Volume 209 — Massachusetts Reports

<p>Petition, filed in the Land Court on November 2, 1909, for the registration of the title to premises near the foot of Hanover Street in Boston, extending from above high water mark to below low water mark to the so called “ Old Harbor Commissioners’ line.”</p> <p>The petitioner’s title was alleged to have been acquired by a taking by eminent domain under authority of St. 1871, cc. 188, 345. The respondents were the heirs at law of the owner of the premises at the time of the taking, and were then and at the time of the filing of the petition the owners of land adjoining the locus. '</p> <p>The case was heard in the Land Court by Davis, J. The facts are stated in the opinion. At the close of the evidence the respondents asked the trial judge to rule (1) that the petitioner acquired by virtue of its taking only an easement, and not an absolute fee simple; (2) that the petitioner could not maintain its petition; and (3) that, if the petitioner could register any title in this case, it should be only to such rights to use and occupy the premises for the purpose of widening its ferry slip as it acquired under St. 1871, cc. 188, 345, and that such title should be registered with full recognition of the rights of the respondents as owners of the fee.</p> <p>The judge refused to make any of the rulings thus requested, and made a decree for the petitioner. The respondents alleged exceptions.</p>

<p>Negligence, In use of highway, Street railway. Street Railway.</p> <p>In an action by a woman against a corporation operating a street railway, for personal injuries from being run into by a ear of the defendant as the plaintiff was attempting to cross a public street at half past eight o'clock on an evening late in November when the rain was falling heavily and a very high wind was blowing, the plaintiff testified that she looked twice and saw the car, first when she stepped from the curbstone, which was about seventeen feet from the track, and afterwards when she was about half way between the curbstone and the track, that at this last time the car was about one hundred and twenty-five feet away and was approaching slowly, that she thought that she had time to get across and made the attempt. The evidence tended to show that she had got almost over the farther rail of the track when she was struck by the corner of the fender of the car. The plaintiff also testified that the street at the time of the. accident was substantially deserted, there being in sight only the car which struck her and another car several hundred feet away, which was approaching from the opposite direction. Held, that the questions, whether the plaintiff looked as often as she ought to have looked and as late as she ought to have looked and whether she was justified in thinking that she had time to get across the track ahead of the car, as well as the questions, whether the accident was due to the failure of the motorman to diminish the speed of the car when approaching the plaintiff and whether he was negligent, were for the jury.</p>

Tort against four defendants as copartners, who were engaged in a building and real estate business and employed the plaintiff as a laborer, for personal injuries sustained by the plaintiff from the breaking of a plank, alleged to have been rotten on its under side, when the plaintiff in the course of his employment was carrying a barrel of refuse over the plank, which served as the exit from one of a row óf houses then in process of construction under the general direction…

<p>Writ oe entry to recover possession of a certain parcel of land in Medford, which was the subject of the two suits in equity, decisions in which are reported in Roberts v. Welsh, 192 Mass. 278. Writ in the Land Court dated January 8, 1909.</p> <p>In the Land Court the case was tried before Clark, J. The judge filed a memorandum of decision in which he found the facts which are stated in substance in the opinion. It was agreed by the parties that the findings of the judge were warranted by the evidence. The judgment in the proceeding of Holt v. Welsh, referred to in the decision of the judge and in the opinion of this court, was “ Judgment for respondent with costs on his disclaimer.” The judge ruled that the demandant in the present action was not bound by the disclaimer of Welsh. To this ruling the tenant excepted.</p> <p>At the close of the evidence the tenant asked the judge to make the following rulings:</p> <p>“1. There is no evidence in this case sufficient to warrant the court in finding that the tenant was either a party or privy to the cases of Roberts v. Welsh, 192 Mass. 278, or to the judgments or decrees therein rendered.</p> <p>“ 2. There is no evidence in this case sufficient to warrant the court in finding that the tenant at any time had any right, title or interest in the mortgage held by the plaintiff in said cases of Roberts v. Welsh. [This ruling was made by the judge.]</p> <p>“ 3. The demandant is bound by the disclaimer filed in the case of Holt v. Welsh, being No. 233 on the docket of the Land Court, and said disclaimer defeats the demandant’s title.</p> <p>“ 4. The demandant is bound by the judgment rendered in said case of Holt v. Welsh, and said judgment defeats the demandant’s title.</p> <p>“ 5. There is no sufficient evidence in this case to warrant the court in finding for the demandant.</p> <p>“ 6. Upon all the evidence in this case the court should find for the tenant.</p> <p>“ 7. The tenant is not bound by the judgments or decrees rendered in said cases of Roberts v. Welsh”</p> <p>The judge made the second ruling requested and refused to make any of the others. He ruled that the decision in the two cases of Roberts v. Welsh, which determined that the two tax deeds there in question were valid, was conclusive upon the tenant and that he could not now set up any title as against those claiming under Welsh. The judge found for the demandant; and the tenant alleged exceptions.</p>

<p>Contract for $496 and interest alleged to be due and payable to the plaintiff on an order drawn by one McKenney and one Foss on the defendant, a corporation engaged in lending money on construction mortgages. Writ in the Municipal Court of the City of Boston dated April 14, 1909.</p> <p>The order was as follows:</p> <p>“July 12, 1907. William W. Babcock Company: Please pay to M. J. Monahan Four Hundred ninety-six Dollars ($496) for plastering and skimming house on lot A Middlesex Road, Brookline, out of the plaster payment on your mortgage loan on lot A Middlesex Road when the same shall become due.</p> <p>“ Lewis T. McKenney,</p> <p>Walter F. Foss,</p> <p>“ Trustees under a Declaration of Trust known as the Middlesex Circle Apartment Trust.”</p> <p>This order was accepted in writing by the defendant as follows:</p> <p>“Boston, August 20, 1907. We accept the above order and agree to pay the same on the following conditions only: — When the plaster payment shall become due on lot A ’ Middlesex Road, Brookline, as per construction mortgage agreement between William W. Babcock Company and Charles W. Marshall, we will pay M. J. Monahan the sum of $496.00.</p> <p>“ William W. Babcock Company,</p> <p>Cora M. Jeffrey.”</p> <p>On appeal to the Superior Court the case was heard by Morton, J., without a jury.</p> <p>The defendant admitted that this order was drawn against it and that it was accepted in the form above stated; that Miss Jeffrey, the secretary of the company, was authorized to accept it; and that the plaintiff went ahead and did the work; but the defendant denied that the builder ever got the work along to the stage where the plaster payment, so called, was due from the mortgagee.</p> <p>The defendant contended that the acceptance was a conditional one, and that the only question was whether the conditions of - the acceptance had been complied with. Upon this point there was evidence which is referred to briefly in the opinion.</p> <p>No copy of the construction mortgage agreement, referred to in the defendant’s acceptance of the order, was included in the bill of exceptions. The following testimony in regard to its material provision occurred in the cross-examination of the defendant’s president. He testified that the defendant did a large business in lending money on construction loans; that the written agreement as to the loan for the building to be put on lot A provided how the payments should be made; that the first and second payments were reached and paid, that the third payment of $1,500 was to be made according to the written agreement “ When said building shall be plastered and skimmed and all windows in and blinds hung ” ; that this was the plaster payment, so called; that the building did not reach the stage where the plaster payment, so called, could be required; and that the builders failed to earn the plaster payment by not putting in the windows. He further testified that he should have waived the objection that no blinds had been put on if it had been called to his attention that awnings were to be used.</p> <p>At the conclusion of the testimony, the judge stated that it appeared to be clear that there were holes in the wall with the wood work or frames around them, but that none of the cross bars, nor glass, none of the movable portion of the windows, had been put in, and that, this being so, he would find as a fact that the specified contract was not complied with, and that the plaintiff was not entitled to recover.</p> <p>The judge found for the defendant; and the plaintiff alleged exceptions.</p>

<p>Negligence, In use of highway, In driving automobile.</p> <p>If a man, who is employed by markatmen in a city to deliver goods to their customers, which he carries either in bundles or on his shoulders, when returning to his place of employment after making such a delivery, has occasion to pass over a crosswalk of a public street, and before starting on the crosswalk looks in each direction and sees that everything “ looks clear,” and if when he is on the crosswalk he is run into and injured by a motor car, whose driver has been engaged in conversation with an occupant of the car, toward whom he has turned his head, and is giving little if any attention to travellers in front of him, the person thus injured, in an action brought by him against the owner of the ear, has a right to go to the jury, who are to say whether the plaintiff was in the exercise of due care and whether under the circumstances the inattention of the driver was sufficient proof of his negligence.</p>

<p>Tax, Upon personal property held in trust for literary, benevolent, charitable and scientific institutions. Trust. Words, “ Property.”</p> <p>Review by Hammond, J., of legislation of Colony, Province and Commonwealth with regard to whether a tax upon property held in trust should be assessed to the trustee or to the beneficiary.</p> <p>Under R. L. c. 12, § 5, cl. 8, now St. 1909, c. 490, Part I. § 5, cl. 3, exempting from taxation “ the perspnal property of literary, benevolent, charitable and scientific institutions,” the word “ property ” includes the equitable interest of a corporation, organized “ for the purpose of furnishing education in the mechanical arts,” in a trust fund created by a will, the entire income of which is paid to the corporation quarterly by the trustees under the will, and such fund therefore is exempt from taxation, it being immaterial that, if the fund were taxable, the tax, under § 23 of the same statutes, would be assessed to the trustees and not to the corporation.</p>

<p>Automobile. Evidence, Presumptions and burden of proof. Words, “ Intersecting way.”</p> <p>St. 1909, c. 534, § 16, provides that every person operating a motor vehicle shall run it at a rate of speed no greater than is reasonable and proper, and that “it shall be prima facie evidence of a rate of speed greater than is reasonable and proper ” if such a vehicle is operated in excess of certain rates of speed in certain designated districts. At the trial of a complaint charging a violation of that statute, it was held, that the burden of showing that the defendant was operating a motor vehicle at a speed greater than was reasonable and proper, having regard to traffic and the use of the way and the safety of the public, was upon the Commonwealth; and that, even if the speed at which the defendant was operating was such as to make out a prima facie case for the Commonwealth under the provisions of the statute, still the burden of proof did not change, and hence in some cases a defendant may be convicted even if he has not exceeded the rate named in the clauses of the statute referred to, and in some cases he may be acquitted even though he may have exceeded it.</p> <p>At the trial of a complaint charging a violation of St. 1909, c. 534, § 16, which provides that every person operating a motor vehicle shall run it at a rate of speed no greater than is reasonable and proper, and that “ it shall he prima facie evidence of a rate of speed greater than is reasonable and proper ” if such a vehicle is operated in excess of certain rates of speed in certain designated districts, it is erroneous for the presiding judge to refuse to give the following ruling: “ There is no absolute or fixed speed limit at which automobiles may be operated in this Commonwealth; and if the jury find that the rate of speed was reasonable and proper, having regard to the traffic, use of the way and safety of the public, they should find for the defendant, no matter at what particular rate of speed they find he operated.”</p> <p>At the trial of a complaint charging a violation, by one operating an automobile in a city, of St. 1909, c. 634, § 16, which provides that every person operating a motor vehicle shall run it at a rate of speed no greater than is reasonable and proper, and that “ it shall be prima facie evidence of a rate of speed greater than is reasonable and proper ” if such a vehicle is operated on any way inside the thickly settled part of a city at a rate of speed exceeding fifteen miles an hour for a distance of one-eighth of a mile, it is erroneous for the presiding judge to refuse to give the following ruling: “If the jury find that the defendant operated an automobile at a rate of speed in excess of fifteen miles an hour for one-eighth mile within the thickly settled part of the city, the jury should find for the defendant if they find that the rate of speed was not greater than was reasonable and proper having regard to the traffic, the use of the way and the safety of the public.”</p> <p>At the trial of a complaint charging a violation of St. 1909, c. 634, § 16, which provides that every person operating a motor vehicle shall run it at a rate of speed no greater than is reasonable and proper, and that “ it shall be prima facie evidence of a rate of speed greater than is reasonable and proper ” if such a vehicle is operated in excess of certain rates of speed in certain designated districts, it is erroneous for the presiding judge to charge the jury in substance that, if they find that the defendant was operating a motor vehicle in a district and at a rate of speed designated in the statute as making out a prima facie case for the Commonwealth, and “ there were no circumstances for the safety of the public or traffic in the road, or special conditions requiring a greater rate of speed,” they “ should return a verdict of guilty.”</p> <p>St. 1909, c. 534, § 16, which section went into effect on July 1,1909, provides that every person operating a motofwehicle shall run it at a rate of speed no greater than is reasonable and proper, and, among other provisions, that it shall be prima facie evidence of a rate of speed greater than is reasonable and proper if a motor vehicle is operated “ on any way upon approaching an intersecting way, or in traversing a crossing or intersection of crossings ” at a rate exceeding eight miles an hour. Section 1 of the statute defines “ intersecting way ” to mean “ any way which joins another at an angle, whether or not it crosses the other.” By § 33, all of the statute excepting certain designated sections, among which § 1 was not, and § 16 was, included, went into effect on December 31, 1909. Section 16 went into effect on July 1,1909. At the trial of a complaint alleging a violation on December 2, 1909, of § 16, it appeared that the defendant was operating an automobile in excess of eight miles an hour at a point where two streets joined at an angle the street upon which he was, and one only of the two continued across that street, doing so under another name. The defendant asked for a ruling that there was no evidence “of more than one intersecting way or intersection of ways at the time the alleged offense was committed.” The ruling was refused. Held, that the ruling was refused rightly, because, in spite of § 33, the definition of “intersecting way” in § 1 must be held to be applicable to that term as used in § 16.</p>

<p>Indictment, found and returned on July 10, 1909, charging that the defendant on June 21,1909, “had in its custody and possession with intent to sell milk to which water had been added.”</p> <p>E. L. c. 56, § 55, hereinafter referred to, reads as follows: “ Whoever, himself or by his servant or agent, or as the servant or agent of another person, sells, exchanges or delivers, or has in his custody or possession with intent to sell, exchange or deliver or exposes or offers for sale or exchange, adulterated milk or milk to which water or any foreign substance has been added, or milk produced from cows which have been fed on the refuse of distilleries, or from sick or diseased cows, or, as pure milk, milk from which the cream or a part thereof has been removed, and whoever sells, exchanges or delivers or has in his custody or possession with intent to sell, exchange or deliver, skimmed milk containing less than nine and three-tenths per cent of milk solids exclusive of fat, shall for a first offense be punished by a fine of not less than fifty nor more than two hundred dollars, for a second offence by a fine of not less than one hundred nor more than three hundred dollars and for a subsequent offence by a fine of fifty dollars and by imprisonment for not less than sixty nor more than ninety days.”</p> <p>In the Superior Court the case was tried before Wait, J. The evidence is summarized in the opinion. At the close of the evidence, the defendant asked the presiding judge to order a verdict of “ not guilty,” and for the following rulings:</p> <p>“2. The word 'milk ’ in R. L. c. 56, § 55, as used in the phrase 'milk to which water or any foreign substance has been added,’ means whole or natural milk of the cow.</p> <p>"3. The word 'milk ’ in R. L. c. 56, § 55, as used in the same phrase, milk to which water or any foreign substance has been added,’ means the normal unchanged secretion of the mammary glands of one or more healthy cows, and containing not less than twelve and fifteen hundredths per cent of milk solids, including not less than three and thirty-five hundredths per cent of fat.</p> <p>"4. If the jury find that the substance to which the water was added by the defendant was not whole or natural milk of the cow, they must find the defendant not guilty.</p> <p>"5. The substance to which the' water was added by the defendant was not milk within the meaning of the word 'milk ’ in the phrase, 'milk to which water or any foreign substance has been added,’ as used in R. L. c. 56, § 55.</p> <p>"6. If after the addition of water the resultant mixture was the natural milk of the cow, it could not have been such milk prior to the addition of the water, and the defendant is not guilty.</p> <p>"7. This indictment was found under R. L. c. 56, § 55. There is a separate section (§ 59) regulating the sale of condensed milk. There is no statute forbidding the adding of water to condensed milk and offering for sale or selling the liquid resulting therefrom.”</p> <p>The presiding judge refused to rule as requested, and submitted the case to the jury with instructions to which the defendant excepted, as stated in the opinion. The jury found the defendant guilty; and the defendant alleged exceptions.</p> <p>The case was argued at the bar in March, 1911, before Knowlton, C. J., Morton, Hammond, Sheldon, & llngg, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Complaint, received and sworn to in the Municipal Court of the South Boston District in the City of Boston on December 17, 1909, charging that on December 8, 1909, the defendant within the district of the court “ did have in its possession, with intent to sell the same in said Commonwealth, milk to which a certain foreign substance had been and was then and there added, a further description whereof is unknown to the complainant.”</p> <p>On appeal to the Superior Court, the case was tried before DeQouroy, J.</p> <p>It appeared that a sample of milk was taken from an eight quart milk can on a wagon of the defendant and that an analysis was made of it by one Frank E. Mott, the chemist to the bureau of milk inspection of Boston. As to a sediment which he found in the milk, he testified: “ From examination of the sediment, both microscopically and chemically, I identified in that sediment animal hairs; there are a few animal hairs. By far the greater part of the sediment, considerably over ninety per cent, is material that passed through the alimentary tract of a cow. . . . In other words, cow dung.”</p> <p>The defendant excepted to the witness being allowed to call the sediment “ cow dung,” because the complaint alleged that “ a further description ” of it than that it was “ a certain foreign substance” was “unknown to the complainant.”</p> <p>The witness further testified that over ninety per cent of the sediment was material that had passed through the alimentary tract of the cow, cow dung, composed of two chemical substances, cellulose and vasculose, substances that are foreign to milk.</p> <p>At the close of the evidence, the defendant asked the presiding judge to rule as follows :</p> <p>“ 1. That on the evidence produced by the government it has not proved a case against the defendant within the meaning of R. L. c. 56, § 55.”</p> <p>“ 9. There is not a substance ‘ added,’ within the meaning of the statute, unless there were such an intimate union of the foreign substance with the milk and its elements that the individual parts of the foreign substance lose their individuality in the milk.</p> <p>“ 10. That R. L. c. 56, § 55, does not include the prosecution of corporations within its terms directly or constructively.”</p> <p>“ 12. That the words ‘ milk to which a foreign substance had been added ’ as used in the statute means milk to which a foreign substance had been added or caused to be added by the previous voluntary act of some person or persons.”</p> <p>The rulings were refused.</p> <p>The presiding judge in his instructions to the jury submitted to them the following question, which they answered affirmatively: “ If the milk in question was milk to which a foreign substance had been added, was that substance in whole or in part soluble in milk?”</p> <p>The jury found the defendant guilty; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs at the sitting of the court in March, 1911, and afterwards was submitted on briefs to all the justices.</p>

Tort for personal injuries alleged to have been caused by the starting of a box street car of the defendant as the plaintiff was in the act of alighting therefrom near the corner of School and Washington Streets in that part of Boston called Dorchester. Writ dated May 5, 1908.

<p>Contract on a promissory note, executed in the name of the defendant, a charitable corporation organized under B. L. c. 125, and assigned to the plaintiff by the payee, one Mitchell, together with the assignment of an alleged mortgage securing it, as security for a note of Mitchell to the plaintiff for the same amount. Writ dated June 5,1908.</p> <p>The note sued upon was as follows:</p> <p>a ry .a | g 5 ® S</p> <p>“ $2,000.</p> <p>Boston, Hot. 8,1905.</p> <p>For value received, The Few England Home for deaf mutes, aged, blind or infirm, promise to pay to William F. Mitchell or order, the sum of Two Thousand dollars Fo/100 in 1 year (1) from this date, with interest to be paid semi-annually at the rate of three (8) per centum per annum during said term, and for such further time as said principal sum or any part thereof shall remain unpaid.</p> <p>Signed in presence of:</p> <p>Few England Home for Deaf Mutes, Aged, Blind or Infirm,</p> <p>Archibald MacLean. By John Dixwell, M.D.,</p> <p>President,</p> <p>and Heber Bishop, Treasurer.” Indorsement on back:</p> <p>“ William F. Mitchell.”</p> <p>In the Superior Court the case was tried before Dana, J. The facts shown by the evidence are stated in the opinion. The judge ordered a verdict for the defendant, and, at the request of the plaintiff, reported the case for determination by this court. If the ruling of the judge was right, judgment was to be entered on the verdict. If his ruling was wrong and if this court should be of the opinion that there was sufficient evidence upon which the jury could find that the plaintiff was not a bona fide holder of the note for value and without notice, there was to be a new trial. If the ruling of the judge was wrong and this court should be of the opinion that there was no sufficient evidence upon winch the jury could find that the plaintiff was not a bona fide holder of the note for value and without notice, judgment was to be entered for the plaintiff in such sum as it might be entitled to recover against the defendant upon the pleadings and under the terms of the report.</p>

Tort for personal injuries sustained by the plaintiff while in the employ of the defendant on January 15, 1908, at the defendant’s place of business, called the dump, in that part of Boston called South Boston, the declaration containing two counts, the first at common law, alleging a failure to furnish the plaintiff with a safe place to work and suitable appliances, and the second under R. L. c. 106, § 71, cl. 2, alleging negligence of a person in the service of the…

<p>Negligence, Licensee.</p> <p>A boy eight years of age, who with another boy enters an empty railroad car used for the transportation of milk to fill a bag with pieces of ice by permission of an agent or manager of a milk company, that leases from the railroad corporation the premises adjoining the track on which the car is standing, and is injured by reason of the car being started suddenly by servants of the railroad corporation, is in the relation toward the railroad corporation of a mere licensee at the most, and cannot maintain an action for his injuries against that corporation in the absence of evidence of wanton or reckless conduct on the part of its servants.</p>

