Volume 207 — Massachusetts Reports

<p>Agency, Broker’s commission. Practice, Civil, Exceptions, Verdict.</p> <p>In an action by a broker to recover a commission for making a sale of certain real estate of the defendant, where it appeared that the defendant put the property into the hands of the plaintiff for sale, that the plaintiff procured an offer which afterwards was withdrawn and that later the defendant sold the property through another broker for a lower price to the person from whom the plaintiff procured the first offer, there was conflicting evidence upon the questions whether the plaintiff’s employment had been terminated in good faith by the defendant before the sale, and whether, if it had not, the plaintiff was the efficient and predominating cause of the sale or whether such cause was the second broker, and the presiding judge gave proper instructions upon these questions to the jury, who returned a verdict for the plaintiff. Held, that these were questions of fact and properly were left to the jury.</p> <p>Where a verdict for a plaintiff shows by the amount of the damages given that the jury did not find a certain fact, an exception of the defendant to an instruction to the jury, that if they found such fact to exist they might return a verdict for the plaintiff, cannot be sustained, as, even if the instruction was erroneous, the defendant was not harmed by it.</p> <p>Where in an action of contract, in which the jury returned a verdict for the plaintiff, the rules of law governing the liability of the defendant were correctly laid down by the presiding judge, an additional remark of the judge not material to the decision of the case affords the defendant no ground for exception, whether it was correct or not, because the jury will be presumed to have followed the correct instructions given to them upon the issues before them, especially where they were warned by the judge that the subject of the remark was something about which they should not concern themselves.</p>

<p>Bill ih equity, filed in the Supreme Judicial Court on March 17, 1910, by the administrator de bonis non with the will annexed of the estate of Lucy A. Fuller, late of Springfield, for instructions.</p> <p>The bill alleged that by the first clause of the will the defendant Merrill was given $3,000, to be paid at the convenience of the executor; that the plaintiff paid that sum to the defendant Merrill on November 9,1898, and at that time received from the defendant Merrill a full discharge under seal from the payment of that sum and also in full receipt and discharge of all legacies under said will; that by the third clause of the will the sum of $3,000 was bequeathed to the defendant Merrill after the death of the son of the testatrix Lucy A. Fuller, Francis H. Fuller by name, who had a life interest in the income thereof; and that the defendant also was given an interest in the estate remaining after the payment of the amounts specifically named to certain residuary legatees; that on or about September 17, 1900, and while Francis H. Fuller still was alive, the defendant Merrill executed and delivered to the defendant Ida K. Fuller an assignment under seal of his entire interest coming to him then or thereafter of all moneys by virtue of the third clause of the will of Lucy A. Fuller, together with full power and authority to execute any and all instruments and make all necessary discharges ; and that Francis H. Fuller afterwards died.</p> <p>The bill prayed for instructions as to whether there had or had not been any effectual assignment of the whole or any part of the interest of the defendant Merrill to the defendant Ida K. Fuller; and as to whom the plaintiff should pay the amount bequeathed in the residuary clause to the defendant Merrill.</p> <p>The will of Lucy A. Fuller was as follows:</p> <p>“ I, Lucy A. Fuller of Springfield, Massachusetts, make this my last will, revoking all previous wills.</p> <p>“First: I give to my nephew, Edward F. Merrill, Three Thousand Dollars ($3000) and to my nephew Henry C. Merrill Two Thousand Dollars ($2000) to be paid at the convenience of my executor.</p> <p>“ Second: I give to my son Francis H. Fuller Two Thousand Dollars. Also I give to my executor all the rest, residue and remainder of my estate to pay over the entire income thereof to my son Francis H. Fuller during his life.</p> <p>“ Third: After the death of my son I give to the Springfield Young Men’s Christian Association Five Hundred Dollars ($500); to the Woman’s Board of Missions connected with the American Board of Commissioners for Foreign Missions Five Hundred Dollars; to the Hampden County Children’s Aid Society Five Hundred Dollars; and to the American Home Missionary Society Five Hundred Dollars ; to Edward F. Merrill Three Thousand Dollars; and to Henry C. Merrill Two Thousand Dollars.</p> <p>“ Should there be anything then remaining, I direct that it be divided equally among the six legatees mentioned in this clause.</p> <p>“ Fourth: I direct that all gifts, whether of principal or income made in this will, should not be alienable by the legatee, nor subject to interference by creditors, until paid to the legatee.</p> <p>“Fifth: I appoint -Henry S. Lee and Ralph W. Ellis to be executors of this will without sureties on their official bonds and with authority to sell real estate to settle my estate.</p> <p>“ Witness my hand and seal this 25th day of January, 1895.” Here followed the signature and seal of the testatrix and an attesting clause with the signatures of three witnesses.</p> <p>The assignment of September 17, 1900, to the defendant Ida K. Fuller was executed under seal by the defendant Edward F. Merrill and contained the following: “I do hereby assign, transfer and set over unto the said Ida K. Fuller all claims and demands which I now have or may hereafter have against the estate of Lucy A. Fuller, late of Springfield, Hampden County, Massachusetts, under and by virtue of the will of said Lucy A. Fuller; and I do hereby assign, transfer and set over unto the said Ida K. Fuller all my rights and interest as legatee under the will of the said Lucy A. Fuller, and all the monies coming to me now or hereafter as legatee under the will of the said Lucy A. Fuller, I hereby assign, transfer and set over unto the v said Ida K. Fuller ; and more particular all rights and interests which I now have or may hereafter at any time have under and by virtue of the third clause of the will of the said Lucy A. Fuller I hereby assign, transfer and set over unto the said Ida K. Fuller, with full power and authority to execute any and all instruments and make all necessary discharges.”</p> <p>The receipt of Edward F. Merrill for the $3,000 bequeathed to him by the first clause of the will, mentioned in the opinion, was executed under seal by the defendant Merrill on November 9, 1898, and, with the omission of the attesting clause, was as follows : “ Received of Edward H. Lathrop, Administrator with the will annexed of Lucy A. Fuller the sum of Three Thousand (3,000) dollars being the legacy made to me in said will and in full consideration thereof; and in full discharge of said administrator from the payment thereof and also in full receipt and discharge of all legacies under said will.”</p> <p>The case was submitted on briefs.</p>

<p>Tort for personal injuries. Writ dated June 3, 1909.</p> <p>The declaration was in substance as follows:</p> <p>“ And the plaintiff says that the defendant is a corporation owning and operating a railroad in Lynn . . .; that it is the duty of said defendant, and said defendant is required by R. L. c. Ill, § 120,.to ‘ erect and maintain suitable fences, with convenient bars, gates or openings therein, upon both sides of the entire length of its railroad except at the crossings of a public way or in places where the convenient use of the road would be thereby obstructed, and except at places where, and so long as, it is specially exempted from the duty of so doing by the board ’; yet said defendant, not being exempted from such duty as provided in said § 120, did on or about May 23,1904, and a long time before that time, carelessly and negligently fail to erect and maintain a fence as provided in said chapter upon the side of its railroad adjoining the premises at or near 52 1-2 Silsbee street in said Lynn; and said premises not being on a crossing of a public way or a place where the convenient use of the road of the defendants would be obstructed by the erection of a fence as aforesaid, are, and were on or about May 23, 1904, wholly unprovided with any fence as aforesaid; that on or about May 23, 1904, the plaintiff was lawfully and rightfully upon the premises adjoining the railroad of said defendant situated at or near 52 1-2 Silsbee street in said Lynn, for, by leave of, under, and in the right of the adjoining land owner, and in the employ of and with the consent of said adjoining land owner, in the regular course of his employment by said land owner, and in the course of his business for said land owner; and that while he was so working on the said premises adjoining the road of the defendant, and while himself in the exercise of due care, he was thrown from a pile of lumber situated on the said premises, and in falling fell over the stone wall of said defendant and on to the ground of the road of said defendant, and was severely injured owing to the negligence of the defendant, its servants, or agents, in failing to erect and maintain a fence on said premises as provided in R. L. c. Ill, § 120, which said fence, if erected and maintained, would have caught said plaintiff as he fell from the pile of lumber and prevented his falling over the stone wall to the ground below; that on or about May 23, 1904, owing to the negligence of the defendant, its servants or agents as aforesaid, and while himself in the exercise of due care, he was severely and permanently injured, and suffered greatly both in body and in mind, and was put to great expense for medicines and medical attendance, all to his damage as alleged.”</p> <p>The defendant demurred, the first ground of demurrer being that “ no legal cause of action ” was set forth in the declaration. The demurrer was heard by Dana, J., who made an order sustaining it. Judgment was entered for the defendant; and the plaintiff appealed.</p> <p>The case was submitted on briefs.</p>

<p>Practice, Criminal, Election by Commonwealth, Waiver, Exceptions. Election. Waiver. Intoxicating Liquors.</p> <p>At the trial of a complaint under B. L. c. 100, § 62, charging the defendant in a single count with making an unlawful sale of intoxicating liquor to a minor, if the evidence of the Commonwealth tends to prove two distinct sales on different days, the defendant has the right before opening his defense to require the Commonwealth to elect upon which of the sales it intends to rely for a conviction.</p> <p>At the trial of a complaint under B. L. c. 100, § 62, charging the defendant in a single count with making an unlawful sale of intoxicating liquor to a minor, if the evidence of the Commonwealth tends to prove two distinct sales on different days, and the defendant before opening his case moves that the Commonwealth be required to elect upon which of the sales it intends to rely for a conviction, and the presiding judge erroneously denies the motion, the defendant by omitting to take an exception to the denial of his motion and proceeding to put in his evidence does not waive the right to renew his motion at the close of all the evidence and before the beginning of the arguments, and his exception to a denial of his motion by the judge at that time will be sustained.</p> <p>At the trial of a complaint under B. L. c. 100, § 62, charging the defendant in a single count with making an unlawful sale of intoxicating liquor to a minor, if the evidence of the Commonwealth tends to prove two distinct sales on different days, an error of the presiding judge, in denying a motion of the defendant that the Commonwealth be required to elect upon which of the sales it intends to rely for a conviction, is not cured, after the counsel for the defendant has been obliged to argue that there was no sale on either of the two days, by a voluntary concession of the district attorney in his closing argument that he will ask for a conviction only upon proving a sale on a certain one of the two days and by an instruction to the jury that by reason of this concession the jury can convict the defendant only of the single offense relied upon, because the defendant already has suffered the disadvantage of his counsel being obliged to argue that there was no sale on either of the two days.</p>

<p>Indictment, found and returned in the Superior Court in the county of Essex on September 12,1910, under it. L. c. 208, § 51, against David Kuperstein, David Rosenberg, Sarah Rosenberg, and four others, charging them with buying, receiving and aiding in the concealment of certain stolen cloth belonging to the Arlington Mills, a corporation doing business in Lawrence, knowing it to have been stolen.</p> <p>In the Superior Court the case was tried before Schofield, J. The facts which it was agreed were shown by the evidence are stated in the opinion. The defendant Kuperstein asked the judge to rule that on these facts he could not be convicted: Tlie judge refused to make this ruling, and submitted the case to the jury, who found Kuperstein, as well as the other defendants, guilty. The defendant Kuperstein alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Two ACTIONS OF tort, the first action by a married woman for personal injuries sustained on July 28, 1908, at a little after 11.25 A. M., while the plaintiff was being transported as a passenger on an open electric car of the defendant, by reason of a collision of the car with a horse and wagon at the intersection of Flint Street with Boston Street in Lynn, as the car was going along Boston Street on the single track at the side of that street about four or five feet from the sidewalk; and the second action by the husband of the plaintiff in the first action for loss suffered in consequence of her injuries. Writs dated November 4, 1908.</p> <p>In the Superior Court the cases were tried together before Stevens, J. The essential facts which could have been found upon the evidence are stated in the opinion. At the close of the evidence the defendant asked the judge to rule (1) that upon all the evidence the plaintiffs were not entitled to recover and (2) that there was no evidence of negligence on the part of the defendant, its servants, agents or employees. The judge refused to make either of these rulings, and submitted the case to the jury under instructions to which no exception was taken.</p> <p>The jury returned a verdict for the plaintiff in the first case in the sum of $1,200 and a verdict for the plaintiff in the second case in the sum of $225. The defendant alleged exceptions.</p>

<p>Agency. Husband and Wife. Negligence, Of marketman.</p> <p>In an action by a married woman against the proprietor of a market, for personal injuries received by the plaintiff from a double-pointed barbed tack, which had fastened a tag to a leg of lamb and which the defendant’s servant negligently suffered to remain embedded in the leg of lamb when the tag was removed, the plaintiff testified that she was going to give a dinner party, that she gave her husband $2 and sent him for a leg of lamb, that he brought one home, and that while she was preparing it to be served at the dinner party she received the injuries from the embedded tack. The plaintiff’s husband testified that he was sent by his wife for the leg of lamb, that she gave him the money with which to pay for it, that he told the defendant’s salesman that his wife wanted a nice leg of lamb and that the salesman got it for him and be paid for it with the money that his wife gave him. There was evidence that the plaintiff and her husband kept house together, that he supported the plaintiff and their child and properly provided for them at all times, and that he never had suffered them to lack for any of the necessaries of life or for anything that was proper. After a verdict for the plaintiff, a bill of exceptions alleged by the defendant stated that the only question raised was whether there was sufficient evidence that the plaintiff’s husband was acting as her agent to sustain the verdict. Held, that this court could not say that there was no evidence warranting a finding that the husband was acting as the agent of his wife, and therefore the defendant's exceptions were overruled, although it was said that, if it had been open upon the bill of exceptions, the verdict could have been sustained more satisfactorily on the ground of the duty of the defendant in selling the leg of lamb for food to see that nothing was suffered to remain embedded in it which would be likely to cause injury to a person preparing it to be used for food in the exercise of reasonable care.</p>

<p>Pledge. Contract, Cons traction. Practice, Criminal, Exceptions, Bill of particulars. Larceny. False Pretenses. Evidence, To show intent. Words, “Use.”</p> <p>An agreement, contained in a note secured by a pledge of negotiable securities, in regard to the power of the pledgee to dispose of the securities before default, is not to be construed to give the pledgee the right to sell the securities and thus to end the pledge and all the rights of the pledgor in the securities, unless the language to this effect is unequivocal.</p> <p>A note secured by a pledge of negotiable securities contained the following provision: “It is hereby agreed that the lenders or assigns shall have the right to make such use of the collateral security named herein ... as they may desire, subject only to their obligation to deliver to the said borrower, or order, collateral of the same amount and kind.” Held, that the power to make use of the pledged securities was confined to their use as collateral security and gave the pledgee no right to sell them before default. Distinguishing Ogden v. Lathrop, 65 N. Y. 158.</p> <p>The defendant in a criminal case has no right of exception to an erroneous instruction of the presiding judge stating a view of the case which the defendant asked the judge to adopt.</p> <p>At the trial of an indictment for larceny, where a bill of particulars filed by the Commonwealth at the request of the defendant sets forth the facts relied upon by the Commonwealth without any color being added to them by way of a conclusion of law, the Commonwealth is at liberty to make out larceny in any way in which the facts stated show that a larceny was committed, whether it was a larceny at common law, or by embezzlement, or by obtaining property by false pretenses, or under the definition contained in R. L. c. 208, § 26.</p> <p>The defendant in a criminal case cannot complain of an erroneous instruction of the presiding judge, although it resulted in a mistrial, if the defendant did not object to the instruction at the trial.</p> <p>The crime of larceny by obtaining property by false pretenses as distinguished from larceny at common law consists in obtaining by a false pretense the title to property and not its mere possession, so that to make out a case of obtaining property by a false pretense it must be shown either that the title was so obtained or that a contract was procured by a false pretense under which the owner of the property passed the title to another.</p> <p>If the holder of a note secured by a pledge of negotiable securities, which an agreement contained in the note gave him the right to pledge but not the right to sell before default, obtained the pledge and the agreement by means of a false pretense, and afterwards contrary to the terms of the agreement wrongfully sold the pledged property before default, although this is larceny at common law and also is larceny as defined by R. L. c. 208, § 26, it is not larceny through obtaining property by a false pretense.</p> <p>The fraud of obtaining property by buying it intending not to pay for it is not under the statutes of this Commonwealth the crime of obtaining property by a false pretense which is included in larceny.</p> <p>At the trial of an indictment for larceny, if there is evidence that the defendant, who had taken certain negotiable securities as a pledge to secure a note which contained an agreement giving the pledgee the right to pledge but not the right to sell before default the securities held as collateral, wrongfully sold the pledged property before default the day after he received it, and if the defendant contends that in selling the pledged securities he acted honestly believing that he had a right to sell them by the terms of the agreement contained in the note, the Commonwealth may show that at the time the pledge was made the defendant represented to the pledgor that the pledged securities would be pledged by the defendant to a certain bank from which they could be procured by the substitution of other collateral on one or two days’ notice of intended payment of the note, this representation by the defendant of his intention as to dealing with the securities, which he sold the next day, being material to show criminal intent on his part.</p>

<p>Bills and Notes, Bona fide purchaser. Corporation. Evidence, Presumptions and burden of proof. Payment. Practice, Civil, Exceptions, Non-prejudicial error.</p> <p>Statement by Loring, J., of the rule of law, which applies when a negotiable instrument of a corporation, the payee of which is a creditor of the officer or agent of the corporation who signed the instrument in the corporation’s behalf, is used by such officer or agent to pay his individual debt to the payee, the rule being that the transaction on its face is a wrongful appropriation of the corporation’s money and is deemed bad until it is shown to be good, so that the rights of the creditor depend upon whether or not the transaction is in fact what it purports to be, and no question of a purchase in good faith can arise; and also of the different rule, which applies when the payee of such negotiable instrument of a corporation is the officer or agent who signed it on the corporation’s behalf or some third person and, after being indorsed by the payee in blank, the instrument is used by the officer or agent to pay his individual debt, the rule in such case being that the transaction is good unless it is proved to be bad, so that, if the corporation proves that the use of the instrument by its officer or agent was wrongful, the rights of the creditor depend upon whether or not he acted in good faith in receiving the instrument.</p> <p>At the trial before a judge without a jury of an action against a corporation for the purchase price of certain goods, it appeared that, at a time when both the corporation and its treasurer were debtors of the plaintiff on separate accounts, the treasurer sent to the plaintiff checks of the corporation, signed by him and made out to the plaintiff as payee, with specific directions to apply them in payment of the individual account of the treasurer. No evidence was introduced to show that the use of the checks by the defendant’s treasurer was proper, and the defendant, relying on the rule of law that, in the absence of such evidence under the circumstances, the creditor had no right to the checks, contended that the plaintiff should apply the proceeds thereof upon the debt of the corporation. Held, that, the checks not having been remitted to the plaintiff generally, but with specific directions for application to the payment of the individual debt of the treasurer, the defendant had no right to insist that they be applied upon its debt to the plaintiff, whatever its rights as to a recovery from the plaintiff of the proceeds of the checks might be.</p> <p>In an action against a corporation upon an account annexed for goods sold and delivered, the defendant pleaded merely a general denial and payment. At the trial before a judge without a jury it appeared that at one time both the corporation and its treasurer were debtors of the plaintiff on separate accounts and, against the objection and subject to an exception by the plaintiff, the defendant ■was allowed to show that the defendant’s treasurer had sent to the plaintiff checks made payable to the plaintiff and signed by the treasurer on behalf of the corporation, with directions that they be applied in payment of the individual account of the treasurer. There was no further evidence as to whether the use of the corporation’s funds by the treasurer was proper. The defendant contended that the proceeds of the checks should be applied on the corporation’s account with the plaintiff, and not on the treasurer’s individual account, but the judge found in substance that the plaintiff was a bona fide purchaser of the checks, and therefore that it was not necessary to determine whether or not the corporation authorized the treasurer so to use its funds, and found for the plaintiff without giving the credit the defendant asked for. The defendant excepted. Held, that,.although the finding and ruling of the judge seemed to be erroneous, the defendant was not harmed thereby, because, there being no declaration in set-off, the finding was on an issue not raised by the pleadings.</p>

<p>Qrade Crossing Acts. Old Colony Street Railway. East Taunton Street Railway. Statute, Construction.</p> <p>The last sentence of St. 1906, c. 463, Part I. § 29, which is in substance a re-enactment of the corresponding provision in St. 1902, c. 440, § 1, provides as follows : “ Upon all petitions hereafter filed, and upon all now pending on which no commission has been appointed, for the abolition, discontinuance or alteration of grade crossings, any street railway company having a location in the part of the public way where the crossing exists, shall be made a party and entitled to be heard as such.” Upon a petition of the mayor and aldermen of Taunton for the abolition of certain grade crossings of the railroad of the Old Colony Railroad Company in that city, the Old Colony Street Railway Company was made a respondent. The street railway company appeared specially and filed a motion that the petition be dismissed as against it, on the ground that its predecessor in title, to whose rights it had succeeded, had tracks located on the parts of the public ways where these grade crossings were sought to be abolished before the enactment of St, 1902, c. 440, and that at the time of .the enactment of that statute petitions were pending for the abolition of these crossings on which commissions had been appointed, and that the predecessor in title of the railway company was not made a party to those proceedings. It appeared that these previous petitions were dismissed by the court without prejudice, by agreement of all the parties thereto. Held, that the exception in the statute of pending petitions on which commissions had been appointed applied only to cases where the proceedings were pursued to a determination of the rights of the parties, and did not extend to petitions which were dismissed without prejudice by agreement of the parties, leaving their rights to be determined afterwards under the laws applicable to new proceedings, and therefore that the street railway company properly was made a party to such new proceedings and its motion to dismiss the petition as against it should be denied.</p> <p>The special act St. 1901, c. 205, entitled “An Act relative to the grade crossing of the Old Colony Railroad and the East Taunton Street Railway at Chaee’s Crossing in the city of Taunton,” which allowed the East Taunton Street Railway Company to intervene and become a party to the proceedings upon the consolidated petitions then pending in regard to the abolition of certain grade crossings in Taunton, does not take the crossings referred to out of the operation of the general laws, and therefore the provisions of St. 1902, c. 440, and St. 1906, c. 463, Part I. § 29, are applicable to them.</p>

<p>Bill in equity, filed in the Superior Court for the county of Bristol on January 15, 1908, for the appointment of a receiver of the property in this Commonwealth of the defendant, a Rhode Island corporation, who should be ancillary to a receiver appointed in similar proceedings against the same corporation in the Superior Court of Providence County, Rhode Island.</p> <p>The case previously was before this court on an appeal by a creditor, Jerome C. Borden, from the decree appointing the ancillary receiver, and is reported in 200 Mass. 179. After that decision, the case was heard by DeOourey, J., upon the question of the allowance of the receiver’s final account. Jerome C. Borden, a creditor, alone opposed the allowance of the account. From the account it appeared that, after the payment of the expenses of the Massachusetts receivership, there was in the possession of the receiver $2,910.61 for distribution according to orders of the court; that one hundred and ten creditors had proved their claims before the Massachusetts receiver, of whom seventy-two were residents of Rhode Island, thirty-two were residents of Massachusetts, and six were residents of other States. Among the claims so allowed was that of Jerome C. Borden for $2,159.35.</p> <p>The following facts were agreed upon by the parties:</p> <p>“ The defendant, previous to the appointment of a receiver in either State had entered into two* contracts in similar form, one for the construction of a church at Centredale, Rhode Island, and the other for the construction of an academy and convent at Fall River, Massachusetts. Each contract contained the following clause: ‘If at any time there shall be evidence of any lien or claim for which, if established, the owner of said premises might become liable, and which is chargeable to the contractors, the owner shall have the right to retain out of any payment then due or thereafter to become due an amount sufficient to completely indemnify him against such lien or claim. Should there prove to be any such claim after all payments are made, the contractors shall refund the owner all moneys that the latter may be compelled to pay in discharging any lien on said premises made obligatory in consequence of the contractor’s default.’</p> <p>“The statute with reference to mechanics liens in Rhode Island is as follows: ‘ Section 1. Whenever any building, canal, turnpike, railroad or other improvement shall be constructed, erected or repaired by contract with or at the request of the owner thereof, such owner being at the time the owner of the land on which the same then is, or by the husband of such owner with ,the consent of his wife in writing, such building, canal, turnpike, railroad or other improvement, together with the said land, is hereby made liable and shall stand pledged for all the work done in the construction, erection or reparation of such building, canal, turnpike, railroad or other improvement, and for the materials used in the construction, erection, or reparation thereof, which have been furnished by any person before any other lien which shall originate subsequent to the commencement of such erection, construction or reparation on such land.’</p> <p>“ Under this statute the Union Hardware & Supply Co., of Providence, R. I., had a lien for materials amounting to $135, and other parties had two small claims (about $24) for labor, both against the church at Centredale, Rhode Island, and these sums were paid to the lienors at the time of the settlement under the contract with the Rhode Island receiver, the owner insisting upon such payment under the provisions of his contract.</p> <p>“ Jerome C. Borden furnished materials used in the construction of the academy and convent in Fall River, Massachusetts, to the amount of his claim as allowed in this case, and previous to the appointment of the receiver brought an action in the Superior Court in the Commonwealth, summoning the- owner as trustee, which suit was pending at the time when the receiver was appointed. [This attachment was dissolved and the amount due from the owner to the defendant was paid to the receiver under an interlocutory decree in these proceedings.]</p> <p>“It is agreed that if the materials furnished by Jerome C. Borden had been furnished in the State of Rhode Island upon a similar structure in Rhode Island he could (at the time of bringing his trustee action) have enforced payment for'$52.50 of his claim under the Rhode Island lien law and under his aforesaid contract, but that he could not at that time have enforced his lien in Massachusetts under the Massachusetts law, because he did not give his notice under the Massachusetts law at the time when he furnished the material.”</p> <p>It further appeared that, in the decree appointing the receiver in the Rhode Island proceedings, the court had fixed a time, after which claims which had not been filed with the receiver should be “ forever barred from participation in the assets . . . except as it may be otherwise specially ordered by the court.” Borden did not file his claim with the receiver in Rhode Island. At the hearing in the Superior Court this fact was stated, whereupon the receiver in open court stated that Borden might then file his claim with the original receiver (who was the same person as the receiver in Massachusetts), and that no objection would be made on account of the lateness of such filing. The counsel for Borden refused so to file his claim.</p> <p>A final decree was entered allowing the account of the receiver, “ but without prejudice to the rights of Massachusetts creditors to participate in the distribution of the Rhode Island assets, and the receiver is hereby authorized and directed . . . to pay the net balance of the funds in his hands to the parties or their attorneys of record in this cause entitled thereto ” in the sum of $2,910.61, “ to the creditors as appear in said account of the receiver and pro rata among the creditors and for the amounts set out [in the schedule of creditors who had proved in the Massachusetts proceedings] upon their claims therein set forth.”</p> <p>Jerome C. Borden appealed.</p> <p>The case was submitted on briefs.</p>

<p>Bill ie equity, filed in the Superior Court on June 26,1909, to restrain the defendant from obstructing by gates a right of way owned by the plaintiff over the land of the defendant on the easterly side of Bay Street in Taunton.</p> <p>The case was referred to L. Elmer Wood, Esquire, as master. The master filed a report in which he made the findings which are stated in the opinion. The plaintiff filed a single exception to the master’s report on the ground “ that the defendant was allowed to introduce evidence relating to the maintaining and closing of the said gates by former owners of the dominant and servient estate prior to June 3,1909, to vary and limit the terms of the grant by paroi evidence.” June 3,1909, was the date on which the master found that the plaintiff took down a part of the fence, which at that time divided the land of the plaintiff from that of the defendant, and the defendant built a new fence on the street and on part of the boundary line and put in place the gates which the plaintiff sought to enjoin her from maintaining.</p> <p>The case was heard by De Qourcy, J., who overruled the plaintiff’s exception to the master’s report, and confirmed the report. He made a final decree that the plaintiff’s bill be dismissed; and the plaintiff appealed.</p> <p>Below is a reduced copy of the plan used at the hearing before the master and afterwards before this court.</p> <p>The case was submitted on briefs.</p>

<p>Contract, with a first count upon a contract in writing for $510 as the price of one hundred and fifty eases containing six hundred dozen clams, alleged to have been delivered to the defendant under the contract, and a second count upon an account annexed for the same amount. Writ dated August 17,1908.</p> <p>In the Superior Court the case was tried before Fox, J., without a jury.</p> <p>The plaintiff put in evidence a contract, in writing, the material portion of which was as follows:</p> <p>• “ 2113 1909.</p> <p>Sold to J. S. Radovsky</p> <p>At Fall River, Mass.</p> <p>How Ship — Rail. When — As below.</p> <p>Terms : — ly %■—10 days.</p> <p>300 els PIL 6 oz. Clams 1200 - - - -- -- -- 90</p> <p>less frt.</p> <p>y2 to be shipped when packed about May — balance July shipment — price guaranteed against our own price up to time of shipment. To take place of previous contract.</p> <p>J. S. Radovsky</p> <p>The Twitchell-Champlin Co.</p> <p>by Frank A. Bott.”</p> <p>One hundred and fifty cases of these goods had been shipped in May and paid for. The plaintiff’s shipper testified that he was in charge of the shipping department of the plaintiff, and that he knew that the clams in question, namely, the remaining one hundred and fifty cases, were shipped. The defendant testified that he received no bill of lading and no other notice in writing of that shipment or of the arrival of the clams except the invoice printed above. The defendant testified, however, that he might have known of the arrival of the clams at the station in Fall River. He testified that he did not take them from the station and that he refused to take the clams because he bought them less freight and the bill was marked “ f. o. b. Boston.” The price named in the contract between the parties was ninety cents less freight, and the first shipment of one hundred and fifty cases was billed at that price and was paid for. The second shipment of one hundred and fifty cases was billed at eighty-five cents f. o. b. Boston.</p> <p>It appeared that ninety cents was the price per dozen cans and that there were six hundred dozen cans in one hundred and fifty cases.</p> <p>It was contended by the defendant that he was entitled to a deduction of five cents a dozen from the contract price under the guaranty contained in the contract, as follows: “ Price guaranteed against our own price up to time of shipment,” and that the second invoice should have been billed to him at eighty-five cents less freight instead of eighty-five cents f. o. b. Boston, and that because of that overcharge he had a right to reject the goods. Upon this point the evidence was in substance as follows:</p> <p>Upon the receipt of the invoice for the second lot of clams the defendant immediately returned it with the statement that he could not use the clams at the above price, and the plaintiff mailed the invoice back to the defendant with no further comment.</p> <p>Bott, who made the contract with the defendant for the plaintiff, testified on cross-examination that “f. o. b. Boston ” meant that the freight was to be paid by the defendant; that at the time he closed the order with the defendant the plaintiff’s price was ninety cents f. o. b. Boston, and that he allowed the defendant a concession of the freight because of the size of the order and also for the purpose of getting the defendant’s business for the future.</p> <p>The plaintiff’s witnesses testified that at the time they sent the second invoice to the defendant on July 15, 1908, their price was eighty-five cents f. o. b. Boston in sales of twenty-five cases or over, ninety cents f. o. b. Boston on sales of fifteen cases, and ninety-five cents f. o. b. Boston on sales of five cases.</p> <p>The defendant testified that the understanding by the trade as to the guaranty contained in the contract of sale was that if the market declined the buyer got the benefit. “ Q. Assuming the price went down ten cents what would be the benefit that would be allowed ? A. That would be ten cents a dozen. — Q." What would be the understanding by the trade when the list price is f. o. b. Boston ninety cents and if it is then reduced to eighty-five cents f. o. b. Boston ? A. Five cents.” This evidence was not contradicted by the plaintiff or its witnesses, although the plaintiff’s witnesses all were in court at the time that the testimony was given.</p> <p>Bott further testified that after the drop in price he came to Fall River, saw the defendant, and told him “ that they would be able to make a little better price on clams, and would be able to fill his order at eighty-five cents Boston,” adding, “ He seemed well satisfied at the time and I considered the matter settled. We shipped the order according to the contract.”</p> <p>The defendant testified as to this conversation that Bott came to him and told him that the clams had declined five cents a dozen and that the defendant’s price would be reduced accordingly.</p> <p>At the close of the evidence the defendant asked the judge to make the following rulings:</p> <p>1. Upon all the evidence judgment should be for the defendant.</p> <p>2. Upon all the evidence the title to the goods never passed to the defendant.</p> <p>3. Upon all the evidence there was no delivery of the goods to the defendant.</p> <p>4. Upon all the evidence the plaintiff cannot recover the sale price of the goods.</p> <p>5. The defendant had a right to reject the goods upon the terms offered.</p> <p>6. The title to the goods does not pass to the consignee by-delivery to the carrier where freight is paid by the consignor.</p> <p>7. A fair construction of this contract is that the defendant was to receive the benefit of any decline in price from the time that the contract was made up to the time of shipment.</p> <p>8. Upon all the evidence the plaintiff failed to give the defendant the benefit of that decline of five cents per dozen.</p> <p>The judge made the seventh ruling requested as above, and refused to make any of the others. He found for the plaintiff in the sum of $510 with interest. The defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Tort for personal injuries sustained by the plaintiff on August 20, 1907, from being struck by a heavy plank which was being lowered, while he was in the employ of the defendant and was at work as a carpenter on a caisson on the Somerset shore of the Taunton River, the caisson being in process of construction for use in the erection of a new bridge across that river between the city of Fall River and the town of Somerset. Writ dated September 30, 1907.</p> <p>At the trial in the Superior Court before Stevens, J., the plaintiff finally relied upon the second and third counts of his declaration, one alleging negligence in the failure of the defendant to furnish him with safe ways, works or machinery with which to do his work, and the other alleging negligence of a superintendent or of some one exercising superintendence.</p> <p>The general character of the evidence is described in the opinion.</p> <p>One Nicholson, called by the plaintiff as an expert, testified that he was a contractor of twenty years’ experience ; that he had been putting up buildings; that he was familiar with derricks and hoisting apparatus, derricks run by boom and mast and the hoisting of things by chains and wire ropes. He was asked the question, “ Assuming such a derrick as is described, and such a load, is such a derrick a safe and suitable apparatus without a tag rope or guard rope?” He answered, “No, sir.”</p> <p>Afterwards he was asked, subject to the objection and exception of the defendant, the question, “ Is such a derrick as is described, carrying such a load as has been described here, and the load the way it has been described, is it a safe and suitable appliance without a tag rope ? ” He answered, “ No.”</p> <p>The following questions and answers were subject to the same exception: “ Q. How would a tag rope be used ? A. There should be two tag ropes, one on each end, to pull that out and keep it there until the stick would swing down where the men wanted to put it. — Q. How should it be dropped ? A. In the first place the boom should have been long enough to get over here (illustrating). — Q. Assuming that the boom wasn’t long enough. A. There should have been a tag rope, it seems to me, so as to pull that out, and had the fall right so they could have dropped it down, and pulled it in with these tag ropes. — Q. Now, Mr. Nicholson, suppose the boom isn’t long enough to reach out where the load is to "go, suppose this is the boom of the derrick, and it only reached up here in the middle of the caisson, and the load is to go out there, should a tag rope be used then in your opinion ? A. Yes, there should be two tag ropes, one on each end. There is nothing to stop that from swinging in if there isn’t a tag rope on it. — Q. What is the purpose of putting the tag rope on? A. To keep it swung out there until they lower it. Then there should be somebody there, or shift the tags around and swing it in. — Q. Now, is it a suitable appliance for hoisting, Mr. Nicholson, to have a boom that only reaches out to where the load is to go? Is that a suitable appliance ? A. No.”</p> <p>One Hardy, called by the plaintiff as an expert, testified that he was a general contractor and had been in business eight years in carpentry work and general construction; that previously he had worked for contractors and builders for about fifteen years and was familiar with derricks and hoisting apparatus; that he had heard this derrick described and the load, the timber or plank twenty-five or thirty feet long, twelve inches wide and four inches thick. He then was asked and answered, subject to the objection and exception of the defendant, as follows: “ Q. Now, Mr. Hardy, assume a derrick described as this has been in the evidence, carrying the load which has been described here, and assume that derrick is being used and operated without a tag rope or guide rope, is that a safe and suitable appliance ? A. I should say not. — Q. Now, assume a derrick where the boom does not come out to the place where the load is to be put, — is that a safe and suitable appliance for hoisting? A. I should say not.”</p> <p>At the close of the evidence the defendant asked the judge to rule (1) that upon all the evidence in the case the plaintiff was not entitled to recover upon either of the counts relied upon,</p> <p>(2) that there was no sufficient evidence to warrant the jury in finding that the plaintiff was in the exercise of due care, and</p> <p>(3) that there was no sufficient evidence to warrant the jury in finding that the defendant, its agents or servants, were negligent.</p> <p>The judge refused to make any of these rulings, and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of S3,750. The defendant alleged exceptions to the refusal of the judge to make the rulings requested and to his refusal to exclude the expert testimony of the witnesses Nicholson and Hardy. The defendant argued that, the jury having before them full testimony as to the position of all the appliances, such a danger as the swinging in of the plank because of the lack of the restraining force of a tag rope was within their ordinary knowledge and was not a proper subject for the testimony of experts.</p>

