought this suit. Held, that, there being an entire absence of a written memorandum of a trust, such as is required by R. L. c. 74, § 1, cl. 4, and by R.L. c. 147, § 1, the suit could not be maintained.</p> <p>Where a bill in equity, in which the plaintiffs seek to have the defendant, their brother, declared trustee for himself and them of a burial lot, which was purchased by the defendant and the title to which he took in his own name, avers merely that before the purchase the plaintiffs and the defendant orally agreed that the title should be taken in the name of their father, who had died after the conveyance to the defendant, and does not aver any other promise or contract of the defendant with regard to the matter, and relies only upon oral declarations with regard thereto made by the defendant after the purchase, it is not necessary for the defendant, in order to rely on the provisions of R. L. c. 74, § 1, cl. 4, and of R. L. c. 147, § 1, requiring a memorandum in writing to make such a promise or declaration enforceable, to allege such defense in his answer.</p>

<p>Will, Execution.</p> <p>Upon the issue of the execution of a will, it appeared that the alleged testatrix was a woman of superior education, intelligent and self-reliant, and that she was stopping temporarily at a hotel in the city of New York for the purpose of starting in a day or two on a voyage to Europe, that she had procured a blank form for making a will, which had a printed exordium, leaving blank spaces for the name and residence of the person making the will, and, after an extensive blank space for the body of the will, had a printed in testimonium clause and below it a printed clause of attestation to be signed by witnesses, that there were three dotted lines indicating where the subscribing witnesses were to sign, but that there was no line dotted or otherwise between the in testimonium clause and the attestation clause indicating where the testator was to sign, that the alleged testatrix filled in the blank spaces in the exordium by writing in her name and residence, crossing out inapplicable printed words, and wrote in the blank space provided for the body of the will about twenty bequests, dealing with her estate with great detail in clear and intelligent language, that, after the attestation clause and below the three dotted lines indicating the places for the signatures of the witnesses, she wrote a clause nominating executors and requesting that they should be required to give no bonds, that, before the witnesses signed, every written word of the instrument was in the handwriting of the alleged testatrix, that she then took the instrument to another woman stopping at the same hotel and asked her to sign it as a witness to her will, saying that it required three witnesses, that the alleged testatrix sat down and wrote something on the paper which the witness did not read and then handed it to the witness who signed her name where the alleged testatrix told her to, that the alleged testatrix was by the side of the witness when she signed, that later on the same day two other witnesses also signed the attestation clause in the presence of the alleged testatrix after she had told them that the instrument was her last will and had asked them to sign as witnesses but had not otherwise mentioned her signature nor called it to their attention, that shortly afterwards the alleged testatrix caused this instrument to be deposited in her safe deposit vault box, where it remained until her death. Held, that this evidence warranted a finding that when the alleged testatrix wrote her name in the exordium of the instrument she intended it to be the signing of her will, and that this intent continued when all of the witnesses signed, and that therefore the will was properly signed and the signature properly attested in accordance with the requirements of R. L, c. 185, § 1.</p>

<p>Petition, filed in the Superior Court on March 1, 1909, under R. L. c. 12, § 78, appealing from the refusal of the assessors of the town of N ah ant ■ to abate a tax assessed to the petitioners as the executors of the will of Frederick R. Sears.</p> <p>In the Superior Court the case was heard by Crosby, J., without a jury. Frederick R. Sears died on June 27, 1907. His will was allowed on July 22,1907. The executors thereunder were the petitioners, the four sons of the testator, Frederick R. Sears, Richard D. Sears, Philip S. Sears and Herbert M. Sears. On December 31, 1908, the petitioners filed a petition to the assessors of the town of Nah ant, requesting an abatement of taxes assessed on May 1, 1908, amounting to $1,116.50, and also an abatement of taxes amounting to $44,000. On January 13, 1909, the assessors gave a hearing to the petitioners upon their petition, and on January 26, 1909, refused to abate the tax of $44,000, (as well as the tax for $1,116.50,) and notified the petitioners of their decision by a letter.