<p>Tort for personal injuries alleged to have been sustained by the plaintiff on December 1, 1906, when he was in the employ of the defendant and in obedience to an order of a superintendent of the defendant was cleaning a pump in the boiler room of a power house of the defendant in Boston, while the machine was in motion. The declaration contained four counts, but the plaintiff elected to rely upon the first and third counts, the first, at common law, alleging a failure to give the plaintiff proper instructions and to warn him of dangers not known to or appreciated by him, and the third under R. L. c. 106, § 71, cl. 2, alleging negligence of a superintendent. Writ dated March 12, 1907.</p> <p>In the Superior Court the, case was tried before Brown, J. The plaintiff testified, among other things, that he was an Italian thirty-one years of age; that on the day before the accident he had been working for the defendant on a coal barge at the defendant’s Lincoln power station shovelling coal; that he had been five or six months in the United States before the accident; that in Italy he was a farmer; that after coming to this country and before working for the defendant he had worked digging trenches for sewer pipes ; that he had been working two or three days in the coal barge at the Lincoln power station before the accident; that on the morning of the accident he had been working at the boat from seven to half past seven o’clock ; that after that he went to work in the station to shovel coal and cinders and worked on that three hours; that a man named Fisher spoke to him while he was doing that work; that Fisher “ did not work, but bossed; ” that Fisher took him to the next room and gave him some cotton waste and told him to clean the whole machine; that Fisher did not tell him anything else; that he first cleaned away the oil around the machine; that he then took two steps up and began to clean other parts of the machine; that the machine was in motion all the time; that he never had seen the machine before and never had worked on such a machine; that he began to clean the big cog-wheel and the iron guard in front of it; that the big wheel moving around caused a wind which drew the waste in between the guard and the big cog-wheel, and thus drew in the plaintiff’s fingers ; that he saw the waste going in but that there was no time to let go; that he had been working five br six minutes on that part of the machine before the accident happened, and that he did not understand the danger of the wind or know that it would suck in the waste.</p> <p>At the close of the plaintiff’s evidence, the judge ordered a verdict for the defendant, and reported the case for determination by this court, with a stipulation of the parties that, if upon all the evidence, including such as was excluded improperly against objection and exception and excluding such as was admitted improperly against objection and exception, the judge was wrong in ordering a verdict for the defendant, judgment should be entered for the plaintiff in the sum of $1,000 ; otherwise, that judgment should be entered on the verdict.</p>

<p>Two actions of tort for personal injuries sustained on February 25, 1908, from being knocked down by a street car owned and operated by the defendant. Writs dated June 19 and October 21,1908.</p> <p>In the Superior Court the cases were tried together before Lawton, J. The plaintiff in the first case testified that he was a plumber,, whose place of employment was on Essex ■ Street in Boston; that on the day of the accident he had been with the plaintiff in the second case to a jewelry store to get a locket repaired ; and that they came down Beach Street from Washington Street to Harrison Avenue.</p> <p>He then testified as follows: “I had got about half ways across Harrison Avenue in Beach Street when a big double-horse team came around the corner, and there is a double set of tracks on Beach Street and there was a car, a Charlestown car, came up Harrison Avenue from Essex Street to go to the South Station. When I crossed the street I couldn’t get any nearer to this wagon unless I wanted to get run over. This car came up Harrison Avenue, turned the corner and never rang the bell or anything; I never knew he was there until the car hit me and knocked me down. As it hit me it hit me on the left leg right at the muscle and I fell. I fell that way. And then the step hit me again and threw me, and then Miss Connors was thrown also.”</p> <p>The plaintiff in the second case testified that she was employed in a clerical position on Lincoln Street in Boston; that the accident happened at about noontime; that she, walking with the plaintiff in the first case, came down Washington Street to Beach Street and then started to walk on Beach Street toward Kingston Street. She then testified as follows: “ Well, we were walking along and we got there at the curbstone, and there was a two-horse team, a large two-horse team, coming along, and of course we had to wait there, we couldn’t go by, and a car came down Harrison Avenue and I didn’t hear no bell or nothing — there was nothing rung until Mr. Magner was knocked down by the car and threw me down.” She was not struck by the car, but the plaintiff in the first case was knocked against her and she went down.</p> <p>It was testified that the plaintiff in the first case broke a rib and sustained other injuries and that the plaintiff in the second case sustained a severe nervous shock.</p> <p>At the close of the plaintiffs’ evidence, the judge ruled that there was no evidence that the plaintiffs were in the exercise of due care, and that the plaintiffs could not recover. He ordered a verdict for the defendant in each case; and the plaintiffs alleged exceptions.</p> <p>The case was argued at the bar in March, 1911, before Knowlton, C. J., Morton, Hammond, Sheldon, Rugg, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Tort for personal injuries caused by the plaintiff, a girl six years of age, being run over by a car of the defendant at the intersection of Fourth and O Streets in that part of Boston called South Boston. Writ dated May 7, 1907.</p> <p>In the Superior Court the case was tried before Brown, J. The plaintiff testified in direct examination that, as she was crossing Fourth Street, the defendant’s car was approaching; that the motorman slowed down at first as he approached the crossing and then suddenly increased his speed at a time when the plaintiff was unable to protect herself, and that thereby she was caught and injured.</p> <p>In her cross-examination the plaintiff testified that when she first saw the car she was eight feet from the track, and that when she next saw it she was four feet away. In redirect examination the question stated in the opinion was asked and answered, and then, subject to an exception by the plaintiff, the answer was stricken out by the presiding judge as not responsive to the question. The presiding judge, however, ruled that the plaintiff might, testify again in full as to the relative positions of herself and of the car before the car struck her. The plaintiff’s counsel then asked her a number of questions to which she made no reply, and, she having told the judge that she wanted to rest awhile, he ruled that she might. Other witnesses thereupon testified, and, near the close of the afternoon session, the defendant’s counsel stated, “ If this little girl is going to testify, I want it before the court closes to-night, and not in the morning after there has been a chance to talk with her ” ; to which the plaintiff’s counsel replied, “I won’t put her on after that remark.”</p> <p>At the close of the evidence, the plaintiff asked for the following ruling, which the judge refused to give :</p> <p>“ If, when the plaintiff started to cross the street, the car was going slowly enough so that she might have crossed safely, and she was injured by reason of a sudden increase in speed caused by the motorman, the jury should take those facts into consideration both upon the question of the plaintiff’s due care and the defendant’s negligence.”</p> <p>The judge submitted the following questions to the jury, which they answered as follows:</p> <p>“ 1. Was Margaret A. O’Leary, on April 22,1907, in the exercise of that degree of care which may reasonably be expected of children of her age and capacity ? Yes.</p> <p>“Was the motorman negligent? No.</p> <p>“ What damages did Margaret A. O’Leary suffer by reason of this accident ? $300.”</p> <p>Thereupon the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Negligence, Employer’s liability, Railroad.</p> <p>Where, at the trial of an action under R. L. c. 106, § 71, cl. 1, against a railroad corporation by a freight brakeman in its employ, to recover for personal injuries caused by the sudden unwinding of a brake wheel due to the slipping of a dog which held the ratchet as he was winding up the brake, there is evidence that the ratchet was defective in that one tooth was not cut in so deep as the others, which would cause the dog to be forced out and not to hold much pressure, and the plaintiff’s description of the manner in which the accident happened might be found to have been more consistent with the presence of a defective tooth in the ratchet than with any other cause, and there also is evidence that such ratchets are in common use on railroads, it is for the jury to say whether, in view of the way in which such ratchets are made and of their common use on railroads, the short tooth constituted a defect which the defendant in the exercise of due care and diligence ought to have discovered and remedied.</p> <p>If a freight brakeman in the employ of a railroad company is injured because of a defect, consisting of a short tooth in the ratchet on the braking apparatus of a freight car, the mere fact that such ratchets are in common use will not excuse the defendant from liability under R. L. c. 106, § 71, cl. 1, if it does not appear that the brakeman assumed the risk of the injury.</p> <p>If, at the trial of an action under R. L. c. 106, § 71, cl.-1, against a railroad corporation by a freight brakeman in its employ, to recover for personal injuries caused by the sudden unwinding of a brake wheel, caused by the slipping of a dog which held the ratchet as the plaintiff was winding up the brake, there is evidence that the ratchet was defective in that one tooth was not cut in so deep as the others, which would cause the dog to be forced out and not to hold much pressure, and the plaintiff testifies that he did not see any defect in the ratchet or dog before he began using them, and there is further evidence that the plaintiff’s duties were those of a member of a car-shifting crew, which required him to jump on and off cars in motion and to ride cars which had been “ kicked ” off from trains in train yards until, by braking them, he brought them to a standstill, the question, whether the plaintiff was in the exercise of due care, is for the jury.</p> <p>If, at the trial of an action under R. L. c. 106, § 71, cl. 1, against a railroad corporation by a freight brakeman in its employ, to recover for personal injuries caused by the sudden unwinding of a brake wheel, caused by the slipping of a dog which held the ratchet as the plaintiff was winding up the brake, there is evidence that the ratchet was defective in that one tooth was not cut in so deep as the others, which would cause the dog to be forced out and not to hold much pressure, and the plaintiff testifies that he did not see any defect in the ratchet or dog before he began using them, and there is further evidence that the plaintiff’s duties were those of a member of a car-shifting crew, which required him to jump on and off cars in motion and to ride cars which had been “ kicked ” off from trains in train yards until, by braking them, he brought them to a standstill, and it appears that ratchets with such short teeth were in common use on railroads, the questions, whether the plaintiff assumed the risk of the injury he received because he knew that the ratchet was or might be defective or because a defective ratchet was so common and well known as to constitute one of the obvious risks of the employment, or whether in the performance of his duties he properly could rely upon the assumption that the brake was in a condition to enable him to do his work in safety, and, if so, to what extent he was justified in acting upon such reliance, all were for the jury.</p> <p>If a freight brakeman, who in the course of his duties is upon a loaded freight car which has been “ kicked ” from a train in its course over switches to a position in a freight yard, and whose duty it is by use of the hand brake to bring the car to a standstill at the proper point, as he starts to use the brake for the first time observes that it is defective, so that he has before him the alternative of attempting to use it, employing such care as he is able to under the circumstances, or of abandoning the car to its fate with the certainty that it would come into collision with other cars, it is doubtful whether it can be said as matter of law that the brakeman, in deciding to use the brake, would assume the risk of injury therefrom. By Mobton, J.</p>

<p>Contract, with a declaration, as amended, in three counts, the first and second for $1,331.47 for commissions alleged to have been earned by the plaintiff as a salesman, and the third for $225, claimed as a share of profits in a branch of the defendant’s business alleged to be due to the plaintiff under an oral contract between him and the defendant. Writ in the Municipal Court of the City of Boston dated March 24, 1908.</p> <p>There was a declaration in set-off in two counts, the first count, as amended, claiming $1,971.54 on an account annexed, and the second count, also upon an account annexed, claiming $3,321.71.</p> <p>There were answers of general denial and payment both to the declaration and to the declaration in set-off.</p> <p>On appeal to the Superior Court, the case was referred to Hollis R. Bailey, Esquire, as auditor. Among other findings in the report were the following:</p> <p>The plaintiff from the year 1897 to early in the year 1908 was in the employ of H. C. Dexter and of the defendant as a travelling salesman and otherwise. The defendant was incorporated in the year 1900 and was engaged principally in the manufacture of furniture, having its factory and principal place of business at Black River, in the State of New York. Henry C. Dexter owned a majority of the stock and was a director and also the president and the general manager and the acting treasurer. He practically had the entire control of the affairs of the company.</p> <p>It was not disputed that in April, 1900, when the company was organized, the plaintiff took twenty-five shares of stock and gave Dexter his note for $2,500, payable on demand with interést at six per cent, with the twenty-five shares of stock as collateral ; and that in October of the same year he took twenty-five additional shares and gave Dexter a second note for $2,500, payable on demand with interest at six per cent. Dexter indorsed the notes and placed them with a bank in Watertown, New York. The interest was paid by Dexter as it became due and was charged to the plaintiff in his general account. No dividends ever were declared by the company. In March, 1907, the first of the notes was taken up by Dexter from the bank and returned with the twenty-five shares of stock to the plaintiff. In January, 1908, the second of the notes was taken up by Dexter from the then holder and was returned to the ¡plaintiff, the twenty-five shares of stock being retained by Dexter. The circumstances attending this settlement of the notes were in dispute.</p> <p>The plaintiff’s contention before the auditor in regard to the note transactions was that it was agreed in December, 1902, between Dexter and himself that he, Ridenour, should for the year 1903 receive $1,000 a year additional salary to be applied toward paying the notes; that this arrangement continued until the end of the year 1906, when a new arrangement was made; that in December, 1905, it further was agreed that during 1906 he should be allowed certain additional commissions earned on outside business, the same to be collected by Dexter and credited to him on his general account; that the first note with the stock was returned to him in March, 1907, by reason of the fact that the extra salary for the years 1903 to 1906 inclusive was more than enough to pay the note; that in November, 1907, talk was had about the remaining note and about the 1906 account, and that Dexter gave to him a statement showing the extra commission for 1906, amounting to $1,610.36, credited on his general account, and $150 paid by Ridenour in 1904 also credited, leaving the balance due on the general account January 1,1907, $340.96; that Dexter then was willing to settle the account and the remaining note, he, Dexter, keeping the stock, waiving the balance of $340.96, and taking up and returning to the plaintiff the remaining note; that the plaintiff was not then willing to concede so much, but finally in the January following concluded to settle on the basis above stated, and that the last note was thereupon returned to him and the twenty-five shares of stock retained by Dexter.</p> <p>The defendant contended before the auditor that there was talk in December, 1902, of an increase of salary of $1,000 per year to apply on the notes but that no agreement ever was arrived at and that no increase of salary took effect; that the additional commissions for 1906, $1,610.36 and $150, were to apply on the notes and not on the general account; that there was no waiver of the balance of $340.96 and no settlement of the general account for 1906 ; that the second note was paid by the plaintiff giving up the twenty-five shares of stock, and that the first note was only paid to the extent of the $1,610.36 and $150, leaving a balance of about $800 still due on account of the first note.</p> <p>The auditor then stated that there were two questions to be determined, (1) Whether there was an agreement in 1902 or thereafter for an additional salary of $1,000 per year for the years 1903-1906 to apply on the notes ? (2) Whether there finally was a settlement of the general account in connection with the note transactions ?</p> <p>After reciting at length the evidence bearing on these questions, much of which consisted of letters which passed between the parties, the auditor found (1) that there was an agreement in 1902 or thereafter for an additional salary of $1,000 per year for the years 1903, 1904, 1905 and 1906 to apply on the notes; (2) that there finally was a settlement of the general account in connection with the note transactions; (3) that there was nothing due to the defendant under its declaration in set-off; (4) that the plaintiff was entitled to recover on the first two counts $795.39, and on the third count $179.61, with interest on both sums.</p> <p>The report contained no reference to any statute of frauds being introduced in evidence or relied on by the defendant.</p> <p>The case was tried in the Superior Court before Haymond, J. The plaintiff relied solely on the auditor’s report. The defendant called Dexter and introduced in evidence the New York statute of frauds. The evidence as to the New York statute of frauds was the last evidence offered in point of time, and no objection to evidence on the ground of the statute w;as made during the trial or before the auditor, nor was any reference to the statute made in the pleadings. There was no reference to the Massachusetts statute of frauds until the requests for rulings.</p> <p>At the close of the evidence the defendant asked for the following rulings:</p> <p>“ (1) That upon the evidence as to the law of New York, the alleged contract of 1903 was a contract not to be performed within a year from the time of its making and was null and void because not subscribed by this defendant.</p> <p>“ (2) That under the law of Massachusetts the alleged contract for 1903 would be within the statute of frauds of an agreement not to be performed within a year and would not be binding upon the defendant.</p> <p>“ (3) That there is no sufficient evidence in the case to warrant the jury in finding that any agreement was made by the defendant fixing the salary of the plaintiff for the years 1903, 1904, 1905 and 1906 in excess of $2,200.</p> <p>“ (4) That there is no sufficient evidence in the case to warrant the jury in finding that the plaintiff became entitled to receive from the defendant as compensation for his services for 1903, 1904, 1905 and 1906 any sum in excess of $2,200 per year and the special commissions with which his account was credited by the defendant.</p> <p>“ (5) That there is no sufficient evidence in the case to warrant the jury in finding that the amount claimed by the defendant in its set-off less the credits admitted by it has been paid.</p> <p>“ (6) That there is no issue upon the pleadings as to whether the note of April 2, 1900, was paid by the defendant company, and the evidence relating to its payment out of a supposed reserved salary is wholly immaterial. If the note was paid by the defendant for account of plaintiff out of reserved earnings not credited to the plaintiff, such payment could not affect in any way the items that were charged upon the books.”</p> <p>“ (9) That if the jury should find that the April note was paid by the corporation at plaintiff’s request applying to the payment the remittance of $150 from Washington and the commission credit of $1,610.36, such payment would not affect the amount due by plaintiff upon his general account and in the absence of further testimony would require a finding for the defendant for the amount of its set-off; but if said sums were not applied by the defendant company to the payment of the April note, but were applied to plaintiff’s general account as a payment therein, the defendant would be entitled to a finding upon its set-off of the difference between the two amounts, being $340.96.”</p> <p>The presiding judge refused to rule as requested.</p> <p>The only portions of the charge which were stated in the bill of exceptions were the following:</p> <p>The jury were instructed “ that the statute of frauds did not apply to the case, and they need not consider it, and further . . . that there was no increase in salary unless the parties agreed together to increase the salary. That it was not necessary for this case that the conversation which they held or the writing. which they passed on that point should be produced and shown. That they had a right to find an increase from all the facts as they were developed in the trial. That if there was a contract to increase the salary from $2,200 to $3,200 that that agreement entered vitally into a finding on the general accounts. That they might consider the series of letters that were in evidence, the personal testimony of Mr. Dexter bearing upon them, the credibility of the testimony given by Mr. Dexter, his failure to reply to plaintiff’s letters in determining whether or not there had been any increase in salary.</p> <p>“ After calling the jury’s attention to the letter of January 17, 1906, and the defendant’s reply of January 20, 1906, the judge said ‘ Yes, there was a response on January 20, in which Mr. Dexter refers particularly to the letter of January 17, and says in regard to the statement of account, “ I cannot just now give you the same,” and goes on to state reasons why he cannot. I call to your attention that letter and ask you to examine it particularly and see from that in connection with the other (January 17, 1906) whether or not the agreement was treated as an existing agreement between the parties.’ ”</p> <p>The jury found for the plaintiff in the sum of $1,071.69. The defendant moved for a new trial, as stated in the opinion. The motion was overruled. The defendant alleged exceptions to the rulings at the trial and at the hearing of the motion for a new trial.</p>

<p>Tort for personal injuries caused by the plaintiff, a child twelve years of age, being struck by a car of the defendant at the corner of Williams Street and Shawmut Avenue in Boston. Writ dated July 18, 1907.</p> <p>In the Superior Court the case was tried before Harris, J. Shawmut Avenue runs northerly and southerly. The street railway track designated as “inward” in the opinion was on the easterly side of Shawmut Avenue, and that designated “ outward ” was on the westerly side. The plaintiff’s evidence tended to show that she was crossing Shawmut Avenue from the east, thus approaching first the inward track.</p>

<p>Negligence, Employer’s liability, Railroad.</p> <p>If a mill corporation receives from a railroad corporation a car belonging to the railroad corporation and loaded with coal for the mill, and under the sole control of the mill corporation and by its employees the car is moved over tracks of the railroad corporation to tracks of the mill corporation and on to its premises, dumped, and returned to the railroad corporation, the car, during the time that it is thus in the control of the mill corporation, is a part of its appliances and of its ways, works or machinery, and that corporation is liable both at common law and under St. 1909, c. 614, Part I. § 127, cl. 1, for personal injuries received by an employee by reason of a defect in th'e car which could have been discovered by reasonable diligence.</p> <p>A mill corporation received from a railroad corporation a certain car belonging to the railroad corporation and loaded with coal for the mill, and under the sole control of the mill corporation and by its employees the car was moved over tracks to its premises to be dumped. The ear was of a variety called a coal dump car, its body being arranged to tip either to one side or to the other of the car and thus to dump its contents, while, when the car was loaded, the body was held in an upright position by a combination of links, dogs, hangers and wooden floor beams. The method employed by the mill corporation’s superintendent to get the car upon its premises was to start it with some speed toward a curve and then to let it go by its own momentum, a brakeman in the employ of the mill corporation being upon it so that its speed could be checked at the right moment. The superintendent knew that it was necessary that the apparatus which held the car body in place should be able to stand the lateral strain caused by the car striking the curve at speed, and that otherwise the load would be dumped and the brakeman injured. Before the car in question was started toward the curve the superintendent by looking at the ends of the car ascertained that the apparatus in question was in place. He did not discover that the apparatus was, as to its materials, defective and unable to stand the strain to be put upon it, facts which he would have discovered if he had made an examination of the apparatus under the car. By reason of such defects, the apparatus gave way on the curve, the car dumped its contents and the brakeman received injuries from which he died. Held, that such failure of the superintendent to discover the defects might be found to be negligence for which the mill corporation might be found to be liable under St. 1909, c. 514, Part I. § 127, cl. 2, § 128, for the conscious suffering and death of the brakeman.</p> <p>If an employee of a mill corporation receives fatal injuries by reason of a defect in a car which a railroad corporation owns and has delivered to the mill corporation under an arrangement between them, and the existence and failure to discover the defect are due both to negligence of the mill corporation and of the railroad corporation, separate actions may be maintained for such injuries and death respectively against the mill corporation at common law and under St. 1909, c. 514, Part I. §§ 127, 128, and against the. railroad corporation-at common law and under St. 1906, c. 463, Part I. § 63, St. 1907, c. 392, although there can be only one satisfaction in damages ; and a jury may be permitted to find a verdict in the action against the mill corporation of $3,300 for the death and $200 for conscious suffering; and a verdict of $6,300 in the action for death against the railroad corporation.</p> <p>If a railroad corporation transports a car, which it owns and which is loaded with coal, entirely on its own lines to and into the sole control of a mill corporation with the understanding that the mill corporation by its employees shall move the car over tracks to a coal pocket upon its premises, dump it and return it to the railroad corporation, the railroad corporation is liable at common law for personal injuries and under St. 1906, c. 463, Part I. § 63, St. 1907, c. 392, for the death of an employee of the mill corporation who is injured by reason of a defect in the car which would have been discovered if the car had been thoroughly inspected before it was delivered to the mill corporation.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on November 18, 1910, by a corporation engaged in the business of purchasing from manufacturers and selling to consumers all kinds of merchandise on mail orders upon the terms named in its catalogues, against an individual doing business under the name of Iver Johnson’s Arms and Cycle Works and manufacturing and selling firearms, revolvers, guns and other articles used by sportsmen, setting forth, as described in the opinion, an alleged contract made by an acceptance by the plaintiff of an alleged offer of the defendant to sell to the plaintiff certain revolvers on certain terms upon which they were ordered by the plaintiff, and praying, first, for a decree for the specific perfortnance of the contract, second, for an injunction restraining the- defendant from announcing that she did not deal with mail or catalogue houses, third, for a temporary injunction, and, fourth, for other relief.</p> <p>The defendant demurred to the bill, assigning, among other causes for demurrer, the ground that the allegations of the bill set forth no contract between the plaintiff and the defendant.</p> <p>The case was heard by Hammond, J., who sustained the demurrer and made a final decree that the bill be dismissed. The plaintiff appealed.</p>