<p>Contract by the administratrix of the estate of Michael H. Sullivan on a policy of insurance on the life of the plaintiff’s intestate. Writ dated August 14, 1908.</p> <p>In the Superior Court this case first was tried before White, J., who ordered a verdict for the plaintiff and reported the case for determination by this court of the question whether under a policy containing the clause which is quoted in the opinion the evidence of fraud which was offered by the defendant was admissible. In a decision, reported in 189 Mass. 555, this court held that the evidence offered by the defendant should have been admitted, and in accordance with the terms of the report ordered that the verdict should be set aside.</p> <p>There was a new trial before Stevens, J., at which the jury returned a verdict for the plaintiff in the sum of $1,470. The defendant alleged exceptions, raising the questions which are considered in the opinion.</p> <p>One of the exceptions, mentioned at the end of the opinion, was as follows: Dr. Albert 0. Dedrick, called as a witness by the defendant, testified that he had practised medicine in Fall River for twenty-one years, that he was the president of the board of examiners in Fall River for the army and navy, that he formerly examined for the New England Mutual Life Insurance Company, and was at present the local examiner for the Phoenix Life Insurance Company and for two assessment orders, that he had seen the insured for a number of years and had treated him at the city hospital. This witness was asked by the defendant the following question: “ Taking into consideration the condition in which you found Michael H. Sullivan in March, 1901, taking into consideration what he told you about the previous history of the case, whether in your opinion he would have been insurable in October, 1900 ? ” The judge excluded the question, and the defendant excepted.</p> <p>The first part of the judge’s charge to the jury was as follows:</p> <p>“ This ... is an action of contract. The plaintiff says that her intestate made a contract with the defendant company by virtue of which the defendant insured his life for the amount of $1,000. That policy was afterwards assigned to her, and she has a beneficial interest in it, and he claims under that assignment, but she properly brings this action as administratrix of his estate.</p> <p>“ Now, your attention has been called to the provision in this policy as to its incontestability. 1 This policy is incontestable from the date of issue for any cause, except non-payment of premium.’ Well, with that provision in the policy, gentlemen, you very naturally would ask yourself the question, why is any defense made here ? It is for this reason. That provision is contrary to the policy of the law, and it is void. The courts will not sustain that provision in the policy, and for that reason notwithstanding it was made by the company it is a provision by which they are [not] legally bound.</p> <p>“ The defense in this case is that certain misrepresentations were made by Michael H. Sullivan at the time when he made his application for insurance, or at the time when he was examined by the examining physician for the defendant company, and in its answer it sets up various causes of defence. It is alleged here that misrepresentations were made, and that this was a fraudulent policy, and never took effect because those misrepresentations were made, and that by virtue of those misrepresentations the defendant company was induced to enter into that contract.</p> <p>“The burden is upon the defendant to establish that fact, to establish the fact that misrepresentations were made. If you find that misrepresentations were made; — and the law in relation to that I want to read to you —6 No oral or written misrepresentation or warranty made in the negotiation of a contract or policy of insurance by the assured or in his behalf shall be deemed material or defeat or avoid the policy or prevent its attaching unless such misrepresentation or warranty is made with actual intent to deceive or unless the matter misrepresented or made a warranty increased the risk of the loss.’ So in relation to these misrepresentations, gentlemen, if they were misrepresentations, there are two questions before you. In the first place were they false misrepresentations, misrepresentations that were made actually with the intent to deceive, or if they were not made with the actual intent to deceive, if they were made honestly, did they increase the risk? Because those are the issues which you are to pass upon.</p> <p>“ There is another provision of the statute, ‘ Every policy which contains a reference to the application of the insured either as a part of the policy, or as of having any bearing thereon, 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.’</p> <p>“ It appears in the case of this policy that the entire application was not annexed to the policy. It is stated in the examination before the physician. ‘ In continuation of and forming a part of my application for insurance to the Union Mutual Life Insurance. ’ That was not attached to the policy, and if that had been a Massachusetts policy, if the contract had been executed in Massachusetts, it would not under our statute have been possible for the defendant to have made this defense. But it is possible because this is a Maine contract.</p> <p>“ The defendant company was a Maine corporation. Its principal place of business was in the State of Maine in the city of Portland, and the contract was effected in Maine, and that being the fact, it being a Maine contract without the jurisdiction of this court, under our statute as it has been construed by our court, it does not apply to a case like this.</p> <p>“ How, I have ruled that this application was a part of the application. It is in. You have it before you. You have it with what purports to be the signature of Michael H. Sullivan, and the questions for you to pass upon are whether there were misrepresentations made here, and if there were misrepresentations, whether those misrepresentations were made, in the language of the statute, with the actual intent to deceive, or did the matter misrepresented, or made a warranty, increase the risk of the loss.”</p> <p>After dealing with a question in regard to the identity of the insured, the judge continued as follows: “ But if you find that it was the same identical person, that the Michael H. Sullivan whom this plaintiff represents was the man who was actually insured, then you come to the other question, and that is whether or not misrepresentations were made, and if misrepresentations were made were they made either with the actual intent to deceive, or did they increase the risk which was taken by the company.”</p> <p>At the end of the charge the defendant, in the language of the bill of exceptions, “ saved its exception to the second paragraph of the charge as above quoted, and to what the court said about the first clause in the policy being absolutely void, stating its claim that the policy is void only so far as fraud is concerned, meaning that the policy is incontestable for every reason except fraud, whereupon the court stated to counsel that for the purposes of this case he would give that instruction, and said to the jury, ‘ It is incontestable, except as to fraud.’ The court declined to give further instruction to the jury oh this subject, and saved the defendant’s exception.”</p> <p>At the conclusion of his charge the judge gave the following instructions as having been requested by the plaintiff:</p> <p>“ The plaintiff is entitled to recover unless the defendant satisfied the jury by a fair preponderance of the evidence that the policy was obtained by misrepresentations which either increased the risk of loss, or were made with the actual intent to deceive.</p> <p>“If the insured without intent to deceive the company misrepresented certain facts that would not avoid the policy unless they increased the risk.</p> <p>“ Unless the jury find that Sullivan intended to deceive, and misrepresented facts which materially increased the risk under the policy, the plaintiff is entitled to recover.”</p> <p>It is the last sentence, above quoted which is referred to in the opinion as containing the word “ and ” used inadvertently for the word “ or.” The defendant excepted to the giving of these rulings requested by the plaintiff and also excepted 66 to what the court said to the jury in relation to increase of risk.”</p>

Contract for loss alleged to have been sustained by reason of the defendant’s refusal to receive and pay for three hundred bags of “No. 2 keeri lac” and one hundred bags of “No. 1 keeri lac,” which the plaintiff alleged that the defendant had agreed to purchase from him. Writ dated May 2, 1907. In the Superior Court the case was heard by Stevens, J., without a jury. It appeared that the plaintiff was a dealer in shellac and other gums in New York.

<p>Devise and Legacy, What estate, Contingent remainder, “ Or ” construed to mean “ and,” Designation of legatee. Trust. Executor and Administrator. Probate Court, Jurisdiction. Judgment. Equity Jurisdiction, Bill for instructions. Words, “Or,”'“And.”</p> <p>A will contained the following provision: “ I give to S. my adopted daughter the sum of $10,000; and to E., also my adopted daughter, $7,000; the income of which if not needed for their support, and schooling to be added to the principal during their minority; and at the age of twenty-one they to receive the income of the several amounts devised to them during the remainder of their lives ; and sooner, if married before the age of twenty-one, at the time of said marriage; in case of the death of either of them before they come of age or are married, the said sum or suros to be appropriated for the establishment of an asylum in Andover for the benefit of orphans & indigent children under the direction of my trustees or executors; and in ease of their death or the death of either of them, leaving children, the said amount to go to the said children.” There were numerous legacies to relatives and friends of the testator, and residuary clauses disposing of all of his estate not otherwise disposed of. E. died when more than twenty-one years of age, never having married. Held, that by the will E. received only a right to income during her life, and in no event an absolute estate in any portion of the principal.</p> <p>A will contained the following provision : “ I give to S. my adopted daughter the sum of @10,000; and to E., also my adopted daughter, $7,000; the income of which if not needed for their support, and schooling to be added to the principal during their minority ; and at the age of twenty-one they to receive the income of the several amounts devised to them during the remainder of their lives; and sooner, if married before the age of twenty-one, at the time of said marriage; in case of the death of either of them before they come of age or are married, the said sum or sums to be appropriated for the establishment of an asylum in Andover for the benefit of orphans & indigent children under the direction of my trustees or executors ; and in case of their death or the death of either of them, leaving children, the said amount to go to the said children.” There were numerous legacies to relatives and friends of the testator, and residuary clauses disposing of all his estate not otherwise disposed of. E. died when more than twenty-one years of age, never having married, S. in the meantime having died leaving children. Held, that the sums given in trust for E. and S. were to be disposed of independently of each other, and that the children of S. had no interest in the sum left in trust for E. and her children if she liad any.</p> <p>A will contained the following provision : “ I give to S. my adopted daughter the sum of $10,000; and to E., also my adopted daughter, $7,000; the income of which if not needed for their support, and schooling to be added to the principal during their minority; and at the age of twenty-one they to receive the income of the several amounts devised to them during the remainder of their lives; and sooner, if married before the age of twenty-one, at the time of said marriage; in case of the death of either of them before they come of age or are married, the said sum or sums to be appropriated for the establishment of an asylum in Andover for the benefit of orphans & indigent children under the direction of my trustees or executors ; and in case of their death or the death of either of them, leaving children, the "said amount to go to the said children.” There were numerous legacies to relatives and friends of the testator, and residuary clauses disposing of all his estate not otherwise disposed of. E. died when more than twenty-one years of age, never having married. The trustees and executors named in the will were neighbors and personal friends of the testator. Held, that the words “ in case of the death of either of them before they come of age or are married,” should be construed to mean “in case of the death of either of them both before they become of age and before they are married,* so that, E. having reached twenty-one years of age before her death, although she never married, the remainder for the establishment of an asylum in Andover never took effect.</p> <p>A will contained a second clause, which set apart $7,000, the income of which was to be paid to the testator’s adopted daughter, but made no provision for the disposition of the principal in case the adopted daughter died without ever having married and more than twenty-one years of age. A sixth clause of the will gave “ the residue of” the property, “ not exceeding $50,000,” to a certain school, and the seventh clause provided, “If there should anything remain after satisfying the bequests before made, I order it divided ” among certain institutions. The adopted daughter died when more than twenty-one years of age without ever having married. The $50,000 for the school had been provided for before her death. Held, that the sixth and the seventh clauses together constituted a general residuary clause, which included all property not effectually disposed of by the earlier parts of the will; and that the $7,000 in question passed to the institutions mentioned in the seventh clause.</p> <p>A will left certain property to be divided “ in equal parts, between the Foreign board of missions of the Episcopal church, the Domestic board of the same,” and three other societies and corporations. The Foreign board of missions of the Episcopal church and the Domestic board of missions of that church are different departments under the charge of different committees as official managers of a corporation named the Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America. Each of the committees has separate offices and separate treasuries and makes separate appeals to the church, and each conducts its own affairs quite independently of the other. Held, that the corporation, the Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America, should receive two fifths of the amount to be divided, and each of the other three societies and corporations should receive one fifth.</p> <p>A trustee under a will, who held a trust fund for the purpose of paying the income thereof to a certain beneficiary during his life and thereafter to distribute it among certain societies and corporations, died after the life beneficiary without having distributed the principal. A successor was appointed, who died without having taken possession of the fund. Thereafter the Probate Court by a decree, which, upon petition by one of the ultimate beneficiaries under the will, this court held should be vacated because of lack of notice to certain parties, undertook to appoint a succeeding trustee. The executor of the will of the trustee who last had possession of the trust fund sought by a bill in equity instructions as to what disposition he should make of the fund, and this court, having determined the questions of construction of the will which were raised by the parties, directed such executor to distribute the fund accordingly, and held, that there was no occasion for the appointment of another trustee.</p> <p>By the provisions of a will a certain fund was given to a trustee, the income to be paid to an adopted daughter of the testator for her life, and the principal after the beneficiary’s death to be distributed among certain societies and corporations. After the death of the beneficiary, the trustee died without having distributed the fund, and thereupon without notice to the societies and corporations interested, but with notice only to the Attorney General of the Commonwealth and to a town which in a contingency that did not occur might have been interested, the Probate Court appointed a trustee to take over the fund from the executor of the will of the deceased trustee. One of the corporations entitled to the fund petitioned that the decree of appointment be vacated, and the executor of the deceased trustee filed a bill in equity for instructions as to the distribution of the fund. Held, that the decree of appointment, having been made without the notice to all persons interested required by R. L. c. 147, § 5, was made without authority and should be vacated, and also, that, because an order would go from this court to the Probate Court vacating the decree appointing the trustee at the same time with the order upon the bill for instructions, a decision could be made upon the bill for instructions in the same way as if there had been no attempted appointment of a new trustee, and that the executor of the deceased trustee, without a new trustee being appointed by the Probate Court, might distribute the trust fund in accordance with instructions given him.</p> <p>Under St. 1891, c. 415, § 4, now incorporated in substance in R. L. c. 162, § 2, providing that “ the probate courts shall be courts of superior and general jurisdiction with reference to all cases and matters in which they have jurisdiction,” an erroneous decree of a probate court made in such a case stands until it is vacated or changed by that court.</p>

<p>Negligence, Employer’s liability.</p> <p>At the trial of an action by a girl twenty years of age against her employer to recover for injuries caused by the breaking of a needle on a machine, which the plaintiff was operating, for sewing buttons on shoes, it appeared that the machine was similar to an ordinary sewing machine except that there was attached to its top a can, connecting by a chute with the needle, for feeding buttons in proper positon to the needle automatically. The plaintiff testified that she had worked upon the machine about a month, after having been shown how to operate it by an employee of the manufacturer of the machine, that she knew needles would break easily, and that they sometimes had broken when she pulled the thread down; that four days before the accident the automatic button feed did not work properly, and a representative of the manufacturer of the machine had repaired it, after which it worked properly during the remainder of that day, that the machine was not operated again until the morning of the accident when “ the buttons seemed to come down in the foot, and the foot held,” the needle broke, and the plaintiff was injured. Held, that there was no evidence which would have warranted a finding that the breaking of the needle was caused by a defect in the machine, since the cause of the accident was left a matter of conjecture and speculation, nor was there evidence of a negligent failure of the defendant to warn or to instruct the plaintiff, nor of negligence of a superintendent of the defendant. •</p>

<p>Negligence, In blasting, Bes ipso loquitur. Evidence, Presumptions and burden of proof. Actionable Tort. Practice, Civil, Judge’s charge. Husband and Wife. Nuisance.</p> <p>At the trial of an action of tort for personal injuries alleged to have been caused by negligence of the defendant’s servants in blasting rock, there was evidence that the rock being blasted was seven hundred and fifty feet from the plaintiff's house, and that there was no covering put over the rock at the time of a certain blast that was described by a witness as a “ great explosion which shook the barn,” and which threw a piece of rock weighing twenty pounds into the plaintiff’s house, causing the injuries to the plaintiff. Held, that the question whether the servants of the defendant were negligent was for the jury.</p> <p>Where, at the trial of an action of tort for personal injuries alleged to have been caused by negligence of the defendant’s servants in blasting rock, there was evidence of such negligence in the blasting besides the mere fact of a rock being hurled seven hundred and fifty feet into the plaintiff’s house, and the presiding judge in his charge told the jury that the burden of proving such negligence was upon the plaintiff, and that upon the question of negligence they were not to take into account the results of the blast, but on the contrary were to judge of the negligence by the situation just before the blast, it was held, that the defendant had no ground for a contention that the jury were allowed to find for the plaintiff by an application of the doctrine of res ipso loquitur.</p> <p>At the trial of an action of tort by a woman for personal injuries, it appeared that through negligence of the defendant in blasting rock a large piece of rock was hurled seven hundred and fifty feet into the plaintiff’s house, and a question was whether the defendant was exempt from liability because the plaintiff’s injuries were merely from fright, terror, alarm, anxiety or distress of mind, unaccompanied by any injury to the person from without. The plaintiff testified in direct examination that she had left her pantry to go to a closet and was just coming from the closet when it seemed that she was thrown over on the floor, that the closet door hit her, but that she did not think it was the force of the door that threw her, that it seemed as if the house was falling in, that immediately afterward she went into the Idtchen, saw everything upset, everything thrown around the closet, the sink and the stove, that she did not know that there was any rock there until her son found it, and that there were no marks on her body from contact with anything. On cross-examination she testified that she “ could not say positively whether the door hit ” her or not. The plaintiff’s attending physician testified in substance that he saw her the next day, that “ her condition was one of nervous shock,” that he “ called the trouble neurasthenia . . . what the ordinary layman would call a nervous breakdown from the shock,” that “ the fright she sustained . . . was an adequate cause for this injury, and the nervous shock was due to fright, and so the nervous shock is the cause that I attribute to the condition, and the only cause.” Held, that, in spite of the physician’s testimony, the jury might have found that the plaintiff was violently thrown to the floor either by being struck by the closet door or in some other way due to the blast, that consequently there was a battery to her person, to which at least some of her physical troubles were in part attributable, and therefore that it was proper to refuse to rule that the action could not be maintained.</p> <p>The rule that, in actions of tort for personal injuries, where it is proved that the defendant has been negligent, there nevertheless can be no recovery by the plaintiff if the negligence, without inflicting upon the plaintiff any injury “from without,” causes only fright, terror, alarm, anxiety or distress of mind, is an arbitrary exception, based upon a notion of what is practicable, to the general rule allowing recovery for damages caused by negligence; and therefore a charge to the jury, before whom was being tried an action where the physical injury to the plaintiff "from without” was so slight as to leave no mark or bruise, in which it was stated in substance that it would be sufficient if the injury caused by the battery was very slight, is not objectionable because, where the injury from without is appreciable even although it be very slight, the general rule applies and the exception does not.</p> <p>It is a presumption of fact that, in the absence of anything to the contrary, a husband is liable to pay a reasonable compensation to a physician who has attended his wife professionally for over a year, and, where it appears that the attendance was due to injuries caused by negligence of a third person which gave the wife a right of action against the negligent person, the husband also has a right of action agaiiist such person for the amount for which he is liable to the physician.</p> <p>Where during certain blasting operations a large piece of rock is hurled through the air and into a house, causing a door to strike a woman and injure her, whether such woman has a right of action in tort against the person doing the blasting without proof of negligence, here was not decided, the case having been tried on the theory, adopted by the parties and by the presiding judge, that tile gist of the action was negligence on the part of the defendant.</p>

<p>Bills and Notes, Consideration, Validity. Evidence, Competency.</p> <p>At the trial before a judge sitting without a jury of an action by the payee against an accommodation indorser of a negotiable promissory note, the defendant contended that the indorsement was illegal and void because it was procured by an abuse of criminal process and was given for the purpose of suppressing the prosecution of a crime. There was evidence tending to show that the plaintiff had given into the hands of a collection agency for collection a claim against a certain person for the amount of the purchase price of shoes, that on the advice of the attorney of the agency a complaint for larceny of the shoes was sworn out against the debtor, and that at the suggestion of the judge who was hearing the complaint that, if the debtor made restitution, he would nol pros the case, the debtor signed and the defendant indorsed the note in suit, and the plaintiff signed an acknowledgment of satisfaction, after which the court nol prossed the complaint. Held, that a finding for the plaintiff was warranted, since the judge might have found that the note was signed by the debtor, indorsed by the defendant and received by the plaintiff merely in settlement of a valid claim against the debtor and without any unlawful agreement having been made or unlawful pressure brought to bear by the plaintiff.</p> <p>Evidence, offered at the trial of an action by the payee against an accommodation indorser of a negotiable promissory note, tending to show that the defendant was induced to indorse the note for the purpose of compounding a criminal prosecution then pending against the maker, in the absence of evidence tending to show that the plaintiff was responsible for such inducement, is immaterial as against the plaintiff and its exclusion does not harm the defendant.</p>

Two ACTIONS OE TORT by the same plaintiff, one against his employer and the other against the owners of the factory building in Lynn in which the plaintiff was employed, for personal injuries sustained by him in October, 1903, when he was twenty years of age, while he was going from one floor to another on a freight elevator maintained in the factory building. Writs dated respectively January 16, 1904, and March 15,1909.

Tort for personal injuries sustained by the plaintiff on January 19,1909, while in the employ of the defendant. Writ in the Central District Court of Northern Essex dated February 9, 1909.

Petition, filed in the Superior Court on June 29,1907, for the assessment of damages to real estate of the petitioner on North Montello Street in Brockton, caused by the raising of the sidewalk so as to leave the petitioner’s land below the level of the sidewalk. The case was heard by Harris, J., without a jury, on an agreed statement of facts which permitted the court to “ draw all legal and proper inferences ” from the facts agreed upon.

<p>Negligence, Due care of plaintiff, Proximate cause, In freight yard, Railroad. Proximate Cause. Railroad.</p> <p>In an action against a railroad corporation by the driver of a meat wagon, who had been sent by his employer to unload beef from a car standing on a track in a freight yard of the defendant, if there is evidence that the plaintiff, seeing the driver of another team struggling to restrain a plunging horse upon or close to a track of the defendant on which a train was approaching, went to the assistance of such other driver for the purpose of rescuing him from impending danger and in doing so went upon the track and was run over by the train, and was injured, the question whether the plaintiff-was in the exercise of due care is for the jury.</p> <p>Collection by Sheldon, J., of authorities in other jurisdictions, supporting the proposition, that it may not be negligence for one, who is not acting rashly or recklessly, to expose himself voluntarily to great danger and even to the risk of life and limb, in order to rescue another from a like peril, and that such a voluntary exposure is not to be regarded as rash or reckless if there appears to be a fair chance of success, although the person attempting the rescue knows that it involves great hazard to himself without a certainty of accomplishing the rescue.</p> <p>In an action against a railroad corporation by a person who was run over by a train of the defendant when he was attempting to rescue another person from impending danger upon a track on which a train of the defendant was approaching, if the plaintiff was in the exercise of due care in incurring the risk of injury for the purpose of the attempted rescue, the defendant will be held liable if it was negligent either toward the plaintiff or toward the person whom he was attempting to rescue, because negligence toward such last named person will be treated as directly inducing the attempt to rescue him and thereby causing the injury to the plaintiff.</p> <p>In an action against a railroad corporation by the driver of a meat wagon, who ¿had been sent by his employer to unload beef from a car standing on a track in a freight yard of the defendant, it appeared that the plaintiff, seeing the driver of another team struggling to restrain a plunging horse upon or close to a track of the defendant on which a train was’ approaching, went to the assistance of such other driver for the purpose of rescuing him from impending danger and in doing so was run over by the train and was injured, and it was held that there was evidence for the jury that the plaintiff was in the exercise of due care. There was evidence, upon the question of the negligence of the defendant, that the train which ran over the plaintiff was coming into the defendant's freight yard past an open space about forty feet wide, which was paved and was adapted by the defendant to be used as a driveway by teams coming to the yard to unload cars standing upon the tracks that bordered its sides, that this open space was in frequent if not in constant use for this purpose, that the train which injured the plaintiff came in upon the track at one side of the driveway with an unusual noise of puffing, which was likely to frighten and did in fact frighten the horses near the track, and that the engineer and the fireman by keeping a proper lookout as they approached the driveway would have seen that a frightened horse was struggling with his driver on the track in a position which threatened grievous injury to the driver. There also was evidence that before the accident the train had come to a stop or almost to a stop before the plaintiff went upon the track to the assistance of the driver in danger, that the engine then was so near the spot that proper watchfulness exercised by the engineer or the fireman would have disclosed the situation to them at once, and that the train then started up without any notice or warning and struck the plaintiff. There also was evidence that the engineer was the only man in the cab of the engine. Held, that there was evidence for the jury of negligence on the part of the servants of the defendant.</p>

<p>Writ of entry to recover possession of certain real estate in Rowley. Writ in the Land Court dated April 14, 1908.</p> <p>In the Land Court the case was heard by Davis, J., who found for the tenant' and filed the following report:</p> <p>“ The land in controversy in this case is situated on the westerly side of Central Street in the town of Rowley, and was formerly the property of, and occupied by, the First Universalist Parish of Rowley. A small strip of land covered by the writ is not in controversy and a disclaimer has been filed in regard to it. “ In January, 1878, title to the land in controversy was conveyed by said Parish to the Massachusetts Universalist Convention for the purpose of having it re-conveyed by the Convention upon condition that in case said Parish should fail to maintain preaching by a clergyman in fellowship with said Convention, or should itself fail to continue in such fellowship for a period of two consecutive years, the land should revert to the Convention, and on April 29,1878, the land was accordingly re-conveyed by the Convention to the Parish, upon condition as above stated, and with express provision that on breach of said condition the premises should revert to said Convention.</p> <p>“ Subsequently preaching was discontinued on the demanded premises, and there was an entire breach of the condition in said deed from the Convention to the Parish.</p> <p>“In 1905 there were some negotiations, but without result, between officers of the Convention and officers of the Parish looking toward a release of title by the Parish to the Convention. The Convention is a Massachusetts corporation. In its popular acceptation, however, the 6 Convention ’ is merely the annual meeting of the corporation, at which religious affairs appertaining to the Universalist Church in this State are discussed and voted upon. No property rights of the corporation are discussed or voted upon at the annual meeting of the Convention, but under section 5 of article 5 of the by-laws of the corporation an executive committee is provided for who 6 shall have charge of the general interests of the Convention, direction of its business operations, the disposition of its real estate or any interests therein by sale, lease or otherwise ’; and by section 4 of said article 5 a treasurer is provided for who 6 shall execute in proper form deeds, leases or other instruments affecting any real estate owned or controlled by this Convention, with the approval of the executive committee.’</p> <p>“In November, 1905, the demandant made an offer for the demanded premises to the secretary of the Convention, who communicated the offer to the executive committee, and on November 8, 1905, notified the demandant that ‘ oúr board met last Monday and gave the treasurer personal discretion in the matter, so I presume he- will decide this week what to do.’ No further action was taken in regard to the matter at that time, however. In April, 1906, the executive committee voted that the treasurer of the Convention be authorized to enter upon and take possession of the real estate of the B'irst Universalist Parish of Rowley for breach of conditions in the deed to said Parish by the Convention. In June, 1907, a report was submitted to the executive committee advising the raising of funds by the Convention for the payment of a certain mortgage on church property in Boston, 6 by the sale of properties once held and used by edifices now defunct, for example, Rowley ’ and others, and ‘ on motion of Brother Horton it was voted to refer this whole matter to the Secretary and Treasurer with power.’ In December, 1907, the tenant saw the secretary of the Convention and made to him an offer of $800 for the demanded premises, together with a small strip of adjoining land, not now in controversy, and the secretary referred the offer to the treasurer. Thereafter the treasurer undertook to have a deed prepared. On December 23,1907, the tenant met the treasurer in the office of the Convention, paid him $800, and received an instrument purporting to be a quitclaim deed from the Convention corporation to himself of land including the demanded premises, executed in the name of the corporation by the treasurer, with a paper facsimile of the corporation seal affixed, and acknowledged by the treasurer to be the free act and deed of the corporation. When this deed was delivered by the treasurer to the tenant it was delivered with the statement that it lacked a vote confirming it, and also that the Convention was to have a new deed from the Parish ‘ free from restrictions,’ and with a request that this deed should not be recorded until the receipt by him of the other instruments. At a meeting of the executive committee on January 6, 1908, ‘ the treasurer, Mr. Buttrick, reported the sale by the Convention through its treasurer of the church property at Rowley to Frank L. Burke for $800 cash, and the addition of that amount by him to the permanent funds of the Convention.’ The tenant within a week thereafter entered upon the demanded premises, and made an offer to sell them to the demandant, and within a month had the building shingled, and stored property there. After the tenant received said deed of December 23, 1907, counsel was consulted, and on March 25, 1908, the tenant returned said deed without its ever having been recorded.</p> <p>“ On April 6, 1908, the executive committee voted that the treasurer be authorized in behalf of the Convention to enter upon and take possession of the land described in the deed from the Convention to the Parish of April 29, 1878, for breach of the condition contained in said deed and for the purpose of re-vesting the title in the Convention; on April 10, 1908, a certificate of such entry was recorded in the Registry of Deeds; and on the same day a new deed from the Convention to the tenant of land including the demanded premises, reciting said deed from the Convention to the Parish, breach of condition therein and entry made and possession taken for such breach of condition, was executed in behalf of the Convention by the treasurer, and delivered to the tenant, accompanied by a certified copy annexed thereto of a vote of the executive committee passed on April 6, 1908, authorizing the treasurer to sign, seal, acknowledge and deliver said deed to the tenant. This deed also was recorded on said April 10, 1908. On May 4, 1908, the executive committee voted that1 the treasurer be authorized to give Mr. Burke a bond for $800 to indemnify him against possible loss for pending litigation over the title to the property deeded to him by this Convention in exchange for the purchase price of $800.</p> <p>“ Meantime, at a meeting of the Parish held on February 17, 1908, the Parish voted to sell all the property, real or personal, that remained in their hands as a Parish at public auction on February 29, 1908, and that the Standing Committee be authorized to give a quitclaim deed or deeds of the same to the purchaser. An auction was held accordingly. The demandant bid $150 for the remaining property' of the Parish, including the demanded premises, was the highest bidder therefor, and it was knocked down to him by the auctioneer; and on said February 29, a quitclaim deed of the land including the demanded premises was executed in behalf of the Parish by its Standing Committee to the demandant, delivered to him, and by him recorded on March 10, 1908.</p> <p>“ As matter of law an attempted grant of land held on condition made by the holder of the right of reverter or right of entry for breach, before such entry is made, does not operate to convey the property to the attempted purchaser, but operates merely as an extinguishment of the condition. It seemed to me on the foregoing evidence clear that whatever authority the Convention had delegated to any of its officers in regard to this property, was authority in regard to a sale, and in regard to a sale only, of the real estate. There was no intention manifested to release the condition, and no authority voted to any one looking thereto, or to any other action than a sale of the property for its full value, and the execution of instruments proper to effectuate such sale.</p> <p>“ On the foregoing evidence therefore I ruled that the deed of •December 23, 1907, from the Convention to the tenant was not authorized by the grantor corporation therein named, and further ruled that it was not ratified by the subsequent votes or action of the executive committee above recited, in regard to the $800 received from the tenant or otherwise. I therefore found for the tenant and ordered judgment accordingly.”</p> <p>The demandant appealed to the Superior Court and the following issues were framed:</p> <p>“1. Was the instrument dated December 23, 1907, purporting to be a deed from the Massachusetts Universalist Convention to Frank L. Burke, authorized by said Convention?</p> <p>“ 2. Was said instrument duly delivered to the tenant?</p> <p>“3. Was the execution and delivery of said instrument to the tenant duly ratified ? ”</p> <p>In the Superior Court the case was tried before Fox, J. The report of the judge of the Land Court was in evidence. The deed dated December 23,1907, referred to in the first issue, also was in evidence. This was signed, “Massachusetts Universalist Convention, by Sidney H. Buttrick, Treasurer,” and bore a seal purporting to be the corporate seal, and an acknowledgment by Sidney H. Buttrick that it was “ the free act and deed of the Mass. Universalist Convention.”</p> <p>There was evidence that, when the deed was handed to the tenant by the treasurer of the Convention, there was nothing said as to its validity. The treasurer, however, testified as follows : “ When I handed him [the tenant] the instrument of December 23,1907,1 told him that possibly this was not a valid deed, that I didn’t consider it so, that we had had information from the clerk of the Rowley church that they would prepare a deed deeding the property to the Universalist Convention at any time we wished, and I expected to get a deed from them; in the event I didn’t get this deed it would be necessary to have other papers to have this deed valid, and for him to hold it and not put it on record as I didn’t consider it a valid deed. I am sure that this conversation occurred when I gave this deed to Mr. Burke, and not at a later date.”</p> <p>At the close of the evidence the presiding judge directed the jury to answer each of the issues in the negative; and the demandant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Intoxicating Liquors. Intent. Carrier, Of goods.</p> <p>To a complaint under St. 1906, c. 421, charging the defendant with transporting for hire intoxicating liquor into a city where licenses of the first five classes for the sale of intoxicating liquors were not granted, without first having been granted a permit so to do, it is no defense that the defendant did not know and had no reason to surmise that there was intoxicating liquor in the package which lie is shown to have transported.</p> <p>Collection by Rügg, J., of cases dealing with criminal offenses created by statute in which innocence of intent is no defense.</p> <p>It seems, that a common carrier of goods, in order to protect himself against committing the crime created by St. 1906, c. 421, has a right under the proper circumstances to inspect packages offered for transportation for the purpose of ascertaining whether they contain intoxicating liquors and may refuse to take any package which he is not allowed to inspect in a reasonable manner for this purpose.</p>