</p> <p>On March 1, 1909, the petitioners paid under protest in writing to the collector of the town of Nahant the tax so assessed for $44,000 with interest on that amount in addition, amounting to $1,820. The assessors of the town of Nahant before making the assessments for 1908 gave the notice required by the statutes to the inhabitants and other persons liable to pay taxes therein, to bring in true lists of their personal estates before June 1, 1908. Excepting a certain sworn statement and notice dated December 31, 1908, the form of which is not now material, the petitioners did not file with the assessors any list of personal property for the year 1908, or give them notice of the distribution of the estate of Frederick R. Sears. The petitioners did not file any lists of their taxable property for the year 1908 either in Nahant or elsewhere, either as executors, trustees or in their individual capacities, except the instrument filed with the assessors of Nahant on December 31, 1908.</p> <p>The judge found that the petitioners had not shown a reasonable excuse for their delay in not filing a list of personal property within the time specified in the notice given by the assessors for the bringing in of lists, and that there was no good cause for their delay in not doing so. He further found that although the assessors on October 15, 1908, sent to Herbert M. Sears a letter and on October 24, 1908, sent to Philip S. Sears a letter, requesting them to make a sworn return of personal property belonging to the estate of Frederick R. Sears, and although these letters were received, no reply was made to either of them, and no information was furnished by the petitioners to the assessors concerning the estate except that contained in the affidavit dated and delivered to the chairman of the board of assessors on December 31, 1908, contemporaneously with the petition for an abatement of taxes, which already has been referred to. The assessors acted in good faith, and made the assessment on their best information and belief.</p> <p>The judge found that the assessors never had waived their right to have the petitioners furnish them with a list of personal estate in accordance with law, and never accepted the affidavit dated December 31, 1908, as a legal and sufficient list of the personal estate. He found further, upon all the evidence in the case, that the petitioners undertook to distribute the personal estate left by Frederick R. Sears before May 1, 1908, for the purpose of avoiding the payment of a tax thereon for the year 1908, and did actually distribute all of the personal estate before May 1, 1908, except the one hundred shares of stock of the North American Insurance Company and forty $1,000 five per cent bonds of the Chicago Junction Railway and Union Stockyards Company. As to this stock and these bonds, the judge found and ruled that they had not been legally distributed before May 1, 1908, but that on that date the legal title to the stock and bonds remained in the petitioners.</p> <p>The judge refused to make certain rulings requested by the petitioners, and made the following decision: •</p> <p>“ While the petitioners pray for an abatement of the tax assessed to estate of Frederick R. Sears in July, 1908, on a valuation of $101,500 and amounting to $1,116.50, I do not understand that the petitioners claim they are entitled to an abatement of this tax, as it was not assessed to the executors; it was therefore an illegal assessment, and the only remedy which the petitioners have, if any, to recover it back, is by an action of contract, and I so rule.</p> <p>“ I find that the petitioners are not entitled to an abatement of any portion of the tax of $44,000 levied upon the executors, and that the petition should be dismissed, and judgment rendered for the town of Nahant for its costs, to be taxed as in an action at law, and I report the case upon the facts found for the determination of the Supreme Judicial Court.”</p> <p>In accordance with this decision the judge reported the case for determination by this court. If upon any view of the law, arising upon the facts found, the petitioners were entitled to an abatement, judgment was to be entered for the petitioners in such sum as law and justice might require, or the cause might be remanded to the Superior Court to determine the amount of abatement to which the petitioners were entitled, with such costs, if any, in either event, as they might be entitled to. Otherwise judgment was to be entered upon the finding in favor of the respondent, with such costs and expenses as it might be entitled to, to be taxed by the Superior Court.</p>

<p>Contbact by the assignee of all claims of Orrin S. Hammack against the defendant for compensation for services and for commissions as salesman under the manager of the defendant’s stone tool department, accrued or to accrue under a renewal of an agreement in writing between Hammack and the defendant dated February 15,1906, for the amounts thus due to Hammack, which he was alleged to have assigned to the plaintiff by an instrument in writing dated January 4, 1908. Writ dated April 8, 1908.</p> <p>The contract between the defendant and Hammack, of which a copy was annexed to the declaration, was as follows :</p> <p>“ Memorandum of Agreement made and entered into this 15th day of February, 1906, by and between Chicago Pneumatic Tool Company, party of the first part, hereinafter called first party, and O. S. Hammack, party of the second part, hereinafter called second party.</p> <p>“ First party agrees to employ second party for a period of one year from Feb. 15th, 1906, as salesman under the manager of the Stone Tool Department of Chicago Pneumatic Tool Company covering Maine, New Hampshire, Vermont, Massachusetts and Rhode Island.