<p>Contract against the collector of taxes of the town of Dedham upon a covenant of the defendant contained in a deed to the plaintiffs of certain land in Dedham, purchased by them at a tax sale on January 17, 1903, warranting that the sale in all particulars had been conducted according to law. Writ dated June 26, 1908.</p> <p>In Williams v. Bowers, 191 Mass. 565, the plaintiffs’ title was held to be bad, and in Williams v. Dedham, 207 Mass. 412, it was decided that the plaintiffs could not recover against the town of Dedham upon the covenant of warranty now sued upon.</p> <p>In the Superior Court the case was submitted to Schofield, J., upon an agreed statement of facts, as follows :</p> <p>On January 17, 1903, the defendant, as the collector of taxes 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 the sale executed and delivered the deed, a copy of which 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, with interest and the costs of collection.</p> <p>It was agreed, subject to the objection of the defendant as to its admissibility in evidence, that the value of the land was $2,95.0, and, subject to the objection of the plaintiffs as to its admissibility in evidence, that at the time of the sale the land was subject to a mortgage for $2,500, which was discharged on January 23, 1905, and that there was an alienation of the land in question on January 24, 1905.</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 the 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 defendant contained the covenant required by R. L. c. 13, § 43, now St. 1909, c. 490, Part II. § 44, that the sale had in all particulars been conducted according to law. This action was brought upon that covenant.</p> <p>If the evidence as to the value of the land and as to the amount of the mortgage was admissible, and if the plaintiffs were entitled to recover, it was agreed that the finding should be for $2,950 and interest, or for $450 and interest, or for $54.60 with interest, according to the rule of damages adopted by the court.</p> <p>The judge ruled that the defendant’s covenant of warranty as collector of taxes was a personal covenant, for breach of which he was liable to the grantee ; that the measure of damages was not the market value of the land, but was the amount of the consideration paid by the purchaser with interest at a reasonable rate, in view of the nature of the investment, which was of precarious duration owing to the right of redemption; that a reasonable return on it would be eight per cent per annum, following the analogy of the statutes fixing the rate to be paid by owners for redemption, and by cities and towns in case a purchaser takes nothing by his tax deed.</p> <p>The judge found for the plaintiff and ordered judgment in the sum of $66.40. Each party excepted to the rulings against him. At the request of the defendant, and by consent of both parties, the judge reported the case for determination by this court. If the rulings were right, judgment was to be entered as ordered; otherwise, the finding was to be set aside and such judgment was to be entered as law and justice required.</p>

<p>Contract, Construction, Performance and breach. Ship. Charter Party.</p> <p>In an action upon a charter party for the hire of a steamship for the last month of a term of hiring of seven months, it appeared that the defendant had paid for each of the six previous months and had refused to pay for the seventh month on the ground that the vessel was unseaworthy and that this gave him the right to cancel the charter party. The charter party provided that the steamship should be “ tight, staunch, strong and in every way fitted for the service” when delivered to the defendant, and that the plaintiff should “ maintain her in a thoroughly efficient state in hull and machinery for and during the services.” It also provided that the defendant should not be liable for the vessel’s hire during the time required for repairs. It. was admitted that the vessel was tight, staunch, strong and in every way fitted for the service when delivered to the defendant. In the month before the last month of the term of the charter party the plaintiff ordered the vessel to sail on a certain day. Her master could not do so because repairs were required. The defendant thereupon notified the plaintiff that he surrendered the vessel and demanded a return of the .charter. The plaintiff declined to accept the surrender. The judge, before whom the case was tried without a jury, found that the vessel when ordered by the plaintiff to sail at the time in question was unseawortliy, but that this was due to the fact that certain repairs were needed, which were completed in a reasonable time, namely, three days later, and that the vessel then was in a seaworthy condition and continued to be so until the expiration of the term of the charter party. The judge also found that “ the plaintiff maintained the . . . vessel in a condition fit for the service for which it was chartered during the whole time of the charter party, except during certain periods when necessary repairs were being made.” The findings of the judge were warranted by the evidence. Held, that there was no breach by the plaintiff of his agreement nor any failure to perform his part of the contract, and that the defendant had no right to cancel the charter party and in accordance with its terms was liable to pay for the vessel during the last month.</p>

<p>Negligence, In use of highway, Gross, Due care of plaintiff. Street Railway.</p> <p>K an electric street car, which is behind time, is run on a single track through the main thoroughfare of a village at a speed of about twenty-five miles an hour without sounding a gong or giving any warning of its approach, and in crossing an intersecting street runs down a traveller crossing the main street on foot, throws him a distance of ten feet from the car with such force that he rolls ten feet farther, and then continues on its way without stopping, this is evidence of gross negligence toward the traveller on the part of the motorman and the conductor of the car.</p> <p>A traveller on foot, who is about to cross the main thoroughfare of a village, on which, three feet from the sidewalk, is the single track of a street railway where electric cars run at stated intervals with which he is familiar, is not necessarily negligent in starting to cross the street without looking for a car which he reasonably may suppose already to have passed, but which, being behind time, is approaching at great speed and runs him down.</p> <p>If a traveller on foot, who, coming from an intersecting street, is about to cross the main thoroughfare of a village, on which, three feet from the sidewalk, is the single track of a street railway where electric cars run at stated intervals with which he is familiar, knowing that no car then is due from the right, looks to the right and sees no car, and, when approaching the track, is accosted by an acquaintance, to whom lie waves his hand, and then passes forward behind a large tree in the sidewalk, which cuts off his view of the track on the right until he is within a step of the first rail, and, pausing for a relatively short space of time, he then goes on the track and is run down and killed by a car, which is behind time and is approaching from the right at great speed and without warning, the administrator of his estate is not necessarily precluded from recovering for the death of his intestate thus caused, the question of the due care of the intestate being for the jury.</p>

<p>Accord and Satisfaction. Payment. Corporation, Dissolution. Words, “In full to date,” “ Suit,” “ Pending.”</p> <p>The proposition, that the acceptance and collection of a check, proffered upon the . condition that it is in full settlement of an unliquidated claim, even though accompanied by protestations that it is not so received, bars any attempt to collect the balance, is supported by the great weight of authority. Remark of Rugg, J.</p> <p>The use of the words “ in full to date ” or an equivalent phrase in connection with the payment of a controverted claim does not necessarily create an accord and satisfaction, and often, although these words have been used, it is a question of fact whether the acceptance of the payment constituted an accord and satisfaction.</p> <p>In an action for the price of certain goods the defendant admitted that the goods had been sold and delivered to him by the plaintiff but alleged that there had been an accord and satisfaction. It appeared that, about a week after the goods were sold and delivered, a contract in writing was made by the parties for the sale of other articles, and that later the payments called for by the contract in writing were made in full. The defendant, when asked to pay for the goods in question, asserted that they had been included in the contract in writing. This was denied by the plaintiff. In the month following the making of the contract in writing the plaintiff shipped to the defendant a consignment of pulp blue, which the defendant had ordered in a separate transaction. There was a dispute between the parties as to the quantity and the quality of the pulp blue and as to the price to be paid for it. After correspondence, the plaintiff sent to the defendant a corrected bill for the pulp blue, stating as the amount due a sum considerably less than that originally claimed. The defendant thereupon returned the corrected bill in a letter, saying, “ Enclosed please, find check for your account in full,” naming the amount of the corrected bill for the pulp blue. Enclosed was a check for that amount on which was written “ in full to date.” The plaintiff, after consultation with his attorney, drew a pen through the ' words “ in full to date,” collected the check in ordinary course and sent the receipted bill to the defendant with a letter, in which he said that the check was in .settlement of the invoice of the pulp blue and was not in full for all claims, and asked the defendant to remit the price of the goods now sued for. It was plain as matter of law that the contract in writing between the parties did not include the items in dispute as the defendant wrongly had supposed and asserted. Held, that the letter of the defendant, in which the check was transmitted, and the words written upon the check, in the light of all the transactions between the parties, were not so plain and unequivocal as to warrant a ruling of law that they meant an offer of the check upon the condition that, if accepted, it would be in full settlement of all disputed claims, that the burden of proving the defense of an accord and satisfaction was on the defendant, and that the question whether he had sustained that burden was one of fact for the jury.</p> <p>In St. 1907, c. 290, dissolving by § 1 a large number of corporations there enumerated, subject to the provisions of St. 1903, c. 437, §§ 52, 53, and providing in § 2 that " nothing in this act shall be construed to affect any suit now pending by or against any corporation mentioned in the first section of this act,” the word “suit” includes an action at law, and the word “pending” includes an action in which the writ is dated four days before the statute took effect, although it was not served on the defendant until five days after the statute took effect.</p>

<p>Three actions oe contract under the provisions of St. 1909, c. 490, Part II. § 45, to recover money paid to the collector of the defendant by the respective plaintiffs for certain property sold to them at tax sales, and conveyed to them by collector’s deeds, the plaintiffs contending that for various reasons the sales and the deeds were invalid. Writs dated June 15, 1910.</p> <p>The plaintiff in the first case sought to recover twenty-one different sums which he had paid at a collector’s sale on August 10, 1909, for twenty-one different parcels of land then sold to him. The items were described in a bill of particulars under numbers 1 to 6 inclusive, 8, 9,11,12,14 to 23 inclusive, and 27.</p> <p>The plaintiff in the second case sought to recover five different sums described in a bill of particulars in five items, which he had paid at a collector’s sale on July 21,1908, for five different parcels of land then sold to him.</p> <p>The plaintiff in the third case sought to recover eight different sums, of which four were sums that he had paid at the collector’s sale on July 21, 1908, and four were sums that he had paid at the collector’s sale on August 10,1909, for different parcels of property sold to him by the collector. The items as to the July 21, 1908, sale were described in a bill of particulars and were numbered 1, 3 to 5 inclusive. The items as to the August 10,1909, sale were numbered 6, 7, 9, 10.</p> <p>In the Superior Court the cases were submitted together to Harris, J., upon an agreed statement of facts.</p> <p>It appeared that the form of deed described in the first numbered paragraph of the opinion and its subdivisions was that used by the collector in conveying all of the property sold to the plaintiffs Walsh and Edward F. Conners at the sale on July 21, 1908, comprising the transactions described in all the items of the second action and in the items numbered 1, 3 to 5 inclusive in the third action. The same form was used by the collector in conveying, after a previous tax sale, the land described in items 6, 7, 9 and 10 in the third action to the person to whom the subsequent assessments, which were the foundation of the sales described in those items, were made. All such deeds were signed, “ Andrew G. Stiles, Collector of Taxes for the City of Lowell.”</p> <p>The form of description of the persons upon whom the collector made demands, described in the second numbered paragraph of the opinion, was used in the deeds described in items numbered 6, 16 and 17 in the first action.</p> <p>The publication of the notice of sale in a newspaper printed in the French language, as stated in the third numbered paragraph of the opinion, occurred as to the sale described in item numbered 1 of the third action, and in items numbered 8, 9, 11, 12, 14 to 21, inclusive, and 23 of the first action.</p> <p>The descriptions of the land sold, discussed in the fourth and fifth numbered paragraphs of the opinion, were those used to designate the land referred to in items numbered 6, 7, 9 and 10 in the third case, and items numbered 1 to 3 inclusive, 5, 6, 8, 9,11,12, 14 to 22 inclusive and 27 in the first case.</p> <p>The assessment of land to a person not in possession but holding a tax collector’s deed, valid on its face and duly recorded, who had failed to file the statement of his residence and place of business required by R L. c. 13, § 45, referred to in the sixth numbered paragraph of the opinion, was the foundation of the sale described in items numbered 6 and 10 in the third case.</p> <p>The deeds referred to in the paragraph of the opinion numbered seven were those described in items numbered 6, 7, 9 and 10 in the third action.</p> <p>The judge found for the plaintiff in the first action as to items 6, 8, 9,11, 12, 14 to 21 inclusive and 23, and for the defendant on the other items in that case, and judgment was entered accordingly. Both parties appealed.</p> <p>The finding and judgment in the second case was for the plaintiff as to aE the items. The defendant appealed.</p> <p>In the third case the judge found for the plaintiff as to items 1, 3, to 5, inclusive, and for the defendant as to the other items, and judgment was entered accordingly. Both parties appealed.</p>

<p>Equitable Restrictions. Equity Pleading and Practice, Decree.</p> <p>A restriction, imposed by the owner of a number of lots in a tract of land on a certain street in furtherance of a general scheme for the benefit of them all, that no building “ shall ever be erected within fifteen feet of” the line of the street “ and no mechanical shop, livery stable, or store shall ever be erected or used on said parcel which shall be detrimental to the use of this locality for dwelling houses,” does not prevent as matter of law the erection upon one of the lots of a building which is not a dwelling house and which is used as a place of storage of merchandise not brought to or taken from the building over the street in question, and also for the storage of automobiles, but not as a garage.</p> <p>At the hearing in the Superior Court of a suit in equity by the owner of a lot of land upon a certain street against the owner of an adjoining lot to enforce a restriction, applying to all the lots on the street, that no building “ shall ever be erected within fifteen feet of” the line of the street “and no mechanical shop, livery stable, or store shall ever be erected or used on said parcel which shall be detrimental to the use of this locality for dwelling houses,” the evidence was conflicting, and findings were warranted that the defendant was proposing to erect on his lot a building to be used in connection with a store maintained by him on an adjacent and parallel street. The presiding judge ordered a decree enjoining the defendant from using the proposed building as a store for the sale of goods on the street upon which it stood, but permitting him to use it for the storage of merchandise and as a “ garage for the storage of automobiles or as a storage warehouse.” On appeal by the plaintiff it was held, that the use of the building as a “ garage for the storage of automobiles ” would or might be detrimental to the use of the street for dwelling houses, and that the decree should be modified by striking out that part of it, the defendant being given leave to apply to the Superior Court to have the decree include a provision, if that court saw fit, permitting the use of the building for the storage of automobiles but not as a garage; and it was further held that the decree should be modified further by enjoining the defendant from using the building for the reception and delivery of goods to be sold in the store on the adjoining street, and from using the street on which the proposed building was to stand for the transportation of goods and merchandise in connection with such store.</p>

<p>Bond, Construction, Breach. Municipal Corporations, Officers and agents. Damages, In action of contract: bond.</p> <p>A bond with sureties, given to a city by its treasurer and collector of taxes, after reciting the election of such officer “ for the current municipal year,” provided that, if he “ shall well and truly perform all of the duties and responsibilities which devolve upon him by virtue of his acceptance of the two offices aforesaid during the term for which he has been elected and for such further term or terms or portion of a term for which he may be elected or for which he may serve and if [he] shall annually not later than the first Monday in February, obtain the approval in writing of the mayor and aldermen of said city . . ., then this obligation shall be void, otherwise it shall remain in full force.” The officer was elected for several successive years without a new bond being given. Held, that, the obtaining of “ the approval of the mayor and aldermen,” whatever that provision in the bond might mean, not being a condition precedent to the continuation of the obligation, the obligation expressed in the bond was not limited to the current municipal year, but continued through successive years of continuous election to and service in the offices of treasurer and collector of taxes.</p> <p>The mere fact that a bond given to a city by its treasurer and collector of taxes, which by its terms was a continuing obligation during successive terms of office of the obligor, was not approved by the mayor and aldermen as required by R. L. c. 25, § 72; c. 26, § 2, and by ordinances of the city, will not prevent recovery thereon by the city in case of its breach, if it is good as a common law bond.</p> <p>In an action by a city upon the bond of its treasurer and collector of taxes, negligence of other officers of the city in not discovering defalcations of the treasurer which constituted the breaches of the bond is no defense.</p> <p>A bond given to a city by its treasurer and collector of taxes, which by its terms is a continuing liability during the current term of that officer and successive terms for which he is elected and in which he serves, is terminated by the giving of a new bond of the same character.</p> <p>In an action by a city against a surety upon a bond given by its treasurer and collector of taxes, it appeared that the treasurer had embezzled large sums of money which were in his possession as treasurer, and then fraudulently had issued notes of the city which he had power to negotiate as a borrowing agent of the city and had applied the proceeds thereof to cover his direct embezzlements as treasurer. The defendant contended that the wrongdoing which had resulted in financial harm to the city was not a wrongdoing of the treasurer or collector of taxes, and therefore that the defendant was not liable. Held, that the character of the original embezzlement of the treasurer, which constituted a breach of the bond, was not changed by its temporary concealment through his fraudulent acts as borrowing agent of the city.</p> <p>Although, in an action against the surety upon a bond for a penal sum conditioned upon the proper performance of his duties by a public official, if there is a verdict for the plaintiff, judgment is entered for the penal sum of the bond and the amount of the execution is determined later, there is no reason for not determining the amount for which execution should issue at the same time with the question of liability when the record is ripe for it. Such a case arises when the record shows that the loss sustained by the obligee far exceeds the penal sum of the bond.</p> <p>In an action by a city against a surety upon the bond of its treasurer and collector of taxes, it appeared that the treasurer had embezzled a large amount of money which he had replaced with the proceeds of a note which he had negotiated fraudulently as borrowing agent of the city, and that at the time of the trial of the action upon the'bond, an action against the city upon such note was pending. Held, that the initial embezzlement constituted a breach of the bond and therefore that judgment should be entered for the plaintiff, and that the amount for which execution should issue should be determined after the termination of the action upon the note.</p>

<p>Bill in equity, begun'by a writ of attachment containing a bill of complaint, dated November 16, 1892, and filed in the</p> <p> </p> <p>Superior Court on December 5,1892, by the owners of the lot marked “ Williams ” on the accompanying plan, seeking to enjoin the defendants, owners of other lots abutting on Townsend Place, from interfering with the plaintiffs’ use thereof and to have the defendants asked to remove a certain post placed by them in the way, and for damages; also a</p> <p>Cross bill in which some of the defendants, owners of lots numbered 1, 3, 5, 7, 8 and 10 on the plan, sought to enjoin the plaintiffs from using Townsend Place for horses and .carriages and to limit them to the use of a way five feet wide.</p> <p>The case was referred to Charles E. Grinnell, Esquire, as master, who filed a report to which was attached a “ sketch map,” from which the accompanying plan is made.</p> <p>From the report it appeared that the land conveyed to Williams on July 12,1842, as stated in the opinion, was that part of the lot marked “Williams” lying between Boylston Street and the dotted line with the words and figures “ July 1842 Line” upon it, and that the lot conveyed to him on October 19, 1842, was the lot between that line and Townsend Place.</p> <p>All the land included in the heavy lines on the plan belonged to the Townsend heirs at the time of the first conveyance to Williams.</p>

<p>Contract, Construction. Patent. Words, “Interest.”</p> <p>In a suit in equity for the specific performance of a contract, it appeared that the defendant was the owner of a patent for a certain machine and that the plaintiff and the defendant made a contract in writing that the plaintiff should have an exclusive license to manufacture and sell the patented machine for five years, the seventh paragraph of the contract stating in detail a method of accounting for and of dividing the profits of the enterprise. The eighth paragraph provided in substanpe that, if “ at the expiration of said licenses and of this contract” the defendant did not desire to renew the contract for a further term, he should “ deliver such transfers, papers and instruments as will vest in the [plaintiff] . . . fifteen one-hundredths interest in and to said patent, . . . and also fifteen one-hundredths interest in and to all the profits arising from business in machines during the life or lives of said patents . . . and also twenty one-hundredths interest in and to all the profits arising from the sale of rolls, spare parts and supplies furnished to said machines or protected in any manner by the patents aforesaid. Profits within the meaning of the foregoing provisions,” it was provided, should “ mean the differences between the manufacturing cost and the amount of the receipts in each instance as hereinbefore defined in Article VIL, and all the provisions of that article shall apply to the parties hereto mutatis mutandis. And in the event the ” defendant should desire “ to sell said patent or patents and business done under them, and . . . obtain a bona fide offer therefor, then " the defendant was to communicate such offer to the plaintiff who was to have ten days in which to “ buy said patents and business ” on the terms so offered, and, if he did so, he was given the right to “ credit his fifteen oneliundredths interest in the purchase price and make payment for the balance of the purchase price at such times and in such manner as ” might be agreed upon. In case he did not purchase, the defendant might sell to the person who had made the offer, “ accounting to the [plaintiff] for his fifteen one-hundredths part of the proceeds of such sale as aforesaid. But in the event that the person making such offer” did not purchase, then no sale could be made “ of said patents and business by the parties of the second part until a new offer ” should " have again been submitted to the party of the first part and rejected by him in like manner as before.” Held, that the words “ interest in and to said patent,” as used in the contract, meant a limited property right arising under and defined in the contract, which was less than absolute ownership, and that the plaintiff was not entitled at the termination of the'contract to an assignment of the title to any part of the patent.</p>

<p>Equity Jurisdiction, Specific performance, Trust. Landlord and Tenant. Covenant.</p> <p>In a suit in equity by the trustee in bankruptcy of a business corporation against an individual defendant who had caused the corporation to be formed to carry on the business formerly conducted by him personally, to compel the specific performance by the defendant of an oral promise to assign to the corporation a lease held by him of the premises in which the business of the corporation had been carried on ever since its formation, it appeared that the lease contained a covenant by the defendant as lessee not to assign or underlet the premises except with the written consent of the lessor, and there was no evidence that the lessor had given or would give his consent to an assignment and he was not a party to the suit. The lease also provided that if the lessee or his representatives as assigns failed to perform any covenant, or if the lessee should be declared a bankrupt or insolvent or an assignment of his property should be made for the benefit of creditors, the lessor might enter and expel the lessee. Held, that, assuming that there was a consideration for the defendant’s oral agreement to assign the lease, and that there had been such a part performance as to take the case out of the statute of frauds, and assuming also that the conditions on which the defendant promised to assign the lease had been performed, specific performance could not be decreed, because the defendant should not be ordered to violate his covenant, and, even if he should be ordered to violate it, the result would be to give the lessor an immediate right of entry which would deprive the plaintiff of the lease; and, moreover, to order an assignment of the lease to the trustee in bankruptcy of the corporation would violate the spirit and intent of the provision of the lease giving the lessor the right of re-entry if the lessee became bankrupt or insolvent or made an assignment for the benefit of creditors.</p> <p>In a suit in equity by the trustee in bankruptcy of a business corporation against; an individual defendant who had caused the corporation to be formed to carry on a business formerly conducted by him personally, to compel the specific performance by the defendant of an oral promise to assign to the corporation a lease ' of the premises in which the business of the corporation had been carried on ever since its formation, where the bill also contains a prayer that the defendant shall be ordered to hold the lease in trust for the corporation or for the plaintiff, if a decree for specific performance cannot be granted because it would compel the defendant to violate a covenant of the lease and would be nugatory and inequitable, the same reasons prevent the granting of a decree that the defendant shall hold the lease as trustee for the corporation or the plaintiff, because such a decree would mean that in equity and good conscience the plaintiff is entitled to a transfer of the lease, which the denial of specific performance decides not to be the case.</p>