<p>Negligence, In use of dangerous horse, Of independent contractor. Animal. Agency.</p> <p>If the owner of a horse, who knows that the horse is an unsafe animal to be used in the public streets, lends the horse with his driver for such a use to a person who also knows the dangerous character of the horse, and if, while the horse is being driven in a public square under the direction of the borrower, he runs away and injures a traveller on the highway, who is exercising due care, the injured person has a right of action not only against the owner for his negligence in lending the horse for such a use but also against the borrower for making use of the horse in the public streets, knowing him to be dangerous there.</p> <p>One who actively participates in a negligent use of dangerous property, with full knowledge of the danger to third persons, cannot avoid liability for an injury caused by such dangerous use by showing that he was not acting in his own behalf but was assisting the negligent owner as his agent or servant.</p> <p>If an agent of the owner of a horse, known both to the owner and the agent to be unsafe for use in the public streets, proceeds to use the horse in the public streets in conducting the business of the owner, taking that business in charge and directing the driver where and how to go, with a full knowledge of the danger of using the horse in such places, and, if the horse while being so used runs away and injures a person travelling on a public street in the exercise of due care, the agent is liable personally to the person injured.</p> <p>The owner of a carriage, who has not been negligent in failing to inspect it or in inspecting it negligently, is not liable for an injury resulting from a defect in it unknown to such owner and due to the negligence of a carriage maker, who had repaired the carriage under an independent contract which gave him entire control of the business of making such repairs as he thought necessary, to be paid for at a reasonable price.</p>

<p>Complaint, received and sworn to in the District Court of Eastern Essex on November 26, 1909, charging the defendant with keeping and maintaining a tenement in Gloucester used by him for the illegal sale and the illegal keeping of intoxicating liquors between May 1 and November 26, 1909.</p> <p>At the trial in the Superior Court before jRaymond, J., it appeared that the defendant was a retail druggist at Gloucester, licensed as a pharmacist and holding a certificate of fitness, issued under the statute on the subject, authorizing him to sell intoxicating liquors on physicians’ prescriptions. The premises consisted of a store and a cellar underneath, the store being an ordinary drug store and equipped as such.</p> <p>The Commonwealth introduced evidence by two detectives, who testified that the defendant sold to them on the twenty-fifth day of November one half pint of gin without a physician’s prescription. There also was evidence from the police officers of the city of Gloucester, who testified as to the seizure of a quantity of liquors from the premises of the defendant on November 25. It was contended by the Commonwealth that the quantity of liquors on the premises was excessive. There also was evidence that there were found in the cellar six or seven bottles of Bass’s ale with straw coverings upon them and that there were near by on the floor of the cellar seventy-five or more similar straw eoverings. The defendant testified and introduced evidence tending to prove that he did not sell the one half pint of gin to the detectives, that the quantity of liquors seized was not an excessive quantity but was a reasonable and proper quantity to be kept by him, considering the size of the city and the extent of his trade and the number of prescriptions which he was called upon to fill; that the bottles in the cellar were not covered with straw coverings and that the other straw in the cellar was from bot-ties of Apollinaris water and Poland Spring water and packings of other liquids which he had received in the ordinary course of business.</p> <p>At the close of the evidence the defendant asked the judge to rule that upon all the evidence the jury could not find the defendant guilty and asked the judge to order a verdict of not guilty. The judge refused to make this ruling or to order such a verdict, and the defendant excepted.</p> <p>During the trial of the case the defendant introduced the evidence of several witnesses who testified that the reputation of the defendant in the community as to his general character was good. John Karcher, one of the witnesses who so testified, was asked upon cross-examination by the district attorney as to the reputation of the defendant in the community in regard to the sale of intoxicating liquors. To this question the defendant objected. The judge overruled the objection and the defendant excepted. The witness then answered, “ I don’t know.”</p> <p>The Commonwealth then called to the stand the county treasurer, David I. Robinson of Gloucester, and asked him the following question: “Do you know what is the reputation of the defendant in the community as to his being a law-abiding person in relation to the liquor law?” To this question the defendant objected. The judge overruled the objection and the defendant excepted. The witness then answered, “ I do.” The district attorney then asked, “ What is it ? ” To this question the witness answered, “ It is bad.” To this question and answer the defendant also objected. The judge overruled the objection and the defendant excepted.</p> <p>It appeared in the evidence produced by the defendant during the trial, without objection, that the defendant had been in the community for thirty years with no complaint ever having been made against him and no objection having been made to his having a druggist’s license or a certificate of fitness during all these years, and that he had a wife and three children in Gloucester. The counsel for the defendant argued to the jury “ in substance that this was a most important case for the defendant, that the jury should realize in this case as in every other criminal case that the evidence must convince them of the guilt of the defendant beyond any reasonable doubt, that he desired to impress upon the jury their responsibility and ask them to take into consideration the fact that this defendant had been in the community for many years with no stain upon his character, that he had a family that would be deeply affected by the outcome of this trial, that the defendant was not saying this by way of begging for mercy but simply to impress upon them the seriousness of the charge, of the probable effect upon the defendant and his family, so that they should realize their responsibility and weigh with the most extreme care the evidence as submitted against the defendant to see whether or not it bore the impress of truth and required them to find the defendant guilty beyond any reasonable doubt, that the same rule of evidence as to proof beyond a reasonable doubt applied in this case as it would even in a case where murder was charged and that the Commonwealth was held up to the same degree of certainty as it would be if the charge was the gravest possible charge in a criminal case.”</p> <p>The judge in his charge to the jury stated to them “that any remarks made by the defendant’s counsel in regard to the wife and family of the defendant were improper, that it made no difference whether he was a man of standing, whether he had a wife or family or not, that the defendant had no right to argue this proposition to the jury, that the remarks were intended by the counsel for the defendant simply to throw dust in the eyes of the jury and divert their minds from the proper issue in the case, that the court hoped that the jury would be acute enough to appreciate the purpose of the argument and would consider only such matters as should properly influence their decision.”</p> <p>To these instructions of the judge the defendant objected and asked the judge to modify or correct them. The defendant excepted to these instructions and to the refusal of the judge to amend them.</p> <p>The judge in his charge to the jury instructed them as to the definition of reasonable doubt substantially as follows: “ Of course it is impossible that any case can be proved with mathematical precision or certainty, there is always a balancing of facts upon one side or the other in arriving at a reasonable conclusion upon all the evidence. When the court says that the evidence must satisfy the jury beyond a reasonable doubt as to the guilt of the defendant, it simply means that the jury must be satisfied of his guilt only to that degree of certainty upon which they would be satisfied to act in important concerns of their own. ”</p> <p>To this instruction the defendant objected and asked the judge to instruct the jury “ that they must give the benefit of any reasonable doubt to the defendant, that a greater degree of certainty was required to convict the defendant of a criminal charge than might satisfy the jury in their ordinary business affairs and that if evidence could be explained reasonably upon any other hypothesis than that of the defendant’s guilt the jury should find the defendant not guilty.”</p> <p>This ruling or explanation the judge refused to make, stating that he had so frequently explained reasonable doubt to the jury that there was no need to do it again. To the instruction of the judge and to his refusal to amend and explain it the defendant excepted.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Two BILLS IN EQUITY, the first bill, filed in the Superior Court on January 8, 1910, by the assignees for the benefit of the creditors of Warren S. Dame, under' an assignment in writing made by Dame on August 7,z 1909, against him, and Irving L. Dame and Mildred F. Dame, his children, and also against the Penn Mutual Life Insurance Company of Philadelphia, a corporation, praying for a decree ordering the defendant corporation to pay to the plaintiffs the cash surrender value of an endowment life policy for $10,000 issued by that defendant to the defendant Warren S. Dame, the plaintiffs’ assignor, and ordering the defendant Warren S. Dame to do all acts necessary to entitle the plaintiffs to receive from the defendant corporation such cash surrender value of the policy, and the second bill, filed in the Superior Court on December 17, 1909, by Irving L. Dame and Mildred F. Dame, the children of Warren S. Dame above named, praying for a decree enjoining the plaintiffs in the first suit from surrendering .the policy and the defendant corporation from accepting such surrender, and ordering the defendant corporation to deliver the policy to the plaintiffs.</p> <p>The cases came on to be heard together before Richardson, J., who reserved and reported them for determination by this court, such decree to be entered as equity might require.</p> <p>The policy of insurance was dated July 11,1898, and contained the following provision:</p> <p>“In consideration of the application for this Bond or Policy hereby made a part of this contract, the Penn Mutual Life Insurance Company of Philadelphia, insures the life of Warren S. Dame of Boston in the County of Suffolk, State of Massachusetts in the sum of Ten Thousand Dollars, and promises to pay at its Home Office, in the City of Philadelphia, unto Warren S. Dame, the insured, his executors, administrators or assigns, the said sum insured on the Tenth day of July in the year nineteen hundred and eighteen; or if the said insured should die before that time, then to make said payment to Irving L. and Mildred F. Dame, children of the insured in equal shares if they survive the insured, (with power to the insured to surrender this policy to said Company at any time) otherwise to the insured’s executors, administrators or assigns the said sum insured, upon receipt of satisfactory proof of the death of the insured, during the continuance in force of this Policy, upon the following conditions, namely: ” Here followed a provision in regard to the payment of premiums. Other provisions of the policy are mentioned in the opinion.</p> <p>The assignment for the benefit of creditors under which the plaintiffs in the first suit made their claim was dated August 7, 1909, and contained the following:</p> <p>“How therefore the said Warren S. Dame, in consideration of one dollar, to him paid by the parties of the second part, the receipt whereof is hereby acknowledged, does hereby grant, bargain, sell, convey, assign, transfer, set over and deliver unto the said Samuel E. Winslow, Charles P. Blinn Jr. and Charles W. Bailey, and the survivor of them and their and his successors, heirs, representatives and assigns, all the estate, property and effects, real, personal and mixed, of whatever name and nature, legal and equitable, and wheresoever situated, belonging to the party of the first part; also all claims, debts, choses in action, owing to him, whether now or hereafter payable, and all evidences thereof; also any and all other property, real or personal, of or belonging to him, of whatsoever description and wheresoever the same may be, including leases which he has or holds of stores numbered 368 through 370 and 374 Washington Street, in said Boston, and including the good-will and any and all trade names used by or in any way connected with the business carried on' by him, except such property as is exempt from being taken ón execution by law.”</p> <p>It contained also the following covenant:</p> <p>“ The party of the first part hereby covenants and agrees to and with the parties of the second part, the survivor of them and their successors, that he will, on request, give him or them all information in his power respecting the assigned property, and make such conveyances, deeds or other instruments, and do all such acts as shall be requisite or advisable to vest in the parties of the second part, the survivor of them and their successors, all and every right, interest, and species of property of the party of the first part as aforesaid, and to carry into effect the true intent and meaning of these presents.”</p> <p>Later Samuel E. Winslow resigned as an assignee, and the plaintiff Charles L. Alvord was appointed in his place in accordance with provisions of the assignment.</p> <p>Soon after the execution of the assignment for the benefit of creditors, Warren S. Dame delivered the policy to the plaintiff Charles P. Blinn, Jr., at the request of Blinn, in order that Blinn might submit the policy to counsel for an opinion as to whether or not it constituted an asset to which the - assignees for the benefit of creditors were entitled.</p> <p>The assignees, after inspecting the policy and acting upon the advice of counsel, claimed the title to the policy and the right to surrender it and to obtain its surrender value, and asked the officers of the insurance company what steps they should take in order to obtain its surrender value for the benefit of the creditors who had assented to the assignment, those creditors having claims very much in excess of the value of all the assets of the assignor, even though there should be included in such value the amount of the insurance policy, $10,000. The insurance company notified the assignees that it would pay to them the surrender value of the policy on delivery of a written surrender executed by the assignees and by Warren S. Dame, and the assignees requested Warren S. Dame to join with them in executing such a surrender. This Dame refused to do. The assignees thereupon annexed a duplicate of Dame’s assignment to the policy and delivered the policy with the assignment attached to the insurance company. The insurance company was notified by Irving L. Dame and Mildred F. Dame, the plaintiffs in the second suit, of their claim to the policy and that they denied the right of the assignees to surrender the policy without the assent of the assignor and his two children.</p> <p>The foregoing facts appeared from a statement of agreed facts signed by the counsel of the parties and filed in the two cases. It was agreed that the court might draw inferences of fact from the agreed facts stated.</p>

<p>Contract by the inhabitants of the county of Hampden against the clerk of the Superior Court for that county to recover one half of the amount of the fees received by him in naturalization cases and retained by him under the provisions of the act of Congress of June 29, 1906, (34 U. S. Sts. at Large, c. 3592,) after deducting the amount of the expenses incurred by him in such proceedings in accordance with B,. L. c. 165, § 31, as amended by St. 1908, c. 253.</p> <p>In the Superior Court the case was submitted to King, J., without a jury, upon a statement of facts agreed to by the parties. The judge found the facts to be as stated in the statement of facts, and at the request of both parties reported all questions of law arising from the facts as found by him for determination by this court. If the plaintiff was entitled to recover, judgment was to be entered for the plaintiff in the sum of $969.08; otherwise, judgment was to be entered for the defendant.</p> <p>The case was submitted on briefs at the sitting of the court in October, 1910, and afterwards was submitted on briefs to all the justices.</p>

<p>Municipal Corporations. Assessors. Tax, Assessment.</p> <p>A town has no authority to expend money to pay its assessors for work done, after they have completed the assessment in a certain year, in preparing a new valuation of the taxable property of the town with a view to its publication and its subsequent use by the assessors in making the assessment in the following year.</p> <p>Whether in a year in which the assessors of a town are obliged to do an unusual amount of work in making the valuations required and contemplated by the statutes, it would be reasonable for the town under R. L. c. 12, § 99, to add to the compensation which the statute gives them for their services, here was referred to as a question which did not arise in the present case.</p>

<p>Petition, filed in the Land Court on February 4, 1907, for the registration of the title to certain flats at Quincy Point, so called, in Quincy, represented as within the lines W X Z Y on a plan annexed to the bill of exceptions, a copy of which is printed on the opposite page.</p> <p>The case was heard in the Land Court by Davis, J. It appeared that in the year 1834 one Jenkins was the owner of certain upland and flats shown on the plan. The judge found that the easterly boundary of the land and flats owned by Jenkins was the line marked “Vinai-Jenkins Line,” that is, the line CD, and that Jenkins, so far as material to this case, owned all the land and flats west of it, so far as represented on the plan.</p> <p>Town River, as shown on the plan, is an arm of the sea. The plan shows the line of extreme low water, the line of mean low water, and the line of high water. Between the low water lines and the high water line are flats, which are entirely bare at low water and are covered by the sea at high water. There is a very small channel or stream which runs from the extreme southwest corner of the cove marking the line of what was formerly a small creek in a general easterly direction to about the middle of the cove, and thence running out northerly to Town River. This small channel also is probably entirely dry at extreme low water. At all events it does not constitute a channel sufficient to form a limit to the extent of private ownership in the flats.</p> <p> </p> <p>In the year 1834 Jenkins conveyed to one Jones by a warranty deed the tract of land shown on the plan as bounded southerly by Washington Street, westerly by the line AB, northerly by the line AP or a projection thereof, and easterly by the Vinal-Jenkins line, so called, the exact location whereof is in dispute. The easterly and northerly bounds read as follows: “ Thence Northerly, twenty-six Rods to a Stake in the Centre of a creek. Thence Easterly along the Centre of said Creek.” Following the description in the deed was the phrase, “ together with a privilege or passage way from said Creek into Town River so called.”</p> <p>In 1888 the heirs of Jones conveyed the same land to the respondent Phillips by deeds, which after the description contained the following clause: “ containing about one and one-half (1|) acres, more or less, together with a privilege or passageway from said creek into Town River, so called. Being the same premises described in ” the deed from Jenkins to Jones.</p> <p>Jones was a shipbuilder, and access to the river from this tract was necessary to the business of shipbuilding thereon.</p> <p>Against the petitioner’s objection the judge ruled as follows: “ It seems clear to me, however, and I rule that the passageway [referred to in the deed from Jenkins to Jones] was intended to be a way by water from the creek out to the river.” The judge therefore ordered a decree that the title to the petitioner’s flats be registered “ subject to a right in favor of the Phillips estate as recited in the deed from Jenkins to J ones.” The petitioner alleged exceptions.</p> <p>Other facts are stated in the opinion.</p>

<p>Contract against the Mexican Central Railway Company, Limited,* a corporation organized under R. L. c. Ill, §§ 281-285, to recover damages for the breach of an alleged agreement to pay the reasonable expenses incurred by the plaintiffs for the production of a book to be called “ The Sportsmen’s Guide Book of Mexico.” Writ dated February 14, 1907.</p> <p>In the Superior Court the case first came on to be tried before Pierce, J., who, after a part of the plaintiffs’ evidence had been introduced, discharged the jury and ordered that the action be continued. The plaintiffs soon after filed interrogatories to the defendant, the answers to which, made by the defendant’s vice president, are referred to and in part are quoted and described in the opinion.</p> <p>Later the case was tried before King, J., the parties being represented by the same counsel as at the first trial. The jury returned a verdict for the plaintiffs in the sum of $ 1,718.27; and the defendant alleged exceptions, raising the questions which are stated in the opinion.</p>

<p>Bill IN equity, filed in the Probate Court for the county of Bristol on October 7, 1909, for the construction of the will of Ariadne J. Borden, late of Fall River.</p> <p>By the first clause of the will $1,000 was bequeathed to the testatrix’s friend, Abbie C. Anthony. By the second clause $500 was given to each of six other friends. The third clause bequeathed a sum not exceeding $5,000 to the executor, “ the same to be expended in work on my cemetery lot . . . on monuments, curbing, grading et cetera, as suggested to him in our personal conversations about this matter and the plan given to Abbie C. Anthony aforesaid.” The fourth clause is quoted in the opinion. A clause numbered “4 A” gave $1,000 each to two cousins.</p> <p>A decree was made in the Probate Court declaring that the clause quoted in the opinion constituted a valid trust. On appeal to the Supreme Judicial Court, the case was heard by Braley, J., who, having found certain facts, which have become immaterial, reserved the case for determination by the full court.</p>

<p>Tort by a boy, nineteen years of age when injured, against his employer for personal injuries sustained on the morning of October 25, 1907, by being thrown to the ground from the roof of one of the defendant’s factories in Peabody in the manner described in the opinion. Writ dated December 3,1907.</p> <p>The sixth count ‘of the declaration, on which alone the plaintiff relied, alleged that the plaintiff was injured by reason of the negligence of some person in the service of the defendant entrusted with and exercising superintendence, whose sole or principal duty was that of superintendence, or, in the absence of such superintendent, of a person acting as superintendent with the authority and consent of the defendant.</p> <p>In the Superior Court the case was tried before Stevens, J., who at the close of the evidence ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Two APPEALS to the Superior Court from the disallowance by the Probate Court for the county of Essex of claims presented to that court under E. L. c. 142, § 10, for allowance against the estate of Charles C. Blanchard, late of Lynn, deceased insolvent.</p> <p>The appellants did not present their claims for allowance within the time allowed by the Probate Court for presenting claims under the statute, but contended that they were entitled to share in certain sums in the hands of the administrator upon the ground that those sums were “further assets” which had come to the hands of the administrator after the decree of distribution within the meaning of § 10.</p> <p>In the Superior Court the appeals were heard together by Bell, J.</p> <p>The following was all the material evidence in both cases :</p> <p>By a decree of the Probate Court for Essex County made on July 17,1905, Frank H. Haskell was appointed administrator of the estate of Charles C. Blanchard, and on that date gave a proper bond for the discharge of his trust and also gave a proper notice of his appointment. The administrator, personally, was a creditor of the deceased for a large amount. On July 12, 1906, the administrator represented the estate insolvent and the Probate Court gave creditors six months from July 12, 1906, to prove their claims before that court. Due notice was given to all creditors, and the time afterwards was extended to April 4, 1907. The appellant Perkins testified that at the time when it was alleged that the notices were sént out and for a long time thereafter he was dangerously ill and did not receive or know of the notice. The administrator’s first account was allowed on April 25, 1907, and on May 29, 1907, the court ordered the distribution of dividends to the creditors who had proved their claims, and these dividends were paid. The estate was insolvent, there not being sufficient assets to pay in full the creditors who had proved their claims. The second and final account of the administrator was filed on April 8, 1909, and was allowed on May 3, 1909, the balance of that account charged to the administrator being $436.83. That account showed as charged to the administrator the balance of the first account, amounting to $254.43, also $648.51, the proceeds of a judgment recovered against the Lynn Institution for Savings for a surplus in its hands upon the foreclosure of a mortgage upon real estate of Blanchard, which was foreclosed after the death of Blanchard, the surplus being paid over to the administrator on March 3, 1908, also the proceeds of a judgment recovered by the administrator against one Wilson for damages for the breach of an agreement made with the administrator to purchase a note and mortgage which belonged to Blanchard made by the Lynn and Boston Steamboat Company. The amount of this judgment was $49.40, which was paid over to the administrator on April 6, 1909. There was also $45.81 interest on money on deposit in the Manufacturers’ National Bank of Lynn, which represented in part interest on sums deposited to pay dividends and interest on the above specified sums, also the sum of $3 for tools, the two last sums of money having been paid to the administrator on April 6, 1909. The inventory filed in the Probate Court listed land and buildings, 60 Farragut Boad, Swampscott, which was the parcel of real estate upon which the Lynn Institutian for Savings held the mortgage in question, and from the sale of which on foreclosure the sum of $648.51 surplus accrued. The inventory also contained the following items of personal property: “ Lumber, machinery, office furniture, tools, engine, boiler,” appraised at a lump sum of $3,911.40. It also contained the following item: “ Bills receivable, value unknown.” It also contained the following item: “ Mortgage on Lynn and Boston Steamboat Company, $1,746.26 ” (being the mórtgage before referred to). Schedule B of the administrator’s first account contained as one of the items for which the administrator asked to be allowed the following: <£ Mortgage on Lynn and Boston Steamboat Company not collected, $1,746.26,” being the mortgage before referred to. A supplementary account filed on June 21, 1909, showed in addition to the foregoing sums the sum of $15, received in May, 1909, from the sale of some interest in land on Bloomfield Street in Lynn, and a further sum of $75, received on June 10,1909, from the sale of some interest in land on Reed Street in Lynn. Neither of these parcels of land or any interest therein was shown in the inventory or in either account filed before the supplementary account, but the administrator testified that he knew that these parcels belonged to his intestate as early as the autumn of 1905, some two or three months after filing the inventory, and that for a long time before the decree of distribution he had been endeavoring to negotiate a sale of them to prospective purchasers. The inventory was filed on September 7, 1905, and the administrator charged himself with the personal property in the inventory in his first account. Blanchard at the time of his decease was indebted to the appellant Perkins in the sum of $1,211.51, and was indebted to the appellant Fay in the sum of $84.70. Perkins’s claim was first filed in the Probate Court on May 1, 1909, and Fay’s claim was first filed in that court on May 20, 1909. On August 5, 1909, both of these claims were presented to the Probate Court for allowance, the appellants alleging that they were entitled to share in the above named sums, or some of them, by reason of the sums being further assets, but the court decreed that these sums were not further assets within the statute, and disallowed the claims. Perkins and Fay appealed from the disallowance of their claims.</p> <p>In the Superior Court the appellee asked the judge to make the following rulings in each case :</p> <p>1. That upon all the evidence the finding should be for the appellee.</p> <p>2. That after the decree of distribution no “ further assets ” ever came to the hands of the administrator to which the appellant became entitled.</p> <p>8. That all the property that came to the hands of the administrator after the decree of distribution was represented in the inventory filed before the decree of distribution was made or was known by the administrator before that decree to be property of the intestate, and therefore was not “ further assets ” to which the appellant was entitled.</p> <p>4. That the appellant was not entitled to prove his claim after April 4,1907, unless “ further assets ” came to the hands of the administrator.</p> <p>The judge refused to give the first three of the rulings thus requested but gave the fourth, and found for the appellant in each of the cases. The appellee alleged exceptions.</p>

<p>Contract, Construction, Rescission. Patent. Equity Jurisdiction, Specific performance, Damages. Equity Pleading and Practice, Decree.</p> <p>Two corporations, which were engaged in producing a cutting press for dieing out uppers of boots and shoes, made an agreement in writing concerning a machine then in process of construction embodying the invention and improvements of a certain inventor, as follows : “ Each of the aforesaid companies is to pay one half of all expenses incurred in the making of the experimental machine and any further machines which they may mutually agree upon, and the cost of obtaining patents, etc., and each is to own an undivided half interest in the machines, patents, etc., and neither company is to sell, lease, grant licenses to use, or otherwise dispose of, or make use of its half interest without the written consent of the other company.” Held, that this contract covered and established the rights of the parties to the invention itself and to the application for a patent as well as to the patent when that should have been obtained, that the subject matter of the agreement was not limited to the experimental machine mentioned, and that the agreement could not be regarded as merely a license.</p> <p>Cases cited by Sheldon, J., upon the point that an inventor or his assignee before the issuing or the allowance of a patent has an inchoate right of property in his invention and in a pending application for a patent, which he may assign or otherwise deal with as an article of property.</p> <p>In a suit in equity to compel the specific performance of an agreement in writing, if the defendant contends that the contract sought to be enforced was rescinded, but it appears that after the time of the alleged rescission the plaintiff and the defendant both treated the contract as still in force and respectively performed their obligations under it in accordance with its terms, that neither of them acted in any respect as if the contract had been done away with and that no assertion to that effect was made by the defendant until shortly before the filing of the bill, the defense of rescission cannot be sustained.</p> <p>It is settled that an application for the specific performance of any agreement is addressed to the discretion of the court, to be exercised upon equitable considerations in view of all the circumstances of the particular case.</p> <p>In a suit in equity by one corporation against another, to compel the specific performance of an agreement in writing concerning a cutting press for dieing out uppers of boots and shoes, which then was in process of construction, embodying the invention and improvements of a certain inventor, it appeared that, at and before the time of making the agreement, the plaintiff was engaged in selling sewing machines for the manufacture of shoes, that these machines were made for the plaintiff by the defendant, and that the object of the parties in making the agreement was to obtain a machine to be manufactured by the defendant and sold by the plaintiff to the profit of both of them, and to make provision that this new machine should be manufactured and sold only by themselves and should not be available for .their competitors in business, the principal one of such competitors being a certain corporation called the United Company, that afterwards the United Company became the owner of all the property of the plaintiff except the contract sought to be enforced, and also acquired and held all the capital stock of the plaintiff, so as to dominate and control its future action, and that the suit to compel specific performance of the agreement was brought in the name of the plaintiff for the benefit of the United Company. Held, that under the circumstances shown the enforcement of the agreement would operate in a manner different from that intended by both parties when the agreement was made, the acts of the plaintiff after its making having destroyed the common purpose of the parties, so that a specific performance ought not to be decreed.</p> <p>In a suit in equity brought in the Superior Court by one corporation against another to enforce the specific performance of a contract, where it appeared that, although the plaintiff had offered to do all that was required of it by the contract and the defendant had refused performance, a change in the relation of the parties to each other after the making of the contract’ made a decree for its specific performance inequitable, this court ordered that the bill should be dismissed without prejudice to an action at law, unless the plaintiff should request the Superior Court to retain the bill for an assessment of damages and the Superior Court should see fit to grant its request.</p>

<p>Two ACTIONS OF CONTRACT, the first action by Ransome Rowe and Bonfiglio Perini, contractors, against the town of Peabody on an account annexed for work, labor, materials and machinery alleged to have been furnished to the defendant in the construction of a tunnel for its waterworks, and the second action by the town of Peabody against the United States Fidelity and Guaranty Company, a corporation, as surety on a bond given by the plaintiffs in the first action to secure their performance of a contract in writing with the town to construct a tunnel to contain a conduit for the waterworks of the town. Writs dated respectively January 4, 1907, and February 15,1907.</p> <p>The answer of the town in the first case set up the defense that all the work done and all the materials furnished by the plaintiffs were so done and furnished under a contract in writing which the plaintiffs had failed to perform and afterwards expressly abandoned.</p> <p>In the Superior Court the cases were tried together before Fox, J. The facts which appeared in evidence or could have been found upon the evidence are stated in the opinion. •</p> <p>The following extracts from the specifications of the contract made by the plaintiffs in the first case for the building of the tunnel relate to matters mentioned in the opinion.</p> <p>From article six: “ Sec. 2. The work to be done consists in excavating and constructing masonry in tunnel for a distance of fifteen hundred and fifty feet. . . .</p> <p>“ The contractor shall furnish all materials and labor, except as otherwise specified, necessary to complete the work in accordance with the terms of this contract and the requirements of the engineer hereunder.</p> <p>“ Sec. 3. The nature of the underground plot has not been investigated and the committee expressly denies any responsibility for its character.”</p> <p>From article twenty-three: “ The contractor shall take all responsibility of the work and shall take all precautions for preventing injuries to persons and property about the work; shall bear all losses resulting to him on account of the amount or character of the work, or because of the nature of the ground, in or on which the work is done is different from what was estimated or expected, or on account of the weather, elements, or other causes.”</p> <p>In the first case, brought by the contractors, the following stipulation was filed:</p> <p>“ It is agreed in the above entitled cause that the actual cost to the town of Peabody for constructing the Suntatig Aqueduct, in connection with which the contract between Rowe and Perini with the town of Peabody was made, was $47,805.12 in excess of the contract price for such work as the said Rowe and Perini agreed to perform under the contract, and if the defendant is entitled to damages by way of recoupment against the plaintiff, then the amount thereof shall be assessed at $47,805.12, but it is not conceded on the part of Rowe and Perini that the cost of performing the work by the town is material.”</p> <p>In the second case, brought by the town against the surety on the bond given by the contractors, the following stipulation was filed:</p> <p>“ It is agreed that the above entitled action may be transferred to the county of Middlesex, and may be tried at the same time with the case entitled Ransome Rowe et al. v. Town of Peabody.</p> <p>“ It is further agreed that if the town of Peabody is entitled to recoup in the said case of Ransome Rowe et al. v. Town of Peabody, the cost to the town for constructing the Suntaug Aqueduct, which it is agreed was $47,805.12, in excess of the contract price for such work as was covered by the contract, and if the defendant in this action is liable on the bond sued on therefor to the extent of said bond, that said amount of $47,805.12 may be apportioned first by way of recoupment in the above case of Ransome Rowe et al. v. Town of Peabody and thereafter be recovered in this action.”</p> <p>In the first case the judge made the following rulings requested by the plaintiffs:</p> <p>“la. The contract of July 25, 1905, required as essential conditions the construction of a tunnel thirty inches in diameter by the use of timber props, roof supports and lagging. It was not a contract for constructing a suitable tunnel by whatever method should become available.”</p> <p>“ 2. Under that contract neither the engineer nor the town water committee had power to require the contractors, without their consent, to construct a tunnel by pneumatic process forty-eight inches in diameter. Such requirement would not be a mere variation in form and dimensions which the contractors must adopt receiving compensation under the ‘ extra work ’ clause, but would be the substitution of a different contract.”</p> <p>The judge refused to make the other rulings requested by the plaintiffs in the first case, which were as follows:</p> <p>“ 1 b. The contractors were not required at all events to construct a tunnel at least thirty inches in diameter. If it was or became impossible to construct a tunnel of substantially thirty inches diameter by timber method, such impossibility is an excuse to both parties, unless one of the parties insured that it could be done.</p> <p>“ 1 c. Neither the town nor the contractors insured or guaranteed that a thirty inch timber tunnel could be built on the line and grade of the plans.”</p> <p>“3. If the jury find that the construction of a thirty inch timber tunnel became impossible, upon cessation of work thereon, neither party would have a right of action against the other for breach of contract, but the contractors would have a right to be paid the reasonable value of their work and materials in excavating the shafts and excavating for the gate house.</p> <p>“ 4. Whether or not it became impossible to construct a thirty inch timber tunnel, it is a question for the jury to determine whether in October and November, 1905, both parties waived their possible contentions under the contract of July 25, 1905, and went on with the work of constructing a water supply system under a new arrangement.</p> <p>“5. If the jury find that the obligations of the contract of of July 25, 1905, were waived by both parties, it is a question for the jury to determine whether or not there was any definite agreement between the water committee and Rowe and Perini as to payment for this previous labor and materials in excavating the-shafts and gate house foundations, and’for this machinery and tools; and if so, what that agreement was.</p> <p>“ 6. If the jury find that the obligations of the contract of July 25, 1905, were waived and that there was no definite agreement as to such payment, Rowe and Perini are entitled to reasonable compensation for such labor, materials, machinery and tools.</p> <p>“ 7. The performance of the substituted arrangement abrogated the original contract, since there is no evidence that the new contract was not intended to be a discharge of claim that contractors had broken the contract.</p> <p>“ 8. It is a question for the jury whether the mutual obligations of the old contract were waived by the parties in entering into the new arrangement which Rowe acted upon.”</p> <p>In the second case the defendant asked the judge to make the following rulings:</p> <p>“ 1. Upon all the evidence the plaintiff is not entitled to recover upon the bond in this case.</p> <p>“ 2. The town of Peabody by its dealings with Rowe and Perini in October, 1905, waived all its rights, if any, against the United States Fidelity and Guaranty Company.</p> <p>“ 3. If the jury find that it was impossible to build a thirty inch timber tunnel as contemplated in the contract of July 25, 1905, by reason of such impossibility the United States Fidelity and Guaranty Company came under no liability to the town of Peabody on its bond.</p> <p>“ 4. If the court rules that the town of Peabody is entitled to recover from the United States Fidelity and Guaranty Company upon said bond there is no evidence of damage to the town by reason of any alleged breach of said bond. The cost of completing the Suntaug aqueduct after October 17, 1905, is not the measure of damages.”</p> <p>The judge refused to make any of these rulings.</p> <p>In the first case the judge ordered a verdict for the defendant. In the second case he ordered a verdict for the plaintiff in the sum of $5,540, which was the amount of the penalty of the bond with interest. The plaintiffs in the first case and the defendant in the second case alleged exceptions.</p>