</p> <p>“ Second party agrees to report to and carry out the instructions of the management of the Company, and to devote his entire time, energy and ability to the furtherance of the business interests of the Company.</p> <p>“ First party agrees to pay as salary to second party the sum of Twenty-one hundred dollars (§2100.00) per year, payable in /equal monthly instalments at the end of each month. Second party is to be allowed ordinary traveling expenses incurred in the interest of the Company. As a further consideration, second party is to receive a commission of three per cent. (3 %) on stone tools including accessories, and one per cent (1 %) on compressors and rock drills including accessories sold by first party in the States of Maine, New Hamshire, Vermont, Massachusetts and Rhode Island; this commission to be paid quarterly, payable on the 20th day of the month succeeding the end of each quarter. Statements to be based on collections with the understanding that no commissions become due until collections are made for sales. In the event that commissions on sales of stone tools, compressors and rock drills in the above mentioned states do not amount to a net total of Fourteen hundred dollars (§1400.00) for the year, then first party agrees to make good such deficiency to the second party, payable in cash at the end of the year.</p> <p>“ Second party agrees to use his influence whenever possible to the furtherance of the sale of all tools and air compressors sold by the first party to railroads, manufacturers and other customers not included in the stone tool trade above mentioned, for which service second party is to receive no further compensation or commission.</p> <p>“ It is further agreed that in the event that either or both parties do not desire to renew this agreement at the time of its expiration that notice be given in writing of intention not to renew at least thirty (30) days prior to the expiration of this agreement.</p> <p>“In Witness Whereof said parties have affixed their hands and seals at the City of Chicago, State of Illinois, on the date and year aforesaid.</p> <p>“ Chicago Pneumatic Tool Company</p> <p>“ J. W. Duntley</p> <p>President</p> <p>“ Attest, S. W. Prince</p> <p>[Seal] Secretary.</p> <p>“ O. S. Hammack” [Seal].</p> <p>The assignment from Hammack to the plaintiff, of which a copy was annexed to the declaration, was as follows : ■</p> <p>“ That I, Orrin S. Hammack, of Quincy, Massachusetts, in consideration of one dollar and other valuable considerations to me paid by James S. Allen, Jr., of Brockton, Massachusetts, hereby assign, transfer and set over unto the said James S. Allen, Jr., all claim which I now have or may hereafter have against the Chicago Pneumatic Tool Company due me for services and commission as salesman under the manager of the Stone Tool Department of said Company whether such claim for services and commissions have accrued, or may hereafter accrue under a certain written agreement made by me with said Company dated February 15, 1906, or under any oral renewal thereof.</p> <p>“ To Have and To Hold the same to James S. Allen, Jr., his executors, administrators and assigns to their own use and be-hoof forever.</p> <p>“ In Witness Whereof I • hereunto set my hand and seal this fourth day of January A. D. 1908.</p> <p>“ Orrin S. Hammack ” [Seal]</p> <p>In the Superior Court the case was tried before Raymond, J., without a jury. The facts which were shown by the evidence are stated in the opinion. The amount of the plaintiff’s claim as stated upon an account annexed was $3,650.61.</p> <p>At the close of the evidence the defendant asked the judge to make the following rulings:</p> <p>“ 1. On all the evidence the plaintiff is not entitled to recover.</p> <p>u 2. The failure of both plaintiff and defendant to notify the other of their intention not to renew the contract did not operate to renew it, either for a year or any other period of time.</p> <p>“ 3. If the contract was renewed for any period of time after February 15, 1907, it was with the right to the defendant to cancel it at any time upon thirty days’ written notice, and the plaintiff can recover, if at all, only for salary and commissions for a period of thirty days after October 29, 1907.</p> <p>“ 4. The terms of the assignment under which the plaintiff sues do not include any right of his assignor to recover damages against the defendant for breach of the written contract.</p> <p>“ 5. The plaintiff can recover under said assignment, if at all, only the commissions due for the first year, as the commissions due for the second year are not apportionable.</p> <p>“ 6. The assignment not including all the claims Hammack had against the defendant at its date, it follows that the plaintiff can recover nothing under it, as the plaintiff never assented to said assignment.”</p> <p>The judge refused to make any of these rulings, and found for the plaintiff in the sum of $3,521.39, with interest from the date of the writ. The defendant alleged exceptions.</p>