Tort by the administratrix of George J. Buckley, under the employers’ liability act, to recover damages for the conscious suffering and death of the plaintiff’s intestate from injuries sustained on December 20,1906, between three and four o’clock in the afternoon, when the intestate was employed by the defendant as a lumper or a man who did general work around the defendant’s factory, with two counts, respectively for the conscious suffering and death of the intestate,…

<p>Four actions oe tort, by two plaintiffs severally against two defendants severally, for personal injuries and damage to an automobile of the plaintiff Bourne from being run into by an automobile belonging to the defendant William P. Whitman alleged to have been driven negligently by the defendant Richard P. Whitman, who was alleged to have been the agent and servant of the defendant William, on the main road from Bourne to Falmouth in that part of Falmouth called West Falmouth, near a bridge over the tracks of the New York, New Haven, and Hartford Railroad Company, on the evening of August 15,1908. Writs dated December 7,1908.</p> <p>In the Superior Court the case was tried before Bell, J. The plaintiffs put in evidence four applications signed by the defendant Richard P. Whitman to the Massachusetts highway commissioners for a chauffeur’s license, dated July 19,1906, and in 1907, 1908, and 1909, in each of which in answer to the written questions in the applications, asking by whom he was employed and for whom he operated, the defendant Richard stated that he was employed by and operated for William P. Whitman. The plaintiffs also put in evidence two applications to the highway commissioners signed by the defendant William P. Whitman for the registration of the car involved in the accident, in the first of which dated August 24, 1907, William P. Whitman stated that he employed Richard P. Whitman as chauffeur, and in the second of which dated March 23, 1908, he stated that he employed one Lemuel W. Davis as chauffeur. The statements of facts in all of the applications were sworn to.</p> <p>At the time of the accident, William P. Whitman’s car was legally, registered by the highway commissioners under a registration dated March 17, 1908.</p> <p>The plaintiffs also put in evidence the records of the Massachusetts highway commissioners showing that the chauffeur’s license issued to Richard P. Whitman expired by its own limitation on the day before the accident, to wit, on August 14, 1908, and that upon the day of the accident, August 15, 1908, Richard P. Whitman held no license to drive an automobile.</p> <p>The defendants put in evidence the application of Richard P. Whitman to the highway commissioners dated and filed August 13, 1908, for a renewal of his license as a chauffeur, upon which a license was issued to him on August 17, 1908.</p> <p>The plaintiffs offered evidence tending to show that on the evening of the accident they had been to Onset Bay and were returning by the State highway leading from Buzzards Bay through Megansett and North Falmouth to Falmouth, that the headlights and-side lamps of their car were lighted properly and burning; that as they approached the place of the accident, going in a southerly direction, the highway ascended a grade and turned to the left across a bridge over the railroad track; that, at a distance approximately three hundred feet from the place of the accident, Bourne, who was driving the car, reduced its speed to approximately ten miles an hour and continued at that rate up to the time of the collision; that for three hundred feet before the collision and at the time of the collision he had been driving with his left wheels in the centre of the travelled part of the highway in the direction in which he was going; that as he approached the curve he sounded his horn and both plaintiffs were looking and watching ahead; that suddenly the car of the defendants came around the curve at a very high rate of speed; that the search lights were not lighted but side lamps were lighted and that the car came in contact with the left hand front end of the plaintiff’s car. The force of the collision threw both plaintiffs out of the car and caused the personal injuries and the damage to the car complained of.</p> <p>The defendants introduced evidence that William P. Whitman was a resident o.f Brockton, but that at the time of the accident he was living at his summer home in North Falmouth; that on the night of the accident the defendant Richard P. Whitman was desirous of attending a dance which was to be held at Megansett, a village of Falmouth, and wished to take with him three friends who lived at Falmouth Heights, another village of Falmouth, some distance south of Falmouth Centre and several miles from Megansett; that at ¿bout seven o’clock on the night of the accident the defendant Richard P. Whitman asked his father William P. Whitman whether he could take the car, as he wanted to go to Falmouth to get some of his friends to take them to a dance at Megansett, and that the elder Whitman told him he dould take it; that the defendant Richard took the car and took with him Dr. Harold O. Hunt and Harold O. Fraser, two other friends of his, and carried them from North Falmouth to Falmouth Centre, leaving them there, and agreed to get them later in the evening after the dance and return with them to North Falmouth; that after leaving Hunt and Fraser, he continued on to Falmouth Heights, got his three friends, and returned by the same route through Falmouth and attended the dance at Megansett; that after the dance, at about 10.30 o’clock, William P. Whitman in front of the dance hall at Megansett saw Richard, who was about to return with his three friends to Falmouth Heights; that at that time the headlights of the car were not lighted and the elder Whitman told Richard that he had better light his headlights; that the elder Whitman did not see either the car or his son again until after the accident; that after leaving the dance Richard carried his three friends to Falmouth Heights and left them there, returning to Falmouth Centre alone where he stopped and took Dr. Harold O. Hunt and Harold O. Fraser into the car and continued toward North Falmouth; that it was a bright moonlight night with the moon nearly full; that the headlights were not lighted because the water connection with the generator was broken and they could not be lighted; that the side lights were lighted; that they proceeded in a northerly direction and went about a mile before reaching the bridge near which the accident occurred; that the defendant Richard was driving; that Harold O. Fraser sat beside him at his left and Dr. Hunt sat in the tonneau of the car, leaning forward between the other two men; that after leaving Falmouth and before reaching the bridge the three men were talking together and eating candy; that as they approached the bridge the speed of the car was about twenty miles per hour; that the defendant blew his horn three or four times; that upon reaching the southerly side of the bridge the defendant Richard shut off his power and coasted across the bridge; that his right hand wheels on reaching the bridge were within six feet of the fence at the side of the road on his right side; that as he crossed the bridge his car gradually drew nearer to the fence, and when he left the northerly side of the bridge his right wheels were within four feet of the fence on his right hand side; that his speed on leaving the bridge was approximately ten or twelve miles an hour; that after leaving the bridge the road curved to the right and his car continued to draw nearer to the right hand side of the road; that, on rounding the curve and about twenty-five or thirty feet from the bridge, all three who were in the defendant’s car saw the plaintiff’s car coming towards them at a distance of about thirty or forty feet; that there were no lights lighted on the plaintiff’s car; that instantly the defendant Richard “hollered at” the plaintiffs and applied both his foot brakes and, emergency brake and locked the rear wheels of his car; that this caused the car to come nearly to a standstill; that the plaintiffs were approaching them at a speed of from twenty to thirty miles per hour and were almost directly in front of the defendant’s car, the plaintiff Bourne being on Bourne’s extreme left hand side of the road; that Bourne suddenly turned his car to his right, but was too near to avoid a collision; that the left hand frame of Bourne’s car struck the radiator and left hand frame of the defendant’s car a glancing blow, drove the radiator back about four inches on that side, broke off the end of the frame and demolished the left hand front wheel; that the defendant’s car, when struck, tipped over toward the fence on its right hand side and the side iron which holds the top in place struck the fence and was bent; that the right hand rear wheel of the defendant’s car was crushed, as the wheels were locked and could not be moved backwards; that the force of the impact threw both the plaintiffs forward and out of their car and caused the rear end of their car to slew toward the middle of the road, leaving the front of the plaintiff’s car within three or four feet of the front of the defendant’s car.</p> <p>The defendants, in justification of the action of Richard P. Whitman in operating the car, offered to prove that at the time of the accident Dr. Harold O. Hunt, who was riding with and accompanying Richard P. Whitman, was the holder of an operator’s license, and had it in his possession, it having been duly issued by the Massachusetts highway commissioners, empowering him to operate an automobile upon the highways, and the defendants offered also the record of the highway commission showing that the license had never been suspended or revoked by the commission and at the time of the accident was in full force and effect, contending that the defendant Richard, not being a person who had been licensed and whose license was not then in force because of revocation or suspension for cause, had, by virtue of the license held by Hunt, a legal right to operate the automobile upon the highway.</p> <p>Upon objection by the plaintiffs, the judge refused to allow the introduction of this evidence and ruled that the presence of Hunt in the automobile with the defendant Richard P. Whitman at the time of the accident, notwithstanding the fact that Hunt possessed a license to operate an automobile, did not justify the defendant Richard P. Whitman in operating the automobile upon the highway at the time of the accident. The defendants excepted.</p> <p>The defendant Richard P. Whitman, on his cross-examination, admitted filling out in his own handwriting and signing the application to the highway commissioners for a license. The date of this application was August 18, 1908. In answer to the question, “Are you operating for some other person?” he wrote in his own handwriting, “ My father, William P. Whitman.” “ Q. What is your employer’s name ? ” “ A. William P. Whitman, 1362 Main Street, Brockton.” The witness continued, that he drove for his father in the summer, but not for hire; that he did drive for him every summer that he was at home; that he took care of the automobile, and that there was nobody else who drove for his father in the summer except the witness; that his father did not drive his own car, but that he, the witness, was the driver. In his application of August 13, 1908, he said that he had driven the car forty thousand miles, and that in 1908 he was nineteen years old. He went to school each year and drove his automobile only during the summer; it had taken him four or five summers to drive forty thousand miles. He had had a license in 1905, 1906, 1907, and to August, 1908. He had been driving for his father since 1905, and during the summer was his father’s regular driver and the only one he had. He said that every time he took the machine out, unless accompanied by his mother, he asked his father’s permission.</p> <p>The defendant also introduced the testimony of William P. Whitman, the father, as follows: The witness said that he owned the car which Richard was driving; that some time at Megansett on the day or night of August 15 his son had a talk with him about using the car. His son asked him whether he could take the car, and said that he wanted to go to Falmouth Heights and meet some friends and bring them to a dance at Megansett. The witness told him he could take it; the witness met him later with his friends at Megansett at 10.30 at the Megansett Casino and spoke with him; saw him start to take his friends back to Falmouth Heights and told him that he had better light his headlights. On cross-examination the witness testified that he was a resident of Brockton and had been engaged in business there for a number of years in the manufacture of shoes. There was evidence upon which the jury could find that William P. Whitman was a successful business man with a large interest in the company of which he was president; that Richard P. Whitman, the son, at the time of the accident was a minor and was about to enter Dartmouth College.</p> <p>At the close of all the evidence, the defendant William P. Whitman asked the judge to rule that there was no evidence to go to the jury that at the time and place of the accident the defendant Richard P. Whitman was acting as his, William’s, agent and servant, but that all the evidence in the case showed that Richard was using the automobile upon his own affairs, and asked the judge to order a verdict for the defendant William P. Whitman in both cases against him. The judge refused so to rule, stating that he believed this to be a question of fact, which must be submitted to the jury. The defendant William P. Whitman excepted.</p> <p>The plaintiffs asked the judge to give the following instructions :</p> <p>1. “ Richard P. Whitman, at the time of the accident, was operating his automobile without license and contrary to law, and the possession of a license by another person riding with him affords him no justification.”</p> <p>2. "Richard P. Whitman at the time of the accident was a trespasser upon the highway and had no legal right then and there to operate a car.”</p> <p>The judge gave these instructions to the jury, and the defendants excepted.</p> <p>The defendants, among other requests, asked the judge to instruct the jury as follows: “If the jury find that at the time of the accident the defendant was driving on the right of the middle of the travelled part of the way, it is evidence of the exercise of due care on his part, and if the jury shall find that the plaintiff Bourne was driving his machine in an opposite direction and collided with the defendant, this is evidence that the plaintiff was acting in violation of R. L. c. 54, § 1, requiring him to drive to the right of the middle of the travelled part of the road, and unexplained indicates negligence on the part of the plaintiff.” The judge refused to give this instruction, and the defendants excepted.</p> <p>The judge submitted the cases to the jury, who at first returned a verdict for Bourne against William P. Whitman in the sum of $1,000 and for Davis against the same defendant in the sum of $100. In response to an inquiry of the judge, the jury said that they had not considered the cases against Richard P. Whitman. The judge then instructed the jury to retire again and to consider the cases against Richard P. Whitman as if there were no question of agency between Richard and William. The jury retired, and subsequently returned verdicts, in the same amounts against Richard P. Whitman. The counsel on both sides were present and did not object to this course, it being agreed by the parties that, if the defendants’ exceptions were overruled, the plaintiffs should elect as to which of the defendants they would proceed against. Both of the defendants alleged exceptions.</p>

<p>Practice, Civil, Auditor’s report. Municipal Corporations. Assignment. Waiver. Contract, Novation. Surety. Referee.</p> <p>Where an auditor to whom a case has been referred makes a finding in favor of one of the parties without reporting the evidence, and at the trial there is no evidence other than the auditor’s report, the presiding judge must order a verdict in accordance with the auditor’s report, which is made prima facie evidence by statute and stands uncontrolled. The same result is reached, where, in addition to the auditor’s report, oral evidence is introduced at the trial, but such evidence does not tend to contradict the findings of the auditor.</p> <p>In an action by a town against the surety on the bond of a contractor, an auditor to whom the case was referred found that the contractor abandoned the work to be done under his contract with the plaintiff and executed an instrument purporting to assign his contract to a certain corporation, that the contract with the plaintiff provided that it should not be assigned except with the previous consent of the plaintiff’s board of sewer commissioners to be' signified by indorsement on the contract, and that no previous assent to the instrument of assignment was given by indorsement upon the contract or in any manner. The auditor made a general finding for the plaintiff. At the trial of the case, in addition to the auditor’s report, there was oral evidence. Several witnesses testified that, after the assignment, the original contractor had nothing to do with the work and that it was prosecuted wholly by the corporation, which purported to be the assignee, with the knowledge and without objection from the plaintiff’s board of sewer commissioner^ until at the end of six months the work was stopped by a notice from the plaintiff that it was not being- prosecuted as required and that it would be completed by the plaintiff as provided in the contract. It was shown that there was considerable correspondence between the attorney for the plaintiff and the defendant, as surety on the original contractor’s bond, in which the attorney repeatedly asserted that the plaintiff would not assent to the assignment, except upon certain conditions which never were complied with, and that the checks of the plaintiff in payment for the work done by the assignee all were made to the order of the original contractor and not to the assignee. There was no evidence of any express assent. The presiding judge ordered a verdict for the plaintiff. Held, that the knowledge by the plaintiff’s officers of the assignment and of the work done by the assignee, under the circumstances shown and in view of the correspondence refusing such assent, was not evidence of the plaintiff’s assent to the assignment of the contract, or of a waiver of the clause in the contract requiring such assent, or of a novation accepting the substitution of the assignee for the original contractor; that, therefore, there being no evidence to control or contradict the finding of the auditor, it was the duty of tiie judge to order a verdict for the plaintiff.</p> <p>There is no obligation on the part of a town toward the surety upon a bond which was given by a contractor to ensure the faithful performance of his contract with the town, to keep the surety advised as to the condition of the work under the contract. The surety must protect his own interest by seeing that his principal performs the duty of which the surety has guaranteed the performance-</p> <p>At the trial of an action by a town against the surety on a bond, which was given to the town by a contractor, the defendant contended that a payment made by the plaintiff to the contractor before his default was in advance of what was due to him under the contract, and that thereby the security of the surety was diminished. It appeared that the payment in question was made upon an ap: proximate estimate by the plaintiff’s chief engineer of the value of the work done at the time and that the engineer in making the approximate estimate, which he was required to make by the terms of the contract, certified in good faith to more work having been done than actually had been completed at the time, but that afterwards this was adjusted by deductions from subsequent estimates, so that the plaintiff in the end received full value for all payments made by it. An auditor found that there was no such payment in advance as was alleged by the defendant. Held, that the estimate of the engineer made under the contract in good faith was binding upon all the parties, and that the payment could not be considered as made in advance.</p>

<p>Contract for $585 with interest at the rate of six per cent per annum from April 1, 1904. The declaration contained two counts, the first for the amount named, alleged to be a balance found to be due to the plaintiff by the parties on an accounting together, and the second as follows: “And the plaintiff says that the defendant made a promissory note payable to the plaintiff, a copy whereof is hereto annexed marked Exhibit A, and the plaintiff says that the defendant owes him thereon the amount of said note and interest thereon as therein stipulated when payment of the same was duly demanded from April 1,1904, to the date of this writ.” Writ in the Municipal Court of the City of Boston dated April 9, 1909.</p> <p>The instrument, of which a copy was annexed to the second count and marked Exhibit A, was as follows:</p> <p>“ George M. Bryne</p> <p>Contractor for public works</p> <p>Boom 802</p> <p>Boston, Mass., September 3,1903.</p> <p>7 Water Street.</p> <p>Borrowed and received from George M. Bryne, five hundred and eighty-five dollars, payable April 1, 1904, with interest at six per cent.</p> <p>J. L. Bryne.”</p> <p>On appeal to the Superior Court the case was tried before Sanderson, J. It appeared that the plaintiff and the defendant were brothers, and each of them testified.</p> <p>On the cross-examination of the plaintiff the defendant’s counsel asked him in various forms whether the instrument dedared upon in the second count was not given by the defendant to the plaintiff as a mere memorandum of the amount due and not as a note. These questions were objected to by the plaintiff’s counsel, and were excluded by the judge. The defendant excepted. The defendant testified that the plaintiff asked him for a note; that he refused to give him a note, but said that he was willing to give a memorandum of the amount which the plaintiff claimed as due to him, and that he then wrote the paper and handed it to the plaintiff.</p> <p>The defendant moved that the plaintiff should be required to elect on which count he would stand, and the plaintiff thereupon elected to stand on the second count of his declaration. The judge then ordered a verdict for the plaintiff for the amount of the alleged note with interest, amounting in all to $836. The defendant alleged exceptions.</p>

<p> Conversion. Stockbrokers. </p> <p>At the trial before a judge without a jury of an action, by the customer of a New York firm of stockbrokers against a Boston firm who did business for the New York firm under a contract with them, for conversion of shares of capital stock, a finding of the following facts was warranted from facts agreed upon: The customer on August 19 of a certain year ordered the New York firm to subscribe for the shares, the market for which was in Boston. The New York firm placed the order with the Boston firm and the Boston firm made the subscription for $4,000, paid for the shares in full and charged that amount to the New York firm, and the New York firm, receiving notice of the transaction, balanced their account with their customer by sending him a check for an amount which, with the stock thus subscribed for, was found to be due to him. The New York firm then demanded of the Boston firm that the shares of stock be transferred to their customer. The Boston firm, upon paying for the shares, had received temporary receipts, which later were to be surrendered and exchanged for stock certificates, but such exchange could not be made until September 8. By a custom of brokers, no charge was made for making such exchange. There were two accounts kept between the firms, one of dealings in Boston by the Boston firm for the New York firm and the other of dealings in New York by the New York firm for the Boston firm, and the accounts and the transactions referred to in them were intended to be dealt with independently, the two accounts to be considered together at the close of the transactions between the firms. On August 19 and immediately before and after that date, there was a substantial' balance due to the New York firm on the account of the Boston firm’s transactions for them. On the account as to the New York firm’s transactions for the Boston firm, the New York firm had in their hands a large amount of property of the Boston firm as margins on New York stock transactions. On August 20 the New York firm paid the Boston firm $5,000 on account, which was understood to cover the transactions for the plaintiff. A few days later the New York firm failed and the Boston firm then sold the stock, which had been subscribed for on the plaintiff’s behalf, and applied the proceeds toward what was due to them from the New York firm. Held, that there was evidence warranting a finding for the plaintiff, because findings were warranted that the defendants sold shares of stock which were fully paid for and belonged to the plaintiff, although there had been no formal transfer thereof to him and regular certificates could not be issued until later.</p>

<p>Will, Attestation, Codicil. Devise and Legacy.</p> <p>A clause of a will directed that the residue of the testator’s estate be equally divided between W and another. A codicil of the will provided that “ all money left ” to W should be held in trust by the executors, “ the income to be paid her as they think best for her surport the Principle not to be used, unless necessary.” W was one of the three attesting witnesses to the codicil. There was no clause in the codicil specifically revoking the will or any part thereof. Held, that the legacy to W in the codicil was to be considered by itself without reference to that contained in the will, the will not having taken effect when the codicil was made, and being revocable at any time before the testator’s death, that the legacy was beneficial in its character, and therefore that, under B. L. c. 135, § 3, since there were not three subscribing witnesses to the codicil who did not receive a beneficial devise or legacy thereunder, the legacy to W in the codicil was void and the provision for her in the original will remained unchanged.</p>

<p>Information in equity, filed on February 14,1911, under the provisions of St. 1909, e. 266, § 1, at the relation of the Treasurer and Receiver General, seeking to compel the payment of a succession and inheritance tax alleged to be due from the defendant under the provisions of St. 1891, c. 425; St. 1902, c. 473.</p> <p>The case was reserved by Hammond, J., for determination by the full eourt.</p>

<p>Husband and Wife. Mortgage, Of personal property.</p> <p>A wife may take and hold by transfer a note and mortgage upon which her husband is primarily liable, without extinguishing either, and, while she cannot herself enforce such obligations against her husband during his life, she may transfer them without consideration to a third person who in his own name can enforce them at her request.</p> <p>A wife at the request of her husband paid the purchase price of a stock of merchandise conveyed to him. Thereafter, differences arising between them, the husband paid to the wife a certain amount of money and executed and delivered to the wife’s brother a promissory note for the entire amount previously advanced by her, and, to secure the note, a mortgage on the merchandise and additions that had been made thereto. The brother immediately indorsed the note in blank, executed an assignment of the mortgage and delivered the note, the mortgage and the assignment to the wife, who retained them for a year and two months and then without consideration delivered the note and assigned the mortgage to the brother, who began foreclosure proceedings. The husband brought a bill in equity to enjoin the foreclosure. Held, that the bill must be dismissed, it being of no consequence under the circumstances that, immediately upon the delivery of the note and mortgage by the husband to the brother, the brother transferred them to the wife, or that the note was made for a past consideration.</p>

<p>Negligence, Employer’s liability: notice. Employers’ Liability Act. Notice.</p> <p>The following notice, signed by an attorney at law, was sent to the employer of one G within sixty days after G received personal injuries while at work in the course of his employment: “ Gentlemen: G, who was in your employ and was very greatly injured and will probably permanently lose his eyesight, while at work on electrical appliances of the Boston Elevated Railway at Sullivan Square, and is now in the Boston City Hospital, has placed his case in my hands for adjustment. There seems to be no doubt about the liability and certainly the injury is very great. If you wish to confer with me regarding a settlement I would be glad to see or hear from you at once. Tours very truly, M." Held, that the notice did not satisfy the requirements of R. L. c. 106, § 75, now St. 1909, c. 514, § 132, requiring as a condition precedent to liability of the employer under R. L. c. 106, §§ 71-74, now St. 1909, c. 514, §§ 127-131, that a “ notice of the time, place and cause of the injury ” should be given to the employer in writing, signed by the person injured or by some one in his behalf.</p>