<p>Negligence, In use of coal hole. Coal hole. Agency, Scope of employment.</p> <p>In the absence of any custom or understanding in regard to the matter, there is no rule of law which requires a coal dealer, when by his servant he has been delivering coal or coke through a coal hole in a public sidewalk on the premises of a customer, to see that the cover of the coal hole is replaced, when the customer himself as the owner or the occupant of the premises has undertaken in person or by his servant to attend to the removal and the replacement of the cover.</p> <p>If the driver of a team of a coal dealer, who has been instructed by his employer not to remove or replace or touch any covers of coal holes and not to attempt to sweep or clean any rims of coal holes into which covers fit, while engaged in delivering coal or coke through a coal hole in a public sidewalk on the premises of a customer of his employer, who as the owner or occupant of the premises has undertaken in person or by his servant to attend to the removal and the replacement of the cover, joins with the servant of the owner or occupant in undertaking to replace and secure the cover of the coal hole and does this negligently, causing injury to a person travelling on the highway in the exercise of due care, it here was intimated, that the coal dealer perhaps might be held liable for the consequences of his servant’s negligence.</p>

<p>Pleading, Criminal, Indictment. Homicide. Evidence, Of motive, Presumptions and burden of proof. Practice, Criminal, Conduct of trial, Constitutional rights of defendant, "Verdict. Witness.</p> <p>The objection that an indictment for murder is defective, in that it is uncertain whether the assault and the murder are charged to have been committed upon one and the same person, because the word “said ” does not precede the second mention of the name of the person alleged to have been murdered, even if there is anything in the point, only can be taken upon a motion to quash the indictment.</p> <p>At the trial of an indictment for murder, although the Commonwealth is not required to show any motive for the commission of the crime, evidence tending to show such a motive always is competent.</p> <p>At the trial of an indictment for murder, where robbery is suggested by the Commonwealth as a motive for the crime, the Commonwealth may show that shortly before the finding of the body of the deceased the defendant was pressed for money and that on the day the body was found the defendant had a “ roll of bills,” that the deceased had money in his possession immediately before his death, and that no money whatever was found upon his body when discovered after his death. There here was evidence of all these things.</p> <p>At the trial of an indictment for murder, where there is evidence that shortly before the killing the defendant was pressed for money and after the killing had a roll of bills, that the deceased immediately before his death had money in his possession and that none was found upon his body, and where the Commonwealth has shown that the deceased was young, active and able-bodied and had been at work for many months in a State institution in a country town, without showing the amount of his compensation, if the district attorney says in his argument to the jury that the deceased had been working for $30 a month, when there is no evidence of it, but the argument is not interrupted and no ruling is requested upon the point and no exception is taken in regard to it, it will be assumed that the defendant was not harmed by the statement in the argument of the district attorney, and he cannot afterwards complain of it.</p> <p>At the trial of an indictment for murder where it is material to show the fact that the defendant was in her rooms on the evening of a certain day, evidence that the defendant the next morning made a request of a witness which showed that she must have heard a threat made in a loud voice outside her door the evening before, which tends to show that the defendant was inside the door at that time, may be admitted, although the testimony of the witness as to hearing the threat made outside the defendant’s door otherwise would be inadmissible, if in admitting the testimony the presiding judges carefully limit its effect to the purpose for which it is material.</p> <p>If, at the trial of a criminal case, there are inconsistencies in the testimony introduced by the Commonwealth upon a certain issue, this affects only the weight of the evidence and does not make it incompetent if it is material to the issue upon which it was admitted.</p> <p>At the trial of a criminal case, if the testimony of a witness introduced by the Commonwealth upon a certain issue tends to contradict the testimony of other witnesses called by the Commonwealth, although it was not introduced for that purpose, this does not make the evidence incompetent, if it was a statement by the witness of his observations by his senses and is material to the issue upon which it was admitted.</p> <p>The provisions of U. L. c. 175, § 24, permitting a party who produces a witness to contradict him by other evidence, apply to a witness produced by the Commonwealth in the trial of an indictment for murder.</p> <p>At the trial of an indictment for murder, certain evidence here was held to have been excluded properly as being indefinite and bearing no relation to any issue in the case, other evidence was held to have been excluded properly as not having been made material by necessary connecting evidence and also as being objectionable in form, and certain other evidence was held to have been admitted properly in the discretion of the presiding j udges upon the redirect examination of a witness for the Commonwealth to explain a certain fact brought out upon his cross-examination.</p> <p>At the trial of an indictment for murder a request of the defendant that a verdict of not guilty be ordered must be refused by the presiding judges if there is evidence, which, although wholly circumstantial, warrants a verdict of guilty under proper instructions in regard to the burden of proof.</p> <p>At the trial of an indictment for murder it is not a sufficient reason for ordering a verdict of not guilty, that the jury might find that persons other than the defendant bad an opportunity to commit the murder.</p> <p>At the trial of an indictment for murder it is not a sufficient reason for ordering a verdict of not guilty, that there are inconsistencies and contradictions in the testimony of witnesses, called by the Commonwealth, who at about the time of the murder were frequenting the house in which the murder was committed, because these matters affect only the weight of the evidence and are for the jury to pass upon.</p> <p>At the trial of an indictment for murder it appeared that the murdered person was killed in a lodging and boarding house kept by the defendant, and that a number of persons were in the house during the period of time within which the murder was committed. AH' of these persons except the defendant were called by the Commonwealth as witnesses and each of them was asked the question whether he or she killed the murdered man and answered “ No.” In his argument to the jury the district attorney said, “ Is there anybody in this case whose presence or absence is unaccounted for, except the one party charged with the crime ? . . . Every person but one has told you under oath that they did not kill [the deceased]. This is significant.” The defendant’s counsel objected, and the presiding judge said, “ That will be taken care of in the charge.” The district attorney continued, “ You have been told that the defendant is not to be prejudiced because she did not take the stand.. . . That is the last thing in the world I shall ask of you—to infer anything from the fact that she did not take the stand. And what I have just said has no relation to that except the bare fact that everybody but she has testified under oath that they did not kill [the murdered person].” The defendant’s counsel objected. The district attorney continued, “ If she has in her power or control any evidence which will explain where she was [on the night the murder was committed], if she has any friends that could come here and tell you where she was, and what she was doing, if she has any means whatever of putting before you any evidence showing where she was, and she ¿ails to do it, we are entitled to call your attention to that failure, and you are entitled to use it as you see fit. ... If she has within her possession or control any evidence to show that she is innocent; if she has such evidence that an innocent person would produce, I am entitled to call your attention to her failure to do so; and you are entitled to consider it in this case.” The presiding judge in his charge to the jury instructed them that, although the defendant was permitted to testify in her own behalf, she was not obliged to do so, and that her failure to do so did not create any presumption against her and should not prejudice her in any way. He also gave accurate instructions as to the inferences which might be drawn from the defendant’s failure to call other witnesses. At the close of the charge the defendant’s counsel asked the presiding judge to instruct the jury that the district attorney had no right to make the argument above quoted. The judge refused to give such an instruction, and the jury returned a verdict of guilty. Held, that the argument of the district attorney that every person, so far as known, except the defendant, who had had an opportunity to do the killing had testified and, if such testimony was beUeved, did not commit the murder, leaving only the defendant unaccounted for, was a proper one, and that by the disclaimer of the district attorney of an intent to urge any inference from the defendant’s failure to testify in her own behalf, coupled with the plain instruction in the charge of the judge, the constitutional rights of the defendant were amply protected.</p> <p>In a criminal case, as in a civil one, unless there is something to show the contrary, it must be assumed that the jury understood and acted upon the instructians given to them by the judge.</p>

<p>Indictment, found and returned on July 9, 1910, for assaulting and beating one John P. Nagle with a dangerous weapon.</p> <p>In the Superior Court the case was tried before Be Courcy, J. The evidence for the Commonwealth tended to show that on June 25, 1910, at about 10 P. M., Nagle with one Sachs and one Bigney were proceeding across the Common in Boston, when their attention was attracted by loud talk between two Italians, one of whom was the defendant. They stopped to listen, when the defendant turned around from the man with whom he was talking and said to Nagle, “ What do you want? Go along and mind your business; some of you fellows will get hurt.” Nagle replied, “We have just as much right to stand here as you have,” and at that moment the man with whom the defendant was talking stabbed the defendant in the back and ran away. Thereupon the defendant took from his pocket a knife and stabbed Nagle in the arm.</p> <p>The defendant’s evidence tended to show that, while he was sitting on the Common with another friend and two women,</p> <p>Nagle, Bigney and Sachs stepped up to them, with one Crowley, and one of them removed the hat from the head of one of the women, whereupon the defendant told them to mind their own business. Then Bigney took hold of the lapel of the defendant’s coat and lifted him from the settee, while the other three were standing around him, Crowley striking him in the face and Sachs putting his hand into his pocket, while Nagle stabbed him in the • back. Thereupon the defendant drew from his pocket a knife and stabbed Nagle in the arm.</p> <p>The questions asked of the defendant’s employer, to the exclusion of which the defendant’s exceptions relate, are stated in the opinion.</p> <p>The presiding judge asked the jury to make a special finding in answer to the question, whether or not the wound in the defendant’s back was caused by Nagle. The jury answered the question, “ No,” and found the defendant guilty. The defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

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

<p>Practice, Civil, Exceptions.</p> <p>The judge of a trial court is right in refusing to allow a bill of exceptions which contains an erroneous statement, probably unintentional, that a certain exception was taken that was not taken, which contains a long report of evidence wholly unnecessary to a proper presentation of the legal questions raised and therefore irrelevant and objectionable, and which presents a picture of the case changed in color by the strong feeling of the excepting counsel in favor of his client.</p> <p>The insertion in a hill of exceptions, alleged to have been taken at the trial of a libel for divorce, of a statement of testimony, which is irrelevant to the questions of law raised in the case, for the purpose of affecting the sympathies or feelings of the justices of this court and inclining them to a revision of the findings of fact made at the trial, is not legitimate.</p> <p>The proof of a bill of exceptions before this court through the appointment of a commissioner is a remedy that sometimes may be necessary, but it is intended only for cases in which the excepting party, intelligently and in good faith but unsuccessfully, has attempted to obtain the allowance of a bill of exceptions which in general is a correct statement of the material questions raised by his exceptions made with due regard to the rights 'of the opposing party.</p>

<p>Homicide. Pleading, Criminal, Indictment. Practice, Criminal, Motion for disclosure of evidence of Commonwealth, Jurors, New trial. Constitutional Law. Jury and Jurors. Superior Court, Jurisdiction. Evidence, Competence, Medical books, Opinion: experts, Presumptions and burden of proof.</p> <p>Upon the return of an indictment for murder and before the defendant had pleaded to it, he made a motion that the district attorney be ordered to furnish him with a copy of the report of an autopsy of the deceased which had been made by a medical examiner, with a copy of an alleged confession by the defendant to certain police officers, with the names of all witnesses summoned before the grand jury when the indictment was found, with a transcript of the evidence upon which the grand jury found the indictment, and also that the district attorney be ordered to furnish to certain physicians designated by the defendant portions of the body of the deceased taken at the time of the autopsy by the medical examiner. Before the, hearing of the motion, the district attorney furnished the defendant with a list of the witnesses who were before the grand, jury. A judge of the Superior Court denied the motion as to all other things asked for by the defendant. Held, that the motion was in no just or proper sense a motion for a bill of particulars, and that its denial was within the discretion of the judge; and, also, even if it be assumed that the action of the judge was reviewable by this court, there was nothing to call for revision.</p> <p>While one indicted for murder is entitled, upon making a proper motion therefor, to any information in the possession of the Commonwealth which is necessary to enable him to understand the nature of the crime with which he is charged and to prepare his defense, there is no rule of law which requires the Commonwealth to disclose to the defendant, on a motion made before the defendant has pleaded, the evidence on which it relies for the proof of the allegations of the indictment, and the defendant has no right to ask for such disclosure.</p> <p>The statute prescribing, among other forms, a form for an indictment for murder, R. L. e. 218, is not an infringement of article 5 or of article 14 of the Amendments to the Constitution of the United States, or of article 12 of the Massachusetts Declaration of Rights, providing that “no subject shall be held to answer for any cause or offence, until the same is fully and plainly, substantially and formally, described to him,” because the statutory form states all that is necessary to enable the accused fully to understand the offense charged and, if, in order to prepare his defense, the accused should require a more particular description of the manner in which and the means by which the alleged crime was committed, and for that reason the indictment may not be regarded as describing the crime “ fully and plainly, substantially and formally,” his constitutional rights are fully protected by the provisions of R. L. c. 218, § 39, which give him an absolute right to such particulars as it may be necessary for him to have in order to prepare his defense.</p> <p>The Superior Court is not deprived of jurisdiction of an indictment for a murder returned by a grand jury chosen from lists prepared after St. 1907, c. 348, amending R. L. c. 176, with regard to the methods of choosing jurors, went into effect, by the mere fact that the list of persons qualified to act as jurors, which was prepared by the selectmen of one of the towns in the county, was submitted to and accepted by the voters of the town at a town meeting, which had been necessary under the provisions of R. L. c. 176, § 5, but was rendered unnecessary by the amendment contained in St. 1907, c. 348, § 5.</p> <p>The provisions of R. L. c. 176, § 5, as amended by St. 1907, c. 348, § 6, requiring delivery to the clerk of the city or town to which the list of persons eligible for jury duty, prepared in accordance withR. L. c. 176, § 4, as amended by St. 1907, c. 348, § 1, relates, and to the clerks and assistant clerks of the Supreme Judicial and Superior Courts in the county in which such city or town is situated, are directory and not mandatory, and such requirements are incidental rather than fundamental; and therefore the Superior Court is not deprived of jurisdiction of an indictment for murder by the mere fact that some members of the grand jury which returned the indictment were chosen in towns where such requirements were not complied with and from names on lists, copies of which were not furnished to the various clerks of towns and of courts as specified in the statute, if the jurors themselves were personally qualified to serve.</p> <p>The Superior Court is not deprived of jurisdiction of an indictment for murder by the mere fact that one member of the grand jury which returned the indictment, personally fitted to serve thereon, after he was chosen as a juror and before the return of the indictment, had removed from and ceased to be an inhabitant of the town from which he was drawn and had become an inhabitant of another town in the same county, because such removal in itself did not disqualify him from acting as a member of the grand jury.</p> <p>The mere fact that a printed copy of the list of persons qualified to act as jurors, prepared by the selectmen of a town in accordance with R. L. c. 176, § 4, as amended by St. 1907, c. 348, § 1, was not furnished to the clerk of the town and to the clerks and assistant clerks of the Superior and Supreme Judicial Courts in the county in which the town was situated, as required by R. L. c. 176, § 6, as amended by St. 1907, c. 348, § 6, does not give the defendant in an indictment for murder a right to challenge for cause a person duly drawn from such list and personally qualified to serve as a traverse juror in the trial of the indictment.</p> <p>Doubt, expressed by Mobtox, J., as to whether- it can be said that a defendant in an indictment for murder would not be harmed by being refused the right to challenge for cause a person improperly called to serve as a juror, where, upon such refusal, he exercises his right of peremptory challenge and in the impaneling of the jury does not exhaust the twenty-two peremptory challenges which he is allowed by R. L. c. 176, § 29.</p> <p>Medical books are not admissible in evidence at a trial for the purpose of showing the views entertained by their authors in regard to matters in issue at the trial.</p> <p>Where, at the trial of an indictment for murder, there is a question whether a certain cut on the neck of the deceased was made before or after death, the defendant contending that it was made after death and, for the proof of that contention, relying on evidence that it was of a nature described as “inverted," it is not proper in cross-examination of a medical expert called by the Commonwealth for counsel for the defendant, holding in his hand a book from which he apparently was framing the question, to ask the witness, “ If Professor B. [who was not a witness in the case or in any way connected with it] . . • said that the inverted edge was evidence of a cut after death would that change the opinion which you now express that the . . . [cut] . . . may be ante mortem ? ”, because an answer to the question would place before the jury in an indirect manner the opinion of Professor B.</p> <p>At the trial of a criminal case, where there is evidence which tends to prove the facts as assumed in a hypothetical question put by the Commonwealth in cross-examination to an expert witness called by the defendant, the question, if relevant, is admissible, it being for the jury to say whether the evidence proved the facts as assumed.</p> <p>At the trial of an indictment for murder, where the Commonwealth contended that there was evidence of killing by asphyxiation or strangulation and by blows on the head, and also that there was evidence that the victim’s throat was cut during life, the Commonwealth is not obliged to show that the death of the victim was due to any one particular cause, but, if the jury are satisfied beyond a reasonable doubt that death was caused by a combination of injuries inflicted by the defendant, notwithstanding they are unable to determine the exact way in which the victim was killed, a verdict of guilty is warranted.</p> <p>At the hearing of a motion by the defendant for a new trial of an indictment for murder, based upon a contention that one of the jurors at the time of the trial of the case was insane, the rules relating to criminal practice and procedure do not apply, and the burden is upon the defendant of proving the insanity of the juror and of sustaining by a fair preponderance of evidence the contentions which are the basis of the motion; and, upon exceptions by the defendant to a finding by the judges, who heard the motion, that the juror was not insane, and to a denial of the motion, the question before this court is not as to the weight of the evidence, but only whether there was any evidence to support the finding.</p>

<p>Agency, Ratification of acts o£ agent. Landlord and Tenant. Damages, In tort: injury to business. Evidence, Competency.</p> <p>At the trial of an action of tort for damages resulting from an alleged unlawful ejection from certain premises, the validity of a lease under which the plaintiff had been in possession of the premises was in question, and there was evidence tending to show that one, who formerly had been collecting the rent from the tenant on behalf of the person named as lessor in a former lease, at the termination of that lease, assuming to act on behalf of and in the name of the lessor, but without his authority, knowledge or consent, executed and delivered to the tenant a new lease not under seal for a further term; that thereafter the lessor, being informed by the rent collector of his act, stated to him, “ I am sorry. You ought not to have done it; but, as long as you have done it, let it go ”; that the rent collector continued to collect the rents from the lessee for three months, when the lessor himself collected them for three more months, telling the tenant, in answer to a statement by him that he paid his rent to the collector, that he, the lessor, was the one who told the collector to give the tenant the lease, and that he, the lessor, was the one who was entitled to the rent. Held, that there was evidence warranting a finding that the lessor ratified the act of the collector in making the lease; and that such oral ratification made the lease valid as against the lessor.</p> <p>One who unlawfully was ejected by force on a June 12 from premises, of which he was in possession rightfully and where for over six years he continuously had been carrying on a business of selling fruit at retail, and whose business had been interrupted by the eviction, is entitled to such damages as directly resulted from the wrong done to him; but if it appears at the trial of an action to recover such damages that in the conduct of his business the plaintiff had closed the store during certain hours of each day while he and his men peddled fruit from wagons about the streets, and that about a month after the eviction the plaintiff had moved to a location within a few doors of the premises in question, where he continued his business, the plaintiff should not be allowed to testify as to the amount of his weekly profits for about five and a half months before the eviction unless there is some evidence to show that they afforded a fair measure of his business for the future.</p>

Tort for personal injuries sustained by the plaintiff while in the employ of the defendant from the breaking of a hook at the end of a chain to which was attached a casting weighing about two thousand six hundred and twenty-five pounds, which caused the casting to fall to the ground, striking the plaintiff. Writ dated November 7,1906.

<p>Municipal Corporations, Officers and agents, By-laws and ordinances.</p> <p>In a city which has accepted R. L. c. 104, §§ 1, 4, providing for. the regulation by ordinances and by-laws of the inspection, materials, construction, alteration and use of buildings, and that “ the superintendent of public buildings or such other officer as the mayor and aldermen . . . may designate shall be inspector of buildings,” a person who does not hold any other office in the city cannot be appointed to the office of inspector of buildings.</p>

Contract upon an account annexed for the purchase price of certain lumber. Writ in the Municipal Court of the City of Boston dated November 20, 1908.

<p>Contract or tort against Edward B. Goodnow, Anna P. Goodnow, Mabel L. Goddard, James Kennedy and Charles B.</p> <p>Worth, with a declaration in two counts, one in contract and the other in tort. Writ dated November 22, 1906.</p> <p>The count in contract was abandoned by the plaintiff both at the "hearings before the auditor and at the trial, and the case was tried on the count in tort which in substance was as follows :</p> <p>“ Count 2. That on or about July 1, 1903, Nathan B. Good-now and the defendants, Kennedy and Worth, were copartners in the banking and brokerage business under the firm name and style of N. B. Goodnow & Company ; that on or about the date aforesaid the said Goodnow, Kennedy and Worth unlawfully conspired to cheat and defraud the plaintiff, and in pursuance of such unlawful conspiracy represented to the plaintiff that they were solvént, that they were legitimate stock brokers and not bucket shop brokers, and that they did fulfil and intend to fulfil all orders to buy and hold stocks for their customers and all orders to sell stocks and hold the proceeds on deposit. They made these statements of fact, which were false and which they knew were false, in order to defraud the plaintiff by inducing him to become their customer, and the plaintiff, relying thereon, employed them as his brokers and at divers times gave orders to buy shares of stock in his name and hold the same for him, sent money to pay for the same, and gave orders for the sale of part thereof and for the retention of the proceeds thereof on deposit for him. The said firm, upon receipt of each such order, in pursuance of the said unlawful conspiracy, notified the plaintiff of the fulfilment thereof. According to their reports, and according to their legal obligation in the premises, they held for him and should hold for him certain valuable shares of stock, and owed and should owe him certain large sums of money on or about November 6, 1903. As a matter of fact said firm were not legitimate stock brokers, but were bucket shop brokers and in pursuance of the said unlawful conspiracy never bought the stock ordered by him, did not hold it for him, did not sell it as ordered, and did not retain the proceeds thereof on deposit for him, and were, on the said first day of July, 1903, and at all times since that date have been, utterly and hopelessly bankrunt and insolvent, as they at all times herein stated well knew.</p> <p>“ That on or about November 6, 1903, Nathan B. Goodnow died, leaving a will which was duly allowed and proved in this Commonwealth on December 2, 1903, and on the same date Edward B. Goodnow, Anna F. Goodnow and Mabel L. Goddard were duly appointed executors thereof and duly gave bonds as such. Said Nathan B. Goodnow had for some years past been drawing funds from the firm and had amassed therefrom a large amount of assets, although entirely insufficient even when joined with the firm assets and the assets of the other partners to meet the firm obligations. In pursuance of the said unlawful conspiracy and for the purpose of successfully carrying out the same, said Nathan B. Goodnow by his will left certain large sums of money to Kennedy and Worth to carry on the business of said firm without interruption in the same name, same manner and at the same place, and to represent falsely and knowingly so to the plaintiff that they had been on or about July 1, 1903, and still were solvent, that they had been and were still legitimate stock brokers, and not bucket shop brokers, that they had fulfilled and still intended to fulfil all the plaintiff’s orders to buy stocks, to hold them for the plaintiff, to sell them and retain the proceeds for the plaintiff, and that they then held as a matter of fact certain valuable shares of stock for him and certain deposits of money as per his orders. This was done by the said Nathan B. Good-now for the specific purpose of defrauding the plaintiff by inducing him to continue to be a customer of N. B. Goodnow and Company, and to give orders to buy shares of stock in his name, and hold the same for him, send on money to pay for the same, give orders for the sale of part thereof from time to time, and the retention of the proceeds thereof on deposit for him, and to give further orders to buy shares of stock in his name and hold the same for him, to order the application of proceeds held on deposit for him to that purpose, and to send on further money to pay for the same, and this was done by the said Nathan B. Goodnow for the ultimate purpose of keeping the concern going and concealing its insolvency until the two years from the date of the filing of the executors’ ..bond should elapse and until the plaintiff and other creditors should be barred by the statute of limitations from recourse against his estate for the money of which he had defrauded them. Said Kennedy and said Worth participated in this conspiracy with full knowledge of the facts and of the specific and ultimate purposes said Nathan B. Goodnow desired to accomplish. Edward B. Goodnow, Anna F. Goodnow and Mabel L. Goddard aforesaid, with full knowledge of all the facts above recited, with full knowledge of the specific and ultimate purposes of the conspiracy aforesaid and for the purpose, of successfully carrying out the same and of defrauding tho plaintiff in pursuance thereof, saw to it that this money was paid to Kennedy and Worth and that when this proved insufficient, certain other sums of money were advanced out of said Nathan B. Goodnow’s estate to said Kennedy and Worth in pursuance of the said unlawful conspiracy and to carry out and accomplish all the purposes aforesaid in the manner detailed above and at all times herein stated and in all ways in which they possibly could, participated in and aided in the execution of the unlawful conspiracy aforesaid with full knowledge of all the facts pertinent thereto. Said Kennedy and Worth in pursuance of said unlawful conspiracy and in order successfully to consummate the same, carried on the business of said firm without interruption in the same name, same manner and at the same place, did not notify the plaintiff of the death of Nathan B. Goodnow and represented to the plaintiff falsely and knowingly so that they had been on or about July 1, 1903, and were still solvent, that they had been and were still legitimate stock brokers and not bucket shop brokers, that they had fulfilled and still intended to fulfil all the plaintiff’s orders to buy stocks, to hold them for the plaintiff, to sell them and retain the proceeds for him, and, that they then held as a matter of fact certain valuable shares of stock for him and certain deposits of money as per his orders. • They did this to lead the plaintiff to believe that all was well, to induce him to refrain from hostile action, to induce him to refrain from closing up his account with them and to lead him to continue to deal with them and to send on to them further sums of money and they did all this at the request of and in accordance with the instructions of Nathan B. Goodnow, Edward B. Goodnow, Anna F. Goodnow and Mabel L. Goddard, and each of them, and in pursuance of the unlawful conspiracy aforesaid. The plaintiff relied on these facts and representations, believed all was well, refrained from hostile action, did not close up his account with, them, and continued to deal from time to time with them, sending in money, ordering purchases of stock in his name and the holding thereof for him, and ordering sales of part thereof and the retention of the proceeds on deposit for the plaintiff, and ordering further purchases of stock in his name and the holding thereof for him and the application of the proceeds on deposit for him in part payment thereof and sending in further large sums of money therefor. The said firm upon the receipt of each such order notified the plaintiff of the fulfilment thereof and rendered to the plaintiff monthly statements of his account with said firm. On January 1, 1906, said firm purported to hold for the plaintiff . . . [certain] . . . shares of stock . . . and to hold ... on deposit for him, $4,569.85. As a matter of fact the said firm had never bought the said shares of stock, did not hold them, and did not hold the said sum of money on deposit for the plaintiff, all of which the said firm and the said Edward B. Goodnow, Anna F. Goodnow and Mabel L. Goddard well knew. On or about January 1, 1906, the plaintiff demanded of said firm that they should deliver to him the said shares of stock and the said sum of money on deposit, but said firm refused and though often requested, still refuse to deliver and pay the same.</p> <p>“ On December 12, 1905, Edward B. Goodnow, Anna F. Goodnow and Mabel L. Goddard ceased to advance any further sum of money out of N. B. Goodnow’s estate to the firm and ceased to assist them in the various ways in which they had previously been participating in and aiding in the fulfilment of the conspiracy aforesaid, since the two years had now elapsed within which the plaintiff must have brought action against the said estate for the property of which he had been defrauded, and since they believed that the ultimate purpose of the said unlawful conspiracy as far as they were concerned had been accomplished. Shortly after the first day of January, 1906, the said firm was duly adjudicated bankrupt and the assets of the firm’s estate in bankruptcy were and are of insignificant value.</p> <p>“ The plaintiff says that he has been defrauded of the said sum of $4,569.85, and of the said shares of stock, . . . owing to the fraud and deceit of the defendants and of each of them, and owing to the unlawful conspiracy conceived by. said N. B. Goodnow and carried out by all of the defendants in concert, with full knowledge of all material facts and for the purposes aforesaid.”</p> <p>The case was referred to Edmund A. Whitman, Esquire, as auditor, and afterward was tried before Bell, J. The facts are stated in the opinion.</p> <p>At the close of the evidence, the presiding judge ordered verdicts in favor of the three defendants, Edward B. Goodnow,</p> <p>Anna F. Goodnow and Mabel L. Goddard; and the plaintiff alleged exceptions.</p> <p>Against the other defendants, James Kennedy and Charles B. Worth, the jury found for the plaintiff in the sum of $12,049.97.</p>