<p>Mortgage, Of personal property. Attachment, Of mortgaged personal property. Notice.</p> <p>In an action brought by a mortgagee of personal property against an officer who had attached the property under R. L. c. 107, §§ 69, 70, for its alleged conversion, it appeared that, on the day after the attachment, the plaintiff in attempting to make a demand in writing under § 70 had delivered to the defendant a notice which did not apply to the goods under attachment and stated an amount which was not a just and true account of the amount due under the mortgage, and that, on the twenty-ninth day after the attachment, the plaintiff had given the defendant a demand in writing stating a just and true account of the debt for which the property was liable to him, which the defendant contended was not given in time. There was evidence upon which the jury might have found that the plaintiff when he gave the first notice supposed that it was good, that the errors were made inadvertently and with no intention to mislead, that as soon as the piaintiffbecame aware that the notice was bad he took measures to give a second notice and that this was given with reasonable promptness after the plaintiff discovered the mistakes in the first notice, that the delay on the part of the plaintiff was with no intent to injure or prejudice the defendant in any way and was due entirely to inadvertence, and that no rights had intervened between the time of the attachment and the time of the second notice. There also was evidence of the plaintiff from which the jury might have found further that it was from the first the determination of the attaching creditor, under whose directions the defendant was acting in making the attachment, to hold the property “ anyhow ” whether there was any mortgage on it or not, and to take his chances of being compelled to pay the mortgage debt, that the value of the property was less than the amount of the mortgage and from this and other circumstances it might have been inferred that the delay was in no way prejudicial to the defendant and that he had done nothing which he would not have done if the notice had been given sooner. Held, that it could not have been ruled as matter of law that the notice was not given in time, and also that a verdict for the plaintiff was warranted.</p>

<p>Res Judicata. Contract, Rescission. Fraud.</p> <p>The question, whether the cause of action in an action at law is essentially the same as that in a suit in equity, previously brought, which after a hearing upon the merits was dismissed, so that the final decree in the suit in equity is a bar to the later action at law as to every issue in the earlier suit that in fact was or in law might have been litigated, is not determined solely by the fact that both the suit in equity and the action at law originated in the same series of transactions and in conversations and communications which took place between the parties concerning them.</p> <p>The plaintiff in a bill in equity against a mining corporation alleged that one W,, who was the promoter, treasurer and a director of the defendant, by false and fraudulent representations of fact induced the plaintiff to purchase certain of the capital stock of the defendant which it owned, and sought a rescission of the purchase and a return of what he paid therefor. At the hearing of the suit upon its merits the plaintiff for the first time discovered from admissions of officers of the defendant that only about one third of the stock which had been sold to him was stock which the defendant had owned and the proceeds of the sale of which had gone into its treasury. The judge who heard the suit found that the plaintiff had not established his allegations of fraud, and that at any rate his suit was brought too long after the sale, and dismissed the bill. Thereafter the plaintiff elected to rescind the sale and brought an action at law to recover back what he had paid for the stock to the defendant’s agent because, while he had agreed to purchase stock owned by the defendant, the proceeds of the sale of which would have gone into the corporation’s treasury, only one third of the stock which the defendant’s agent had sold to him was what he had agreed to purchase, the remaining being stock of the agent himself, the proceeds of the sale of which did not go to the corporation. The defendant set up as a defense the final decree in the suit in equity, and the judge, who heard the ca,se without a jury, ruled that the defense was adequate and found for the defendant. Upon exceptions by the plaintiff, it was held, that the decree in the suit in equity was not a bar to the action at law, since, although the different causes of action related to the same transaction, they were founded upon different features of it wliich had no necessary relation to each other and were very different in their nature.</p> <p>One, who through an agent of a corporation has bought shares of the capital stock of the corporation wliich it lias in its treasury, cannot be compelled without his knowledge and against his will to receive and retain stock that belongs to the agent personally, thus leaving himself and the corporation without the benefit for corporate use of the money, which the corporation would have received from him if its agent had done his duty.</p>

Tort with a declaration containing eight counts, the first six and the eighth counts seeking recovery for damage to wood, timber and grass lands of the plaintiff and to.buildings thereon, alleged to have been caused by fire communicated thereto at various times in 1904 and' 1905 from sparks from locomotive engines of the defendant. The seventh count sought recovery for the burning on August 29,1904, of certain coal sheds of the plaintiff. Writ dated December 22, 1906.