<p>Practice, Civil, Exceptions. Rules of Court. Notice.</p> <p>The giving of an oral notice of the filing of a bill of exceptions to the counsel of the adverse party on the day of the filing and furnishing him on the same day with an unsigned copy of the bill of exceptions are not a compliance with Rule 44 of the Superior Court, which requires that notice of the filing of a bill of exceptions shall be given to the adverse party within the required time, and Rule 27, which prescribes that a notice required by the rules of the Superior Court shall be in writing.</p>

<p>Attorney at Law, Disbarment or suspension. Practice, Civil, In disbarment proceedings, Findings of trial judge, New trial. Res Judicata. Judgment. Witness, Fees.</p> <p>In disbarment proceedings the technical nicety of common law criminal pleading is not required. Where in such proceedings the respondent is fully and fairly informed of the general nature of the charges against him, and in a broad sense the proof corresponds with the allegations of the petition, and the evidence has been received without objection, the respondent, after a full and fair trial, cannot object to a finding against him on the ground of variance, even if there was a slight variation between the proof and the allegations of the petition.</p> <p>At the hearing of a petition for the disbarment of an attorney at law on the ground that the respondent filed false certificates as to the attendance of witnesses not in good faith and knowing them to be false, there was evidence that the respondent, who as attorney for a plaintiff had obtained a verdict, filed six witness certificates as a basis for the taxation of costs, bearing the names of seven witnesses and showing attendance for thirty-three days, whereas the witnesses had been actually in court not more than five days and the respondent could not reasonably have called them for more than eight or nine days at the most, and even this was not necessary because for thirty-one of the days certified to there was “a clear and explicit agreement” between the respondent and the attorney for the defendant that neither of them “needed to get ready ” nor to “keep witnesses around ” until notified by the other. It appeared that the counsel for the defendant, who by inadvertence had failed to give notice of a desire to he present at the taxation of costs, after an execution had issued for an amount including witness fees based on the false certificates, filed a motion to vacate the judgment on account of the fraudulent certificates, and that the motion was denied for lack of jurisdiction. In the disbarment proceedings the respondent requested a ruling that the questions involved had been adjudicated in the respondent’s favor by the denial of the motion to vacate the judgment in the action in which the costs alleged to be fraudulent were allowed. Held, that the order denying the motion, having been made on the ground of want of jurisdiction, did not involve the issues on trial upon the petition for disbarment.</p> <p>Where, on exceptions and an appeal by the respondent in disbarment proceedings to and from an order made by a judge of the Superior Court that the respondent be suspended from his office of attorney at law for three years, where the reprehensible conduct charged was the fraudulent collection of excessive witness fees, and, on conflicting evidence, the judge found that “ the witnesses’ certificates prepared and filed by the respondent were false and were known by the respondent to be false and were not made in good faith, but were improper, illegal and fraudulent,” and that in his conduct respecting them “ the respondent acted improperly and dishonestly and committed a fraud upon the defendant” in the action in which the witness fees were taxed as costs, it was held, that the determinations of fact by the trial judge, who saw the witnesses and could base his conclusions upon his personal observation of them and their voices, manner and facial expression in testifying, were not open to revision by this court; and also that a careful reading of the record showed that no error was committed and that the findings and the order made by the judge were amply warranted.</p> <p>To justify the signing of a certificate of the attendance of a witness it is necessary that the person named as a witness should have attended and not merely should have been ready and willing to attend.</p> <p>Persons who have been told that their attendance as witnesses at a trial will be required but who pursue their ordinary occupations without interruption cannot be treated as witnesses merely because they are ready to attend court upon notification. To entitle a person to a witness foe there must be an actual attendance either at the court house or near it under circumstances which involve a real and appreciable interference with his everyday conduct.</p> <p>After a full hearing has been had upon a petition for the disbarment of an attorney at law, as in other cases, a motion for a new trial depending on the weight ot evidence is addressed wholly to the discretion of the trial judge, and is not open to revision.</p>

<p>Bill in equity, filed in the Superior Court on November 11, 1907, and amended by a supplemental bill filed on' June 18, 1909, which in turn was amended by an amendment allowed on May 11, 1910, in which the plaintiff, as the alleged assignee of two policies of life insurance, which he held as security for a certain promissory note, on which he obtained a judgment as alleged in his supplemental bill, sought to have the cash surrender value of the policies applied to the payment of the judgment, the defendant insurance company being ready to pay the values of the policies to the proper parties upon the order of the court.</p> <p>In the Superior Court the case was heard by Richardson, J., who on a motion for a final decree, by agreement of the parties, reserved and reported the case upon the agreed facts, the testimony and the exhibits for determination by this court. The questions raised and the facts to which they relate are stated in the opinion.</p>

<p> Negligence. Animal. Joint Tortfeasors. </p> <p>In an action by an administrator to recover from the employer of his intestate for the conscious suffering of the intestate from injuries caused by the running away of a vicious horse of the defendant while the intestate was in the wagon to which the horse was attached, in consequence of which the intestate jumped from the wagon and sustained the injuries sued for, if there is evidence on which it could be found that the horse was vicious and that the defendant knew it, that the intestate was in the defendant’s employ and that the horse was furnished to the intestate by the defendant to be used in the defendant’s business, that the intestate did not know that the horse was vicious and that the defendant gave him no warning or information as to the character of the horse, when such warning or information would have prevented the accident, the case is for the jury, and it is for the jury to say whether, taking all the circumstances into account, the intestate was in the exercise of due care or voluntarily assumed the risk of injury in jumping from the wagon as he did.</p> <p>In an action against the plaintiff’s employer for personal injuries caused by the running away of a vicious horse of the defendant while the plaintiff and another employee of the defendant were in the wagon to which the horse was attached, if there is evidence that the defendant knew that the horse was vicious and that the plaintiff did not, and that the defendant was negligent in furnishing the horse to the plaintiff and in giving him no warning or information as to the horse’s dangerous character, it is no defense that just before the horse ran away the plaintiff’s fellow employee had taken off the horse’s bridle for the purpose of feeding him on the road, for, even if the fellow servant knew that it was dangerous to attempt to feed the horse on the road by taking off the bridle and his negligence contributed to the accident, this merely would make the fellow servant a joint tortfeasor and would not relieve the defendant from liability if the jury found against him.</p>

<p>Equity Jurisdiction, To enforce condition in grant of street railway location, Laches. Street Railway, Enforcement of terms of location, Regulation of fares.</p> <p>In a suit in equity brought by the selectmen of a town against a street railway corporation under St. 1906, c. 463, Part III. § 157, formerly R. L. c. 112, § 100, to enforce a condition contained in a location granted by the plaintiffs to the defendant, the enforcement of the terms of the location is not a matter of discretion in which a hardship that the defendant may suffer will be considered, and it is the duty of the court to enforce all valid conditions so imposed.</p> <p>In a suit in equity brought by the selectmen of a town against a street railway corporation under St. 1906, c. 463, Part III. § 157, formerly R. L. c. 112, § 100, to enforce a condition imposed in a grant of location from the plaintiffs to the predecessor of the defendant, to whose franchises and privileges it had succeeded, that the rate of fare should not exceed the sum of five cents for any distance in one continuous trip within the limits of the town or from any point along the line of the road within the town to its terminus at that time in either of two other towns, it appeared that the location granted by the plaintiffs to the predecessor of the defendant became operative less than one month before St. 1898, c. 578, which deprived local boards of the power to regulate fares, went into effect. Held, that the condition imposed on the defendant’s predecessor was binding on the defendant, that it was valid, and that its validity was not affected by the last named statute.</p> <p>In a suit in equity brought by the selectmen of a town against a street railway corporation under St. 1906, c. 463, Part HI. § 157, formerly R. L. c. 112, § 100, to enforce a lawful condition in a grant of location from the plaintiffs to the predecessor of the defendant, which is binding on the defendant, requiring that the rate of fare shall not exceed the sum of five cents within the town and to certain termini, it is no defense for the defendant to show that the road although conducted with economy has been operated by the defendant at a considerable loss, that the fares which the defendant has established in excess of the limitation in the grant of location are reasonable, and that, if they are reduced to the rate fixed by the grant, the service must be curtailed and the people of this and other towns will be deprived of transportation facilities now enjoyed.</p> <p>In a suit in equity by the selectmen of a town against a street railway corporation under St. 1906, c. 463, Part HI. § 157, formerly R. L. c. 112, § 100, to enforce a lawful condition in a grant of location from the plaintiffs to the predecessor of the defendant, which is binding on the defendant, requiring that the rate of fare shall not exceed the sum of five cents within the town and to certain termini, a delay before bringing the suit of nineteen months after the first violation of the terms of the grant by charging fares in excess of the limitation, during which period there were two further modifications in the schedule of fares and negotiations between the parties, does not constitute laches on the part of the plaintiffs, who are acting as public officers to enforce a public right.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on November 8, 1907, by the Riverbank Improvement Company and Albert E. Pillsbury against Cornelia H. Bancroft and her husband Charles F. Bancroft, averring that the defendant Cornelia H. Bancroft and the plaintiff Pillsbury were owners of lots in Block B, described in the opinion, which were subject to the restrictions therein set out, and that the defendants were violating those restrictions in that they had begun the erection upon their land of “ a building adapted and intended to be a garage for an automobile or automobiles,” and praying that the defendants be restrained from so doing.</p> <p>Pending the final hearing on the bill, the defendants completed the building and put it to the uses described in the opinion.</p> <p>The case was heard by Hammond, J., who reported it to the full court for determination. The facts are stated in the opinion.</p> <p>The case was argued at the bar in December, 1910, before Knowlton, C. J., Morton, Hammond, Loring, & Sheldon, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Negligence, Street railway, In use of highway.</p> <p>At the trial of an action against a street railway company for personal injuries due to a horse and wagon which the plaintiff was driving being run into by a car of the defendant, it was undisputed that as the plaintiff approached from a cross street a broad street, which was straight for a long way in both directions and in the middle of which the defendant maintained double surface car tracks between rows of iron pillars supporting elevated tracks, he saw a car approaching upon the tracks nearest to him from the direction in which he desired to go, and, in order to avoid crossing the tracks in front of that car, he drove along the broad street on the left hand side thereof until the car had passed, when he turned to cross both the tracks and his wagon was struck at the front axle by a car which approached from his right; that the plaintiff was familiar with the locality and was an experienced driver, and that his horse and wagon and harness were in proper condition and the wagon was loaded moderately, that there was a clear view down the street in the direction from which the car came and nothing to obstruct such view, and that it was raining very hard at the time. The plaintiff testified that he looked both ways and saw no car. Held, that on the undisputed facts there was no evidence of due care on the part of the plaintiff and that therefore the action could not be maintained.</p>

Tort for personal injuries received by the plaintiff while in the employ of the defendant and assisting in the construction of a building. Writ dated December 18, 1908. In the Superior Court the case was tried before Hardy, J. The facts are stated in the opinion.

<p>Equity Jurisdiction, To apply for satisfaction of debt trust fund created for that purpose, Adequate remedy at law, Statute of limitations, Laches. Subrogation. Contract, Construction. Trust. Executor and Administrator. Equity Pleading and Practice, Bill, Demurrer, Parties.</p> <p>By an instrument purporting to be his will, an alleged testator left practically all of his property to one brother of several brothers and sisters. Descendants of other brothers and sisters, who, in case of intestacy, would have been entitled to seven twenty-seconds of the estate of the decedent, contested the allowance of the will, and procured large advances of money for that purpose from a stranger to whom and to one of their own number they assigned a part of their “ interests in said estate ” of the alleged testator, the proceeds of the interests so conveyed to be used, first, to repay all moneys advanced, second, to pay “ lawyers bills and for other expenses.” After a trial and a disagreement of the jury, and after a series of compromise agreements with other next of kin of the alleged testator, a decree was made allowing the will and adopting all of the agreements, so that the contestants, instead of receiving no part of the estate, received five twenty-seconds of it, and provision also was made for the payment of all their expenses, which were very large. Held, that for the repayment to him of the advances so made by him the stranger was entitled to an equitable charge upon the interests, of which he had taken an assignment, in the shares due to the contestants under the compromise decree, the fact that the will was allowed not being material because such allowance was merely formal, the decree accompanying it being virtually a disallowance of the provisions of the will in favor of the contestants.</p> <p>By an instrument purporting to be his will, an alleged testator left practically all of his property to one brother of eleven brothers and sisters. Some others of the next of kin of the decedent, who in case of intestacy would have been entitled to seven twenty-seconds of the estate, contested the allowance of the will, and a stranger, on their promise to reimburse him from their shares, made large advances of money to them for that purpose and on their behalf employed counsel to whom he agreed to pay a large fee “ in case the will is defeated and our clients get their shares.” Pending the contest the brother who was to benefit by the will died. After a trial which resulted in a disagreement of the jury, a compromise agreement was made whereby those succeeding to the brother’s interests were to receive twenty, and the contestants were to receive thirty-five one-hundred tenths, and each group was to receive “ on account of expenses heretofore incurred ” $500,000, the balance to be equally divided between the two groups, and, to carry out the agreement, those succeeding to the brother’s interests and the contestants were each to receive twenty one-hundred tenths forthwith, the remaining fifteen one-hundred tenths to be paid to the contestants when all court proceedings properly were ended, and the remainder of the estate was to be placed in the possession of trustees to carry out the agreement. The agreement also provided that all expenses incurred in carrying it out should be furnished, one half by those succeeding to the brother’s interests and one half by the stranger, one of the trustees and one of the contestants, and “ that the parties who furnish such funds shall be entitled to reimbursement.” The stranger, with the trustee and the contestant referred to, signed the agreement and agreed to make advances according to its provisions, and the stranger made further advances. After extended negotiations jvith the other next of kin a decree finally was made distributing the estate in accordance with agreements of the parties, and a fund was paid to the trustees. The counsel brought a suit against the stranger and recovered judgment for his fee contingently promised. Held, that the stranger, both for the re-payment of the advances of money which he had made and for the payment of the judgment for the contingent fee of the counsel whom he had employed, was entitled by a suit in equity to avail himself of the fund thus set apart for the relief of the contestants, and, through them, for his relief.</p> <p>By an agreement in writing made between the parties to a contest as to the proof of a will, it was provided that a part of the estate of the decedent should be paid to trustees who therefrom should pay a certain amount to each of the parties to the contest “ on account of expenses and litigation heretofore incurred,” that “ all expenses incurred in the carrying out of ” the agreement should be fur- " nished, one half by one of the parties to the contest, and one half by one of the trustees, the other contestant and a stranger who previously had made advances, and “ that the parties who furnish such funds shall be entitled to reimbursement of the same.” The three parties who by the provisions of the agreement were to pay the second half of the expenses incurred in carrying it out also signed an agreement, appended thereto, that they would “ from time to time, as required by the representatives of the parties ” named in the agreement, advance one half of such expenses. The stranger advanced large sums of money for the carrying out of the agreement without the trustees requiring him so to do. Held, that the limitation of the stranger’s undertaking as to making advances, that they should he required by the parties, did not preclude him from establishing an equitable charge upon the funds in the hands of the trustees for all of his advances, since the agreement creating the trust provided that all sums advanced for the purpose of carrying out the agreement should be repaid.</p> <p>While a final decree of a court having jurisdiction of the subject matter of the settlement of the estate of a decedent, determining the parties to whom and the proportions in which the estate shall be divided if a division is made, conclusively determines those matters, a suit in equity may be maintained against the administrator and certain persons named in the order as to distribution to compel the defendants to recognize the validity of an equitable charge upon such of the funds in the hands of the administrator as are due under the decree to the other defendants.</p> <p>Where one, who has made advances of money and rendered himself liable for the payment of a further sum on behalf of certain of the next of kin of a decedent in a contest against the allowance of the decedent’s will, has a right to charge with the payment of such sums certain parts of the shares of certain of the next of kin and a fund which, by a decree of the Probate Court adopting compromise agreements of the parties, was to be paid to trustees for the payment of expenses attending the contest, he may enforce such right by a bill in equity, to which a demurrer on the ground that he has an adequate remedy at law will not be sustained.</p> <p>The fact, that in a bill in equity different means are sought for the enforcement of one equitable right relating to the whole or different parts of one estate, does not make the bill multifarious.</p> <p>It is not indispensable that all the parties to a suit in equity should have an interest in all the matters contained in the suit. It is sufficient if each party has an interest in some matters in the suit and that they are connected with the others; and, even if one is a necessary party to one part only of the case, the bill is not therefore necessarily multifarious.</p> <p>In a bill in equity there were joined as parties defendant the administrator of an estate, and all the parties who by a decree of the Probate Court were found to be entitled to share in the final distribution of the estate, including certain persons to whom as trustees was to be paid from the estate a fund which they were to use in paying expenses of various of the next of kin in bringing about a settlement of a contest as to the allowance of an alleged will of the decedent. A partial distribution of the same estate in administration in another State had taken place. By the bill the plaintiff sought to charge the shares of certain of those interested as distributees and the trust fund with the payment to him of sums which he had advanced for such distributees in furthering the contest and bringing about the settlement, and also to compel the payment to him of the shares of two of the distributees which he had purchased. Held, that the bill was not multifarious, since it sought the determination of all rights of the plaintiff in a single estate, and it was for the interest of all parties that the whole question of the plaintiff's rights in the estate should be settled once for all in one suit.</p> <p>In a suit in equity to charge with a debt due to the plaintiff from one group of defendants certain funds in which the other defendants are interested, if it appears from the allegations of the bill that an action at law by the plaintiff against the alleged debtors would be barred by the statute of limitations, but those defendants do not demur to the bill, demurrers of other parties on that ground will be overruled.</p> <p>Where, from the allegations in a bill in equity, to enforce a claim of the plaintiff against the interests of certain persons in the estate of a decedent and against a fund to be paid from such estate to certain trustees, it appears that the bill was brought within four months after a decree of the Probate Court determining the rights of the defendants in the estate, a demurrer to the bill will not be sustained either on the ground that it is barred by the statute of limitations or by laches.</p> <p>If, from the allegations of a bill in equity, seeking to enforce a right of subrogation to the rights of one who had maintained a successful suit against the plaintiff, it appears that the bill was filed within fourteen months after the final decree in the suit against the plaintiff, the bill is not demurrable, either on the ground that it is barred by the statute of limitations or that it is barred by laches of the plaintiff.</p> <p>Where a bill in equity respecting a claim which arose in another State does not contain allegations as to the law of that State regarding the limitation of actions, a demurrer on the ground that the cause of action was barred by the statute of limitations of that State cannot be sustained, since the law of such State is a fact in a suit here and no allegation as to it appears in the bill.</p>

<p>Two bills IN equity, filed in the Superior Court on June 4, 1908, substantially alike excepting for the names of the parties defendant, seeking to restrain the defendants from offering, exposing or selling bread in a loaf having the general visual appearance of a loaf manufactured and sold by the plaintiff under the name “ Creamalt.”</p> <p>The cases were referred to Charles E. Shattuck, Esquire, as master. Besides making the findings stated in the opinion, the master found, as the basis of his conclusion “ that the defendants’ loaves, without any bands or names upon or about them, were not so similar to the 'Creamalt ’ loaf as to be likely to deceive the ordinary purchaser, having some knowledge of the appearance of the ‘ Creamalt ’ loaf, or to constitute an instrument of fraud in the hands of the retail dealer,” the following facts:</p> <p>Upon the loaf of bread manufactured by the plaintiff was pasted a label, one and five eighths inches long and three quarters of an inch wide, containing the words,</p> <p>Made with Milk and Malt Creamalt</p> <p>Reg. U. S. Pat. Off.</p> <p>Geo. G. Fox Co.</p> <p>The loaf manufactured by the plaintiff is described in the opinion.</p> <p>Impressed upon the bottoms of the loaves offered for sale by the defendants were the words, “Best,” or “Friend.” “ They were of about the same weight or size as the ‘ Creamalt ’ loaf, belonging to the same class of loaves, n&mely, the ten cent loaf designed by bakers for the grocery and other retail trade as distinguished from the restaurant trade. t They had the same rounded" and slightly flaring sides as the ‘ Creamalt ’ loaf. Their upper surface was also glazed as was that of the ‘ Creamalt ’ and other loaves commonly sold in this market. On the other hand, the defendants’ loaves differed from the ‘ Creamalt ’ loaf in that their tops were less rounded and in that the ends of the defendants’ loaves were square instead of round, and consequently their corners were square, or at an angle, rather than round. This difference gave the defendants’ loaves taken as a whole, rather a different appearance from the ‘ Creamalt ’ loaf, because it impaired their oval shape, and in that way distinguished them from a loaf of which the most noticeable peculiarity was its oval shape.”</p> <p>About the central portion of each loaf of the defendants, before it left the factory, was wrapped a paper band about two and one eighth inches wide. The bands were not attached to the loaves and could easily be removed without defacing the loaves. Upon each band manufactured by the defendants in the first case was printed or engraved the following:</p> <p>Best’s</p> <p>Rich in Cream</p> <p>Finest</p> <p>Log Cabin Loaf Malted.</p> <p>Flavor</p> <p>The name “ Friend’s ” appeared instead of “ Best’s ” on the loaves manufactured by the defendant in the second case.</p> <p>“ The defendants’ loaves, . . . except for slight differences in the labels, are substantially the same in appearance as those in question in [George G.] Fox [Co.] vs. Hathaway, [199 Mass. 99], 'but as the evidence presented in that case with regard to the similarity of the plaintiff’s and the defendants’ loaves may have differed in some respects from the evidence in these cases, I find, purely as matter of fact on the evidence before me, as follows: — The names 'Best ’ and 'Friend ’ stamped upon the bottoms of the defendants’ loaves would not in themselves have been sufficient to distinguish their loaves from the * Creamalt ’ loaf. They were in an inconspicuous position, were often wholly or partially illegible, and would not be likely to attract the attention of the ordinary buyer. The bands placed around the defendants’ loaves would, if they remained upon the loaves while in the hands of the retail dealers, be sufficient to distinguish them from the 'Creamalt’ loaf; but as they were not attached to the bread and could easily be removed by a dishonest retailer, they would not be an adequate means of distinguishing the loaves, provided they were not otherwise distinguishable in appearance, and provided it was the defendants’ duty to distinguish them.</p> <p>“ But it seems to me that wholly apart from the names on the bottom of the defendants’ loaves and the bands around them, the ordinary purchaser, having some knowledge of the appearance of ‘ Creamalt ’ bread, either from having bought it or from having seen advertisements and pictures of it, would have no difficulty in distinguishing the ‘Log Cabin’ from the ‘ Creamalt ’ loaves. Excluding the French and Vienna breads, most of the ten cent loaves sold in the retail stores have some points of resemblance. They all have somewhat rounded tops and flat bottoms. A large proportion have glazed tops. They are all of about the same weight. The prominent characteristics of the ‘ Creamalt ’ loaf were, as above stated, its oval contour, much rounded top and flaring sides, together with its more perfect glazing—the whole giving an appearance of size or bulk. While the ‘ Log Cabin ’ loaves had curved and flaring sides they had square ends and a less rounded top, and therefore lacked the distinct oval appearance of the ‘ Creamalt ’ loaf and did not give the same impression of large size. Nor did it appear that the gloss and color of the top of the ‘ Log Cabin ’ loaves were the same as those of the top of the ‘ Creamalt ’ loaf. Moreover, the label pasted on each loaf of ‘ Creamalt ’ bread and appearing in the advertised pictures of it served appreciably to distinguish it from the ‘ Log Cabin ’ and other ten cent loaves.”</p> <p>The plaintiff excepted to the master’s report upon the following grounds among others:</p> <p>“ 1. For that the master has not found, as requested by the plaintiff, that the public had learned to recognize the plaintiff’s 'Creamalt ’ loaves by their general visual appearance.”</p> <p>“ 3. For that the master has not found that the defendants’ loaves were so similar in appearance to the plaintiff’s as to be likely to deceive the ordinary purchaser.</p> <p>“ 4. For that the master has found that the defendants’ loaves without any bands or names upon them were not so similar to the ‘ Creamalt ’ loaf as to be likely to deceive the ordinary purchaser having some knowledge of the appearance of the ‘ Creamalt ’ loaf, or to constitute an instrument of fraud in the hands of retail dealers.</p> <p>“ 5. For that the master has found that the defendants’ loaves were not so similar to the ‘ Creamalt ’ loaf as to be likely to deceive the ordinary purchaser having some knowledge of the appearance of the plaintiff’s 'Creamalt’ loaf.”</p> <p>“12. For that the master has not found, upon the pleadings and the facts reported, that the loaves of the defendants were so similar in appearance to the plaintiff’s as to be calculated to deceive the ordinary purchaser and to make the loaves of the defendants an instrument of fraud in the hands of retail dealers.”</p> <p>The defendants filed numerous exceptions.</p> <p>The cases were heard by Pierce, J., upon the exceptions to the master’s report, and an order was made that the exceptions of all parties be overruled and a decree be entered dismissing the bills; and, by agreement of the parties, the cases were reported to this court for determination.</p>