<p>Contract on an account annexed for labor and materials alleged to have been furnished by the plaintiff to the defendant in the remodelling of certain houses in that part of Boston called South Boston. Writ dated June 24, 1907.</p> <p>In the Superior Court the case was referred to Everett C. Bumpus, Esquire, as auditor, who filed a report.</p> <p>There were two bills of exceptions. The first related to a motion to recommit the auditor’s report, which was heard by Richardson, J. That bill of exceptions was as follows:</p> <p>“ The case was referred to Everett C. Bumpus, Esquire, as auditor, who reported, among other things, that the plaintiff began work under written contract, and stated, ‘ I find that the contract was annulled by the mutual action of the parties.’ The auditor’s report, as annexed to another bill of exceptions in the case, may be treated as a part of this bill of exceptions. The defendant thereupon moved that the court recommit the case to the auditor with instruction to report all the evidence upon which he based that finding. The defendant contended that there was no evidence on which such a finding could be based as a matter of law, and that, if the report were allowed to stand without showing the facts upon which the finding was made, this finding of the auditor might be used as evidence in the case before the jury when there was absolutely no fact, which, as a matter of law, would be sufficient to support the finding, and thus the auditor would in effect be given the power to create evidence without any facts to support it. The court refused this motion to recommit and the defendant excepted, and being aggrieved, prays that his exceptions may be allowed.”</p> <p>Later the case was tried before Orosby, J. The auditor’s report was put in evidence, subject to the exception which is stated later. In hjs report the auditor found that the amount of work and materials furnished by the plaintiff was worth the sum of $481 over and above the amount which the defendant already had paid. The evidence introduced at the trial showed that the plaintiff entered into a contract in writing with the defendant, whereby he agreed to do certain remodelling and make certain additions to two houses in South Boston “ to the perfect satisfaction of the owner ” for the sum of $5,777, to be paid in five instalments; that the sum of $1,119 was paid by the defendant, namely, on May 11, $250, on May 18, $250, and on -May 25, $619.</p> <p>The plaintiff testified that a few days after the contract was made he went to the defendant and stated that a certain person who had agreed to furnish him with money had become ill and could not be approached on business matters at that time, and that it would be very hard for him to keep on with the contract on that account; that the defendant asked whether the plaintiff had not any money himself, and the plaintiff said that he had about $600; that the defendant told him to use that $600 and that the defendant would see whether he could help him out by changing the payments on the contract, and asked how much the plaintiff would want every week, and that the plaintiff told him about $300; that the defendant said that that was a good deal of money and asked whether the plaintiff could not get along with less, to which the plaintiff answered that he could get along perhaps with $250 a week; that then the defendant said that he was sorry that the plaintiff bothered him in that way, but said that he would change the contract so far as the payments were concerned and would pay the plaintiff $250 per week, provided the payments thus made did not exceed the amount of the next instalment required under the contract; that the plaintiff thanked the defendant for changing the contract in his favor in that way, and that the defendant said that it was all right. The plaintiff, on cross-examination, further testified that he did not state that he was going to give up the job; that he “ simply told him his tale of woe ”; and that the defendant said he would advance the money earlier than provided for in the contract.</p> <p>The defendant denied that he agreed to pay the plaintiff any amount except as provided for in the written contract, but testified that he did state that he would see what could be done in getting money from his mortgagee, and that as a matter of fact he did make two payments'to the plaintiff of $250 each, one being made on the eleventh day of May and the other on the eighteenth day of May, but he denied that there was any agreement to change the contract.</p> <p>The plaintiff further testified that on June 7 he went to see the defendant about a quantity of old plastering that was taken off the building, and talked to the defendant about his taking off the plastering and causing more work on the contract, and also asked him for an instalment of money, $250, due according to the agreement; that the defendant said he would not pay any more money; that, when the plaintiff said it was agreed between them that he should do so, the defendant said he was not going to make any further payments on that agreement; that in response to the plaintiff’s statement about plastering the defendant said he did not care, that he would have the plastering done to suit him; that the plaintiff told the defendant that his estimate for plastering was $700; that he had received an estimate from a plasterer for $798; that a plasterer who went through the buildings that morning with the plaintiff gave an estimate for the plastering required to be done of $1,100; that the plaintiff’s men had reported that they had seen the defendant remove plastering, and that the defendant said that he was going to have the plastering done to suit him; that the plaintiff said that “ any man could do no different than quit under those circumstances ”; that this talk was in the defendant’s barn; and that after this talk the plaintiff went over to the house which was being remodelled; that the defendant soon after came over and the plaintiff asked him whether he was going to live up to his contract and pay the money due that day; that the defendant said “ No ”; that the plaintiff said that under the circumstances all he could do was to quit, and that the defendant said “ Quit and be damned ”; that thereupon he did quit and brought this action.</p> <p>The defendant contended that the only conversation was to the effect that the plaintiff demanded the money and he denied any obligation to pay; that thereupon the plaintiff said that he should quit if the money was not paid; and that the defendant replied that he did not see that he could help it if he did, but informed him that he did so at his peril and forbade him to remove any of the stock.</p> <p>There was a great deal of conflicting testimony as to various acts of the plaintiff and the defendant, and as to the amount of work done, its character and value.</p> <p>The report of the auditor was admitted in evidence subject to the defendant’s exception to the admission of the following sentence in the report: “A dispute arose between the parties, the result of which was a discontinuing by the plaintiff, with the knowledge and sanction of the defendant, of further service under the contract, and I find that the contract was annulled by the mutual action of the parties.”</p> <p>At the close of the evidence, the defendant asked the judge to rule that the plaintiff was not entitled to recover and also asked for many other rulings. The judge refused to make these rulings, and, among other instructions, gave the following:</p> <p>“ If you find that the parties agreed that the contract should be given up, or if you should find that the plaintiff was prevented from completing it through no fault on his part, but through the fault of the defendant Kells, then you would come to the question as to whether the plaintiff is entitled to recover anything for the labor and materials furnished. And as bearing upon this question, as to whether there was an abandonment of the contract on the part of the plaintiff, I instruct you that no act of the defendant which did not go to the extent of stopping the plaintiff in his work, or wrongfully interfering with the progress of the work, can be considered as a breach of the contract.</p> <p>“ Under the terms of this contract, as you will notice, it is provided that the defendant, Kells, the owner, was to be the judge whether the work was properly done or not; that is, the contract says that the work was to be done to the perfect satisfaction of the owner. And the question is, what does that mean ? I instruct you, gentlemen, that that does not mean that the defendant has a right to say, under all circumstances, that the work is not satisfactory to him and therefore he will not pay for it. That is not the interpretation which the law puts upon words of that character in contracts of this kind. That means this: That the work must be satisfactory, and the materials must be satisfactory, to the owner, but the owner must act as a reasonable man under the circumstances ; and if the work and materials are of such character as a reasonable man ought to be satisfied with, then the plaintiff has performed his duty in that respect.</p> <p>“With reference to this matter of the annulment of the contract, if-the contract was annulled by the parties, it must appear that either by their acts or conduct or words, or both, both parties agreed that the contract should be so annulled.</p> <p>“ So in this case, gentlemen, you will determine whether or not the plaintiff was justified in giving up the contract, or whether it was agreed between him and the defendant that it should be given up; and if so, then you will say what, if anything, were this labor and these materials worth over and above what was paid to the plaintiff. ”</p> <p>The judge also instructed the jury as to the effect of an auditor’s report and as to damages, and to the instructions on these matters neither party excepted.</p> <p>The jury returned a verdict for the plaintiff in the sum of $946; and the defendant alleged exceptions.</p>

<p>Res Judicata. Pleading, Civil, Declaration, Demurrer. Contract, Construction, Performance and breach.</p> <p>The decision made in the suit in equity J. P. Eustis Manuf. Co. v. Saco Brick Co. 198 Mass. 212, 201 Mass. 391, that the contract on which that suit was founded was made by the Saco Brick Company with the J. P. Eustis Manufacturing Company and not with the Bruce-Merriam-Abbott Company, here was affirmed and was held to be conclusive between the parties.</p> <p>Under R. L. c. 173, § 6, cl. 2, requiring that a declaration in a personal action “ shall state concisely and with substantial certainty the substantive facts necessary to constitute the cause of action,” the declaration upon a contract in writing need not set out all the details contained in the contract.</p> <p>A declaration alleged that the plaintiff and the defendant entered into a contract in writing, of which a copy was annexed, whereby the defendant agreed to sell to the plaintiff a gas engine and the plaintiff agreed to pay therefor $1,750, that the defendant delivered a certain engine to the plaintiff and that the plaintiff paid the defendant therefor $1,750, but that the defendant “ failed to comply with the contract in the following particulars.” Here followed allegations as to the breaches complained of, and the declaration concluded with averments in regard to the damages sustained by the plaintiff. On demurrer, it was held, that this declaration set forth a cause of action clearly and properly stated.</p> <p>Under R. L. c. 173, § 6, cl. 4, the declaration in an action of contract can include allegations of any number of breaches in one count, and the plaintiff is not confined to one form of statement in regard to any particular breach alleged.</p> <p>In considering a demurrer to the declaration in an action of contract, it was said, that, if, according to the true construction of the contract, breaches were assigned improperly, the defective allegations could be demurred to specifically without demurring to the declaration as a whole but in the present case no such ground of demurrer was alleged.</p> <p>In a suit in equity by a manufacturing company against a brick company, the plaintiff sought to enjoin the defendant from proceeding with an action at law for the breach of a contract in writing for the sale by the manufacturing company to the brick company of a gasoline engine, the manufacturing company alleging that it signed the contract in its own name by mistake and that it signed only as the agent of a third corporation. A decree was made dismissing the bill on the ground that the contract sought to be reformed was made and was intended to be made between the manufacturing company and the brick company and not between the third corporation and the brick company. In the action at law by the brick company against the manufacturing company, thus unsuccessfully sought to be enjoined, the manufacturing company as defendant set up the equitable defense that the contract with the plaintiff was made not by it but by the third corporation for which the defendant was acting as agent. The plaintiff filed no replication to the alleged equitable defense, but the presiding judge ruled that the decree in the suit in equity was a bar to the alleged equitable defense, and no objection was made by the defendant that the plaintiff had not filed a replication of res judicata. Held, that, while the plaintiff might have pleaded the decree in the suit in equity in a replication of res judicata, yet, as no objection had been taken to its failure to do so, this court would regard the question as properly before them, and that the ruling of the judge was right, the fact, that the action at law in which the equitable defense was attempted to be set up was begun before the suit in which the decree was made, being no reason why the decree, which settled the question of fact conclusively between the parties, should not operate as a bar.</p> <p>A contract for the purchase and sale of a gas engine contained an agreement on the part of the seller that the engine should be of the capacity of fifty-five horse power with an overload of ten per cent. In an action by the buyer against the seller for an alleged breach of the contract in supplying an engine of less power than required by the contract, it appeared that the engine delivered to the plaintiff had a gasoline attachment and was designed for use either with natural gas for fuel or arranged, as this one was, with gasoline fuel. It appeared that an engine which would develop fifty-five horse power and a ten per cent overload with natural or illuminating gas would develop much less power with gasoline. The contract provided that the engine should be “ arranged for gasoline fuel,” and no other fuel was referred to in the contract. It was testified without objection and recited in the bill of exceptions that “ the only fuel contemplated by the parties to be used by the plaintiff in the operation of the engine was gasoline.” Held, that the contract was not for a gas engine of fifty-five horse power warranted to develop an overload of ten per cent, but for a gas engine that would develop fifty-five horse power and an overload of ten per cent with gasoline fuel, and tiiat a ruling to that effect was correct.</p> <p>In an action for the alleged breach of a contract by which the defendant agreed to furnish the plaintiff with an engine which would develop with gasoline fuel a stipulated horse power, the defendant contended that the reason that the engine did not furnish the horse power stipulated in the contract was that the plaintiff failed to build the foundation for the engine in the manner specified in a certain blue print. There was no evidence and no contention that the plaintiff had not acted in good faitii in building the foundation which he furnished. The defendant asked the presiding judge to rule that the fact that the plaintiff did not build such a foundation as the contract called for_preventcd his recovery in the action. The judge refused to give this ruling, and instead of it instructed the jury that, if the foundation furnished by the plaintiff “ was just as good as that specified in the blue print,” a failure of the foundation to accord with the specifications was not a defense to the action. Held, that, assuming in favor of the defendant that the blue print and the foundation plan constituted a part of the contract and that it was intended and expected by the defendant that the foundation should be built by the plaintiff as therein specified, yet the building by the plaintiff of the foundation specified in the blue print was not a condition precedent to the defendant’s undertaking that the engine when placed upon it and properly connected should develop with gasoline fuel the stipulated horse power, and that the instruction of the judge was at the least sufficiently favorable to the defendant.</p>

<p>Contract for a balance of $10,467.16 alleged to be due for the erection of a Turkish bath house upon land of the defendant on Carver Street in Boston, with a count upon an alleged contract in writing and another count upon an account annexed. Writ dated January 9, 1904.</p> <p>In the Superior Court the case first was tried before Pierce, J., who at the close of the plaintiff’s evidence ordered a verdict for the defendant. The plaintiff alleged exceptions, which were sustained by this court in a decision, reported in 202 Mass. 247, holding that there was no express contract between the parties because their minds never met, but that the plaintiff was entitled to recover upon a quantum, meruit the fair value of the labor and materials which he had furnished to the defendant at his request.</p> <p>There was a new trial of the case before Hardy, J. The important facts which" appeared by the evidence are stated briefly in the opinion, and are stated more fully in the report of the case at its previous stage above referred to. At the close of the evidence the defendant asked for eleven instructions to the jury relating to the four subjects, which, as classified in the defendant’s brief, are stated in the opinion.</p> <p>Among the instructions requested by the defendant and refused by the judge were the following, which are referred to in the opinion:</p> <p>££ 3. If notes are received and properly applied in satisfaction of a debt, the application of them cannot be subsequently changed so as to revive the debt without the assent of the debtor, either express or implied, given by himself or some one authorized to represent him.</p> <p>“ 4. If the plaintiff received from Dwight [the fraudulent architect mentioned in the opinion] notes which have been paid, and applied these properly to the amount due from the defendant, this application could not subsequently be changed without the assent, express or implied, of the defendant or some one authorized to represent him.</p> <p>“ 5. The notes amounting to $3,000 received by the plaintiff and applied to the defendant’s account amounted to a payment to that extent even if Dwight subsequently directed that they be applied to some other account, provided this direction was given without the authority or consent of the defendant.”</p> <p>“ 8. The $3,000 in notes became a payment to that extent on account of this job.</p> <p>“ 9. The three notes of $500 each became a payment of $1,500 on account of this job.</p> <p>“ 10. The defendant is entitled to a credit of at least $1,600 for late completion.”</p> <p>The judge submitted the case to the jury with instructions, of which such parts as are necessary to understand the questions raised by the exceptions are quoted or described in the opinion. The jury returned a verdict for the plaintiff in the sum of $11,431.55; and the defendant alleged exceptions.</p>

<p>Contract, brought by the receiver of the property of the American National Bank against John F. Scherber as the maker and Mary White as the indorser of a promissory note for $250 dated June 27,. 1905, and payable on September 27,1905, to the American National Bank at any bank in Boston. Writ in the Municipal Court of the City of Boston dated March 23, 1907.</p> <p>On appeal to the Superior Court the case was tried- before Crosby, J., who ordered a verdict for the plaintiff; and the defendants alleged exceptions.</p> <p>In the bill of exceptions the first paragraph stating the facts in the case began with the phrase “ It appeared from the evidence,” the second and third paragraphs each began with the phrase “ It further appeared from the evidence,” and the fourth and fifth paragraphs, which completed the statement of the facts, each began with the phrase “ It further appeared.” From the facts so stated it appeared that the last indorser of the note was William A. Carrie, who signed as “ William A. Carrie & Co.,” a name under which he then was doing business. The second and fifth paragraphs of the statement of the facts in the bill of exceptions were as follows:</p> <p>“ 2. It further appeared from the evidence that a few days before June 27, 1905, the said Carrie took the note to the defendant Scherber to sign and also to procure the signature of the defendant White, and that said Scherber did sign the note, procured the indorsement of defendant White, and then returned the note to Carrie. Mr. Carrie then delivered the same to the American National Bank, paid $50 in cash, and received in exchange therefor another note for $300, made and indorsed by the same parties, which fell due that day (June 27, 1905). There had been several similar notes given prior to the one in suit, of which this was the last.”</p> <p>“ 5. And it further appeared that neither of the said defendants received any money or other ■ consideration from the bank for signing or indorsing any of said notes. And the officials of the bank knew that there was no consideration received by either of said defendants from the bank for signing or indorsing either the note of June, 1904, or any of the subsequent notes.” The case was submitted on briefs.</p>

<p>Tort under R. L. c. 51, § 18, for personal injuries alleged to have been sustained by reason of a defect in the sidewalk of Pond Street in that part of Weymouth called South Weymouth at about 6.15 P. M. on Sunday, October 7, 1906. Writ dated November 1, 1906.</p> <p>In the Superior Court the case was tried before Orosby, J.</p> <p>There was evidence that the plaintiff, a woman about fifty years of age, was walking along the west side of Pond Street from the railroad station toward a house where she was employed as a nurse ; that she came to a place where there was a hole ; that her foot went down, and it pitched her forward, “ right down on my knees ” ; that the plaintiff had walked over the sidewalk that morning and knew that there was a place across the sidewalk that looked like a washout; that she did not see the place when she stepped into it, as it was dark, and that she was not thinking anything about it; that she was thinking about getting home, but that she was not walking any faster than she was accustomed to walk ; that there were trees along the left hand side of the sidewalk, next to the street, and that there was a stone wall with a hedge rising above it on the right hand side; that branches of the trees overhung both the sidewalk and the street; that the hole was a washout six or seven inches deep and “ wide enough to put your foot in.” There was testimony tending to show that it had existed in the same condition for five or six months. The place of the accident was about one hundred yards from a light, and the lights were so placed between the trees as to throw no light at all except directly down to the ground. It was so dark at the place of the accident that “ you could run into somebody before you saw them,” and “ you wouldn’t notice the hole until you got up on to it.” The superintendent of streets for the defendants testified that he had inspected the place of the accident two or three days before the accident occurred.</p> <p>At the close of the evidence the defendant asked the judge to rule : (1) That “ upon all the evidence the plaintiff is not shown to have been in the exercise of due care and the verdict must be for the defendant ”; (2) that “ upon all the evidence the defendant is not shown to have been negligent and the verdict must be for the defendant ”; (3) that “ upon all the evidence the verdict must be for the defendant ” ; and (4) that “if the jury find that the plaintiff upon the morning of the accident passed over the place and saw its defective condition and on returning at night walked along without paying any attention to it as she says she did, then she was not in the exercise of due care and the verdict must be for the defendant.”</p> <p>judge refused to make any of these rulings, and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $3,700. The defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Assignment, Of wages.</p> <p>Under St. 1906, c. 390, which provides that no assignment of future wages shall be binding upon the employer of the assignor until a copy of it and an accurate statement of the account between the assignor and the assignee have been delivered to the employer, if an employee makes an assignment of his wages to one who does not give notice thereof to the employer until after the employer has received the notice and the copies required by the statute from another who, at a later date than that of the assignment previously mentioned and without knowledge of it, had received from the assignor a like assignment, the earlier assignment is rendered invalid as against the subsequent assignment and the employer is justified in paying the assignor’s wages to the second assignee during the time covered by the second assignment.</p> <p>An employer who has been given the notice required by St. 1906, c. 390, § 2, of an assignment of his wages by an employee, is not bound to see to the appropriation of sums paid to the assignee in accordance with such assignment, and is justified in paying such wages to the assignee so long as the assignment continues in force in spite of the fact that, if all of the sums so paid were applied by the assignee toward payment of the debt to secure the payment of which the assignment was given, the debt would have been paid before the end of the period covered by the assignment.</p>

<p>Landlord and Tenant, Tenant’s liability for increased rent due to betterment tax. Tax, Betterment.</p> <p>Under St. 1871, c. 382, § 9, which provided that, “ when an assessment is made upon an estate, the whole or any portion of which is leased, the owner . . shall pay the assessment, and may thereafter collect of the lessee an additional rent for the portion of the estate so leased,” proportionately reckoned, which was codified into R. L. c. 60, § 8, with some verbal changes which did not affect its construction, no obligation on the part of the tenant comes into being until payment of the betterment is made by the owner, and the liability then becomes merely a future liability to be reckoned from that time, not a liability also for past time; and therefore if a betterment tax is assessed upon an estate under lease, and, by reason of a petition by the owner for an abatement thereof, which is finally compromised and settled, the payment of the tax is delayed until after the termination of the tenancy, the tenant is under no liability under the statute to pay to the owner any increase of rental.</p>

<p>Negligence, Employer’s liability. Evidence, Competency. Practice, Civil, Conduct of trial, Exceptions, Double costs.</p> <p>Boyd v. Taylor, 195 Mass. 272, and 202 Mass. 213, affirmed.</p> <p>At the trial of an action against the proprietor of a sausage factory by an employee therein, in which the plaintiff sought to recover for injuries alleged to have been caused by his arm being drawn into a meat chopping machine due to a failure of the defendant to warn or instruct him as to that danger, and where a material question was, whether the danger was an obvious one, it appeared that the plaintiff, several months after his injury, had returned to the factory, and there was evidence tending to show that at that time the machine was in the same place, set up in the same way and being operated for the same purpose as at the time of the injury to the plaintiff. There was no evidence that the con-</p> <p>• dition of the machine had been changed. The plaintiff, subject to an exception by the defendant, was allowed to testify that, in looking into the machine to see the feed screw when the machine was running as it had been when he was operating it, there was not much that could be seen other than a kind of blur. Held, that the evidence was relevant, material and competent.</p> <p>This case previously was before this court on two occasions upon exceptions by the plaintiff to the ordering of verdicts for the defendants, and the exceptions each time were sustained. Upon exceptions by the defendants after a verdict for the plaintiff, no new question was raised, the exceptions were adjudged frivolous and double costs from the time of the allowance of the defendant’s exceptions were allowed.</p>

<p>Bill in equity", filed in the Superior Court on November 5, 1908, by Alice L. Flint and Edward H. Warren against the Westchester Fire Insurance Company and Lindsey K. Foster, alleging in substance that the plaintiff Flint purchased from the plaintiff Warren the real estate numbered 144 on Skurtleff Street in Chelsea, the real estate being subject to a mortgage which Warren had given to the County Savings Bank and a dwelling house thereon having been insured by Warren under a Massachusetts standard policy with the United States Fire Insurance Company for a period to extend from April 28,1804, to April 28, 1909, Warren being named as the insured, and “ loss if any [being made] payable to County Savings Bank, mortgagee, as its interest may appear ” ; that “ said insurance was taken over or reinsured by the defendant insurance company ”; that at the time of the transfer of the property to Flint by Warren, the policy also was assigned and that the insurance company then interested was notified thereof and assented thereto; that on April 12,1908, the property insured was destroyed by fire, and that thereafter the savings bank transferred the mortgage to the defendant Foster, who threatened to foreclose it.. The prayers of the bill were that the defendant Foster be enjoined from foreclosing or selling or disposing of the mortgage and the note secured thereby, that an accounting be had of the amount due under the mortgage, that the defendant company be ordered to pay what was found to be due upon the mortgage to Foster, that Foster thereupon be ordered to cancel and deliver up the note and mortgage, and that the defendant company be ordered to pay to the plaintiff Flint what was due under the policy above the amount due on the mortgage note.</p> <p>The case was heard by Wait, J., upon an agreed statement of facts, which were substantially in accordance with the allegations of the bill, except that it was agreed that the sale and conveyance by Warren to Flint did not come to the knowledge of either of the insurance companies until after the fire, and were not assented to by either of them ; that then the agent of the defendant company stated to the plaintiff Flint that nothing would be paid to her on the policy because she had no interest therein, but that the company intended to pay to the savings bank the amount of its mortgage and to demand an assignment thereof; that thereafter the defendant company paid to the savings bank, as mortgagee, $1,525, the amount then due on the mortgage, “in consideration of which said bank executed an assignment of said mortgage, note and policy to the defendant, Lindsey K. Foster. . . . There remains due on said mortgage the sum of $1,500 and interest described therein, unless the same has been or should be satisfied by reason of the facts set forth in these proceedings. Said Foster paid no other consideration for said assignment and took and still holds said mortgage under an oral agreement that the same was held by said Foster in trust for the Westchester Fire Insurance Company. Neither the plaintiff Flint nor the plaintiff Warren ever assented to any of the transactions recited in this paragraph. The defendant company has never paid anything under said policy in addition to the amount paid for said mortgage as herein described.”</p> <p>The judge ordered a decree dismissing the bill, and reserved and reported the case for determination by this court.</p>

<p>Telegraph Company. Wires. Constitutional Law, Interstate commerce, Police power. Municipal Corporations, By-laws and ordinances. Way, Public. Chicopee. Equity Jurisdiction.</p> <p>Chapter 17 of the ordinances of the city of Chicopee of 1891 provided among other things that the mayor and aldermen should have exclusive power to license the erection and maintenance of telegraph and other lines of electric wires within the city, and that any license granted pursuant to the ordinance should be subject to the right of the city, free of charge, to place its fire alarm, telegraph or other electric wires upon the poles so licensed to be maintained. An inspector of wires of the city also was provided for in the ordinance. In 1891, a telegraph company, which applied for permission to erect poles and maintain wires on certain public ways in the city, was allowed such permission only subject to the requirements of the ordinance and to an agreement to save the city harmless from loss, cost or damage resulting from the erection or maintenance of the poles or wires, and accordingly it erected its poles and wires and the city placed thereon the wires of its fire alarm system, and in 1906 the wires for its municipal electric light system, over some of which was carried an alternating current of high tension. In a suit in equity by the telegraph company to enjoin the city from maintaining electric wires upon the plaintiff’s poles, a master, to whom the case was referred, found that the additional expense to the plaintiff caused by the presence of the defendant’s wires was very small, as also was the cost to the defendant of inspection, that while the presence of the city’s high tension wires upon the plaintiff’s poles made it more dangerous for persons to go upon the poles, no accidents had happened because of that fact, and that, while high tension alternating currents close to the plaintiff’s wires would cause induction, the defendant's wires had had no appreciable effect upon the plaintiff’s business. Held, that both in its purposes and in its application the ordinance of the city was reasonable and proper and was within the authority given to cities by R. L. c. 25, § 64; c. 26, §§ 2, 6, to regulate the erection and maintenance of wires for the transmission of electricity within their boundaries.</p> <p>A police regulation of a State, affecting interstate commerce only indirectly, in a field which has not been occupied by congressional legislation, is not a regulation of such commerce within the implied prohibition of the Constitution of the United States.</p> <p>Chapter 17 of the ordinances of the city of Chicopee of 1891 provided among other things that the mayor and aldermen should have exclusive power to license the erection and maintenance of telegraph and other lines of electric wires within the city, and that any license granted pursuant to the ordinance should be subject to the right of the city, free of charge, to place its fire alarm, telegraph or other electric wires upon the poles so licensed to be maintained. An inspector of wires of the city also was provided for in the ordinance. A tele- ! graph company, which had received a permit from the city to place its poles and wires in certain public ways in the city, which were post roads, which permission was made provisional upon observance of the requirements of the ordinonce and upon an agreement by the company to save the city harmless from loss, cost or damage resulting from the erection or maintenance of the poles and wires, allowed the city to place upon the poles the wires of its fire alarm system and of its municipal lighting plant. Very little expense or inconvenience re-suited to the company therefrom. Held, that all that was done by the city under the ordinance had but a slight and incidental effect upon interstate commerce, through the imposition of a local regulation of the use of the streets for the purpose, primarily and principally, of preventing the erection of unnecessary and objectionable poles to the obstruction of travel, and, secondarily, to provide compensation to the city for the expense of inspecting the line of telegraph for the protection of the public; and that therefore neither the ordinance nor the acts of the city were in violation of the implied prohibition of the Constitution of the United States against interference with interstate commerce.</p> <p>An ordinance of a city entitled “Electric Wires,” which regulated the erection and maintenance of poles and electric wires in the public highways, contained a provision that the city, upon granting permission to any person or corporation to erect poles and maintain wires, should have the right to license the location of lines by any other person or corporation upon such poles upon payment being made to the corporation owning the poles of a reasonable compensation, but that the city should be permitted to place electric wires for its uses upon the poles free of charge. A company received -and accepted a permit from the city in 1891, which was made subject to the ordinance called “ Electric Wires,” but which referred to it by the wrong number. Wires of the city, used in its electrio fire alarm and its municipal lighting systems, without objection by the companies were maintained on the poles of the company and of several successors to its rights until 1908 when the then operating company sought by a bill in equity to enjoin the city from maintaining any wires upon its poles. It appeared from a report of a master to whom the suit was referred, that to compel the city to take its wires from the plaintiff’s poles and to erect new poles for them would involve a large expenditure of money and would result in overcrowding the streets with poles. This court, without determining whether the ordinance, in making the provision as to permitting the city to use the poles free of charge while other companies licensed by the city might use them upon making compensation, went too far, intimated that, even if because of such provision in the ordinance the maintenance of the city’s wires upon the plaintiff’s poles was a technical invasion of the plaintiff’s right, that right, under the circumstances of the long apparent acquiescence by the plaintiff and its predecessors in the use of the poles by the city and of the expense and overcrowding of the streets with poles which would be involved in causing the removal of the city’s wires, could not be enforced by injunction in equity, but only by seeking damages in an action at law.</p>

<p>Bill in equity, filed in the Superior Court on November 12, 1909, and amended on November 22,1909, seeking to restrain the defendant Marion Smith Lowry from conducting the insurance business until August 12, 1912, from imparting information about or otherwise hindering the plaintiff in obtaining such a business sold by her to him, and from in any way interfering with the conduct of such business by the plaintiff, also seeking to restrain the defendant Edward F. Lowry from in any way interfering with the business of insurance purchased by the plaintiff from Marion Smith Lowry and from attempting to procure such business for himself or any other person.</p> <p>In the Superior Court the case was heard by Fessenden, J., who made the following findings of material facts:</p> <p>On August 5, 1907, the plaintiff was engaged in the business of fire and casualty insurance in Boston under the name of H. G. Fairfield and Company, and the defendant Marion Smith Lowry was engaged in a similar business in Boston in which she owned and used the names of Henry A. Smith, Henry A. Smith and Company, and Marion Smith Lowry.</p> <p>The plaintiff and the defendant Marion Smith Lowry had been in negotiation for the sale of the latter’s business to the former; and that defendant had stated to the plaintiff that she would not sell to him the names “ Henry A. Smith,” “ Henry A. Smith and Company,” and “ Marion Smith Lowry.” On the same August 5, 1907, after these preliminary negotiations an agreement was dictated by the plaintiff and was drawn up and signed by the defendant Marion Smith Lowry, as follows:</p> <p>“ Boston, Mass. August 5, 1907.</p> <p>“In consideration of One Thousand Dollars ($1000) cash, (the receipt whereof is hereby acknowledged) and the agreement to pay the sum of Eight Hundred Dollars ($800) additional on December 1st next, we hereby agree to sell and deliver on October 1st next, all our right, title and interest in the Insurance business of the late Henry A. Smith, Henry A. Smith & Co. and Marion Smith Lowry, to H. G. Fairfield & Co.</p> <p>“Mrs. Lowry to continue in interest until October 1st, and remaining 10% to be paid within 2 years from date.</p> <p>“Marion Smith Lowry for Henry A. Smith & Co.</p> <p>H. G. Fairfield Sc Co.”</p> <p>The plaintiff paid to the defendant Marion Smith Lowry $1,000 on August 5, 1907, and it was agreed that she should manage the business until he returned from a trip abroad or until October 1, 1907. On or about October 1,1907, the business was removed to the office of the plaintiff, including the transfer of all ledgers, policy registers, expiration cards, customers’ cards and all other data and memoranda relating to the business; and the defendant Marion Smith Lowry was placed upon the plaintiff’s pay-roll from about January 1,1908, having received $50 in full to that time for services. On December 1, 1907, the second payment of $800 became due and payable under the agreement, but the plaintiff delayed payment until January 21, 1908, when he told the defendant Marion Smith Lowry that he would not make the payment unless she would sign a new agreement which he had prepared and which provided that she would not engage in the insurance business for the term of five years from August 5, 1907, without the written consent of the plaintiff.</p> <p>The instrument proposed as this second agreement was as follows:</p> <p>“ Boston, Mass. Jan. 21, 1908.</p> <p>“ Received of H. G. Fairfield Sc Co. Eight Hundred Dollars, the same being the second payment (or a total of Eighteen Hundred Dollars) on the purchase of the Henry A. Smith and Marion Smith Lowry Insurance business, in consideration of which the undersigned agrees not to engage in the insurance business for a period of five years without the consent of the purchaser.</p> <p>“ Estate Henry A. Smith. Marion Smith Lowry.”</p> <p>The defendant Marion Smith Lowry signed this instrument and received from the plaintiff the sum of $800, which was the second payment provided for under the original agreement.</p> <p>The third and final payment of $200 provided for in the original agreement became due and payable on August 5, 1909; but was not paid on that day. The plaintiff refused to make this payment, and told this defendant that he would only pay her $175 because he wished her to retain an interest in the business as he might want to use the name “ Henry A. Smith.”</p> <p>The defendant Marion Smith Lowry left the employment of the plaintiff on August 14, 1909. During the period of her employment that defendant had assisted the plaintiff in securing and carrying on the business sold by her'to him and he used the names of “ Henry A. Smith ” and “ Henry A. Smith and Company ” in connection with the business without objection on her part; but she never had given to him any written consent to the use of such names or any of them, unless the contract of August 5, 1907, contained such consent. When she left the employment of the plaintiff she did not take away any property of any kind belonging to the business sold by her to him, and she did not at any time during her employment by the plaintiff or since leaving Ms employ directly or indirectly act in inducing any of her former customers to take away their business from the plaintiff or to give their business to any other person. The judge found that the plaintiff made an average monthly net profit of $200 irom his commissions on the business sold to him. In addition to these amounts he received contingent commissions to the amount of at least $200, and retained all the registers, ledgers, cards and other data and memoranda relating to the business.</p> <p>After the defendant Marion Smith Lowry left the employ of the plaintiff she notified Mm to discontinue the use of the names “ Henry A. Smith,” “ Henry A. Smith and Company ” and “ Marion Smith Lowry ” and informed him that the use of such names by the plaintiff “will seriously interfere with my business,” and she also notified various insurance companies for which the complainant then was acting as agent under the aforesaid names or some of them that she had severed her connection with the plaintiff and retained the right to the use of such names in the insurance business as formerly ánd that the plaintiff had absolutely no right to the use of such names.</p> <p>The defendant Edward F. Lowry took out a license as an insurance broker in this Commonwealth on August 17, 1909. He entered the insurance business against the express wishes of his wife, the defendant Marion Smith Lowry, and was not aided directly or indirectly by her in securing any insurance business.</p> <p>He knew of the agreements signed by her at the time he entered the insurance business and was acquainted with some of the persons who were her customers when she sold her business to the plaintiff. He received business from some of these former customers of his wife.</p> <p>The judge found that in the negotiations conducted between the parties for the purchase and sale of the business of the defendant Marion Smith Lowry, she stated to the plaintiff that she was about to retire from the insurance business. He found that the principal value in the business sold by the defendant Marion Smith Lowry to the plaintiff consisted in the exclusive information which was contained in the books, papers, cards and other memoranda delivered by her to the plaintiff as to the names of the customers, and the details of the insurance policies held by those customers, particularly the dates of expiration of such policies. He found that the policies had been written to run for terms of one, three and five years and that the terms of about one half of the policies had not yet expired. He found that the value of the information imparted by the defendant Marion Smith Lowry to the plaintiff would be impaired if it was imparted to other persons engaged in the insurance business to a degree depending largely upon the amount of information so imparted and the number of insurance men to whom it might be so imparted. He found that the value of the business would be greatly impaired if that defendant should solicit or accept business from her former customers.</p> <p>If material, he found that such policies as had been written by the plaintiff in renewal of those issued by the defendant Marion Smith Lowry had been written by him under the name Henry A. Smith & Co. and that the plaintiff had used that name in sending out expiration notices and requests for renewals. If material, he found that the use of the name Henry A. Smith & Co. would be valuable to the plaintiff in procuring renewals of policies.</p> <p>The judge further found that at the trial of the case the plaintiff’s counsel stated that the plaintiff made no contention that either of the defendants had made use of the names “ Henry A. Smith,” “ Henry A. Smith & Co.,” or “ Marion Smith Lowry ” in the conduct of insurance business since August 14, 1909, and also found that the plaintiff introduced no evidence bearing on the question whether or not the right to use those names passed to the plaintiff by the contract of August 5, 1907, or otherwise; but that the matter was gone into on cross-examination of the plaintiff and also in the evidence introduced by the defendants; and that the plaintiff’s counsel stated that he did not consider it necessary to argue that question because the plaintiff’s contention was merely that the defendants were wrongfully soliciting insurance from old customers of the defendant Marion Smith Lowry, and that as bearing on the latter question the former question was immaterial.</p> <p>The judge made a final decree, declaring that the defendant Marion Smith Lowry did not convey to the plaintiff the right to the use of the names “ Henry A. Smith,” “ Henry A. Smith and Company ” and “ Marion Smith Lowry ” or any of those names, and did not give the plaintiff any written consent to the use by him of any or all of those names; that the plaintiff had no legal right to the use of any or all of those names; that the defendant Marion Smith Lowry was not bound to refrain from the use of any or all of those names, nor was either defendant bound to refrain from competition with the plaintiff in the insurance business; and ordering that the plaintiff’s bill be dismissed.</p> <p>The plaintiff appealed.</p>