<p>Contract, Consideration, Performance and breach. Practice, Civil, Rulings and instructions. Pleading, Civil, Declaration.</p> <p>At the trial of an action of contract there was evidence which tended to show that the defendant sold to the plaintiff a certain boiler and engine which were fixtures in a factory building then owned by the defendant, that while the plaintiff, within a reasonable time after the sale, was removing the fixtures from the building, the defendant asked him to leave them there, as it would help him to dispose of the real estate, and that the defendant promised the plaintiff that, if the plaintiff would do so, he would pay the plaintiff for the boiler and engine when he sold the real estate, that the plaintiff granted the defendant’s request, and left the fixtures in the factory. Held, that by the sale the plaintiff was given a license to enter upon the land of the defendant, sever the fixtures and carry them away as his property, and that his relinquishment of that right constituted a sufficient consideration for the promise of the defendant to pay for the fixtures when he sold the premises.</p> <p>At the trial of an action upon an agreement of the defendant to pay to the plaintiff, when the defendant should sell certain real estate, the value of certain fixtures attached thereto, which the defendant had sold to the plaintiff a year before but which at the defendant’s request the plaintiff had left on the premises to help the defendant to sell the real estate, it appeared that the defendant refused to pay the plaintiff the value of the fixtures, and a material question was whether the defendant had sold the real estate, so that the payment was due to the plaintiff. It appeared that, at the time of the sale of the fixtures by the defendant to the plaintiff, the defendant had owned the real estate subject only to a mortgage given by a corporation, which had been a prior owner, to secure bonds issued by it, that shortly after the sale of the fixtures to the plaintiff the real estate had been conveyed by a tax deed, pursuant to a tax sale previously made, to a third person, and that a year later there had been another tax sale and deed to the same person, that about a year after the time when the agreement was made the defendant became the owner of all the bonds to secure which the mortgage on the real estate had been given by the corporation, and that about three months later he procured a discharge of that mortgage and the holder of the tax titles delivered a release and the defendant gave a quitclaim deed to another person. The defendant testified as to this transaction that he thought that “he did receive something from somebody for a release of his interest in that property.” Meld, that there was evidence from which findings, that the defendant had sold the real estate and that therefore payment for the fixtures was due to the plaintiff from the defendant, were warranted.</p> <p>One, who owned certain real estate subject to a mortgage given by a corporation which had been a prior owner to secure the payment of certain of its bonds, agreed to sell certain fixtures attached thereto. Before the purchaser of the fixtures removed them, the real estate was sold by the collector of taxes of the town where it was situated for the collection of taxes of the previous year. About a year after the sale of the fixtures and after the tax sale, but within a reasonable time, as the plaintiff was removing the fixtures the defendant asked him to leave them on the real estate so as to help a sale of it, and, in consideration of a promise of the defendant to pay for the fixtures when he sold the real estate, the plaintiff granted the request. After having sold the real estate, the defendant refused to pay the plaintiff for the fixtures, contending that there was no consideration for his promise, since by the sale of the fixtures without the assent of the mortgagee the plaintiff received nothing which he could relinquish, and since the title to the fixtures passed with the title to the land at the tax sale, and so, at the time of the defendant’s promise, the plaintiff had no right to remove the fixtures. It appeared that about a year after the making of the agreement the defendant had become the owner of all of the bonds which were secured by the mortgage, and that at the time of the sale of the real estate by the defendant the mortgage at his request had been discharged and the tax title had been released. There was no evidence that any one on behalf of the mortgagee or of the owner of the tax title objected to the plaintiff’s removing the fixtures. Held, that the mere existence of the mortgage and of the tax deed under the circumstances did not make the relinquishment by the plaintiff of what right he had to remove the fixtures under his contract with the defendant an insufficient consideration for the promise of the defendant to pay for the fixtures.</p> <p>Where no question of pleading is expressly raised at a trial and the presiding judge rules that on all the evidence the action cannot be maintained and orders a verdict for the defendant, such ruling of itself raises no question of pleading, and if the case, which there is evidence to support, is substantially although imperfectly stated in the declaration, the sustaining of an exception by the plaintiff to the ruling of the judge will not be prevented by the imperfections in the declaration.</p>