<p>Contract upon a promissory note set out in full in the opinion. Writ dated June 14, 1909.</p> <p>In the Superior Court the case was submitted to Hichardson, J., upon an agreed statement of facts. The judge found for the defendant and judgment was entered accordingly. The plaintiffs appealed.</p>

<p>Carrier, Of goods or animals. Damages, Limitation. Conversion. Contract, Implied in law. Express Company.</p> <p>Where a carrier of goods or animals makes a material departure from the method of transportation, this, like a deviation from the designated route, avoids the express contract of carriage and all provisions as to limitation of damage contained in it, at least at the election of the shipper.</p> <p>Where an express company makes a contract in writing for the transportation of a certain number of horses from a place in Indiana to a city in this Commonwealth in a time not to exceed thirty-six hours, and the shipper agrees that an attendant shall accompany and take charge of the horses, the express company furnishing free transportation for the attendant, and the shipper by the same contract declares the value of the horses to be $75 each and agrees' that the express company shall in no event be liable for damages for injury to any of the horses in excess of the sum declared by the shipper to be the value thereof, if the express company during the transportation separates the horses from their attendant furnished by the shipper, against the attendant’s objection, and in consequence the horses are injured by detention in the cars for .a period of forty-four hours without being fed or watered, the carrier’s departure from the agreed method of transportation displaces the contract of carriage and releases the shipper from all limitations upon the carrier’s liability which he agreed to therein, so that he is entitled to recover from the carrier full compensation for his loss, it here not being necessary to decide whether his proper remedy is in tort for the conversion or upon an implied contract arising from the fact of shipment.</p>

<p>Two actions oe tort, the first by a minor for personal injuries sustained on January 31,1907, on Western Avenue in that part of Boston called Brighton, when the plaintiff was thrown from the high seat of a two-horse wagon in which he was driving by its being run into by an electric car of the defendant, and the second by the father of the plaintiff in the first case for the loss of his son’s services and for expenses incurred by reason of his injuries. Writs dated March 30, 1907.</p> <p>Before the trial Richard W. Keating, the original plaintiff in the second case, died, and Bridget Keating, the administratrix of his estate, was admitted as plaintiff to prosecute that action. In the Superior Court the cases were tried together before Brown, J. After the plaintiffs’ opening, the defendant moved that the second cause of action be dismissed on the ground that the cause of action did not survive the death of the original plaintiff.</p> <p>The facts which appeared in evidence are stated in the opinion. At the close of the evidence the defendant, without waiving its motion to dismiss the second action, asked the judge to order a verdict for the defendant in each case on the ground that upon all the evidence the plaintiff in the first case was not in the exercise of due care; and that upon all the evidence the defendant was not negligent. It was thereupon agreed by the parties that in order to avoid a new trial the cases should be submitted to the jury and then reported by the judge to this court.</p> <p>The jury returned a verdict for the plaintiff in the first action in the sum of $400, and for the plaintiff in the second action in the sums of $200 for loss of services and $100 for medical expenses.</p> <p>The judge reported the cases for determination by this court, with the following stipulation: If there was no evidence from which the jury might find that the plaintiff in the first action was in the exercise of due care, or that the defendant was negligent, judgment was to be entered for the defendant in each case. If there was evidence from which the jury might find that the -plaintiff in the first case was in the exercise of due care and that the defendant was negligent, judgment was to be entered on the verdict in the first case; and judgment was to be entered on the verdict in the second case unless the cause of action for loss of services or medical expenses or either of them, did not survive the death of the original plaintiff. If the action for loss of services survived and that for medical expenses did not, or vice versa, judgment was to be entered for the plaintiff for $200 or $100, as the case might be. If neither cause of action survived, judgment was to be entered for the defendant.</p> <p>The case was argued at the bar in January, 1911, before Knoivlton, C. J., Loring, Braley, Sheldon, & Rugg, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Two ACTIONS OF CONTRACT, upon two decrees of the Circuit Court for the County of Wayne in the State of Michigan in Chancery, dated respectively April 20, 1908, and February 23, 1909, for arrears of alimony and for sums spent by the plaintiff for the support and maintenance of a minor child of the parties, the, decrees being entered in divorce proceedings in which a decree originally was entered on October 6, 1905. Writs dated, respectively, April 24,1908, and March 5, 1909.</p> <p>The cases were heard together by Bond, J., without a jury.</p> <p>The plaintiff offered in evidence fifteen documents, including copies of all material petitions and decrees of the Michigan court and a copy of the calendar entries in the divorce proceedings in Michigan, the documents being bound together as one document, on the outside of which was the following certificate, which was signed by Thomas F. Farrell, clerk of the Circuit Court for the County of Wayne and State of Michigan, and which bore the seal of that court: “ I, Thomas F. Farrell, clerk of said court, do hereby certify that the writings annexed to this certificate are true copies of originals on file and of record in said office, and that said originals, together, constitute the record of the proceedings of said court in this cause.” The defendant objected to the admission of the document in evidence (1) because on its face it appeared that it was not a complete record; (2) because it was not an extended record; (3) because the decrees attempted to be proved were interlocutory and not final, and (4) because the record did not show proper service upon the defendant of the petitions seeking the decrees upon which the actions being tried were based. The objections of the defendant were overruled, the document was admitted in evidence and the defendant excepted.</p> <p>From documentary evidence it appeared that the original decree of divorce of the Michigan court directed the defendant in these actions to pay to the plaintiff “ as permanent alimony ” “ the sum of thirty-five dollars per month, beginning November 9, 1905, payable at the end of each month thereafter, monthly, for five years from and after October 9, 1905, the payment of such alimony to be in full of all interest in defendant’s property, and all dower interest.” It also provided that the plaintiff should “ be awarded the custody of ” the minor child of the parties “ during each summer vacation from the close of the graded public school in the summer until the opening of such school in the fall, and that she ” should “ also have her during the Christmas and spring vacations. The remainder of each year the grandmother of said child, Annie Wells,” was given the custody of the child. The defendant was ordered to provide the clothes and necessaries for such child, and board for her while she was with Annie Wells.</p> <p>The petition upon which the decree in the first action was based alleged that the defendant owed the plaintiff as arrears of alimony $335, and that, owing to a change in the circumstances of the parties due to the death of Annie Wells, the plaintiff had continuous custody of the minor child and had been to an expense of $250 for her maintenance; and the first decree “ ordered, adjudged and decreed ” (1) that “ there was due ” to the plaintiff $335 “ heretofore ordered to be paid to ” her; (2) “ that she be and is hereby allowed the sum of $250 for schooling and medical attendance upon said child of said parties to this time, which said sum shall be paid by ” the defendant to the plaintiff “ forthwith ; ” (3) “ It is further ordered that execution issue from this court for the said sum of $335 and $250, a total of $585, in favor of ” the plaintiff and against the defendant.</p> <p>The decree in the second action “ ordered, adjudged and decreed ” (1) that the defendant owed the plaintiff $245 “ heretofore ordered paid to ” her “ as permanent alimony (2) “ that she be and is hereby allowed the sum of $130 for schooling and keeping said child of said parties from April 20, 1908, to this time,” which sum was ordered to be paid by the defendant to the plaintiff forthwith; (3) and it was ordered further “that execution issue from this court for the said sum of $245 and $130, a total of $375, in favor of” the plaintiff and against the defendant, “ this allowance being to January 9, 1909, and is in addition to the $585 found due ” the plaintiff “ on February 20,1908, which order and decree is hereby ratified. It is ordered that execution issue therefor. ”</p> <p>The “qualified expert” referred to in the opinion testified that, “ under the law of Michigan ” the decrees of the Michigan court of April 20, 1908, and February 23, 1909, were final decrees. He also stated that “ in a case in chancery an appearance continued indefinitely. My opinion is based on practice and on Coon v. Plymouth Plank Road Co. 32 Mich. 248.”</p> <p>It was undisputed that the defendant was served with process in the original proceedings in the Michigan court and was repre* sented by counsel therein up to the decree of October 6, 1905; that the counsels’ appearance remained upon the docket in the case'until after the decree of April 20, 1908, and that they were given notice of the petition upon which that decree was based. Evidence of the defendant, which was undisputed, tended to show that the authority of his counsel to appear or to act for him was withdrawn immediately after the decree in 1905. Notice of the petition upon which the decree of February 23, 1909, was based was served upon the defendant in Boston.</p> <p>The cases were heard on November 29 and 30, 1909, and fully argued,' both parties making in writing requests for findings of fact and for rulings of law. On December 21,1909, “ the presiding judge sent for counsel for both parties, and stated that he was of opinion that that portion of the decrees of the Michigan Court which referred to overdue alimony constituted a judgment to which he must give full faith and credit, but that as to so much of them as referred to allowances for support and maintenance of the child, he did not feel the same way. He also stated, however, that he nevertheless should find for the plaintiff if he could be satisfied that proper service or notice of the petitions upon which the decrees were based was given to the defendant, that he was not at the time satisfied that such service or notice was given. On application of the plaintiff’s counsel, however, and subject to an exception by the defendant, he said that he would hear further evidence.” Thereafter the deposition of the witness Golden was taken and introduced in evidence as well as a copy of the rules of the circuit courts of Michigan.</p> <p>In answer to a hypothetical question in a cross-interrogatory by the defendant the witness Golden stated that, if he assumed “ that shortly after the entry of the decree in October, 1905, the authority of the defendant’s solicitors to represent him in any way was withdrawn and all relations between them and the defendant had ceased; that in reply to” a notice which was “ sent to the defendant’s so-called solicitors in April of 1908, the plaintiff’s solicitors received information that the so-called defendant’s solicitors were not his solicitors any longer and were not authorized to receive any notice with regard to him or with regard to said divorce proceedings,”he would be “of the opinion that” such notice “ would not be good service if there was not personal service of the notice upon the defendant.” The information sent by the defendant’s former solicitors in Michigan to the plaintiff’s solicitor in reply to the notice of the pendency of the first petition was on a postal card which read as follows: “I am in receipt of petition and notice of hearing of the same for the 20th. I hardly know what to say in relation to the matter. I am trying to get into touch with Mr. Wells and wish that you would let the matter stand over for one week until I can hear from him. While I was a solicitor of record in the case, I have not been in touch with Mr. Wells for some time, so I do not feel that I have any authority or right to represent him until I can hear from him. I will thank you to let me know as to whether this is agreeable to you.”</p> <p>The fifth ruling asked for by the defendant and mentioned in the opinion was as follows: “ 5. If this court finds that the decree by the Michigan court is invalid as to part of the matters therein contained, the finding must be for the defendant.”</p> <p>The presiding judge at the request of the plaintiff made the following among other rulings: “Upon the undisputed evidence in the case, the decree of the Michigan court, a copy of which is annexed to the plaintiff’s declaration, is entitled to full faith and credit under the United States Constitution, Art. IV., § 1.”</p> <p>The judge found for the plaintiff in both actions; and the defendant alleged exceptions.</p>

<p>Negligence, Street railway, Due care of plaintiff. Evidence, Of supposed knowledge to explain character of act.</p> <p>In an action for personal injuries against a corporation operating a street.railway, it appeared that the plaintiff was employed by the defendant as a conductor, that before starting on his first trip on the morning of the accident he had occasion to see one of his superiors in the service at a car barn of the defendant, that, although he saw a car not very far away approaching at a speed of about two miles an hour on a track that he had to cross, he proceeded to walk along a well-worn path used by the defendant’s employees which led across the track on which the car was approaching and, stepping on the track without looking, was run down by the car and injured. Between the plaintiff and the point at which he saw the car approaching was what was called a “ dead stop,” at which all passenger cars were stopped whether there were passengers to get on or off there or not. The plaintiff testified that, when he was receiving instructions as to his duties as a conductor, he was told by his instructor that all cars stopped at this place called the “dead stop,” and that in this respect the plaintiff knew no difference between the - different kinds of cars. It appeared that the car which struck him was not a passenger car but a money car, which was used for collecting receipts or other similar purposes. The plaintiff testified that when he saw the car he did not know what kind of a car it was, although he had an idea that it was not a passenger car. It appeared that if this car had stopped at the “ dead stop ” and had started again it would not have reached the place where the plaintiff crossed until a considerable time after he had passed by. Held, that it was a question of fact for the jury, whether the plaintiff exercised such care as persons of ordinary prudence would be expected to exercise, in relying upon his supposed knowledge that all cars approaching from the place where he saw the car that afterwards struck him would stop before reaching the place where he crossed.</p> <p>In an action for personal injuries from being run down by a street car of the defendant, the plaintiff may be asked by his counsel why he did not look before stepping on the track in front of the car that injured him, his presumed answer being a statement of his supposed knowledge that in accordance with a rule of the street railway company this car like all other cars would stop at a “ dead stop ” before reaching the place where he was crossing.</p>

<p> Fraud. False and Fraudulent Representations. </p> <p>A person, who by information given to the assessors of a city procured certain land to be taxed as belonging to persons unknown, and who afterwards, when the land had been sold for non-payment of taxes, procured a deed of the land to himself from the owner, thus described as unknown, who was a woman, by falsely representing to her that in asking her to release to him her interest in the land he was acting solely for a yacht club that owned the adjoining land, whereas he was acting for himself, and by making statements to her, which were intentionally misleading if not actually false, to the effect that, by reason of the tax sale and the expiration of the time for redemption and also by reason of a certain mortgage, she had no title to the land, and who, having procured this deed, redeemed the land from the tax sale made under R. L. c. 13, § 68, cl. 1, as being land “taxed as belonging to persons unknown,” also procuring from the mortgagee a release and discharge of the mortgage on the land, has no title that upon a petition to the Land Court can be registered against the objection of the owner of the land from whom he procured his deed, because such owner has a right to avoid the deed as procured from her by false representations.</p>

<p>Damages, For property taken or injured under statutory authority. Grade Crossing. Eminent Domain. Landlord and Tenant, Option to renew lease. Contract, What constitutes. Practice, Civil, Petition for damages caused by abolition of grade crossing. Fixtures. Evidence, Relevancy and materiality.</p> <p>Review by Boring, J., of the decisions of this court and of the statutes relating to the awarding of damages for the taking of land or interests therein by an act of eminent domain, where at the time of such act several persons have several estates or interests in the property taken or damaged.</p> <p>The decision in Cornell-Andrews Smelting Co. v. Boston $• Providence Railroad, 202 Mass. 585, that, in assessing damages suffered by a lessee of real estate by the abolition of a grade crossing of a railroad with a way, a provision in the lease giving to the lessee a right at any time during its term of ten years to purchase the premises leased at their fair value should not be taken into consideration either to enhance or to diminish the lessee’s claim, affirmed.</p> <p>An option, giving to the lessee of real estate a right at his election to buy the fee at any time during the term of the lease, although it adds to the value of the lessee’s rights under the lease, is no part of the lessee’s estate in the land, but is merely a contract right.</p> <p>Where, under a provision of a certain lease of land, the lessee is given an option at any time during the term of the lease to buy from the lessor the fee in the land, and during the term the land is taken by an act of eminent domain by a railroad corporation in the abolition of a grade crossing, although at the trial of a petition by the lessee for the assessment of his damages the provision in the lease regarding the option cannot be considered, nevertheless it seems that he is not remediless, because, while he no longer at his election can buy the land, he can at his election buy the fund into which in equity the land has been converted by the exercise of the power of eminent domain.</p> <p>Where the owner of a large tract of land leases a portion of it to one who, upon the portion so leased being damaged by an act of eminent domain by a railroad company in the abolition of a grade crossing, files a petition for the assessment of his damages, and under the provisions of R. L. c. 48, § 21; c. Ill, § 153, the lessor is ordered to intervene, the lessor should not include in his intervening petition damage to any other land than that described in the petition of the lessee.</p> <p>If the owner of a tract of land, a part of which is subject to a lease, upon the land being damaged by acts of eminent domain by a railroad corporation in the abolition of a grade crossing, files a petition for the assessment of his damages as to his entire tract including that subject to the lease, and the lessee also files a petition for the assessment of his damages, and the court under the provisions of R. L. c. 48, § 21; c. Ill, § 153, orders the lessor in the proceedings instituted by the lessee to file an intervening petition for the assessment of the damages he had suffered with regard to the land subject to the lease, the making of such an order brings to an end the lessor’s right to proceed under the petition he already had filed so far as his interest in the land subject to the lease is concerned.</p> <p>Where the owner of certain land and one to whom he has leased a portion of it, upon the land’s being damaged by acts of eminent domain of a railroad corporation in the abolition of a grade crossing of the railroad with a private way, severally file petitions against the railroad corporation for the assessment of their damages and, the petitions being tried together and verdicts rendered for the petitioners, a motion of the respondent to set aside the verdict rendered for the lessor is filed but not acted upon, and exceptions by the respondent in the action of the lessee against it are sustained and a new. trial ordered, there should be no new trial of the petition of the lessee until it is determined whether' there is to be a new trial of the petition of the lessor, because the jury should be in'a position to ascertain first and set forth in their verdict the entire damage to the property as if it were owned by one person in fee, and then to apportion such entire damage between the lessor and the lessee.</p> <p>Statement, by Losing, J., of the proper procedure where leased land, on which buildings containing fixed machinery have been erected by the lessee, has been taken or damaged by the exercise of the power of eminent domain and petitions have been brought by the lessor and the lessee to have their damages assessed.</p> <p>Upon a review of the record of a former trial, with petitions by the lessor, of this petition by a lessee of real estate to recover damages due to the abolition of a grade crossing of the defendant railroad corporation with a private way and the consequent extinguishment of another private way which had furnished the only means of access to a factory containing fixed machinery, erected upon the leased land by the petitioner, and of the opinion of this court, reported in Cornell-Andrews Smelting Co. v. Boston & Providence Railroad, 202 Mass. 585, stating their decision sustaining exceptions taken by the respondent at that trial, it was held, that the lessor’s share of the damage done to the buildings and fixed machinery must be taken to have been included in verdicts rendered on the lessor’s petitions, which had not been set aside, and that the lessee did not have any right to proceed at a subsequent trial of his petition on the basis that such damages belonged wholly to him and were to be recovered under his petition.</p> <p>In a petition by a manufacturing corporation, which carried on its operations in buildings which it had erected and occupied with fixed machinery upon land which it held under lease, for damages suffered by it from acts of eminent domain of a railroad corporation in the abolition of a grade crossing, the lessor was ordered to file an intervening petition for such damages as he had suffered, and this court held^ that, upon the filing of such an intervening petition and the trial together of the petition and the intervening petition, the jury must determine first and set forth in their verdict the entire damage done to the real estate leased, including as part thereof the buildings and the fixed machinery put in them by the lessee, that the amount of such entire damage then must be apportioned between the lessor and the lessee, and, if the lessee had suffered any special damage during the acts of abolition of the crossing, or if his damage in the matter of access to his manufactory was different from that of the lessor, that the amounts of such damage should be found and set forth in the verdict specially in addition to the sums previously mentioned; and that, as to the lessor’s entire share of the damage to the real estate, there should be a separation of so much thereof as represents his share of the damage done to the buildings and fixed machinery from what represents his share of the damage done to the land, in order that the lessee may exercise his right of removing trade fixtures, which right, after the acts of eminent domain, covers the buildings and fixed machinery and the damage done to them, including the lessor’s share of that damage.</p> <p>At the trial of a petition against a railroad corporation for the assessment of damages caused to the petitioner by acts of eminent domain of the respondent in the abolition of a grade crossing of the railroad with a private way, which acts resulted in the extinguishment of another private way, which formerly had been the only means of access to the petitioner’s land upon which he had a manufacturing establishment, and in the erecting of a high embankment along the side of the manufactory, the trial judge admitted evidence offered by the respondent and tending to show that at a comparatively small expense a way from the petitioner’s land could have been constructed connecting the land with a new street, which had been constructed as part of the acts in abolition of the crossing, and that the value of the land covered by such new way would have been small. In his charge the judge instructed the jury that, although he could not say that the petitioner was bound or was not bound to attempt to procure such a way, yet if the jury were satisfied that the possibility of his doing so would have affected the market value of the land after the extinguishment of the private way, they could take that into account. Meld, that, as guarded by the instructions to the jury, the evidence properly was admitted.</p>