<p>Bill ikt equity, filed in the Superior Court on April 14,1910, to restrain the removal of a church building in that part of Harwich called South Harwich to the adjoining village of South Chatham in the town of Chatham.</p> <p>The bill alleged that the building known as “The Bethel Church ” was situated in that part of the town of Harwich called South Harwich and near the town line of Chatham and was built and paid for by subscribers, who in token of their money subscriptions became pew holders and thereby the proprietors and owners of the church building; that the plaintiffs and certain other persons, whose rights the plaintiffs represented, being themselves pew holders and the heirs of pew holders, had proprietary rights in the church building; that the plaintiffs were informed and believed that a certain religious society calling itself “ The Bethel Society,” composed chiefly, if not wholly, of residents of the nearby village of South Chatham in the town of Chatham, had voted to remove the Bethel Church building to a point about one third of a mile eastward from its present location and had appointed the defendants a building committee of eight to carry the vote into effect, and that the so called Bethel Society had been recently organized for the purpose of removing the Bethel Church building; that the plaintiffs had remonstrated against the carrying into effect of the vote of the so called Bethel Society, but that the defendants proposed to carry out the vote by moving the building; that the removal of the church building was not required by any ground of necessity but purely for the slightly better convenience of a few of the leading spirits of the so called “ Bethel Society ” who resided near the proposed location of the building; and that the plaintiffs had no adequate remedy at law and were about to suffer irreparable damage to their rights and property and interests.</p> <p>The bill prayed that the members of the building committee of the “ Bethel Society ” should be restrained and enjoined from removing or causing to be removed from its present location in South Harwich the building known as the “ Bethel Church.”</p> <p>The case was referred to Raymond A. Hopkins, Esquire, as master. He filed a report, in which he found the following facts:</p> <p>The Bethel Society was organized in the year 1857 by people living in the villages of South Harwich and South Chatham, and was intended to be a free and independent church, having no connection with any denomination. The money was raised by a sale of the pews in the church building, thereafter to be erected, and the pews became the property of the owners, except that the society reserved the right to tax the pews yearly for the support of the meetings. The Bethel Church building was built from funds obtained by the sale of the pews. The pew owners were also called the proprietors. From 1858 to about the year 1875 the meetings were maintained by a tax levied upon the pews in the church building. After the year 1875 that method of raising money was changed and thereafter down to the time of the report the meetings were maintained by a system of voluntary contributions or offerings. Two plaintiffs in this case were at the time of the filing of the bill pew owners by inheritance from original owners of pews. The plaintiffs represented by power of attorney other persons not residents of Harwich who had interests in the pews by inheritance, and the plaintiffs and the persons represented by them were all opposed to the removal of the church building.</p> <p>After the year 1875, when the meetings were maintained by the system of voluntary contributions, all persons who attended services at the Bethel and who contributed to the support of the meetings became members of the society, so called. At the annual meetings held in the Bethel all persons who voted were pew owners or persons renting pews, according to article 8 of the constitution adopted at the time the church was built. Article 1 of the constitution was as follows: “ Article 1. In all meetings of the Society (or pew holders) a notice shall be posted up in the meeting house two weeks before said meeting.” There was no organized society other than as shown by the constitution. There was no church organization or parish.</p> <p>After the year 1875 the annual meetings of the church were held at the Bethel in South Harwich, also in the store of Levi Eldredge in the village of South Chatham, and in Village Hall in South Chatham, and for the last fifteen years the annual meetings had been held in Village Hall, and there had been no attendance from South Harwich.</p> <p>There were no by-laws or records to show who were members of the Society. Services had been held since 1858 every year down to the date of the report.</p> <p>The church building at the time of the report was in the town of Harwich within a few hundred feet of the Chatham line. There were no houses in the village of South Harwich east of the church. The proposed location for the church building was about three thousand feet east from the location at the time of the report and would be in the centre of the village of South Chatham.</p> <p>It was admitted by the defendants that a certain religious society, calling itself the Bethel Society, composed of residents of the village of South Chatham, had recently been organized, and had appointed a building committee of eight, who were the defendants in this case, and that the Bethel Society had been organized for the purpose of removing the Bethel Church building. Certain by-laws have been adopted by the recently organized Bethel Society.</p> <p>On December 4,1909, a warrant was issued for a meeting of the members of the Bethel Society in Village Hall in South Chatham, for Monday, December 13, 1909, to act upon certain articles. Article 2 reads as follows: “ To see if the Society will vote to authorize a new Society to be formed for the purpose of removing the Bethel Meeting House from its present location to a convenient site in the village of South Chatham.” Less than two weeks’ notice was given of this meeting. For many years, notwithstanding article 1 of the constitution, which provides for notice posted two weeks previous to the meetings, this article had not been complied with. Annual meetings were held giving less than fourteen days’ notice in the years 1863, 1864, 1868, 1869, 1871,1879, 1882, 1883 and 1890.</p> <p>At the meeting of December 13 no action was taken, but an adjournment was made until December 23, 1909, and at that meeting it was voted to remove the Bethel Meeting House from its present location to a convenient site in the village of South Chatham. No member of the society or pew owners from South Harwich attended this meeting. The plaintiffs remonstrated against the carrying into effect of the vote of the so called Bethel Society, whereby the building was to be moved. The number of persons residing in South Harwich who attended services at Bethel Church during the last year was limited to less than four persons, and none of these had been at all regular in their attendance, and no children residing in South Harwich attended the Sunday school. Most of the persons who attended Bethel Church lived in the village of South Chatham. The moving of the building would be convenient for the South Chatham people and the attendance probably would be increased by moving the building. The members of the Sunday school were all children from South Chatham, with the exception of two, who came from the village of West Chatham. The number of enrolled Sunday school scholars was fifty. The attendance at the Bethel meetings was from twenty-three to forty when conditions were favorable and from fifteen to twenty when not favorable. The attendance at the Sunday school was from twenty to forty.</p> <p>A fire in South Harwich about ten years before had destroyed a number of dwelling houses, which had not been rebuilt. It would be beneficial and for the convenience of a large portion of the congregation of Bethel Church if the church building was situated near the proposed new location.</p> <p>There were various amendments to the master’s report on findings requested by the parties, which are not important.</p> <p>The case came on to be heard on a motion for a final decree, upon the pleadings, the master’s report and his amendments thereto and all questions of law therein, before Richardson, J., who by agreement of the parties reserved and reported the case for determination by this court.</p>

<p>Equity Pleading and Practice, Master’s report, Cross bill. Equity Jurisdiction, Submission to jurisdiction.</p> <p>In a suit in equity, where a master flies a report containing findings for the defendant on all the points in dispute between the parties,°and the plaintiff files no objections or exceptions to the report, the findings of the master are conclusive, and the bill must be dismissed.</p> <p>In a suit in equity by a husband against his wife, who held the legal title to certain real estate, and against a person to whom she had leased the real estate, the plaintiff alleged that his wife held the real estate for his benefit, and prayed for an order compelling her to convey to him the legal title. The defendants filed a cross bill praying for a decree ordering the plaintiff in the original suit to remove from and surrender the real estate in question and to desist from prosecuting further an appeal from a decree against him in an ejectment process named in the hill and in the cross bill. The plaintiff demurred to the cross bill. The trial judge overruled the demurrer to the cross bill, and made a final decree dismissing the original bill and granting to the defendants the relief prayed for in their cross bill. The plaintiff, although he did not contend that his bill was not dismissed properly on the findings of fact, yet insisted that his demurrer to the cross bill should have been sustained and that the final decree was erroneous in giving the defendants affirmative relief based upon the cross bill. Held, that, as the cross bill did not seek for the determination of any questions other than those raised in the original bill, it was no less within the jurisdiction of the court than that bill itself, and that the affirmative relief was granted properly to the defendants.</p> <p>A plaintiff, who in a bill in equity to compel the conveyance to him of certain real estate alleged to be held by one of the defendants for the benefit of the plaintiff asks the court to pass upon the questions involved in an ejectment process then pending, cannot object to a cross bill, which raises the same questions, on the ground that the court which first takes jurisdiction of a subject matter will hold it to the exclusion of other courts, because by asking the court in equity to consider and adjudicate the very questions thus involved he has waived whatever right he had to the application of this principle to the case, and having submitted himself to the jurisdiction of the court in equity he cannot complain.</p>

<p>Tüx, On legacies and successions. Inheritance Tax. Constitutional Law.</p> <p>Under St. 1907, c. 563, § 1, as amended by St. 1909, c. 268, and St. 1909, c. 527, § 1, promissory notes owned and possessed by a testator in another State at the time of his death there, which are secured by mortgages on real estate in Massachusetts, are “ property within the jurisdiction of the Commonwealth ” and therefore are subject to the tax on legacies and successions.</p> <p>Promissory notes owned and possessed by a testator in another State at the time of his death there, which are secured by mortgages upon real estate in Massachusetts, are in the jurisdiction of this Commonwealth so as to subject them to a succession tax here within the doctrine of the Constitution of the United States that allows States to impose taxes only upon persons or property within their jurisdiction.</p> <p>Under St. 1907, c. 563, § 1, as amended by St. 1909, c. 268, and St. 1909, c. 527, § 1, a promissory note owned and possessed by a testator in another State at the time of his death there, which is secured by the assignment of a deposit book representing an interest in the funds of a voluntary association held in Massachusetts by trustees “for the purpose of investing in real and personal estate ” and “invested principally ” in real estate in this Commonwealth, is “ property within the jurisdiction of the Commonwealth ” and therefore is subject to the tax on legacies and successions.</p> <p>The question, whether promissory notes owned and possessed by a testator in another State at the time of his death, which are secured by a transfer of property which only can be forced to be applied to the payment of the notes by the aid of the Massachusetts courts, are for that reason within the jurisdiction of this Commonwealth so as to subject them to a succession tax under our laws, here was mentioned as having been raised in argument but was not passed upon. «</p>

<p>Bill in equity, filed in the Supreme Judicial Court on June 28, 1910, by the trustees under the will of Caleb Chase, late of Brookline, for instructions.</p> <p>The case came on to be heard before Mugg, J., who reserved it upon the pleadings for determination by the full court.</p> <p>Caleb Chase died on November 23, 1908, leaving no issue. His widow, Salome B. Chase, survived him, and died on March 26,1910. The will of Caleb Chase was executed on January 21, 1899. There were seven codicils. The first codicil was executed on December 26,1899, and the second codicil was executed on October 19,1901. The five later codicils are not material. The will and codicils were proved on December 16, 1908.</p> <p>The provision of the will giving directions to the trustees as to the distribution of the residue of a trust fund created by the will in regard to which the plaintiffs sought instructions, is quoted in the opinion.</p> <p>The provision in the first codicil referred to in the opinion was as follows : 1</p> <p>“Whereas by my said will I gave to my brother Erastus Chase ten thousand dollars, I now give to him. an additional ten thousand dollars, — making in all a legacy of twenty thousand dollars. [This brother was named in the residuary clause quoted in the opinion.]</p> <p>“ And Whereas by said will I gave a legacy to each of the following named persons, to wit: [naming thirty-three persons, twenty-six of whom were named in the residuary clause of the will quoted in the opinion and eight of whom were not named in that clause.]</p> <p>“ And whereas, upon mature reflection, I do not wish a legacy to any one of the persons named above to lapse by reason of his or her death prior to my decease, or for other cause, I now direct that no legacy to any one of the persons above named, shall lapse, but that, if any one of those named above shall predecease me, his or her share shall be distributed as if it were his or her intestate estate.”</p> <p>The provision in the second codicil referred to in the opinion was as follows:</p> <p>“ And whereas by my said will I gave the estate in remainder in all my real property, devised to my wife for life, to my niece Cora M. Berry, I now modify that devise and give to her the estate in remainder only in my real property in said West Harwich, which I have long occupied as a summer residence and have been accustomed to call my ‘ homestead,’ and which estate I inherited from my father.”</p>

<p>Bill in equity, filed in the Superior Court on March 4, 1910, seeking to compel the discharge of a mortgage, held by one of the defendants, upon premises owned by the plaintiff, the plaintiff alleging that the mortgage note had been fully paid to one Fisher who was the agent of the defendants.</p> <p>In the Superior Court the case was heard by Richardson, J. The material facts in evidence are stated in the opinion.</p> <p>At the close of the evidence the defendant asked for the following rulings: “ (1) On all the evidence the plaintiff is not entitled to recover. (2) There is not sufficient evidence in the case which if believed by the court would warrant a finding in favor of the plaintiff.” The rulings were refused. The judge filed the following memorandum of findings:</p> <p>“ I find, that the amount of the principal of said mortgage of $1,500, was, on or about May 23, 1900 (long after the maturity of the note) paid by Joshua Simpson — he then owning the equity — to Andrew P. Fisher in good faith, he then supposing he had authority to receive it; and he had no notice of the assignment of the mortgage to George H. Wilson, Jr. 1 find that neither the note nor the mortgage was ever delivered by George H. Wilson, Sr. to the defendant, George H. Wilson, Jr. Said Fisher was authorized by the defendants to receive the interest which became due on the mortgage, and did pay the interest which became due semi-anually on the mortgage, down to the death of said Fisher, which occurred in October 1909 — and it appears that he paid the interest over to George H. Wilson, Sr. who was entitled to receive it according to an agreement between the senior and the junior Wilson.</p> <p>“ Upon all the evidence in the case I find that Mr. Simpson believed and had reason to believe that Fisher had authority to receive payment of the principal as well as the interest; and if a loss must fall, which does not appear either upon the owner of the equity or upon the defendant, I think it must fall upon the defendants because Fisher had been put in the position by them of apparently being the proper party to whom payment might be made of the principal, as well as the interest. I think the plaintiff is entitled to the relief which he claims.”</p> <p>A decree for the plaintiff'was ordered; and the defendants alleged exceptions.</p>

<p>Constitutional Law, Interstate commerce. Corporation, Foreign: taxation. Tax. Statute, Construction. Words, “Foreign corporations.”</p> <p>A corporation, which was organized under the laws of Michigan for the purpose of mining, producing and selling copper and which operates in Michigan a mine and plant for the mining, producing, smelting and refining of copper and sells its product exclusively through another corporation organized in New Jersey for delivery to persons residing in Massachusetts and the other States and in foreign countries, not more than five per cent of the sales being consummated in Massachusetts, and which maintains in this Commonwealth a usual place of business consisting of an office in Boston for the use of its president and treasurer and for the general financial management and direction of its affairs, for meetings of its board of directors and for the transfer of its stock, is not so engaged in interstate commerce as to preclude this Commonwealth from levying upon it an excise tax and providing that the collection of such tax may be enforced by restraining the further prosecution of the business of the corporation in this Commonwealth. Attorney General v. Electric Storage Battery Co. 188 Mass. 239, followed; and Western Union Telegraph Co. v. Kansas, 216 U. S. 1, and Pullman Co. v. Kansas, 216 U. S. 66, distinguished.</p> <p>It is not to be inferred that the Legislature intended that St. 1909, c. 490, Part III. §§ 39, 56, imposing an excise tax upon the foreign corporations described in St. 1903, c. 437, § 58, should go beyond the constitutional authority of the Commonwealth and levy a tax upon a foreign corporation having a usual place of business within this Commonwealth and conducting here as its principal function some kind of interstate commerce.</p> <p>St. 1909, c. 490, Part III. §§ 39, 66, imposing an excise tax upon the foreign corporations described in St. 1903, c. 437, § 58, is inapplicable to a foreign corporation, for the taxation of which there is no special provision in our statutes and which is engaged in conducting some kind of interstate commerce for hire as its principal function and at the same time is engaged in intrastate business so closely connected with the interstate commerce that it could not be given up without serious detriment to the interstate commerce.</p>

<p>Bill is equity, filed in the Superior Court on April 10, 1910, in accordance with the rescript sent with the decision reported in 204 Mass. 378. The suit has been before this court on previous occasions, as described in the opinion and is reported in 192 Mass. 547 and 204 Mass. 378.</p> <p>The bill in substance alleged that the defendant on August 21, 1902, had brought a suit in equity against the plaintiffs and one Thaddeus F. Mulrey seeking to have the plaintiffs convey to her certain real estate which had descended to them from their father, who was alleged by fraudulent acts as administrator of the estate of the defendant’s uncle in 1879 to have procured it to be conveyed through a third person to himself; that in that suit an order for a decree was entered directing such a conveyance; that thereafter a brother of the plaintiffs, one John R. Mulrey, filed a petition to be admitted as party defendant, which was allowed, and that, after a further hearing, the bill was dismissed as to John R. Mulrey; that thereafter the plaintiffs procured the counsel for John R. Mulrey to act for them; that the reason that the bill was dismissed as to John R. Mulrey was because the judge found on the further hearing of the case after John R. Mulrey was admitted as party defendant in the original suit that the father of the defendants (the plaintiffs in this bill) had not misled the plaintiff in the original suit (the defendant herein) by any statements that he made or any acts that he did after the sale by him as administrator in 1879.</p> <p>The bill of review was heard by Pierce, J., who admitted in evidence subject to exceptions by the defendant a transcript of the testimony introduced at the hearing before Fessenden, J., upon the reopening of the case after the filing of an order for a decree that the plaintiffs should convey the property to the defendant as above described and after the filing of the answer of John R. Mulrey which contained statements of the judge substantiating the allegations of the bill of review; and also evidence tending to show that the plaintiffs’ present counsel was the counsel who had appeared originally only for John R. Mulrey, and had not been their counsel until after the defendant’s suit had been dismissed as to John R. Mulrey.</p> <p>The judge made an order for a decree in favor of the plaintiffs ; and the defendant alleged exceptions.</p>

<p>Labor Union. Equity Pleading and Practice, Report. Equity Jurisdiction, To enjoin wrongful and malicious act. Evidence, Presumptions and burden of proof.</p> <p>In a suit in equity by an employer of labor against officers and members of a labor union, where a material question was whether a certain strike, begun on a May 2, had ended before the following October 14, the judge who heard the case reported to this court his finding of the following facts: The strike was declared May 2. Eleven men left the plaintiff's employ and a few days thereafter the plaintiff secured men to take their places and thereafter continued with a force which was adequate and as large as he desired. Of the eleven who left the plaintiff’s employ, eight at once secured new employment in the same city and three left the Commonwealth. A short time after the strike began an international organization, with which the striking union was affiliated and which at first had aided it, ceased to do so. Held, that the strike was over on October 14.</p> <p>Upon the report under R. L. c. 159, § 29, to this court by a judge of the Superior Court of the facts and questions of law arising in a suit in equity, this court may draw such inferences from the facts found in the report as are reasonably to be made from and are not inconsistent with any of the facts reported.</p> <p>The members of a teamsters’ labor union, more than four months after a justifiable strike against an employer of teamsters in a city has ended, cannot lawfully drive about the streets of the city a wagon bearing initials indicating the name of the union and placards stating “ The union teamsters are on strike for hours and wages ” at such employer’s place of business.</p> <p>An employer of labor may maintain a suit in equity to enjoin officers and members of a labor union from driving about the streets of a city containing the employer’s place of business, more than four months after a strike which had been declared against the employer had ended, wagons bearing initials indicating the name of the union and placards stating, “ The union teamsters are on strike for hours and wages” at such employer’s place of business, although he is unable to prove the existence of any loss occasioned by such acts, the acts sought to be enjoined being unjustifiable and manifestly intended merely to injure the plaintiff.</p>

<p>Insurance, Life : misstatements in application.</p> <p>At the trial of an action upon a policy of insurance upon the life of a woman, it appeared that the insured signed for the defendant’s medical examiner a statement containing a negative answer to the question, “ Have you ever had gravel, bladder or kidney disease ? ”, and that a little more than four months before she had been treated for Bright’s disease of the kidneys in some form. There was evidence tending to show that she was not told that she had Bright’s disease in any form, and also evidence that the form of Bright’s disease that she then had was acute, which was curable, that after being at the hospital about two months she was discharged as “ improved ” and resumed her occupation, which was the care of a large boarding house where she did all the cooking, and that she continued at her occupation for over two years without interruption by sickness, when she was taken ill and died of “ nephritis complicated with diabetes.” By the terms of the policy, if the answer to the medical examiner’s question was a misrepresentation and either was made with actual intent to deceive, or was as to a matter which increased the risk of loss, there could be no recovery upon the policy. The presiding judge ordered a verdict for the defendant on the ground that the insured had made a misrepresentation which as a matter of law increased the risk of loss. The plaintiff alleged exceptions. Held, that the questions, whether the disease with which the insured was afflicted before she made the statement in question was the acute or chronic form of Bright’s disease, and whether, if acute, it increased the risk of loss, were for the jury, and that the exceptions must be sustained.</p>

Tort against a telegraph company for a refusal to accept from the plaintiff for transmission at the ordinary rates a message to which he had attached a certain printed notice unless he would remove such notice from the message, the declaration containing three counts, the first at common law, the second under R. L. e. 122, § 9, for damages, and the third under §§ 9,10, of that chapter to recover the penalty or forfeiture provided for by § 10. Writ dated May 8, 1908.

<p>Replevin. Trustee Process. Attachment. Warehouseman. Practice, Civil, Exceptions.</p> <p>Under R. L. c. 190, § 8, replevin will not lie to recover goods exceeding $20 in value, which were under attachment on trustee process in the hands of the defendant in replevin as trustee when they were taken from him on the replevin writ, although the property thus taken on the replevin writ consisted of necessary household goods less than $300 in value, which are exempt from attachment under R. L. c. 177, § 34, cl. 2, the remedy of the plaintiff, if any, being in tort against the officer who served the trustee process and the attaching creditor.</p> <p>Although it here was said, that the provision of St. 1907, c. 682, § 19, excusing a warehouseman from liability for refusing to deliver goods deposited with him, adversely claimed, until he has had a reasonable time to ascertain the validity of the adverse claim, has no application to the refusal of a warehouseman to deliver goods attached in his hands by trustee process as the property of the depositor, the refusal of the trial judge in the present case to give an instruction to this effect was held not to be a sufficient ground for sustaining an exception, because the refusal of the defendant to deliver the goods to the plaintiff was justified on other grounds independent of the statute referred to, so that the error of the judge in refusing to give the instruction did not and could not have operated prejudicially to the plaintiff.</p>

<p>Frauds, Statute of, Promise to pay debt of another. New York.</p> <p>In an action by one woman against another on an account annexed for board and lodging furnished by the plaintiff to a brother of the defendant upon an alleged promise of the defendant to pay for it, the defense relied upon was that the promise of the defendant was a promise to pay the debt of another under the statute of frauds of the State of New York, where the contract was made. It appeared that the statute of frauds of that State included “ a special promise to answer for the debt, default or miscarriage of another person ” and that this had been construed by the courts of New York to apply, like the similar provision in R. L. c. 74, § 1, to collateral and not to original promises and undertakings. The plaintiff testified that, before the board and lodging or any part of it was furnished, the defendant said to her “ If you will take care of William [the defendant’s brother], I will pay you when I can.” This was denied by the defendant but was corroborated by other evidence of the plaintiff. The defendant introduced evidence which tended to show that her undertaking was collateral and not original in its nature. The presiding judge submitted the case to the jury, who returned a verdict for the plaintiff. Held, that on the conflicting evidence the case rightly was left to the jury.</p>

<p>Contract against the town of Dedham upon a covenant of warranty contained in a deed of the collector of taxes of that town dated January 21, 1908, under the requirement of R. L. c. 13, § 43. Writ dated May 21, 1908.</p> <p>In the Superior Court the case was submitted to King, J., upon an agreed statement of facts, as follows:</p> <p>On January 17,1908, the tax collector of the town of Dedham sold the parcel of land described in the plaintiffs’ declaration to the plaintiffs at a tax sale, and in pursuance of such tax sale executed and delivered the deed, of which a copy was annexed to the plaintiffs’ declaration.</p> <p>The consideration paid by the plaintiffs was as stated in the deed, $54.60, which was the amount of the tax properly assessed upon the property, plus interest and the costs of collection.</p> <p>There was an alienation of the land in question on January 24,1905.</p> <p>The land was described in the notice of sale which the tax collector published preceding the sale, as set forth in the copy of the notice annexed to the plaintiffs’ declaration.</p> <p>The plaintiffs on August 11,1905, brought proceedings to enforce their title to the land, and in those proceedings it was decided by the Supreme Judicial Court for the Commonwealth that the description in the notice of sale did not comply with the law and that the plaintiffs acquired no title to the land by the deed. See Williams v. Bowers, 197 Mass. 565.</p> <p>The plaintiffs did not within two years after the date of the deed offer by writing given to the collector to surrender and discharge their deed or to assign and transfer to the town all their right, title and interest in the premises, nor did the collector within two years after the date of the deed give notice to the plaintiffs to release any interest which they might have in the land under said deed and to receive from the town the amount paid therefor with interest at ten per cent or to file with the collector a statement that they refused to release such interest.</p> <p>The deed of the collector contained the covenant required by R. L. c. 13, § 43, that the sale had in all particulars been conducted according to law, and the action was brought upon that covenant.</p> <p>The court was authorized to draw such inferences of fact as properly might be drawn from the foregoing agreed statement of facts.</p> <p>The plaintiffs asked the judge to make the following rulings:</p> <p>“ 1. In order to sue on the covenant of warranty it was not necessary for the plaintiffs within two years after the date of their deed to offer by writing given to the collector to surrender and discharge their deed or to assign and transfer to the town all their right, title and interest in the premises.</p> <p>“ 2. The town is liable on the covenant.</p> <p>“3. On the facts stated in the agreed facts judgment should be for the plaintiffs for $54.60 and interest from January 17,1903.”</p> <p>The judge ruled that there was a breach of the covenant, but refused to make any of the above rulings requested by the plaintiffs, and ruled, as requested by the defendant, that on all the agreed facts the plaintiffs could not recover, and that the plaintiffs, having failed to offer by a writing given to the collector to surrender and discharge their deed or to assign and transfer to the defendant all their right, title and interest in the premises within two years from the date of their deed, could not recover. He found as matter of law for the defendant on the agreed facts, drawing no inferences of fact therefrom.</p> <p>The plaintiffs alleged exceptions.</p> <p>The judge ordered judgment for the defendant. It did not appear that judgment was entered in accordance with this order, but it was stated in the record that the plaintiffs appealed.</p>

<p>Nuisance. Trespass, Continuing. Evidence, Presumptions and burden of proof.</p> <p>In an action of tort for damages alleged to have been caused by the maintenance of a nuisance which the defendant refused to discontinue when notified by the plaintiff to do so, it appeared that the plaintiff and the defendant were the owners of adjoining lots of land upon a city street, that when the plaintiff bought his land there stood upon the land of the defendant a brick building, erected nine years earlier, of which the wall above ground on the side toward the plaintiff’s land extended to the boundary line, that the plaintiff in excavating for the foundations of a brick building to be built upon his own land discovered that all along the dividing line the foundation stones of the defendant’s building projected irregularly into the plaintiff’s land from ten to twelve inches and interfered materially with the construction of the plaintiff’s building, that the defendant on notice from the plaintiff, after a delay which was alleged to have caused loss to the plaintiff, caused the stones to be cut off up to the dividing line, except for a distance of twelve or fourteen feet near the front of the properties, where the building inspector of the city refused to allow this to be done on the ground that it would weaken the wall of the defendant’s building, and that the projections thus remaining caused the plaintiff additional expense in the erection of his building. Held, that, although the plaintiff could not sue for the original trespass, because he was not the owner of the land encroached upon at the time the trespass was committed more than six years before the date of the writ, the maintenance of the projecting stones by the defendant constituted successive or continuing trespasses or nuisances for which the plaintiff could maintain an action to recover any damages caused to him thereby.</p> <p>In an action by the owner of a lot of land on a city street against the owner of the adjoining lot for a nuisance maintained by the defendant or continuing trespasses committed by him in maintaining foundation stones projecting into the plaintiff’s land, if the defendant relies in defense upon an alleged right or license obtained from the former owner of the plaintiff’s land, the burden is on the defendant to show that he had such a right or license.</p>

<p>Bill in equity, filed in the Probate Court on February 28, 1910, seeking instructions as to the residuary clause, quoted in the opinion, of the will of John Ashton, late of Newton.</p> <p>The proceedings in the Probate Court are described in the opinion.</p> <p>On appeal to this court, the case was heard by Hammond, J. Besides the facts stated in the opinion, the single justice found that the testator made his will on December 17, 1863, and that he died on May 14,1867. The will contained many bequests and then left the residue of the estate, after the death of the testator’s wife, to trustees with directions as to the disposition of the income. After the death of the survivor of the testator’s children under twenty-one years of age or without issue, the trustees were to make certain specific payments, and then to dispose of the residue according to the clause quoted in the opinion. The testator’s last surviving child was Kate Ashton, who died on January 13, 1908, without issue.</p> <p>• The single justice also found that the testator and Governor Claflin and Mrs. Claflin were neighbors and intimate, and that in 1867, 1868 and 1869 Mrs. Claflin was one of the managers and officers of the Discharged Soldiers’ Home. He also found that “ at the time this will was made the Massachusetts General Hospital was, and for some years had been, known and called as well the Massachusetts Hospital as the Massachusetts General Hospital. I find that at the time this will was made, provision had been made there for the care of diseased and wounded soldiers, —not as a Home for Discharged Soldiers, but as a place where wounded and diseased soldiers should be treated, and that that was generally known, ■— that a wounded soldier could go there as any other patient could. But I do not find that this institution made any provision for the care of discharged soldiers as such or that it was intended as a Home for Soldiers.”</p> <p>The single justice reserved the case upon certain facts found by him for determination by the full court.</p>

<p>Equity Jurisdiction, Laches, For an accounting, To relieve from results of breach of confidence by fiduciary, To re-form promissory note. Bills and Notes. Evidence, Admissions by conduct. Equity Pleading and Practice, Interest. Interest.</p> <p>There was no loches in the bringing in January and July of 1909 of two suits in equity seeking an accounting as to thirteen transactions occurring during a period from October, 1903, to July, 1907, as to investments and reinvestments of sums of money and securities given by three elderly women of practically no business experience to the defendant, a distant relation about thirty years of age, educated as a lawyer, with whom they had dealt from a feeling of blind and unquestioning trust and who knew and intended that they should so act.</p> <p>Two elderly women of intelligence and education, who knew the character and meaning of interest on money and of the time at which a note is payable but had had scarcely any business experience and were almost like children in business matters, trusted implicitly in certain business transactions a man about thirty years of age, who was a relation of theirs and for a long time had been intimate with an aunt, with whom they had lived up to the time of her death, and likewise had been trusted by her, and who had had a college and law school education and knew of the extent of their business experience and capacity. The aunt died leaving her property to her two nieces. The man at that time owed the aunt’s estate $2,050. Knowing that the nieces would act upon his suggestion with a feeling of blind and unquestioning trust in him and would desire to accommodate him, the man, without making any false or fraudulent representation of fact in the matter, and without any coercion or inducement on his part, and also without any warning or discussion or suggestion that they should consult an attorney who he knew was acting for the aunt’s estate, for his own advantage and not in the interest of the aunt’s estate asked each of them to accept for her share of the debt due to the aunt’s estate a ten year note for $1,025 bearing interest at four per cent, and, without considering or appreciating the possible effect of their accepting the notes, they complied with the request because of their unquestioning trust in him and of a desire to accommodate him and partly from a desire to help certain speculations which they knew the man was making and possibly to participate therein. Thereafter the women received various semiannual payments of interest at four per cent. Three years after the giving of the note a suit was brought by one of the sisters on her own behalf and ás assignee of the claims belonging to the other sister and to the estate of the aunt for an accounting and for a cancellation of the notes, and the judge who heard the case found that the women were induced to receive the payments of interest by undue influence of the defendant, and that the notes should be re-formed into demand notes carrying interest at four per cent until the filing of the bill in equity and thereafter at six per cent. Held, that the bill was not barred by loches and that the finding and decree of the judge were warranted.</p> <p>Wherever two persons stand in such a relation that, while the relation continues, confidence necessarily is reposed by one and the influence which naturally grows out of that confidence is possessed by the other, and the confidence is abused or the influence is exerted to obtain an advantage at the expense of the confiding party, the person so availing himself of his position will not be permitted to retain the advantage, although the transactions could not have been impeached if no such confidential relations had existed.</p> <p>The mere fact that, after an elderly and confiding woman received from a young man in place of a debt owed by him to an estate in which she was beneficially interested a ten year promissory note of which he was the maker and she was the payee, which was given under such circumstances as to constitute a breach of a fiduciary relation in which the maker stood toward the payee, the payee received certain payments of interest upon the note, is not conclusive evidence of an election on the part of the payee to confirm the taking of the note, but, at strongest, can amount only to an admission by her, and, like all bare admissions, is merely evidence to be considered on the question whether such election was made.</p> <p>Neither the mere fact that an elderly woman, who was the payee of a check, passed the title to it to a man who stood in a relation of confidential business adviser to her by passing it through his father, nor the fact that an attempt was made first to indorse the check to the father and then to have it indorsed by the father to the confidential adviser, is conclusive evidence that the amount of the check was lent to the father by the payee; but at most it is evidence to be considered on that point.</p> <p>A suit in equity was referred to a master, who in his report found a certain sum of money to be due to the plaintiff, which was made up of certain payments made to the defendant by the plaintiff and simple interest thereon. The report was confirmed and a final decree was made directing the defendant to pay to the plaintiff the aggregate amount found due by the master and interest thereon at six per cent from the date of the filing of the report. Held, that under E. L. c. 177, § 8, the plaintiff liad a right to have interest so computed.</p>