<p>Tort, with a declaration in three counts, the first count being at common law for damages resulting from the refusal of the defendant to transmit a telegraphic message for the plaintiff, and the second count being under R. L. c. 122, §§ 9,11, for the same cause of action. The third count was for recovery of the penalty prescribed by R. L. c. 122, § 10, for the wilful neglect and refusal of a telegraph company to comply with the requirements of § 9. Writ dated-May 8, 1908.</p> <p>The case was heard by Schofield, J., without a jury. He made findings and rulings substantially as follows:</p> <p>The plaintiff is the Boston agent of A. G. Hyde and Sons, a New York corporation engaged in the conversion of textile fabric. On April 7,1908, he presented at the Essex Street office of the defendant in Boston, with the money necessary to pay the charges for its transmission as an unrepeated message, the following telegraphic message for transmission to his principal:</p> <p>“Apr. 7,1908.</p> <p>“ A. G. Hyde & Sons,</p> <p>361 Broadway,</p> <p>New York, N. Y.</p> <p>“Express Purbeck four pieces Sakana Shade one fifty-six.</p> <p>“William M. Vermilye.”</p> <p>The message was written on a blank form furnished by the defendant.* On the blank, which was of yellow paper, in the indented space opposite the three lines containing the name and address of A. G. Hyde and Sons, the plaintiff had pasted a small sticker about three fourths of an inch in width and two inches in length, of white paper, on which was printed in small type, in blue ink, enclosed in a well-defined rectangular ruled line or border, the notice set out in the opinion. The message was a genuine business message. The person to whom the message was presented at the defendant’s office refused to receive it, but informed the plaintiff that if he took the sticker off he would send the telegram. Nothing was said in regard to repeating the message or transmitting it at the rates charged for a repeated or an insured message. The plaintiff was told, “We do not accept these messages with the stickers on.” The plaintiff suffered no pecuniary loss by reason of the refusal of the defendant to receive the message. He suffered the inconvenience involved in transmitting the message by some other channel, mail or telephone.</p> <p>There was no rule or regulation of the defendant in existence previous to the presentation of this telegram, forbidding the pasting of a sticker like the one in question upon a telegraph blank with a message for transmission. The clerk who refused to receive this telegram acted in pursuance of instructions then recently received at the Essex Street office from the Boston manager of the defendant’s business. The evidence shows that the plaintiff had on several previous occasions presented messages with similar stickers fastened upon them. The subject of accepting such messages had been under consideration by- the Boston management of the defendant for some days. It was a new question, and resulted in an order which was first made known to the plaintiff when he presented the message in this case. There was no evidence that any person other than the plaintiff ever presented a message with a similar sticker and notice attached.</p> <p>The plaintiff had often used blank forms of the defendant to send messages, and was familiar with the stipulations printed upon the back of them, including the provisions in respect to repeating and insuring and the cost thereof. His object in placing the sticker on this telegram was to put himself in a position to recover actual damages suffered by mis-transmission, or nondelivery, in excess of charges, under the rules then recently declared in Wheelock v. Postal Telegraph Cable Co. 191 Mass. 119. He was acting in good faith for the protection of his business interests and under legal advice.</p> <p>“ In respect to the form of the message as presented, F. Scott Smith, manager of the defendant’s office at 96 Essex Street, testified ... on cross-examination, ‘ In this case the sticker is placed after the- address, and an operator in sending it might get confused.’ . . . Upon careful consideration of the evidence in regard to confusing the operator, the court finds as a fact that the mere presence of the sticker and notice on the blank had no such tendency, and that they did not increase the probability of error or delay in transmitting the message. If further particulars were sought, as directed by the notice, delay would result, of course.</p> <p>ee There was evidence that the plaintiff at other times after April 7 tendered messages to the defendant for transmission, accompanied by a notice similar to that which is printed on the sticker used in this case. The notice was attached in different ways, and on one occasion was read to the defendant’s clerk. . . . Upon all the material evidence the court finds as a fact that the sole ground of the refusal was that the message had attached to it the sticker containing the notice. The refusal to transmit the message with sticker attached was absolute, and broad enough to include a refusal if the rates for a repeated message or an insured message had been tendered.</p> <p>“ There was evidence tending to show the relations existing between the defendant and the Western Union Telegraph Company in reference to the conduct of their business. The court rules that all the evidence upon that subject admitted at the trial is competent and material, as having some tendency to show whether the action of the defendant in refusing to receive the message was reasonable or arbitrary. Upon all the material evidence upon this point the court finds that in the transmission of messages by electricity for the public between Boston and New York the Western Union Company and the defendant are the only companies engaged in the business and that there is practically no competition between them. Their rates are the same. The rates were recently changed at the same time, and to the same amount. The companies work in harmony with each other, and the conditions printed on the back of the telegraph forms furnished to the public by each are practically identical. All persons presenting messages for transmission are required to use these forms.”</p> <p>The trial judge found for the plaintiff in the sum of one dollar under each of the first two counts of the declaration, but required him to elect between the first and second counts before entry of judgment; under the third count, he found for the plaintiff in the sum of $50. The defendant alleged exceptions.</p>