<p>Tax, Betterments. Certiorari. Way, Public: laying out. Parks and Parkways. Columbia Road. Words, “ Layout.”</p> <p>Upon a petition for a writ of certiorari to quash the proceedings in assessing upon adjoining land of the petitioner betterments for the laying out and construction of Columbia Road in Boston, it appeared that the portion of Columbia Road on which the land of the petitioner abutted, about sixteen hundred feet in length, in 1892 was taken for a public park by the park commissioners of Boston and was laid out and constructed as a parkway called Dorchesterway under an act which authorized the assessment of betterments, that at that time a settlement was made between the city and the owners, by which a gross sum was paid to the owners and the city agreed to construct a roadway and walk, to which the owners could have access, and the owners made a conveyance to the city upon the condition that if any betterments were assessed upon their remaining land on account of the laying out and construction of the park such betterments should be assumed by the city of Boston. In 1897 the street commissioners of Boston laid out Columbia Road as a highway from Franklin Park to Marine Park, a distance of five miles, which for the sixteen hundred feet referred to was superimposed upon Dorchesterway. All of Dorchesterway, except twenty feet in width, was designated by the order laying out Columbia Road, under statutory authority, as being under the “ charge and control ” of the park commissioners as a parkway, and no physical change was made in the portion of the Columbia Road adjacent to the petitioner’s land which formerly was Dorchesterway. Held, that, assuming, for the purposes of decision, that a petition for a writ of certiorari would have been a proper remedy to correct a wrongful assessment of betterments, the fact that Columbia Road for a comparatively short distance happened to be coincident with the pre-existing parkway did not prevent its laying out from being a wholly new one, by which the older and lesser taking was extinguished, and that it could not be said as matter of law that no benefit accrued to the land of the petitioner by reason of the new layout.</p>

<p>Bowdoin College. Tax, Exemption, On successions and inheritances. Charity. '</p> <p>Rice v. Bradford, 180 Mass. 646, holding that property of Bowdoin College was subject to the tax on successions and inheritances imposed by St. 1891, c. 426, necessarily decided that that college was not an institution “ incorporated within this Commonwealth ” within the meaning of that phrase as used in Rev. Sts. c. 7, § 5, cl. 2, afterwards re-enacted in successive statutes and embodied in R. L. c. 15, § 1.</p> <p>It seems, that, if the question, whether property of Bowdoin College is exempt from taxation by the laws of this Commonwealth, were an open one, instead of having been settled adversely to the college, this court would hold that, although the college was incorporated by this Commonwealth before St. 1819, c. 86, called the Separation Act, and its charter cannot be modified or changed by the State of Maine, nevertheless after the passage of that act it ceased to be an institution incorporated within this Commonwealth within the meaning of Rev. Sts. c. 7, § 6, cl. 2, and its subsequent re-enactments.</p>

<p>Tax, On successions and inheritances. Probate Court. Judgment.</p> <p>A decree of the Probate Court, allowing the accounts of an administrator and ordering a distribution of the estate of his intestate, where there was no ref- ' erence in the proceedings to an inheritance tax and no provision was made for its payment and the Commonwealth was not made a party to the proceedings by its consent or in the manner provided by St. 1891, c. 425, § 18, is no defense to an information by the Attorney General at the relation of the treasurer and receiver general for the collection of an inheritance tax to which the estate is subject under the provisions of St. 1891, c. 425. Following Attorney General v. Stone, ante, 186.</p>

<p>Devise and Legacy, Ademption. Corporation, Reorganization. Executor and Administrator. Charity. Words, “ Trustees.”</p> <p>A testator by his will gave numerous legacies of shares of the first preferred stock of a certain corporation. About a year later he executed a codicil, which did not change this part of his will, and three years after that he died. At the date of his will he was the holder of a very large number of shares of the first preferred stock of the corporation and at the date of the codicil this number had been increased. The corporation was organized under the laws of New Jersey. About a year after the execution of the codicil and about two years before the testator’s death the corporation passed into the hands of a receiver in New Jersey. In the interest of the testator and such other stockholders as chose to come in for the purpose of acquiring the assets and succeeding to the business of the New Jersey corporation, a new corporation was organized under the laws of Connecticut, to which, after payment by the receiver of all the obligations of the New Jersey corporation and the expenses of the receivership, the remaining assets were conveyed by the receiver about nine months before the testator’s death under an order of the New Jersey court, and about a month later a decree was made which dissolved the New Jersey corporation and under a statute of that State declared its charter to be forfeited and void.. The testator and other stockholders of the New Jersey corporation deposited their stock with a certain trust company, which issued to them negotiable voting trust certificates, which were to be exchanged for stock in the new corporation in accordance with a stated ratio. The exchange was not effected during the testator’s lifetime, but was made by his executors shortly after his death pursuant to the prearranged scheme. Seven days before the testator’s death a decree was entered by the New Jersey court that there should be paid to persons, who had not deposited or should not deposit their first preferred stock in the New Jersey corporation but had elected to take cash therefor, a dividend of a certain amount of money on each share of the first preferred stock. On the day of the death of the testator, an order was entered discharging the receiver from any further duty or responsibility and terminating the receivership. Held, that the legacies of shares of the first preferred stock of the New Jersey corporation were not adeemed by what took place before the death of the testator, and that they took effect subject to such engagements as the testator had entered.into in regard to the reorganization of the corporation and the surrender and exchange of the stock bequeathed, because, although the New Jersey corporation had been dissolved, the testator at the time of his death still held the shares of stock in the defunct corporation, which gave him corresponding rights to stock in the new corporation; and therefore that the legacies were to be satisfied by the transfer to the legatees of the number of shares of the stock in the Connecticut corporation to which the testator would have been entitled by virtue of the number of shares of the first preferred stock in the New Jersey corporation respectively named in such legacies, it being immaterial and unnecessary to decide whether the legacies were to be regarded as general or specific.</p> <p>A direction by a testator in his will that certain legacies, together with all other bequests in his will, shall “ be paid within three years from the probating of this will at the discretion of the trustees ” is a direction to the executors of the will, the word “trustees” manifestly being used inadvertently, and is a direction that the legacies are to be paid in three years from the probate of the will or sooner at the discretion of the executors.</p> <p>A legacy to a certain charity, called a mission, with a provision that it “ is not to take effect unless ” a person named “ be alive and have charge of said mission at the time of ” the testator’s death, lapses if the person named has died during the testator’s lifetime.</p> <p>A legacy was given to the “Fresh Air Fund now under the charge of W.” It appeared that W. was in charge of a department of the City Missionary Society of Boston called the “Fresh Air Fund.” Held, that the legacy should be paid to the City Missionary Society of Boston to be used in the department designated.</p> <p>A legacy given to “the Library Fund of the Massachusetts Commandery of the Military Order of the Loyal Legion of the United States ” was held to be payable to “the Commandery of Massachusetts, Military Order of the Loyal Legion , of the United States,” to be used and applied for library purposes.</p>

<p>Tax, Assessments for betterments. Parks and Parkways. Columbia Road. Equity Jurisdiction, To enforce against city agreement to assume betterment assessment.</p> <p>A deed given to the city of Boston by the owner of land which the board of park commissioners of that city in 1890 had taken for park purposes, contained the following: “This conveyance is made upon the express condition that if any betterments are assessed upon the estates belonging to the ” landowner “ on account of the laying out and construction of said park, said betterments shall be assumed by said city of Boston.” A parkway called the Strandway was constructed adjacent to the remaining land of the landowner and, at the time of the taking by the park commissioners and of the execution of the deed by the landowner, the park commissioners contemplated a system of parkways of which the Strandway should form a link, connecting Marine Park at South Boston with Pranklin Park. But the scheme was changed, and under authority given by St. 1897, c. 394, the street commissioners of the city of Boston laid out Columbia Hoad as a public highway, about five miles in length, from Franklin Park to Marine Park, and included as a part of it the Strandway, which by an order of the street commissioners under authority given them by the statute was placed under the “charge and control” of the board of park commissioners. No change was made in the physical appearance of the Strandway so far as it was included within the layout of Columbia Road, and the only change wrought by the layout was to open one of the drives of the Strandway to general traffic instead of leaving it restricted as a parkway. The board of street commissioners levied a betterment assessment on the remaining land of the landowner on account of the laying out and construction of Columbia Road. The landowner brought a suit in equity against the city of Boston, to compel it to assume this assessment under the condition or agreement, quoted above, in the deed accepted by the city. Held, that, assuming that a suit in equity was the proper remedy to enforce the terms of the deed, which was not decided, the assessment by the street commissioners for the laying out and construction of Columbia Road as a highway was not within the terms of the deed, which related only to assessments for the laying out and construction of a park by the park commissioners.</p>

<p>Corporation, Powers, By laws. Bills and Notes, Indorsement, Payment. Contract, Implied in fact, Validity. Evidence, Circumstantial, Presumptions and burden of proof.</p> <p>A business corporation has power to agree to reimburse the maker of a note which he is to sign for its benefit.</p> <p>A business corporation may be bound by a contract, which can be inferred from its corporate acts and other facts without any direct evidence of the existence or terms of the contract.</p> <p>In an action by a corporation against an administrator, on certain promissory notes made by the defendant’s intestate, it appeared that the intestate at the time he signed the notes was the president and a stockholder of the plaintiff, that the notes were payable to the owner of certain property which was received and used by the plaintiff and not by the defendant’s intestate, who received no consideration for the notes unless it was an agreement of the plaintiff to hold him harmless from liability upon them, that the notes after maturity were indorsed in blank without recourse and were delivered to the plaintiff, whereupon the plaintiff, which was not a party to them and had not guaranteed their payment, paid the notes and entered the transaction on its books as “ notes paid.” Held, that from the evidence a contract of the plaintiff with the intestate to assume the payment of the notes could be inferred, that the conduct of the plaintiff through its officers was susceptible of the construction that the plaintiff in paying the notes was paying its own debt, which thereby became extinguished, and that the indorsement was a mere form which did not transfer an outstanding obligation, so that the case was for the jury and a verdict properly could not be ordered for the plaintiff.</p> <p>The fact, that a corporation has a by-law to the effect that no agreements involving the payment of a certain amount of money shall be valid without a vote of the board of directors, does not prevent the corporation from being held liable on a contract to pay a larger amount of money than that named in the by-law which, by inference from corporate acts, may be shown to have been made, and which may be presumed to have been made under adequate authority.</p>

<p>Practice, Civil, Findings of judge, Exceptions, Rulings. Damages, Speculative. Evidence, Presumptions and burden of proof.</p> <p>Although the findings of fact made by a trial judge have the same effect as the verdict of a jury and only can be set aside when they are without any foundation in the evidence, yet where, so far as appears upon the printed record before this court, a finding of a judge rests merely upon conjecture, an exception to a refusal to rule that it was not warranted by the evidence will be sustained.</p> <p>In an action for the alleged breach of a contract in writing, by which the plaintiff who was the exclusive agent of the manufacturer for the sale in New England of a certain kind of automobile and was authorized to establish sub-agencies, agreed with the defendant to sell him these automobiles at a discount of ten per cent, and the defendant agreed to devote his entire time between January 1 and September 30,1906, to selling these automobiles and to have no business with the manufacturer except through the plaintiff, where damages were claimed on the ground that they were caused by the failure of the defendant to devote all his time to the sale of the automobiles during the whole of the specified period, and there was no evidence as to prospective customers but there was evidence showing an inability or indisposition on the part of the manufacturer to fill orders promptly, the question whether, in view of the newness of the venture and of its dependence upon the temperament, energy and perseverance of the defendant and the performance by the plaintiff of his contract with the manufacturer, the assessment of any damages would not be too speculative "to be allowed, here was referred to as one which it was not necessary to determine.</p> <p>An exception to the refusal by a judge, before whom a case was tried without a jury, to make rulings which were inapplicable to the evidence or which were contrary to his findings of fact upon conflicting or unreported evidence, cannot be sustained.</p> <p>In an action for the alleged breach of a contract in writing, by which the plaintiff, who was the exclusive agent of the manufacturer for the sale in New England of a certain kind of automobile and was authorized to establish sub-agencies, agreed with the defendant to sell him these automobiles at a discount of ten per cent, and the defendant agreed to devote his entire time during a specified period to selling these automobiles and to have no business with the manufacturer except through the plaintiff, the defense, that the written contract between the parties was waived and that the relation of principal and agent was substituted for it, is an affirmative one, and if the defendant sets it up the burden is on him to prove it.</p> <p>At the trial of an action at law before a judge, sitting without a jury, a party has a right by the seasonable presentation of appropriate requests for rulings to learn the principles of law which the judge is to apply in reaching his conclusions, and, where such requests are sound in law, pertinent to the issues and applicable to the evidence, it is the duty of the judge to grant them and to follow the rulings thus made in arriving at his decision; but to obtain such a ruling the party who wants it made must request it himself, and he cannot complain or except because, after the opposing party had presented to the judge requests for rulings, he withdrew them with the assent of 'the judge and they were not passed upon.</p>

<p>Four actions of tort, three for personal injuries, and the other by one of these plaintiffs for consequential damages arising from injuries to his wife, another of the plaintiffs, all of the injuries having been sustained by reason of an explosion at or near the junction of Main Street and Wyoming Avenue in the city of Melrose on the evening of September 21, 1904, which wrecked a car of the defendant in which the plaintiffs were passengers. Writs dated November 26, 1904.</p> <p>In the Superior Court the cases were tried together before jBrown, J. At the close of the evidence, which is described in the opinion, the judge ordered a verdict for the defendant in each of the cases; and the plaintiffs alleged exceptions.</p>

<p>Bill nr equity, filed in the Supreme Judicial Court on November 17, 1910, by the trustee under the will of Annie H. Parker, late of Boston, for instructions.</p> <p>The case was heard by Hammond, J. The clause of the will in regard to which instructions were sought is quoted in the opinion. The two brothers of the testatrix there mentioned were J. Brooks Parker and Charles A. Parker. The testatrix died on October 1, 1890, and her will was proved on October 27, 1890.</p> <p>The brother J. Brooks Parker died on March 5, 1890, during the lifetime of the testatrix, leaving no issue. The other brother, Charles A. Parker, having received the entire net income during his life, died on October 11, 1910. The cousin, Herbert H. Eustis, died on February 21, 1903, leaving no issue. The uncle, Thomas B. Hall, died on March 22, 1903, leaving issue, two daughters, the defendants Emily D. (Hall) Meyer and Minna B. Hall. The defendants Joseph B. Hall, Maria H. Hall, Susan B. Horton, (formerly Hall,) and George D. Eustis were the cousins named in the will. It was not disputed that the share of the uncle Thomas B. Hall in the remainder went to his two daughters, Emily D. Meyer and Minna B. Hall, and the only question in the case was in regard to the disposition of the share of the cousin, Herbert H. Eustis: Whether the share of this cousin, (who died just before his uncle Thomas B. Hall,) went in fourths to the other now surviving cousins named in the will, namely, to George D. Eustis, Joseph B. Hall, Maria H. Hall and Susan B. Horton, or in fifths, four parts going to the cousins just named and one part going, through the uncle Thomas B. Hall, to his two daughters, Emily and Minna.</p> <p>The justice reported the case for determination by this court as follows: “ I decided that the trustee should divide the share of Herbert D. Eustis, deceased, into five equal parts, and pay one of such parts to each of the four cousins of the testatrix, Joseph B. Hall, Maria H. Hall, Susan B. Horton, and George D. Eustis, and one such part to her cousins, Emily D. Meyer and Minna B. Hall, issue of Thomas B. Hall, uncle of the testatrix; and at the request of counsel for Joseph B. Hall, Maria H. Hall, and Susan B. Horton, I report the case for the consideration and decision of the full court.”</p>

<p>Two bills IN equity, filed in the Superior Court on December 3, 1906, and January 21, 1907, by a corporation against its former president, for an accounting as- to money alleged to belong to the plaintiff and to have been received by the defendant as the plaintiff’s agent and to have been retained by him for his own use and benefit, the defendant having procured the money from the plaintiff for the purchase of certain land for the plaintiff.</p> <p>In the Superior Court the cases were tried together before Dana, J. The subject of controversy and the character of evidence are described in the opinion.</p> <p>In the first suit the defendant asked the judge to make the following findings of fact:</p> <p>“ 1. On all the evidence the agreed price at which the land was sold to the plaintiff was $2,000 an acre.</p> <p>“ 2. On all the evidence the defendant paid to J. E. Wellington the sum of $58,000 and odd together with interest.”</p> <p>In the second suit the defendant asked the judge to make the following finding of fact:</p> <p>“ 1. On all the evidence the defendant paid Hill for the Hill land so called the sum of $3,000 and paid to J. E. Wellington the sum of $3,000 substantially in accordance with the intendment of his understanding with said J. E. Wellington.”</p> <p>In the first suit the defendant asked-the judge to make the following rulings:</p> <p>“ 1. The burden of proof is upon the plaintiff to satisfy the court by a fair preponderance of the testimony: (1) That the price at which the land was finally sold by Wellington to the plaintiff was $1,000 per acre; (2) that the defendant took $29,000 and odd from the plaintiff under the claim fraudulently made by him that the agreed price was $2,000 per acre and. fraudulently converted said sum to his own use.</p> <p>“2. If the court shall find that the price for the land purchased was honestly made by the defendant and Wellington at. $2,000 per acre, then it makes no difference under this bill whether Wellington actually received $58,000 and odd or not.”</p> <p>In the second suit the defendant asked the judge to make the: following rulings:</p> <p>“ 1. The burden of proof is upon the plaintiff to satisfy the court by a fair preponderance of the testimony that the defendant claiming fraudulently to the plaintiff in substance that the price of the Hill land was $6,000 paid $3,000 to the Hills and fraudulently converted $3,000 to his own use.</p> <p>“ 2. If the court shall find that the defendant agreed with J. E. Wellington that he should have the difference between the amount for which said Wellington said the Hill land could be bought, namely, $500 per acre or $1,000 in all, and an amount of $4,000 that equalled two acres at $2,000 per acre, and the defendant believed J. E. Wellington assisted in bringing about a sale of the Hill land and therefore paid J. E. Wellington said sum of $3,000, then this bill must be dismissed.”</p> <p>The judge refused to make any of the above findings of fact in either case.</p> <p>As to the requests for rulings, the judge said:</p> <p>“ I construe request No. 1, in each case, as meaning that, if the facts therein set forth are not found legally proved by the court, there can be no recovery. On such an assumption, although I found a conversion, I deny said request in each case.”</p> <p>As to the other requests for rulings the judge refused each of them as inapplicable to the facts as found by him.</p> <p>The court found for the plaintiff in both cases, with costs; and the defendant alleged exceptions.</p>

<p>Landlord and Tenant. Equity Jurisdiction, To establish rights under unrecorded lease for more than seven years. Deed, Registration.</p> <p>Under R. L. c. 127, § 4, if a person enters into a contract to purchase certain land and makes a part payment under the contract, without knowledge that the land is leased by an unrecorded lease for more than seven years, and then such intending purchaser is informed of the existence of the lease, he is deprived by such notice of the power to become an innocent purchaser, and if he chooses to complete the contract by paying the balance of the purchase money and taking a deed of the land, he holds it subject to the lease, which the lessee by a suit in equity may establish against him.</p> <p>In a suit in equity by the lessee of certain real estate under an unrecorded lease for a term of more than seven years, against the purchaser of the real estate at a foreclosure sale, to enjoin the defendant from ejecting the plaintiff and to establish the lease, it appeared that the defendant as the highest bidder at the sale entered into a contract to purchase the property and made a part payment of $2,000, and that at the time he entered into such contract and made such payment he had not actual notice of the existence of the lease, but that before the delivery of the deed to him and his payment of the balance of the purchase money, $40,000, he had actual notice of the lease, and that he paid such balance and took his deed, although the terms of the sale provided that, if he discovered and gave notice to the mortgagee of a material defect in the title, the mortgagee should perfect the title or return the part payment. The defendant contended that, if the plaintiff's lease was established against him, such establishment should be made conditional upon the payment of $2,000 by the plaintiff to the defendant to reimburse him for the part payment made by him. before he had knowledge of the lease. In a decision establishing the plaintiff’s lease and enjoining his ejectment, it was held, that under the circumstances the decree should contain no condition of a prepayment of $2,000 by the plaintiff.</p>

<p>Tax, Sale: disclaimer by collector, resale.</p> <p>Under the provision of R. L. c. 13, § 72, that if the collector of a town or city has reasonable cause to believe that a tax title held by the town or city “ is invalid by reason of any error, omission or informality in the assessment, sale or taking, he may disclaim and release such title by an instrument under his hand and seal, duly recorded in the registry of deeds,” a defect, consisting of an incorrect recital in the collector’s deed to the town or city, is a defect in the sale, of which the deed was the culminating act, and constitutes an invalidity in the sale which gives the collector a right to disclaim the title under the statute.</p> <p>Where the collector of a town or city has disclaimed a tax title of such town or city under R. L. c. 13, § 72, because he had reasonable ground to believe that such title was invalid by reason of an error, omission or informality in the assessment, sale or taking, he has power, where the two years during which the lien continues have not expired, to advertise the property again for sale and to sell and convey it with correct formalities, giving a good tax title.</p>

<p>Practice, Civil, Amendment, Officer’s return. Execution. Attachment.</p> <p>When by a final order of court an officer has been allowed to amend his return upon an execution and makes such amendment in accordance with the order, a copy of the amended return filed in the registry of deeds has the same effect as if the amendment had been incorporated in the original return.</p> <p>Under B. L. c. 178, § 4, the requirement that an officer who has taken land on execution shall deposit a copy of the execution in the registry of deeds applies only to an execution levied on land which was not attached on mesne process.</p> <p>Where an execution is levied upon land which already was attached in the same action on mesne process, the plaintiff's rights under the attachment are not aSected by other attachments that intervene while the levy of the execution is proceeding and before it is completed as far as the nature of the case permits.</p>

<p>Contract or tort by the surety on a bond given to dissolve an attachment, as the assignee of the principal, against a deputy sheriff for $800, with two counts, one alleging the conversion of that sum of money by the defendant, and the other, alleged to be for the same cause of action, for money had and received to the plaintiff’s use. Writ in the Municipal Court of the City of Boston dated December 1,1908.</p> <p>On appeal to the Superior Court the case was tried before Hardy, J. The facts which appeared by the evidence are stated in the opinion. At the close of the evidence the plaintiff, at the suggestion of the judge, elected to rely on the count for money had and received. The defendant asked the judge to order a verdict for the defendant, which the judge refused to.do. The judge in his charge to the jury instructed them that as matter of law the second bond given by the plaintiff’s assignor, which is mentioned in the opinion, was valid and dissolved the attachment. made by the defendant under the special precept, which also is mentioned in the opinion.</p> <p>The jury returned a verdict for the plaintiff in the sum of $901.60, including interest on $800 from November 23, 1908. The defendant alleged exceptions to the refusal of the judge to order a verdict for him, and to the instructions stated above.</p>