<p>Agency, Scope of employment.</p> <p>If the owner of an automobile employs one, who is not in his general employ, to drive the automobile from a garage in Brookline to a shop less than a mile away in Brookline, and the driver without the knowledge or consent of the owner first takes the automobile to a square in Brookline, which is not on the way to the designated shop, has lunch, then with a friend drives the automobile to a shop in Boston six miles farther out of his way for the purpose of getting a chain for his own use, and then, just after he has turned back to go to the place to which he had been directed to go by the owner, negligently runs over a traveller on a street in Boston, who was in the exercise of due care, the owner of the automobile is not liable to the traveller for injuries thus sustained, because the act of the driver was not within the general scope of his employment.</p>

<p>Practice, Civil, Appeal, Discontinuance. Police, District and Municipal Courts.</p> <p>The defendant in an action brought in a municipal court appealed to the Superior Court from a judgment for the plaintiff, and then failed to enter his appeal in the Superior Court The plaintiff failed for more than a year to file under R. L, c. 157, §§ 22, 23, a complaint for an affirmation of the judgment of the municipal court. Held, that the right of the plaintiff to discontinue his action was the same after the appeal as before, and that his failure seasonably to make a complaint for an affirmation of the judgment was such a discontinuance.</p>

<p>Execution, Levy: amendment of return. Practice, Civil, Amendment of officer’s return.</p> <p>To'constitute a valid levy by a deputy sheriff under an execution upon real estate which previously had been attached in the action in which the execution issued, no more formal overt act is necessary than for the officer to make a memorandum for the levy on a piece of paper and to direct a clerk in his office to make the necessary copies for notice to the judgment debtor and for recording and publication and to prepare the return for the signature of the deputy sheriff.</p> <p>At the hearing of a motion by a deputy sheriff to amend, so that it would conform to the truth, a return by him upon an execution as to a levy, so that, instead of reading that he levied upon the interest of the debtor in certain real estate as it existed on the date of the levy, it should read that he levied upon the debtor’s interest as it was at the time of an attachment thereof made at the commencement of the action, there was evidence tending to show that the attachment had been made, that the execution had been handed to the deputy sheriff with an instruction to levy upon the property attached, the date of the attachment being given to him, that he then had made a memorandum for the levy on the interest of the debtor in the real estate as of the date of the attachment upon a piece of paper, which at the time of the hearing was lost, and had directed a clerk in his office to make the necessary copies for notice to the debtor and for publication and recording and to prepare the return for the signature of the deputy sheriff j that the notice given to the debtor and published in a newspaper stated the levy in accordance with the proposed amended return, and that the return upon the copy of the execution filed in the registry of deeds and upon the original execution stated it as covering the debtor’s interest on the later date. The judge found as a fact that the levy was made as stated in the amendment and allowed the motion. Held, that the action of the judge was within his power and was warranted.</p>

<p>Savings Bank, Liability of stockholders, Receivership proceedings. Receiver.</p> <p>After a receiver of a trust company has been appointed and has collected practically all of its assets and has distributed to the depositors a dividend comprising a part only of the amounts due to them, so that, in order to pay to the depositors the balance due them, it has become necessary to enforce against the stockholders the liability created by R. L. c. 116, § 30, a depositor, although the receivership proceedings still are pending and the company has in its possession nothing which can be attached or taken on execution, may maintain an action at law against the corporation for the sole purpose of laying the foundatian of enforcing under R. L. c. 110, § 60, the liability of the stockholders by recovering a judgment against the corporation, causing a demand to be made on an execution, and the execution to be returned wholly unsatisfied after thirty days.</p>

<p>Negligence, Railroad.</p> <p>At the trial of an action against a railroad corporation, operating a train by electricity, for personal injuries alleged to have been caused by the closing upon the plaintiff’s fingers of a door between the smoking and baggage compartments of a combination car through which the plaintiff was passing in leaving the train after it had stopped at a station, it appeared that the door had a catch at the bottom designed to hold it open and an arrangement at the top designed automatically to close it when it was not held open, and there was evidence that some one other than an employee of the defendant opened the door, that when the plaintiff reached it it was open and “ neither swinging nor moving,” and that as he put his hand on the doorjamb to steady himself in turning round, no one having touched the door to close it, it came to upon his fingers. There was no direct evidence that the catch was defective. The defendant’s baggage master testified that it was his duty to open the door when the train stopped, and that he did not do it on this occasion because it already had been opened. A verdict was ordered for the defendant. Held, that the verdict was ordered rightly, because on the evidence it was conjectural whether the door swung to because of a defect in the catch or because it was not properly set on the catch by the person who opened it, and because there was no evidence that the baggage master was under any duty to see that the door was set back properly when it was opened by some one other than an employee of the defendant.</p>

<p> Municipal Corporations. </p> <p>If the municipal council of a city in conducting the affairs of the public act with ill-will toward a certain individual instead of acting only with a due regard to the interests of the public, this does not give the subject of their ill-will a cause of action in tort against the members of the council, who are answerable only to the public in conducting public affairs.</p>

<p>Tort for personal injuries received as the plaintiff was leaving a closed electric car of the defendant on Highland Avenue in Somerville, as stated in the opinion. Writ dated April 6, 1908.</p> <p>In the Superior Court the case was tried before Morton, J., who, at the close of the plaintiff’s evidence, ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The facts are stated in the opinion.</p>

<p>Thbee actions of tobt growing out of an accident which resulted in the death of the plaintiff’s child, Doris, a little girl three years and four months of age. Two of the actions, in which the plaintiff sued as administrator, were brought to recover for the death and the conscious suffering of his intestate. The third action was brought by the father to recover for loss of services and for expenses due to the injury. Writs dated October 29, 1906.</p> <p>In the Superior Court the three cases were tried together before Lawton, J. There was evidence tending to show the following facts:</p> <p>Doris Ingraham, who was three years and four months of age, lived with her father and mother on Salem Street in the town of Lynnfield. There were two other children in the family, one old enough to be at school and the other a baby. The father worked in Peabody, and was accustomed to leave home in the morning at six o’clock, and not to return until half-past six in the afternoon. The mother did her own housework and took care of her children.</p> <p>There was a single track of the defendant’s railroad on Salem Street, over which it operated cars between North Saugus and Salem. The cars ran each way once an hour. The street was an ordinary village street, not thickly settled, and the tracks were on the opposite side of the street from the Ingraham house.</p> <p>The accident happened at about eleven o’clock in the forenoon of October 7, 1906. A little before eleven the mother was upstairs, sweeping a chamber, and Doris was in the same room, playing with the baby. Just before eleven Doris looked out and saw a little boy named Newhall, four years and three months old, in the yard, and said to her mother that she was going down to play with him. A little later the mother went downstairs, and, looking out of the window, saw Doris playing with the boy in the yard. It was then five minutes of eleven. The mother then sat down to rock her baby to sleep. She did not see Doris leave the yard, and did not know she had left it until she was brought home after the accident, a little after eleven. She repeatedly had instructed the child not to leave the yard, and had explained to her the dangers there were in the street from cars and automobiles. She never had known of her going out into the street alone before."</p> <p>The yard was surrounded by a wall on three sides, but had no fence or wall on the Salem Street side, where it was open to the street. It appeared that the two children, Doris and the New-hall boy, left the yard and went down the street about eight hundred feet to a place where two men were cutting down an apple tree in a yard on the other side of the street. They went through the gate, into this yard when the tree was nearly ready to fall, and one of the workmen told them to move out of the way. Thereupon Doris went out of the gate and started back toward her home. In doing so she went diagonally across the track, which was on that side of the street, about eight feet from the wall. When she started across toward the track,. the car was about one hundred and fifty feet away. The track was nearly straight and slightly down grade. The car was going slowly, — the motorman testified about four miles an hour. One of the men cutting the tree testified that the motorman was looking toward him and the tree, and that before the accident the child was walking with her back toward the approaching car.</p> <p>The motorman testified that he saw the child in the gutter beside the track approaching the track, when he was from one hundred and fifty to two hundred feet away and saw her on the track when he was one hundred and twenty-five feet away from her and with his car going about four and a half miles an hour. He said he put on his brake and also attempted to stop this slowly moving car with the reverse, but failed to do so and ran over the child. There was evidence that, when the car was finally brought to a stop, the child was under the rear fender, that her body was then about eight or nine feet from where it was first struck and had been carried along that distance by the car. The car was from twenty to twenty-five feet long.</p> <p>There was evidence of experiments made by the motorman after the accident, from which the jury properly might have inferred that with the brakes in good condition the car, when going four miles an hour on a slight grade, should have been stopped in about twenty-five feet. The motorman ascribed his failure to stop the car on this occasion to the fact that there were leaves on the track which rendered it slippery; but two witnesses for the plaintiff -testified that there were no leaves on the track that day and no signs of their having been any. There was evidence that the motorman did not sound his gong. Although he testified that there was sand on the car which was intended to be used on slippery rails, he made no effort to use it.</p> <p>At the close of the evidence, the defendant asked the judge to rule as follows:</p> <p>“1. There is no evidence which would warrant a finding that the defendant failed to provide proper brakes or other appliances for bringing its car to a stop.</p> <p>“ 2. There is no evidence which would warrant a finding that the defendant’s servants were grossly negligent.</p> <p>“ 3. There is no evidence which would warrant a finding that the equipment of the defendant was in any respect defective.</p> <p>“4. Upon all the evidence the plaintiff is not entitled to recover.”</p> <p>The rulings were refused and a verdict was returned for the plaintiff in each case. The defendant alleged exceptions.</p>

<p>Tort for personal injuries due to the plaintiff slipping on the step of a closed electric car of the defendant as she was leaving the car, and alleged to have been caused by mud and slime negligently allowed to remain on the step. Writ in the Superior Court dated March 15,1907.</p> <p>The case was tried before Crosby, J. Besides those stated in the opinion, the following facts were in evidence:</p> <p>The plaintiff testified that she took the car in question at Roxbury Crossing in Boston to go to Jamaica Plain, and noticed mud and slime on the step both as she entered the car and when she was leaving it at the corner of Creighton Street and Centre Street in Jamaica Plain, which was about a mile from Roxbury Crossing.</p> <p>There was in evidence a rule of the defendant reading as follows : “ Conductors must see that their cars are always in proper condition for passengers, and when necessary at the end of each trip sweep them out and dry the seats of open cars.”</p> <p>The conductor, besides testifying as stated in the opinion, testified that, “if there had been mud or slime on the step at Roxbury Crossing it would have been his duty to have scraped it off."</p> <p>There was a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Two actions OF tort, each against the city of Chelsea, for personal injuries alleged to have been sustained by the respective plaintiffs on October 8, 1907, on a public highway of the defendant called Sixth Street, from the falling upon the plaintiffs of a large limb of a tree that long had been in a dangerous condition, of which the defendant had notice. Writs in the Municipal Court of the city of Boston dated January 14,1908.</p> <p>On appeal to the Superior Court the cases were tried togetlier before Sanderson, J. There was evidence warranting the finding of the facts which are stated in the opinion.</p> <p>At the close of the evidence the defendant asked the judge to give to the jury, among others, the following instructions:</p> <p>“1. That the defendant cannot be held responsible in this form of action because its proper officers did not take any precaution to safeguard the people travelling upon the street in question from the danger of the limb in question falling.</p> <p>“ 2. The plaintiffs cannot recover merely because of the fact that the tree in question was defective in the manner set forth in the plaintiffs’ declarations.</p> <p>“ 3. Upon all the evidence in the case, a verdict must be for the defendant.”</p> <p>The judge refused to give these instructions, except the second, which, as stated in the opinion, was given in substance.</p> <p>The defendant excepted to a portion of the charge, wherein the judge instructed the jury that they had a right to consider whether or not any safeguard had been made use of to protect the people travelling upon the street in question, and also, that they had a right to consider whether or not some application had been made to the proper authorities for the removal of the tree or limb in question.</p> <p>The jury returned a verdict for the plaintiff in each of the cases, in that of Lucy Wright in the sum of $490 and in that of Bertha Murray in the sum of $1,500. The defendant alleged exceptions.</p>

Tort, by the administratrix of the estate of Martin A. Greene, for the conscious suffering and death of her intestate by reason of injuries received on May 24,1906, while he was in the employ of the defendant as a lineman, from a short circuit of electricity created when the end of a monkey wrench which the plaintiff’s intestate was using came in contact with a large feed cable at a joint or splice, which was alleged to have been in a defective condition in regard to its…

<p>Negligence, Invitation, Licensee. Elevated Railway.</p> <p>A corporation, which operates an elevated railway and maintains an elevated terminal and transfer station, in the centre of which is a single track for its elevated trains constructed in a pit four feet below the surface of the station platform, and which also maintains a subway, crossing under this pit, by which passengers may pass from one side of the station to the other in order to take surface cars which are run from the ground to the level of the station platform on inclined tracks leading to the outward sides of the platform, does not invite passengers to cross from one side of the station platform to the other by using as bridges the platforms of the cars of an elevated train, which is standing in the pit with its gates open for the purpose of admitting passengers, merely because it does not forbid persons from crossing in this way when its servants see them doing it and tolerates such a practice without taking any active steps to prevent it.</p>

<p>Tort, by a carpenter against his alleged employer, for personal injuries sustained on October 24, 1908, caused by the collapse of a barn in process of construction on Eastern Avenue in Fall River, in which the plaintiff was at work. Writ dated December 16, 1908.</p> <p>In the Superior Court the case was tried before Fox, J. The defense relied upon was that one Perrault, who was in charge of the construction of the barn, was an independent contractor. The evidence upon this question is stated in the opinion.</p> <p>At the close of the evidence the defendant asked the judge to rule that upon the pleadings and the evidence the plaintiff was not entitled to recover. The judge refused to make this ruling.The plaintiff waived all except the third count of his declaration, which alleged negligence of a superintendent, and the judge submitted the case to the jury on that count.</p> <p>The jury returned a verdict for the plaintiff in the sum of 1175 ; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Negligence, Employer’s liability, Elevated, Railway. Street Railway. Words, “Elevated train.”</p> <p>The motorman of a surface car, operated by a corporation which also operates an elevated railway, is not a person in charge or control of an “ elevated train ” within the meaning of R. L. c. 106, § 71, as amended by St. 1908, c. 420, when he is running the car up an incline to discharge passengers to be transferred to trains running on the corporation’s elevated railway and to receive passengers transferred to the car from trains running on such elevated railway, and, if the conductor of another like surface car, operated by the same corporation, is injuréd through the negligence of such a moto-man while thus running the car up the incline, his only remedy is against the motorman.</p> <p>Whether the provision of St. 1908, c. 420, amending R. L. c. 106, § 71, that “an elevated car which is in use by or which is in possession of an elevated railway corporation, shall be considered as a part of the ways, works or machinery of the corporation which uses or has it in possession,” includes a surface car operated by a corporation, called an elevated railway company, which operates both elevated railways and surface lines, while such car is being used to connect with trains running upon the elevated structure, here was referred to as a question which did not arise in the present case.</p>

<p> Sale. False Representations. </p> <p>Where one has submitted to a prospective purchaser a drawing of a certain appliance which he offered to make for the purchaser and in good faith has made representations to the purchaser as to what in his opinion an appliance made in accordance with the drawing ought to do, and the purchaser, relying on the representations, orders the appliance to be made according to the drawing and purchases it, the seller can recover the purchase price although the appliance fails to do what the seller gave as his opinion that it ought to do.</p> <p>In an action upon items of an account annexed based on an order in writing by the defendant upon the plaintiff for drought arms, to be made according to a “ drawing submitted," for the extracting of root beer from kegs, the defendant offered evidence tending to show “ that during preliminary -negotiations and at the time the order was signed the plaintiff represented to the defendant that it would manufacture special drought arms to be used for the purpose of drawing root beer from wooden kegs, which would deliver automatically two streams of different volume and at different degrees of velocity and which would be durable and practical for the purpose for which they were designed, and submitted to the defendant a drawing or plan of a drought arm, claimed by the plaintiff to be durable and practical for the purpose aforesaid and represented that it would manufacture for the defendant special drought arms in accordance with said plan, which would accomplish the purposes aforesaid; that the defendant, relying upon said representations and believing them to be true, ordered the plaintiff to manufacture for” him the drought arms described in the account annexed, but that the drought arms delivered “ were found not to be durable and practical for the use for which they were intended and would not deliver automatically two streams of different volume and at different degrees of velocity.” The defendant contended that, while the representations were not “ fraudulent in fact ” they amounted “ in law to fraudulent representations ” and were a defense to the action. There was undisputed evidence, which the defendant did not offer to contradict, that the representations made by the plaintiff were not as to his knowledge of what drought arms like those shown in the “drawing submitted” would do, but of what in his opinion they would do. Held, that the evidence offered fell short of tending to show that the plaintiff had made any representations which could be shown in defense of the action, such representations as were made being of matters of opinion and not of knowledge.</p>

Contract, with a declaration in three counts. The first count was upon an account annexed for a balance of $488.70 and interest, alleged to be due to the plaintiff as salary as vice president and treasurer’s assistant of the defendant from November 10, 1902, to March 15, 1903, at $50 per week.

<p>Negligence, Street railway. Evidence, Relevancy and materiality. Way, Public.</p> <p>Statement by Rug®, J., of the principles of law governing the liability of street railway companies for personal injuries received by their passengers and due, not to the instrumentalities or employees of the companies, but to acts and conduct of other passengers or strangers.</p> <p>At the trial of an action against a street railway company to recover for injuries, received while the plaintiff was a passenger upon an open electric car of the defendant and caused by the conduct of a crowd which rushed upon the car and turned over seats, evidence tending to show that similar crowds acting in the same way customarily entered the defendant’s cars at the same place and time of day and week and season of the year is relevant and material, since it tends to show that the defendant knew and had had an opportunity to guard against the condition which was the cause of the plaintiff’s injury.</p> <p>At the trial of an action by a woman against a street railway company to recover for injuries received while the plaintiff was a passenger upon an open electric car of the defendant on a Sunday afternoon in the summer, there was evidence tending to show that when the car reached a certain point which was near to a place of public resort by a river, it stopped for the purpose of having the trolley reversed and the backs of seats turned over preparatory to returning over its course, that the plaintiff, a woman, rose with a child in her arms to leave the car but was prevented from doing so by an on-rushing crowd who began turning over the backs of seats in the car and finally turned over the back of a seat against which the plaintiff was leaning and pinned her arm between the back and the seat; that while the crowd so was acting the motorman was on the front platform and the conductor on the rear platform and a person in the employ of the defendant called a “ starter ” was standing ten feet away. The place where the car stopped was a public street. Evidence was offered by the plaintiff tending to show that such crowds were customary at that place, time of day, week and season. Such evidence was excluded and a verdict was ordered for the defendant. Held, that the evidence should have been admitted and that the verdict for the defendant should not have been ordered, because there was evidence tending to show that the defendant, knowing of the danger to the plaintiff, had failed to exercise the care it should have exercised to guard her from injury; and that the fact that the conduct of the crowd was in a public street was of no consequence, since the question was not one of policing the public way, but of shielding a passenger.</p>

<p>Landlord and Tenant, Construction of lease, Covenant of lessee as to condition of premises. Covenant. Contract, In writing. Evidence, Extrinsic affecting writings. Words, “Kepair.”</p> <p>A covenant of a lessee, to put the leased premises “ in as good repair as they were in at the beginning of said term,” does not require him to remove trade fixtures of permanent construction which with the consent of the lessor he had added to the premises during' the term of the lease, and which after the termination of the lease it was necessary for the lessor to have removed in order to make the premises rentable.</p> <p>The owner of a store leased it to a corporation engaged in the business of selling bathroom and sanitary fixtures and plumbers’ supplies, the lease containing the following provisions: That the lessee would “ not injure, overload or deface the premises in any way, or suffer or permit the premises or any part thereof, during or at the determination of these presents, to be injured, overloaded or defaced in appearance, whether by removal of any fixture or otherwise; and . . . not make any alterations or additions during the term . . . except such as are hereinafter permitted . . . and peacefully yield up to the lessor the premises, and all erections and additions made to or upon the same, clean and in good repair in all respects. . . . And it is agreed that the lessee may make such alterations and additions within said leased premises as may be necessary for his business, and may remove at the termination of this lease such tiling and special fittings as have been put in at his own expense, provided he puts the premises in as good repair as they were in at the beginning of said term.” The lessee, with the knowledge and consent of the lessor, for its purposes built upon the premises six bathrooms with plaster walls covered with tiling and installed appropriate fixtures and tiled floors and a balcony, all of permanent construction, and at the termination of the tenancy, the lessee not removing such structures, the lessor, because their removal was necessary in order that the premises might be let to another tenant, removed them and by an action of contract sought to recover from the lessee the expense thereby entailed. Held, that the words in the lease, “ provided he puts the premises in as good repair as they were at the beginning of said term,” did not require the lessee to remove the structures in question, and therefore, since the structures were installed with the lessor’s consent, he could not recover from the lessee the expense of removing them.</p> <p>A lease in writing by the owner of certain premises to a corporation contained the following provision: That the lessee would “ not injure, overload or deface the premises in any way, or suffer or permit the premises or any part thereof, during or at the determination of these presents, to be injured, overloaded or defaced in appearance, whether by removal of any fixture or otherwise; and . . . not make any alterations or additions during the term . . . except such as are here- - inafter permitted . . . and peacefully yield up to the lessor the premises, and all erections and additions made to or upon the same, clean and in good repair in all respects. . . . And it is agreed that the lessee may make such alterations and additions within said leased premises as may be necessary for his business, and may remove at the termination of this lease such tiling and special fittings as have been put in at his own expense, provided he puts the premises in as good repair as they were in at the beginning of said term.” In an action by the lessor against the lessee to recover under the lease the expense of removing certain trade fixtures of permanent construction installed by the lessee, the lessor offered in evidence a preliminary agreement to lease signed by the parties, which contained the following : “ The lessee is to have the right to make such alterations and additions within said leased premises as may be necessary for his business, and to remove at the end of said term such tiling and special fittings as he puts in at his own expense, hereby agreeing to put the premises in as good repair as they are at the beginning of said term, reasonable wear and tear excepted.” The preliminary agreement was excluded. Held, that the lease was neither obscure nor ambiguous, and that the preliminary agreement rightly was excluded.</p>

<p>Evidence, Relevancy and materiality, Of motive. Prescription.</p> <p>At the trial of a petition filed in 1906 under the mill act by an upper riparian owner for damages alleged to have been suffered by the petitioner by reason of his land being flowed by a mill dam maintained by the respondent below him, where the respondent contended that she had a right by prescription to maintain the dam at the height objected to by the petitioner, the respondent was allowed to introduce in evidence a deed by one, who formerly had owned the respondent’s premises and adjacent land, conveying to another in 1876 the adjacent land and covenanting for himself and his heirs and assigns, for a reason stated, to maintain the dam “ to at least its present height,” which was the height to which the petitioner objected. Held, that the deed was admitted rightly as tending to show that the grantor and his successors had a motive to do what the respondent, one of the successors, contended that they had done.</p> <p>Where it is a material question whether a certain person did a certain act, the existence of a motive on his part to do or to refrain from doing that act is relevant.</p>

<p>Bill in equity, filed in the Superior Court on August 14, 1908, and, after a demurrer to it had been sustained, amended by the filing of a substituted bill on December 31, 1908, by which the plaintiff, as the executor of the will of Henry G. Houghton, sought to collect the balance of an execution, obtained by him in an action at law, against the goods and effects of Everett E. Hapgood and Swift N. Long in the hands and custody of the defendant as the assignee for the benefit of creditors of Hapgood and Long, as stated at length in the opinion.</p> <p>The defendant demurred to the substituted bill. The demurrer was argued before Richardson, J., who made an order overruling the demurrer. The defendant alleged an exception to this order, which was allowed by the judge.</p> <p>Later the case came on to be heard before the same judge on a motion of the plaintiff that the bill should be taken pro eonfesso for the reason that the defendant had failed to file an answer in accordance with an order of the court requiring him to file an answer on or before a certain day.</p> <p>The defendant objected to the allowance or the motion and asked the judge to rule that the bill would not support any decree. The judge overruled the defendant’s objection and refused to rule as requested, and ordered that the bill should be taken pro eonfesso. The defendant excepted to the refusal of the judge to rule as requested and to the order, and alleged exceptions, which were allowed by the judge.</p> <p>Still later the case came on to be heard before Wait, J., on the plaintiff’s motion for the entering of a final decree.</p> <p>The judge made a decree that there was due from the defendant to the plaintiff the sum of $1,249.07 with interest thereon from July 6, 1908, and the defendant was ordered to pay forthwith to the plaintiff that sum of money with such interest, together with the costs of suit taxed at $25.53.</p> <p>The defendant asked the judge to rule that the bill would not support this decree. The judge refused so to rule, and the defendant excepted.</p> <p>The judge then ordered that the decree be entered, and the defendant excepted to the order. Thereupon the judge at the request of the defendant entered an order that the defendant have ten days in which to file his bill of exceptions. The defendant alleged exceptions, which were allowed by the judge, if the matters alleged were properly the subject of exception.</p> <p>The case was submitted on briefs.</p>

<p> Trustee. Bills and Notes. </p> <p>If a trustee, who has no authority to borrow money for the trust estate, borrows money and gives a promissory note in the name of the estate signed by him as trustee, the note is the individual note of the person who signed it as trustee, and the holder of the note has no remedy against the trust estate, unless that estate is indebted to the trustee and the holder of the note has an equitable right to stand in the trustee’s shoes, which here was not the case.</p>

<p>Petition filed in the Superior óourt on April 4,1910, under R. L. c. 12, §-78, now St. 1909, c. 490, Part L § 77, appealing from the refusal of the assessors of the town of Wellesley to abate an excise tax of 1632.06 upon the gross earnings of the Natick and Cochituate Street Railway Company for the year ending September 30, 1909, assessed under St. 1906, c. 463, Part III. §§ 133-135.</p> <p>In the Superior Court the case was submitted to King, J., upon an agreed statement of facts as follows:</p> <p>From October 1,1908, through November 30,1908, the Natick and Cochituate Street Railway Company operated street railway tracks in the town of Wellesley.</p> <p>On October 15, 1909, that company filed with the board of assessors of the town of Wellesley a sworn statement, from which it appeared that in the above named period of two months the number of miles operated was 6.184. The total number of miles of track belonging to the company was 18.758 and the gross passenger earnings for the period were $16,471.35.</p> <p>On December 1,1908, acting under St. 1906, c. 463, Part III. §§ 53 et seq., and in accordance with an order of the board of railroad commissioners dated November 23, 1908, the Natick and Cochituate Street Railway Company and also the West-borough and Hopkinton Street Railway Company consolidated with the Middlesex and Boston Street Railway Company and turned over all its property and franchises to the consolidated company, which bears the name of Middlesex and Boston Street Railway Company. The gross passenger earnings of the Middle-sex and Boston Street Railway Company in the two months, beginning October 1, 1908, and ending November 30, 1908, were $15,551.43.</p> <p>From December 1, the Middlesex and Boston Street Railway Company operated the tracks in the town of Wellesley and elsewhere formerly belonging to the Natick and Cochituate Street Railway Company and also the tracks formerly belonging to the Westborough and Hopkinton Street Railway Company. The total mileage of tracks belonging to the consolidated company was 41.155, and the mileage in the town of Wellesley was 6.184. In the period from December 1 to July 1 the gross passenger earnings of the Middlesex and Boston Street Railway Company were $113,118.40.</p> <p>On July 1, 1909, acting under St. 1906, c. 463, Part III. §§ 53 et seq., and under an order of the board of railroad commissioners dated June 25, 1909, the Newton Street Railway Company was absorbed by the Middlesex and Boston Street Railway Company, which acquired its property and franchises. The Newton Street Railway Company had 43.974 miles of track and the total mileage of the Middlesex and Boston was therefore increased to 85.129 miles. New track was built in Natick to the amount of .563 miles, making the total September 30, 1909, 85.692 miles. The gross passenger earnings of the Middlesex and Boston'Street Railway Company operating this mileage from July 1 to October 1,1909, were $169,258.42. The gross passenger earnings of the Newton Street Railway Company for the nine months ending June 30,1909, were $253,536.98, and on these earnings the Newton Street Railway Company made returns and paid the excise tax in the cities and towns in which it operated.</p> <p>On October 15, 1909, the Middlesex and Boston Street Railway Company filed with the assessors of the town of Wellesley a sworn return giving details for the assessment of the excise tax.</p> <p>On December 16, 1909, the board of assessors of the town of Wellesley assessed upon the Natick and Cochituate Street Railway Company an excise tax of $632.06. The amount of the bill was the amount of the tax for the previous year (1908). No tax was assessed upon the Middlesex and Boston Street Railway Company.</p> <p>On January 27, 1910, the Natick and Cochituate Street Railway Company applied to the board of assessors of the town of Wellesley for an abatement of the tax of $632.06 assessed upon that company. A hearing was given by the assessors on this application, and on February 17,1910, the board of assessors gave to the company notice that the application had been refused.</p> <p>It was agreed that the assessment in question, although made upon the Natick and Cochituate Street Railway Company, might be treated as having been assessed to the Middlesex and Boston Street Railway Company, and that, should the court decide that the amount of the tax should be abated to the amount called for by the returns of the two companies filed on October 15, 1909, the assessment upon the Natick and Cochituate Street Railway Company should be reduced to the aggregate amount called for by said returns, that is, to $269.30.</p> <p>It further was agreed that if, upon the foregoing facts the assessors of Wellesley could, upon any theory, have assessed a tax of $632.06 the tax was to stand. It also was agreed that the tax had been paid.</p> <p>It was agreed that the above might be assumed to be the facts, in the absence of other evidence, and that the court might draw inferences of fact.</p> <p>The town of Wellesley asked the judge to make the following rulings:</p> <p>“ 1. Upon all the evidence the petitioner is not entitled to an abatement.</p> <p>“2. In assessing an excise tax under the St. 1909, c. 490, Part III. § 48, the assessors of a town are not bound by the return of a street railway company, but may use any information they can obtain in the assessment of the tax. [This ruling was made.]</p> <p>“ 3. In making the return required by St. 1909, c. 490, Part III. § 47, the street railway company is not justified in taking the mileage as of any particular date and is not justified in taking the mileage as of September 30, or as the last day of the financial year of the street railway company.</p> <p>“4. If the mileage of a street railway, liable to an excise tax under said § 47, varies during a financial year, the mere fact that the statute does not provide any prima facie method for ascertaining the mileage to be taken in determining the annual gross earnings per mile does not prevent taking the average mileage for the year, and if a street railway company does not, in such a case, take the average mileage for the year, the assessors of a town are justified in disregarding the return of the street railway company and in taking the average mileage of a year in ascertaining the gross earnings per mile.</p> <p>“ 5. In assessing an excise tax under § 48, the assessors, if there are consolidations during a financial year, may disregard the consolidation and treat the consolidated company j as one whole company, taking its earnings, including those of the constituent companies for the entire year, and taking the mileage including that of the constituent companies for the entire year, and in assessing a tax based upon the earnings and mileage so ascertained.</p> <p>“6. In assessing a tax upon a street railway company which has taken over other street railway corporations during a financial year, the assessors are justified in assessing a tax upon the consolidated company based upon the earnings of the consolidated company and the average mileage of the consolidated company for the portion of the year during which the consolidated company operated.</p> <p>“ 7. It is the duty of a consolidated company which takes over other companies during a financial year to pay the tax of the company so taken over, and to make a return for those companies. [This ruling was made except the last clause.]</p> <p>“ 8. Taking the mileage of a street railway company as of the last day of the financial year would exclude the payment of tax if the street railway company was not in existence upon that date or was not operating upon that date.</p> <p>“ 9. The tax may be assessed after November 15, in any year as well as before. [This ruling was made.]</p> <p>“ 10. It is the duty of a consolidated company to pay the excise tax based upon the earnings and mileage of its entire system for the entire year including that of its constituent companies.</p> <p>“ 11. The mileage which is to be taken in ascertaining the excise tax is the mileage out of which and in connection with which the earnings have been produced and not an arbitrary mileage based upon the mileage of some specific date.</p> <p>“12. The Natick and Cochituate Street Railway Company was not required by law to make an excise tax return for the period prior to its consolidation with the Middlesex and Boston Street Railway Company, but the Middlesex and Boston Street Railway Company was bound to make such a return in connection with its own return and to pay the excise tax assessed thereon.</p> <p>“ 13. In determining excise tax under said § 47, the assessors may either treat the consolidated company as though it had been one corporation through the entire year and take its earnings and mileage as those of one company, including as a part, the mileage and earnings of all the companies consolidated with it during the year, and assess a tax thereon, or may take the earnings and mileage of each constituent company during the period in which they operate separately and independently and assess a tax thereon and take the earnings of the consolidated company and the average mileage of the consolidated company for the period after the consolidation and assess a tax thereon.” The judge made the second and ninth rulings requested as above, and made a part of the seventh ruling requested omitting the words “ and to make a return for those companies,” and refused to make any of the other rulings requested. He found that the petitioner was entitled to an abatement of a part of the tax assessed against it, to wit, to an abatement of the sum of $362.76, thereby reducing the tax by such abatement to the sum of $269.30. The respondent alleged exceptions.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on December 9,1909, by a legatee under the will of Andrew Carney, who also was one of the trustees under that will, against his co-trustee, seeking to set aside a certain release executed by the plaintiff and to have paid to the plaintiff the share of the estate to which he would have been- entitled had the release not been executed.</p> <p>The allegations of the bill were as follows:</p> <p>1. That the defendant, Winslow Warren, was duly appointed trustee under the will of Andrew Carney, deceased, by the Probate Court for the county of Suffolk in 1887, and has been at all times since, and now is, one of the trustees of that estate.</p> <p>2. That the plaintiff, Andrew G. Reggio, was duly appointed a trustee under the will of Andrew Carney, deceased, of Boston by a decree of the Probate Court of the county of Suffolk in 1891, and has been at all times, and now is, such trustee.</p> <p>3. That at the time of the acts complained of Joseph A. Laforme, late of Boston, was the third trustee, and was appointed by a decree of the Probate Court under the terms of the will of the late Andrew Carney; that Joseph A. Laforme continued as trustee of the estate up to the time of his death in 1905.</p> <p>4. That the sole trustees of the estate under the will of the late Andrew Carney now are Andrew C. Reggio and Winslow Warren.</p> <p>5. That Andrew Carney died on April 3, 1864, after making a will and codicil, which were duly approved and allowed by a decree of the Probate Court in and for the county of Suffolk on April 25,1864.</p> <p>6. That Andrew Carney, by this will and codicil, gave property in trust for his adopted daughter, Pamelia J. Reggio, and her three children, Josephine "Elizabeth Reggio (afterwards Josephine Elizabeth Pazolt), Mary Frances Reggio (afterwards Mary Frances Rhodes), and Andrew Carney Reggio, each to have one quarter income for life, with remainders over to their respective children or the issue of deceased children taking by right of representation.</p> <p>7. That, under the will, Andrew C. Reggio should have in fee one half of one quarter of that portion of the estate given him for life, if he should so request in writing after he became of age; and that, said Reggio having made the request, the one half of that one quarter was conveyed and transferred to Andrew C. Reggio in 1888.</p> <p>8. That Josephine Elizabeth Pazolt died in June of 1899; and on May 16, 1901, in accordance with the will, her share of the property was distributed in equal shares to her two sons, Arthur ÍL and Alfred J. Pazolt.</p> <p>9. That Pamelia J. Reggio died in April of 1902, and, in accordance with the terms of the will, her portion of the trust estate should be distributed in the following proportions: two fifteenths to Andrew C. Reggio, two fifteenths to Mary F. Rhodes, one fifteenth to Arthur R. Pazolt, and one fifteenth to Alfred J. Pazolt.</p> <p>10. That on or about January 1,1903, the trustees determined that the value of the share held in trust for the benefit of Pamelia J. Reggio was $409,290, so that Arthur R. Pazolt and Alfred J. Pazolt were entitled to receive the sum of $68,215 each, and that Mary F. Rhodes and the plaintiff were entitled to receive $136,430 each.</p> <p>11. That on or about January 6, 1903, the trustees paid to Arthur R. Pazolt and Alfred J. Pazolt the sum of $68,215 each in cash. The trustees also paid to Mary F. Rhodes and to the plaintiff $16,430 each, and gave to each a promissory note, whereby the estate of Andrew Carney promised to pay, on demand, the sum of $120,000, with interest at four per cent.</p> <p>12. The note given to Mary F. Rhodes as hereinbefore described has been paid in full.</p> <p>13. The note given to the plaintiff is now held by him, and is unpaid, either in whole or in part, except as to the sum of $20,000 received by the plaintiff from the trustees as part payment on or about April 1, 1905, which payment was duly indorsed on the note.</p> <p>14. That up to 1905 Joseph A. Laforme and Winslow Warren were the active trustees of this estate; that Andrew C. Reggio was appointed trustee while abroad in Germany, and continued to live in Germany and in England until the autumn of 1901, when he came to reside permanently in America; and that while thus abroad he was kept informed of trust matters through letters and other communications from the trustees in America.</p> <p>15. That after coming to America, and for a period including the time of the acts hereinafter complained of, he was not sufficiently familiar with the business matters of the trust to exercise independent judgment on such matters, but during this time conferred with his co-trustees, and, believing in their judgment and wisdom, ultimately agreed with them on such matters as they were agreed upon relating to the administration of the trust.</p> <p>16. That on or about January 1, 1903, the trustees, Laforme and Warren, represented to the plaintiff, and the fact was, that the trust estate was short of .funds to make a distribution of the Pamelia J. Reggio interest in the trust fund in cash; that to do so they would be obliged to sell property, which could not then be sold advantageously to the interest of the trust estate; that they were also using large sums of money for the construction and erection of what is called the Carney Building, the arrangements for erecting which had been entered into before the death of Pamelia J. Reggio, which arrangements could not be abandoned without great loss to the trust estate; and that the plaintiff was requested to permit his share of the trust fund, which he was entitled to on the Pamelia J. Reggio distribution, to be retained in the trust estate.</p> <p>17. That the trustees Laforme and Warren assured the plaintiff that under the terms of the will, and under the circumstances then existing, the trustees had the power and authority, the plaintiff consenting, to retain a portion of the trust fund which the plaintiff would be entitled to under the Pamelia J. Reggio distribution, and to give the plaintiff therefor a promissory note binding the trust estate to the future payment of the sum so retained.</p> <p>18. That on or about February 18,1903, the plaintiff, relying upon the assurances of the said trustees, consented to let the trustees retain certain funds which he was entitled to on the Pamelia J. Reggio distribution, and the plaintiff accepted from the trustees the sum of $16,430 in cash and received from said trustees a promissory note from the estate of Andrew Carney for the sum of $120,000, the balance due of his portion of the Pamelia J. Reggio distribution, the note being made payable on demand, with interest at four per cent per annum.</p> <p>19. That thereafter, to wit, on or about February 1,1905, the plaintiff received from said trustees, as part payment of the money due as represented by the note, the sum of $20,000, which was indorsed on the back of the note, leaving due and payable, as part of the funds due him on the Pamelia J. Reggio distribution, the sum of $100,000, no part of which has been paid.</p> <p>20. That at or about the same time, to wit, on February 16, 1903, the plaintiff, at the request of the trustees Laforme and Warren, and relying on the assurances of the said trustees as set forth in paragraph 17, executed and delivered a release of all demands against the estate of Andrew Carney arising out of said distribution; that said release was executed and delivered on the consideration that the plaintiff should receive in exchange therefor a valid and enforceable instrument which should entitle. him to receive from the trust estate the full sum of $120,000, representing, to that extent, his distributive share.</p> <p>21. That the plaintiff and all of the trustees believed that under the will, and under the circumstances which then existed, the trustees had full power and authority, the plaintiff assenting, to retain, in the manner aforesaid, the sum to which the plaintiff was entitled upon the death of Pamelia J. Reggio, and, instead of distributing the same in cash to the plaintiff, to give the plaintiff a promissory note as aforesaid, which note should be in all respects valid and binding upon the trust estate.</p> <p>22. That the plaintiff is now informed and believes, and therefore alleges, that the trustees, under the circumstances which existed, had no power or authority to give the note or to enter into such a transaction as hereinbefore described; that the note is unenforceable and void; that the execution and delivery of the note by the trustees, and the execution and delivery of the release by the plaintiff, were due to a mutual mistake of the defendant, said trustee Laforme, and the plaintiff — all the parties acting in the firm belief that they were authorized by the will so to do.</p> <p>. 23. That, by reason of such mutual mistake, the consideration for the release has failed so far as the plaintiff’s right to receive the sum of $120,000 is concerned, and unless the mutual mistake shall now be duly rectified the plaintiff is in danger of suffering, as a result thereof, the loss of his entire distributive share, to the amount of $120,000, as a penalty for permitting the amount of said distributive share to be retained by the trustees for the benefit of the trust estate, instead of insisting upon the immediate payment thereof, as he otherwise could and would have done.</p> <p>The prayers of the bill were as follows:</p> <p>1. That the release be declared void and of no effect and that it be ordered that the same be delivered up and cancelled, the plaintiff being ready and willing on his part to deliver up the note to be cancelled, if the court shall so order.</p> <p>2. That it be declared that the plaintiff is entitled, as one of the distributees, on the death of Pamelia J. Reggio, to the same share of the trust estate as if the note and release had never been executed, proper credit being given for any payments made on account of the note.</p> <p>3. That an account be taken of all payments so made and that the net amount which the plaintiff is entitled to receive as such distributee be determined.</p> <p>4. For further relief.</p> <p>On December 13, '1909, the children of Mary Frances Rhodes, named in the bill, filed by leave of court an intervening petition to be joined as defendants. On January 31, 1910, an interlocutory order was made, that they be joined as defendants. The defendants thus admitted to the suit filed an answer, which contained a demurrer, and which, further answering, admitted the facts alleged in the first, second, third, fourth, fifth, sixth, seventh, eighth and tenth paragraphs of the bill, and denied in whole or in part the other allegations of the bill.</p> <p>Loving, J., made an order under Chancery Rule 35 appointing a commissioner to take the evidence to be reported to the full court, and later made the following finding and reservation:</p> <p>“I find that the facts alleged in the thirteenth, fifteenth, sixteenth, seventeenth, eighteenth, twenty-first, and twenty-second paragraphs of the bill of complaint are true.</p> <p>“ As to the allegations set forth in the twentieth paragraph thereof, I find that the release was executed and delivered on the assumption, in which all parties concurred, that the note then delivered to the plaintiff was a valid and enforceable instrument, which would entitle him to recover from the trust estate $120,000 lent by him to said estate.</p> <p>“ I find that the plaintiff was not negligent in the matter.</p> <p>“I reserve the case for the consideration of the full court on all the pleadings, evidence, and on these findings."</p>

<p>Negligence, Imputed. Automobile. Practice, Civil, Exceptions, Conduct oí trial: request for rulings.</p> <p>Where one, while being driven in an automobile as a guest of the person driving it, received fatal injuries in a collision on a public way caused directly by the negligence of a third person, to which negligence on the part of the driver contributed, the administrator of his estate, if at the time of the collision the intestate was in the exercise of due care, may recover damages from the negligent third person for the conscious suffering of the intestate in spite of the negligence of the driver whose guest he was. Following Shultz v. Old Colony Street Railway, 193 Mass. 309.</p> <p>In an action by an administrator against the driver of an automobile for the conscious suffering of the plaintiff’s intestate who received fatal injuries by reason of a collision with another automobile in which the plaintiff’s intestate was being driven as a guest of its driver, there was evidence that the driver oí the automobile in which the plaintiff’s intestate was had not secured the license to drive an automobile required by St. 1903, c. 473, §§ 4, 5. At the close of the evidence the defendant asked for the following ruling: “ If the jury find that the driver was negligent in driving the automobile in which [the plaintiff’s intestate] was riding, and such negligence was a contributory cause of the accident, then the plaintiff is bound by such negligence and cannot recover.” The trial judge gave to the jury instructions on the subject of imputed negligence which this court held were ample and sufficient, and refused to give the ruling requested. The defendant alleged exceptions, and in this court relied only upon an exception to the refusal to give the ruling above quoted. Held, that by the exception to the refusal to give the quoted ruling, the question, whether the fact, that the driver of the automobile in which the plaintiff’s intestate was being driven did not have the required license to operate an automobile, affected the right of the plaintiff to recover, was not brought before this court.</p>

<p>Negligence, Street railway, In use of highway.</p> <p>In an action by a bright boy about eight years of age for injuries caused by his hand being run over by a street car which was crossing at right angles a steep street down which he was coasting at ten o’clock in the morning of a day in December, there was evidence tending to show that at the intersection of the two streets there were buildings covering all the land at the street corners so that the motorman’s view as he approached the intersection of the streets was somewhat cut off, that the plaintiff was preceded down the hill by another boy coasting, who, seeing the car, turned to pass in front of it, that the motorman, seeing the first boy, to prevent running over him stopped or almost stopped his ear in the middle of the street down which the plaintiff was coasting, that the plaintiff observing the movements of the boy preceding him, turned his sled to go around the rear of the car, and, because of the unexpected stopping or lessening of the speed of the car, came into collision with it so that his hand was run over by the rear wheel. Held, that there was no evidence of negligence on the part of the motorman.</p>

<p>Tort by the administratrix of the estate of William J. Haley, late of Somerville, for the conscious suffering and death of the plaintiff’s intestate, while he was in the employ of the defendants as a teamster, on August 6, 1906, on North Market Street in Boston, by reason of the breaking of a strap when the plaintiff’s intestate was engaged in hauling it tight to buckle it around three barrels of apples on the tail board of his wagon, having his foot on “ the near hind wheel to heave on the strap ” and standing on the side of the wagon which was toward the middle of the street, where, when the strap broke, he fell and was run over by a team loaded with potatoes; the declaration containing counts under the employers’ liability act, alleging respectively a defect in the ways, works or machinery of the defendants and negligence of a superintendent, and a count at common law for the conscious suffering, alleging negligence in furnishing the plaintiff’s intestate with unsafe appliances. Writ dated December 19,1906.</p> <p>In the Superior Court the case was tried before White, J. The facts which could have been found upon the evidence are stated in the opinion. At the close of the plaintiff’s evidence the judge ordered a verdict for the defendants; and the plaintiff alleged exceptions.</p>

<p>Two actions oe tort, the first for injuries alleged to have been received by reason of the jerking and sudden starting of a closed electric car upon which the plaintiff was about to take a seat, as stated in the opinion. The second action originally was by the husband of the plaintiff in the first action and was for loss of consortium and expenses to which the husband was put because of the injuries to his wife. The husband died during the pendency of the actions, and the second action was prosecuted by the administrator of his estate, the claim for damages due to loss of consortium being waived. Writs dated November,26, 1906.</p> <p>In the Superior Court the cases were tried together before Wait, J. The facts are stated in the opinion. At the close of the plaintiff’s evidence the presiding judge ordered a verdict for the defendant; and the plaintiffs alleged exceptions.</p>

<p>Negligence, Street railway.</p> <p>At the trial of an action by a woman against a street railway company to recover for injuries alleged to have been caused to the plaintiff by her having been thrown down by the stopping with an unwarranted jerk of a car of the defendant which she was about to leave, there was testimony by witnesses of the plaintiff tending to show that she signalled the conductor to stop the car and rose and stood in the aisle grasping with a firm hold handles on the ends of seats on each side of the aisle running at right angles to the aisle, that the car did not stop at the place intended, that the conductor thereupon gave another signal to the motorman, that the car then stopped so suddenly as to break the plaintiff’s hold upon the handles and to throw her to the floor of the car. The conductor testified that, before reaching the stopping place where the plaintiff desired to leave the car, the motorman lessened the speed of the car to cross some switches, then applied the power and started forward and, upon receiving the conductor’s second signal, applied air brakes too quickly. Held, that there was evidence warranting a finding that the motorman was negligent in the operation of the car.</p>

<p>Tort for injuries received by the plaintiff at the Sullivan Square station of the defendant in Boston from stepping off the platform between it and the step of a surface car on the elevated structure which she was attempting to enter. Writ dated February 25, 1908.</p> <p>In the Superior Court the case was tried before Sherman, J. At the close of the plaintiff’s evidence the defendant rested and asked that a verdict be ordered for the defendant. The trial judge stated that he was of the opinion that there was evidence for the jury on the questions involved in the case. At the suggestion of the judge, however, a verdict for the defendant was ordered subject to an exception by the plaintiff, the parties agreeing that if the plaintiff’s exception was sustained judgment should be entered for the plaintiff in the sum of $500.</p>

<p>Practice, Civil, Exceptions. Conversion. Evidence, Presumptions and burden of proof.</p> <p>An exception to the refusal of a presiding judge to rule, that the plaintiff in an action of tort for an alleged conversion is entitled to recover the amount claimed in his declaration, cannot be sustained where the bill of exceptions does not purport to state all the material evidence.</p> <p>At the trial of an action of tort against a constable for the alleged conversion of goods in a store, which the defendant attached as the property of one S., if the plaintiff testifies that the goods belonged and still belong to him, that he made a conditional sale of them to S. by the terms of which the title to the goods was to remain in the plaintiff until payment was made, that the plaintiff executed an absolute bill of sale to S. and placed it in escrow to be delivered when full payment had been made, that S. entered into possession of the store and conducted the business, that later the plaintiff took possession of the store and the goods in it for a breach of a condition of the sale and employed S. as his agent to run the store thereafter, and that the plaintiff did not appear there himself except at rare intervals, and if the plaintiff admits that he had sold the store and there is testimony that S. had asserted that he was the proprietor of it, and S. himself admits that he was indebted to various New York firms and was a bankrupt, that he came to Boston at about the time he entered into possession of the store and that he was an entire stranger to the plaintiff, and if it appears that during the whole of the period under inquiry the business was conducted under an impersonal name which remained unchanged, this evidence would warrant a finding that the dealing of S. with the store as its owner represented his true relation to it, and accordingly the presiding judge should refuse to order a verdict for the plaintiff and should submit to the jury the question whether the plaintiff has sustained the burden of proof in showing that he was the owner of the goods at the time of their attachment as the goods of S.</p>

<p>Tort for personal injuries alleged to have been sustained by the plaintiff while a passenger on a closed surface car of the defendant on December 19, 1905, on Huntington Avenue in Boston near its junction with Massachusetts Avenue, by reason of the excessive overcrowding of the car permitted by the servants of the defendant and the entrance and exit of passengers to and from the car while in its greatly overcrowded condition, whereby the plaintiff was forced from the car and caused to fall to the ground. Writ dated March 16, 1906.</p> <p>In the Superior Court the case was tried before Harris, J. The plaintiff appears to have been the only witness. The defendant admitted that, on the day of this accident and on other days before and since, the passengers on this line of cars, as well as on other lines of cars and as well as on this particular car, had crowded into platforms and had been transported there in large numbers.</p> <p>“ The jury had a view.” The record does not state whether the view was of the place of the accident or of the car on which it occurred or of both.</p> <p>The judge instructed the jury as follows : “ The contention is, of course, that this was a crowded car, and by the movement of the passengers the plaintiff was perhaps forced off the car, or slipped, or anyway was forced. I do not understand it to be the law yet that it is negligence to have a crowded car. It is one of the incidents oí our American methods of travel that when we go into a crowd, which crowd is not one which is disorderly and turbulent — I mean behaving in any unusual way — we all have to take those things into account, and, so long as it is not negligent to carry a crowd, and nothing happens except one of those things which is a very natural and ordinary incident to being in a crowd, it does not lay the foundation for an action of damages.”</p> <p>The judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Conspiracy. Evidence, Declarations of deceased persons, Of other crimes, Extrinsic affecting writings. Practice, Criminal, Order of evidence, Exceptions. Larceny.</p> <p>Upon the trial of an indictment of a number of defendants for a conspiracy to steal the property of divers persons, there was proved a conspiracy in the first place to lure the owners of small stores or business enterprises into parting with their property in exchange for worthless promises backed by equally worthless security, and then, after the sellers thus had been cheated, to keep them at peace and inactive until the booty acquired from them had been disposed of and the conspirators thus had been enabled to enjoy the fruits of their unlawful enterprise. A certain statement of one of the conspirators, who was indicted but who died before the trial, was admitted in evidence. The statement tended to show fraud on the part of the principal conspirator and was made to the witness, who was one of the persons defrauded, after the witness had transferred his store to the conspirator who made the statement to him. The principal conspirator objected to this statement being used against him on the ground that it had been made by the deceased conspirator after the transaction between him and the defrauded witness had been completed and the object of the conspiracy as to the witness had been attained. Held, that an exception founded on this objection must be overruled, because the acts of conspiracy continued as stated above after the property had been acquired.</p> <p>Cases cited by Sheldon, J., upon the point, that at the trial of an indictment of a number of persons for a conspiracy to obtain property by fraud, the declarations of one of the conspirators are admissible against the others not present when they were made, although such declarations were made after the paramount object of the conspiracy had been attained by the fraudulent acquisition of the property, if they relate to the concealment and safe disposal of the property thus fraudulently obtained.</p> <p>Whether the provision of R. L. c. 175, § 66, that a declaration of a deceased person shall not be excluded as hearsay if a trial judge finds it to have been made under the conditions required by that section, is applicable to criminal proceedings, here was mentioned as a question which had been referred to in argument but which was not presented for decision.</p> <p>At the trial of an indictment of a number of persons for a conspiracy to obtain property by fraud, evidence of acts of one of the conspirators, which tend to show the intent with which he acted and the scope and character of the conspiracy into which he had entered and in furtherance of which those particular acts could be found to have been committed, is competent, and is not to be excluded because incidentally it tends to show the commission by this conspirator of other specific crimes.</p> <p>At the trial of an indictment of a number of persons for a conspiracy to obtain property by fraud, evidence of the acts of persons, who are shown to have joined in the conspiracy, done in furtherance of its unlawful objects is admissible against their co-conspirators, although some of the persons who did the acts were not included in the indictment.</p> <p>At the trial of an indictment of a number of persons for a conspiracy to obtain property by fraud, members of the conspiracy are competent witnesses for the Commonwealth against their co-conspirators.</p> <p>If a witness testifies that certain land, of which a conveyance was obtained by fraud, was in a certain town, this is not testifying to the contents of the deed by which it was conveyed.</p> <p>At the trial of an indictment of a number of persons for a conspiracy to obtain property by fraud, where the indictment charges that the defendants conspired together on a certain day in January, 1905, and a conspiracy is proved which began as early as 1901 and continued, with the addition of some new confederates, into the year 1906, fraudulent acts in furtherance of the conspiracy committed by its members in 1903 may be shown, the conspiracy being a continuing one.</p> <p>The order of evidence is a matter wholly within the discretion of the presiding judge at a criminal trial as well as at a civil one, and no exception lies to the admission of any material evidence on the ground that it is offered for the first time upon the re-direct examination of a witness.</p> <p>At the trial of an indictment of a number of persons for a conspiracy to obtain money by fraud, the ordinary doctrine, that false statements about the value of property by one offering it for sale or exchange are mere dealer’s talk, has no application to false statements fraudulently made by one of the conspirators to a victim toward whom it could be found that he stood in a confidential relation.</p> <p>A conspiracy for the attainment of an unlawful end is none the less a criminal offense because some of the means employed, although essentially dishonest, could not by themselves be made the subject of a criminal prosecution.</p> <p>At the trial of an indictment of a number of persons for a conspiracy to obtain property by fraud, where the conspiracy, although charged by the indictment to have existed on a certain day, was shown by the evidence to have been a continuing conspiracy extending over a period of five years, the Commonwealth may show the whole history of the conspiracy from its beginning to its consummation, including the preparations for the conspiracy made by the chief conspirator.</p> <p>Under R. L. c. 208, § 26, an indictment for larceny of the property of a certain person may be sustained by showing that the defendant obtained money from the alleged victim in payment for a supposed half interest in another person’s pretended business by means of false representations as to the extent and profits of the business, especially where this is shown to have been done as part of a general scheme to defraud.</p> <p>Where, in carrying out an unlawful conspiracy for obtaining property by fraud, the conspirators incidentally commit other crimes, the indictable offense of conspiracy is not merged in the subsequent specific crimes, although these may be felonies while conspiracy is only a misdemeanor.</p>

<p>Pleading, Criminal, Indictment or complaint. Vagabond. Constitutional Law.</p> <p>A complaint under R. L. c. 212, § 61, alleged that the defendant on a day named at a certain city, “ and on divers other days and times at said [city], was then and there a person known to be a pickpocket and thief and then and there hav: ing no visible and lawful means of support and was then and there on said days and times aforesaid at [the city] aforesaid, found prowling around a certain railroad depot in said [city], whereby and by force of the statute in such case made and provided, the said [defendant] was and still is a vagabond.” Held,, that the complaint was not bad for duplicity; that the charge was of a continuing offense, and that the time properly might have been alleged as within a certain period beginning on a day named and ending on a later day named, but that the complaint sufficiently alleged an offense on the day named, and that the words “ and on divers other days and times at said [city] ” and the later words “on said days and times aforesaid” and also the words “and still is” might he stricken out as surplusage. Held, also, that the complaint in following the language of the statute was sufficiently certain, it being plain that the charge of being a vagabond was made under R. L. c. 212, § 61, and was not made under the provisions of § 46 of the same chapter.</p> <p>R. L. c. 212, § 61, is as follows: “A person who is known to be a pickpocket, thief or burglar and having no visible or lawful means of support, if found prowling around any steamboat landing, railroad depot, banking institution, broker’s office, place of public amusement, auction room, store, shop, crowded thoroughfare, car or omnibus, or at any public gathering or assembly, shall be deemed a vagabond, and shall be punished by imprisonment in the house of correction for not less than four nor more than twelve months.” Held, that this statute is constitutional, the commission of previous crimes referred to in it being used as indications to a certain extent of present character in describing the kind of person constituting a vagabond under the statute.</p> <p>The previous commission of crimes may be made an element in providing for the punishment to be imposed for a later crime and in the creation of certain kinds of statutory offenses without making the statute containing such provision an ex post Jacto law.</p> <p>A motion by the defendant in a criminal case for a bill of particulars, which merely states that the defendant “ demands that a bill of particulars be furnished him in accordance with his rights under the Revised Laws,” properly may be denied, because it does not point out any part of the indictment or complaint about the meaning of which the defendant is uncertain and needs information to enable him to prepare his defense.</p>

<p> Governor. Mandamus. Supreme Judicial Court. </p> <p>Money which came into the hands of a Governor from his predecessor in office, who received it from the Federal Government under the terms of 30 U. S. Sts. at Large, 1356, entitled “ An Act to reimburse the Governors of States and Territories for expenses incurred by them in aiding the United States to raise and organize and supply and equip the Volunteer Army of the United States in the existing war with Spain,” and for the purpose of being paid to the officers and men referred to in the act, was held to have been received by the Governor in his official capacity.</p> <p>The Supreme Judicial Court has no power to issue a writ of mandamus addressed to the Governor of the Commonwealth regarding any of his official duties.</p>

Tort for deceit in the sale of a mining claim as stated in the opinion. Writ in the Municipal Court of the City of Boston dated October 26, 1907. On appeal to the Superior Court the case was heard by Dana, J. The material facts are stated in the opinion. The judge found for the plaintiff in the sum of $500; and the defendant alleged exceptions.

<p>Contract, Construction, Termination. Reference and Referee.</p> <p>A salesman made with a corporation a contract in writing for employment, the contract containing the following provision as to its termination: “ Either party may . . . terminate this agreement, by giving to the other party, sixty days’ notice in writing, and accompanying such notice by a signed statement of the cause for terminating the agreement, said statement of cause to bear the written indorsement of T. and B. . . . that they are informed of the facts referred to in the cause set forth, and consider them sufficient justification for the termination of the agreement under this provision.” The corporation made a formal statement in writing to T. and B. of alleged “ insolence and insubordination ” on the part of the salesman, and the salesman also made to them a statement in writing regarding the matter. Thereafter the corporation gave to the salesman sixty days’ notice in writing of the termination of the contract for “ insolence and insubordination,” accompanied by a written indorsement by T. and B. stating, “ We are informed of the facts referred to in the causes above set forth for the termination of the contract . . . and consider them sufficient justification for the termination of said agreement.” There was no fraud or mistake which prevented T. and B. from exercising their judgment fairly. In an action by the salesman against the corporation for breach of the contract, the salesman contended that the contract could not be terminated without an indorsement in writing by T. and B. which should not be made until after the charges had been formally heard by them in a judicial manner. Held, that such formal hearing was not necessary under the provisions of the contract; and that everything necessary effectually to terminate the contract had been done.</p>

<p>Petition, filed on June 13, 1910, in the suit of Attorney General v. American Legion of Honor, previously before this court in cases reported in 196 Mass. 151, and 206 Mass. 131, 158, 168,175, 180,183, 186, 188, 190, 193, the petitioners in the present claim being the same persons who were the plaintiffs in the suit in equity reported in 206 Mass. 139. It there was decided, on May 19, 1910, that the plaintiffs were entitled to a decree, but that the only decree that could be entered was one that the corporation should make the payment to the plaintiffs, the plaintiffs having proceeded with their suit after the appointment of a receiver instead of becoming intervening petitioners in the receivership suit.</p> <p>On June 27, 1910, Sheldon, J., made an interlocutory decree in the receivership suit permitting the petitioners on or before September 15, 1910, to file and establish before the receiver a claim to share in the assets in his hands as of May 1, 1905, to be determined in accordance with the decisions of this court made on May 24, 1910, subject to certain terms and conditions as to the amount to be allowed, without interest, and as to deductions and taxable costs.</p> <p>On December 21, 1910, the receiver filed a report in regard to the proof of the claim under the interlocutory decree.</p> <p>On December 24, 1910, Braley, J., at the request of the petitioners, reserved the case for determination by the full court, upon the petition, the interlocutory decree thereon, and the report of the receiver, which it was agreed should be treated as an agreed statement of facts under the interlocutory decree.</p> <p>The case was submitted on briefs.</p>

<p>Tax, On legacies and successions. Inheritance Tax. Power. Constitutional Law.</p> <p>By St. 1909, c. 627, § 8, a succession tax is imposed on property received by the heirs of the settlor under a provision of a deed of trust, made in 1844, by reason of the failure of the beneficiary for life, who died after the passage of the statute, to exercise a power of testamentary appointment given to her by the deed of trust.</p> <p>It is within the constitutional power of the Legislature to declare that property, which is subject to disposition by testamentary appointment and in default of such appointment is to go to certain persons or to a class-of persons named, does not vest in anybody as to its possession and enjoyment until the donee of the power of appointment exercises the power or dies without exercising it, and that when such property vests in possession, either by reason of an exercise of the power or by reason of a failure to exercise it, a succession tax shall be imposed ; and therefore the provision to this effect in St. 1909, e. 627, § 8, is constitutional.</p>

<p>Equity Jurisdiction, To enjoin unlawful strike, Injunction, Damages. Strike. Labor Union. Damages.</p> <p>Whether the purpose for which a labor strike is instituted is or is not a legal justification of the strike is a question of law.</p> <p>In order that a labor strike should be a legal one it is necessary that the strikers should have acted in good faith in striking for a purpose which the court holds to have been a justification of the strike.</p> <p>A labor strike is not a legal one merely because the strikers instituted it in good faitli for a purpose which they thought to be a legal justification of the strike.</p> <p>It is not a justification of a labor strike that a foreman is “ distasteful ” to some of the employees under him.</p> <p>A labor strike properly cannot be said to be for the purpose of bettering the condition of the workmen concerned in it merely because its purpose is to escape from something which the workmen dislike.</p> <p>It here was said by way of illustration, that, if a foreman was in the habit of using epithets so insulting to the workmen under his direction that they could not maintain their self respect while working under him, a strike to get rid of him would be a lawful one.</p> <p>A labor strike to get rid of a foreman because some of the workmen under him have a dislike for him is not a strike for a legal purpose.</p> <p>In a suit in equity seeking an injunction to restrain an unlawful labor strike to prevent the employment of the plaintiff as foreman by a certain firm, where the bill contains also a prayer for damages, if the plaintiff proves a case entitling him to relief, but before the time for a final decree the firm in question have stopped work and have ceased to employ either foremen or workmen, there is no occasion for an injunction and the only relief that can be granted is an award of damages.</p> <p>In a suit in equity to enjoin an unlawful strike to prevent the employment of the plaintiff as foreman by a certain firm, with a prayer for damages, damage to the plaintiff’s reputation may be a proper element of damage if he proves that damage to his reputation was in fact caused by the defendants’ illegal action.</p>

<p>The following order was passed by the House of Representatives on March 10, 1911, and on March 14, 1911, was transmitted to the Justices of the Supreme Judicial Court. On March 22, 1911, the Justices returned the answer which is subjoined.</p> <p>Ordered, That the Justices of the Supreme Judicial Court be requested to give to the House of Representatives their opinion upon the following question :</p> <p>If the Legislature is of the opinion that public order, decency and morality require that girls and young women be excluded from Chinese restaurants and hotels, is it within the constitutional power of the Legislature to enact a law making it a criminal offense for any woman under the age of twenty-one years to enter a hotel or restaurant conducted by Chinese, or to be served with food or drink therein, or for the proprietor of any such hotel or restaurant to admit thereto a woman under the age of ijwenty-one years or to serve her with food or drink therein ?</p>

<p>It is within the constitutional power of the Legislature to provide that a presiding judge in granting a motion for a new trial shall file a statement setting forth fully the grounds upon which the motion is granted, and that, if it appears from the statement that the sole ground for granting the motion was that the damages awarded were either inadequate or excessive, the new trial shall be limited to the question of the amount of damages.</p> <p>It is not within the constitutional power of the Legislature to provide by statute that, if a verdict for a plaintiff is set aside by the judge presiding at the trial and at a subsequent trial of the case a verdict again is returned for the plaintiff, a new trial, if granted, shall be limited to the question of damages, unless the verdict is set aside and a new trial is granted on the ground- of fraud, because such a statute would be in violation of the Seventh Article of the Amendments of the Constitution of the United States and the Fifteenth Article of the Massachusetts Declaration of Rights, in impairing the right of trial by jury, which includes the power of the presiding judge to set aside the verdict and continues until a verdict is returned to which no valid objection is made, and also might be in violation of the Fourteenth Amendment of the Constitution of the United States in denying to defendants the equal protection of the laws.</p>