<p>Two bills in equity for instructions, filed in the Probate Court for the county of Suffolk on July 21, 1910, by the State Street Trust Company, a corporation, which had received on January 19, 1910, $100,000, in face value, of registered bonds of the Commonwealth of Massachusetts from Annie Preston Lincoln of Boston, indorsed in blank by her, to be held by the plaintiff in trust under an instrument in writing of that date, the instructions sought being as to whether it was the duty of the plaintiff to pay any tax to the treasurer and receiver general of the Commonwealth under St. 1907, c. 563, codified in St. 1909, c. 490, Part IV.</p> <p>The instrument creating the trust was as follows:</p> <p>“ Know all men by these presents</p> <p>“ That Whereas I, Annie Preston Lincoln of Boston, in the County of Suffolk, and Commonwealth of Massachusetts, have this day transferred to the State Street Trust Company of said Boston, one hundred thousand dollars, ($100,000.00) face value of the three and one-half per cent (3 1/2%) bonds of the Commonwealth of Massachusetts, as Trustee.</p> <p>“And Whereas Edward Friebe of Cohasset, Massachusetts, has this day agreed with me that he will resign from his position as an employee of the S. S. Pierce Company within ninety (90) days from the date hereof, and has this day paid to me one dollar and other valuable considerations.</p> <p>“ Now Therefore, I direct my Trustee to hold the said bonds on the following trusts, to wit: To pay the income thereof during my life to the said Edward Friebe and his wife Abby Frances Friebe, in equal shares semi-annually or oftener as it may seem fit; and on my death I direct my trustee to transfer said bonds to said Edward Friebe and his. said wife in equal shares absolutely, and in case at the time of my death one of said Edward Friebe and his said wife should be dead, to transfer the whole of said bonds to the survivor; and in case I should survive both the said Edward Friebe and. his said wife, then at my death to transfer one-half of said bonds as said Edward Friebe may have appointed by will, and in default of said appointment, to his next of kin living at my death, by right of representation, and one-half of said bonds as said Abby Frances Friebe may have appointed by will, and in default of said appointment to her next of kin living at my death, by right of representation. If such bonds should reach maturity before my death, I direct my Trustee to reinvest and hold the proceeds on the same trusts as hereinbefore specified in regard to said bonds.</p> <p>“ In Witness Whereof I have hereunto set my hand and seal this 19th day of January, 1910.</p> <p>“ Annie Preston Lincoln.”</p> <p>Annie Preston Lincoln died on May 6,1910. It was alleged in the bills and admitted in the answers that at the time of the death of Annie Preston Lincoln the bonds “ had an actual market value of not less than $90,000.” Edward Friebe and Abby Frances Friebe, who were the beneficiaries of the trust, denied that any inheritance tax was due to the Commonwealth upon the bonds.</p> <p>On January 31, 1911, Grant, J., made a decree, which concluded as follows : “ It appearing that the deed or grant of the property in question by Annie Preston Lincoln was a deed or grant to take effect in possession and enjoyment after the death of the said Annie Preston Lincoln, but that said deed or grant was a bona fide purchase for full consideration in money or money’s worth, it is ordered and decreed that said bonds are not subject to any tax under the provisions of law relative to the taxation of legacies and successions.”</p> <p>The treasurer and receiver general appealed from so much of the decree as ordered that the bonds were not subject to any tax, and Edward Friebe and Abby Frances Friebe appealed from so much of it as ruled that the deed or grant was one to take effect in possession and enjoyment after the death of Annie Preston Lincoln.</p> <p>In the Supreme Judicial Court, an agreed statement of facts was submitted in substance as follows :</p> <p>The instrument dated January 19, 1910, printed above, was recorded in the Suffolk registry of probate. The following was indorsed upon it: “ Boston, January 19,1910. In consideration of the aforesaid Declaration of Trust, I, Edward Friebe, hereby agree to resign from my business position as an employee of the S. S. Pierce Company within ninety days from this date. Edward Friebe.”</p> <p>In the early part of October, 1909, the defendants Edward Friebe and Abby Frances Friebe, at the request of Mrs. Annie Preston Lincoln, established theii home with her in her house, numbered 338 on Commonwealth Avenue in Boston. Mrs. Lincoln for more than ten years had been in feeble health, and was then absolutely confined to the house. Friebe was employed as a travelling Salesman foi the S. S. Pierce Company and more than four fifths of his time was occupied in journeys which kept him away from home at night. Mrs. Lincoln frequently expressed a desire to Friebe that he should give up his travel-ling employment, so that she could rely at all times on having him staying in the house in case of any emergency for which she might need him. Friebe told Mrs. Lincoln that he was not in a position to retire, and “he states that it was in order to enable him to give up his position and remain at home that Mrs. Lincoln offered to make the transfer of bonds which was completed by the deed of trust of January 19,1910.”</p> <p>In accordance with his agreement, about January 25, 1910, Friebe offered his resignation orally to W. L. Pierce, president of the S. S. Pierce Company, to take effect on April 1, 1910, seventy-two days after the date of the deed of trust, and thereby completing exactly twenty-one years of service with the company. On March 31, 1910, Friebe received his last pay from . the S. S. Pierce Company in the form of a check for $166.66, and thereupon his connection with the firm ceased. He was then fifty-four years of age and in good health. As to the permanence of Friebe’s employment, Wallace L. Pierce, president of the S. S. Pierce Company, made the following statement: “ Mr. Edward Friehe was in our employ for upwards of twenty years. During all that time his services were entirely satisfactory. We have no reason to think that he would not have remained with us indefinitely, if he had not resigned his position of his own accord. In fact we were very sorry to have him leave.”</p> <p>For about eight years previously and up to the time of his retirement, Friebe received a salary of $2,200 a year, and, in addition to his salary, was reimbursed for his travelling expenses, which, for the year ending March 31,1909, amounted to the sum of $2,276.86, and for the year ending March 31,1910, amounted to the sum of $2,213.63, making the total sum received from the S. S. Pierce Company in 1909, $4,476.86, and in 1910, $4,413.63. It was agreed that Friebe would testify that his position was worth to him, substantially, $3,500 per annum.</p> <p>From the time that his resignation went into effect Friebe resided continuously at No. 338 Commonwealth Avenue with Mrs. Lincoln until the date of her death, at the age of seventy-three, on May 6, 1910.</p> <p>It was agreed that the “ American Experience Tables ” might be referred to as if incorporated in the agreed statement of facts. Upon these tables the value of a life interest in $100 in a person fifty-four years of age was $46.51.</p> <p>Neither Edward Friebe nor Abby Frances Friebe was related to Mrs. Lincoln. Mrs. Friebe was a cousin of the late husband of Mrs. Lincoln.</p> <p>The appeals came on to be heard by Loving, J., who ordered that the two cases be heard together and reserved them for determination by the full court upon the bills, answers, decrees, claims of appeal, objections to the decrees and the agreed statement of facts, such order to be entered as law and justice might require;</p>

<p>Metropolitan Parks District. Commissioners to apportion Expenses of Metropolitan Parks District. Constitutional Law. Charles River Basin. Craigie Bridge. Statute, Construction. Bridge.</p> <p>The commissioners to apportion the expenses of the metropolitan parks district, appointed under St. 1899, c. 419, as amended by St. 1903, c. 465, § 9, and St. 1906, c. 402, § 2, in regard to the apportionment of the expenses of the Charles River basin, formed by a dam substantially on the site of Craigie Bridge, and of the removal of Craigie Bridge and the construction of a suitable bridge in place thereof, like other similar commissioners, are clothed with a wide judicial discretion as to the considerations which should guide them in making the apportionment, and, although their report must be passed upon by the court, the court to which it is submitted will be slow to disturb an award, except in the event of its appearing to be extravagant and unreasonable or based on an unsound interpretation of the statutes or an erroneous view of the law, and, so far as the commissioners proceed within their powers, act reasonably and violate no constitutional right, their determination will not be disturbed.</p> <p>The limits of the constitutional power of the Legislature to apportion the expense of a public improvement among the cities and towns benefited thereby have never been determined, but it can be said that, if the principles applied in the assessment of the municipalities would be constitutional as applied to individuals, there can be no just ground for complaint.</p> <p>The commissioners to apportion the expenses of the metropolitan parks district, appointed under St. 1899, c. 419, as amended by St. 1903, c. 465, § 9, and St. 1906, c. 402, § 2, in regard to the expenses of the Charles River basin, formed by a dam substantially on the site of Craigie Bridge, and of the removal of Craigie Bridge and the construction of a suitable bridge in place thereof, are not required by the terms of the last named statute to apportion the expenses of the Charles River basin in the same manner that is adopted in apportioning the general metropolitan parks expenses.</p> <p>The commissioners to apportion the expenses of the metropolitan parks district, appointed under St. 1899, c. 419, as amended by St. 1903, c. 465, § 9, and St. 1906, c. 402, § 2, in regard to the apportionment of the expenses of the Charles River basin, formed by a dam substantially on the site of Craigie Bridge, and of the removal of Craigie Bridge and the construction of a suitable bridge in place thereof, properly may include as a part of " the cost of the removal of Craigie Bridge and the construction of a suitable bridge in place thereof ” the expense of a temporary bridge used by the public during the period of construction, it being a fair implication from the tenor of the statute that the expense of this temporary structure should be borne in the same way as the expense for the permanent accommodation of the travelling public.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on November 17, 1904, alleging that the plaintiff and the two defendants were the children and the only heirs at law of James Brown, who died on September 27, 1901, leaving a will, dated May 7, 1900, which was proved and allowed by the Probate Court of Suffolk County on December 26, 1901; that the defendant Mary Elizabeth Brown was appointed executrix and that her official bond as executrix was approved and filed on or about December 26, 1901, due publication of her appointment being made thereafter; that James Brown in his lifetime had executed deeds, conveying real estate to the defendant Mary Elizabeth Brown, as follows: on December 31,1890, a deed by which he conveyed certain real estate on West Newton Street in Boston, therein specifically described; on March 20, 1893, a deed by which he conveyed certain real estate situated on Webber Street in Boston, therein specifically described; on March 20, 1893, a deed by which he conveyed certain real estate situated on Dudley Street, formerly Eustis Street, in Boston, therein specifically described; on March 20,1893, a deed by which he conveyed certain real estate situated on Eustis Street in Boston therein specifically described; that at the time of the filing of the bill all the deeds were recorded in the Suffolk registry of deeds; that the plaintiff was informed and believed that at the time of the execution of these deeds James Brown conveyed and transferred to Mary Elizabeth Brown all the property owned or possessed or controlled by him with the exception of one sixty-fourth interest in certain vessels, the income from which was not sufficient for his support; that the plaintiff was informed and believed that at the time of the execution of these deeds James Brown was incapable of executing any instrument, being aged, sick and infirm, and that his mental powers were so weakened and impaired by age and sickness that he was wholly incapable of transacting the business or executing and delivering a deed of his property; that the defendant Mary Elizabeth Brown, while knowing his mental incapacity, took advantage to coerce him and unduly influenced him to make such conveyances, and that all the deeds were given without consideration ; that the plaintiff was informed and believed that previous to the failure of his mental powers James Brown was of prudent disposition and carefully protected all his interests in this real estate, but that at and after the time of executing the deeds he was incapable of exercising rational volition, and that by these conveyances he was deprived of all means of support, with the exception of his interest in said vessels; that his mental incapacity continued down to the date of his death; that the plaintiff was informed and believed that both the defendants resided on the real estate on Dudley Street mentioned above, that the defendant Mary Elizabeth Brown constantly from March 20, 1893, had made those premises her home, and that the defendant William F. Brown during the greater part of the period had occupied the premises with his sister; that both the defendants had enjoyed and used the income from all the property conveyed as above set forth, and at the time of the filing of the will still were enjoying and using such income, but that the plaintiff had never received any part of such income, nor enjoyed the use or occupation of any of the property; that the defendant Mary Elizabeth Brown, although often requested by the plaintiff, had refused the use or occupation of such premises or the income thereof to the plaintiff; that the plaintiff had no knowledge of the execution of the deeds set forth above until after the death of James Brown, when the defendant Mary Elizabeth Brown first informed the plaintiff of the transfers of said property; that thereupon the plaintiff demanded his third interest in all of said property as heir at law of James Brown, and that the defendant Mary Elizabeth Brown promised and agreed with the plaintiff that she would release to him one third part of all said property upon the expiration of two years after the giving of her bond as executrix of the estate of James Brown, during which time she claimed the right to use said property, or the income thereof, for the payment of the debts of James Brown; that thereupon the plaintiff consented to wait until the expiration of the period of two years before demanding his interest; that upon the expiration of said period, and up to the bringing of the bill, the plaintiff had many times requested Mary Elizabeth Brown to release to him by proper deeds one third interest in all of the property, but that the defendant Mary Elizabeth Brown had refused to make such transfer and conveyance.</p> <p>After averments in regard to the estimated net income from the property, the bill prayed, first, that a preliminary injunction might be issued, restraining the defendant Mary Elizabeth Brown from collecting any of the rents or profits of any of the properties set forth and described in the bill, and also from transferring, mortgaging, conveying, or in any way disposing of the aforesaid properties; second, that a proper person might be appointed receiver to take charge of and manage all the property described in the bill; third, for an adjudication that James Brown, when he made and executed the aforesaid deeds, was incapable of exercising a rational volition and was coerced and unduly influenced by the defendant Mary Elizabeth Brown and that the above described deeds were null and void and should be delivered up and cancelled, and also -that the decree of the court adjudging the deeds to be null and void might be placed on record in the registry of deeds for the county of Suffolk; and fourth, that the defendant Mary Elizabeth Brown might be ordered to execute her release and quitclaim deed of the above described property, to the end that the cloud should be removed from said titles, and for further relief.</p> <p>The case was referred to Winfield S. Slocum, Esquire, as master. He filed a report in which he found, first, that James Brown was not of unsound mind when he executed the first deed, dated December 31,1890; second, that he was of unsound mind when he executed the three deeds, dated March 20,1893; third, that after executing these deeds James Brown at times appeared rational, talked about the deeds, showed knowledge of what he had done, and stated why he conveyed the property to his daughter that his disease, however, continued and that he was at no ame free from it after the giving of the deeds; that the influence of his daughter described in the report also continued. The report further stated: “ I do not find that he [James Brown] ratified said deeds. ... I find that the plaintiff has not been guilty of laches.”</p> <p>Both of the defendants and also the plaintiff filed objections and exceptions to the master’s report. The case was heard by Rugg, J., upon the exceptions to the master’s report and certain motions of the defendants, which are stated in the memorandum of decision. That memorandum, omitting the cases cited, was as follows:</p> <p>“ 1. I deny the motion of the defendants to dismiss the suit, which is based on the ground that such suit can be maintained only by the executor or administrator. All the heirs at law and the executrix are parties to this suit, the executrix being one of the defendants and having in this respect an interest personal to herself, which is inconsistent with impartial action in her representative capacity. No objection appears to have been [made] on the ground of parties until after the report of the master was filed.</p> <p>“ 2. The defendants’ motion to discharge the master’s report, because he received evidence of the mental condition of the deceased covering a period of eight years after the event under inquiry, is denied. While this was a long time, and, so far as the court can determine, a wiser discretion would have been exercised in confining the evidence within narrower limits, nevertheless it cannot be said to be so plainly wrong as to warrant a recommittal, nor does it appear that the defendants have suffered harm.</p> <p>“ 3. The motion of the defendants for an order that all the evidence be reported is denied. This does not appear to be one of the cases where the ends of justice would be promoted thereby.</p> <p>“4. The plaintiff’s motion to recommit to the master for further findings on the questions of undue influence raised by the pleadings is denied. The report sets out the facts as to coercion and undue influence, and I rule that, so far as the deed of January 8, 1891, is concerned, they do not amount to ¡such coercion or undue influence as will avoid the deed. Any landing upon this matter as to the subsequent deeds has bec ome immaterial. '</p> <p>“ 5. The exceptions of both the plaintiff and the defendants to the master’s report appear to be grounded either upon matters of evidence, as to which the master heard oral testimony and as to which his finding respecting weight and credibility will not ordinarily be disturbed, or upon matters which appear to be immaterial in view of other findings of the master. They are all overruled.</p> <p>“Let a decree be entered in accordance with this memorandum.”</p> <p>Later, upon a motion for an interlocutory decree, the justice made a further decision of which his memorandum was as follows:</p> <p>“ This cause came on to be further heard upon motion for decree. It was urged by the defendant that by drawing proper inferences from the facts found by the master the plaintiff ought not to prevail. But I find that the inferences fairly to be drawn from the facts found by the master, together with those facts, require the entry of a decree for the plaintiff.</p> <p>“ I do not find that the plaintiff manifested to the defendant a determination to set aside the deeds of property made to her by his father, and I do- not find that he made demand upon her for conveyance of his share of the real estate, until November 8, 1904.</p> <p>“ The cause may be recommitted to the master for the purpose of stating the account as to rents and profits received by the defendant of all real estate conveyed to her by deed of her father in 1893, and the fab rental value, net, of the property so conveyed actually occupied by her.”</p> <p>An interlocutory decree accordingly was made, from which the defendants appealed.</p> <p>The master filed a supplemental report, after which the justice made a final decree, first, that all the conveyances through and under which the defendant Mary Elizabeth Brown obtained property from her father James Brown on March 20,1893, were null and void so far as the plaintiff was concerned; second, that the master’s report on the subject matter of the accounting be confirmed; third, that the defendant Mary Elizabeth Brown pay to the plaintiff the sum of $1,580.76, and that the plaintiff should have execution therefor; fourth, that the plaintiff should recover his costs against the defendant Mary Elizabeth Brown, and that the defendant William F. Brown should recover his taxable costs against the plaintiff.</p> <p>The defendants appealed from the final decree.</p>

<p>Officer. Arrest. Homicide. Evidence, Of information furnishing ground for suspicion, Of existence of suspicion, Things in evidence. Constitutional Law. Witness, Cross-examination. Practice, Criminal, Exceptions, Conduct of trial, Interrogation of juror, Isolation of jury in capital case. Pleading, Criminal, Indictment. Jury and Jurors. Words, “ Suspect,” “May.”</p> <p>A peace officer, who upon statements made to him by others has reasonable grounds to suspect and does suspect that a felony has been committed and that a certain person was guilty of it, lawfully may arrest such person without a warrant, and if the person thus reasonably suspected kills the officer in resisting the arrest he is guilty of murder.</p> <p>At the trial of an indictment for the murder of a deputy sheriff when he was attempting to arrest the defendant without a warrant, the Commonwealth may show that at about half past six or seven o’clock on the evening previous to the death of the deputy sheriff, who was killed by the defendant early the next morning, the witness telephoned to the deputy sheriff at a place ten miles away and told him that the defendant “ had knifed ” a certain superintendent who had discharged him, and asked the deputy sheriff “to come and look after him, take care of him,” that at about eleven o’clock that same night, the witness saw the deputy sheriff and told him that the defendant drew a knife and stabbed the superintendent and that he said after stabbing him, “ I have got you," that the witness also told the deputy sheriff that he saw the doctor who attended the superintendent, and that the doctor told him that the wound was from three to three and one half inches deep by an inch and a half wide, that it “ had affected the breathing some” but that the doctor “thought he would recover.” Held, that the evidence was competent to show what facts had been communicated to the deputy sheriff on which he had acted in attempting to arrest the defendant without a warrant.</p> <p>It now is settled that a peace officer, who has a right to arrest a certain person without a warrant because he suspects on reasonable grounds that such person has committed a felony, also has a right to break open doors for the purpose of making the arrest.</p> <p>At the trial of an indictment for the murder of a deputy sheriff when he was attempting to arrest the defendant without a warrant, if it is shown that the deputy sheriff was informed by a person, who had seen the events which he described, that a certain factory superintendent had discharged the defendant and that later the defendant, meeting the superintendent and the witness, had drawn a knife and had stabbed the superintendent, the witness illustrating the defendant’s action by putting his hand in his pocket and drawing it out in such a way as to show that the knife was open in the defendant’s pocket and that the “ drawing and striking were practically one movement,” that the witness further told the deputy sheriff that immediately after stabbing the superintendent the defendant said, “ I have got you,” which the jury were warranted in finding meant “ I have killed you,” and that the witness also told the deputy sheriff that he had seen the doctor who had said that “ the wound was three to three and one half inches deep, by an inch and a half wide, that it had affected the breathing some but that he thought he would recover,” this authorizes a finding that the deputy sheriff suspected on reasonable grounds that the defendant had stabbed the superintendent with intent to commit murder and thus had committed a felony, and that accordingly the defendant had killed the deputy sheriff in resisting a lawful arrest.</p> <p>The right of a peace officer to arrest without a warrant a person whom he suspects on reasonable grounds of having committed a felony is not in conflict with the provisions of the Fourteenth Article of the Massachusetts Declaration of Eights or with those of the Fourth Amendment to the Constitution of the United States, which are in restraint of general warrants to make searches.</p> <p>Where a peace officer has a right to make an arrest without a warrant, he has the right to summon others to assist him in making the arrest, subject to the qualification that he shall use reasonable judgment and no unnecessary violence or force; and what is reasonable depends upon the facts in each particular case.</p> <p>At the trial of an indictment for the murder of a deputy sheriff, named H, when he was attempting to arrest the defendant without a warrant, where there was evidence warranting a finding that the defendant shot the deputy sheriff with express malice as properly defined by the presiding judge in his charge to the jury, the judge instructed the jury as follows; “ If, without warning or notice to H to desist, the prisoner, in cool blood, with express malice in his heart, to gratify feelings' of ill will, or hatred, or any feeling which the jury find was express malice, intentionally shot and killed H, you will be warranted in finding the defendant guilty of murder, even though H was acting without right and unlawfully in attempting to make the arrest without a warrant.” Held, that the instruction was correct and properly was given to the jury.</p> <p>At the trial of an indictment for the murder of a deputy sheriff when he was attempting to arrest the defendant without a warrant, where there was evidence that the deputy sheriff had been called by telephone from a place ten miles away to come and look after the defendant because he “ had knifed ” a certain superintendent who had discharged him, the Commonwealth was allowed to show that on his arrival at the place to which he had been called the deputy sheriff said “ Si [the defendant] is at it again,” the judge instructing the jury that this statement could not be used by them to draw any inferences of fact that any act had been done by the defendant, but only to show the state of mind of the deputy sheriff at the time, with a view to any light it might throw upon his action in connection with his proceedings in making the arrest. Held, that the evidence was admissible to prove that the deputy sheriff suspected that the defendant had committed a felony.</p> <p>At the trial of an indictment for the murder of a deputy sheriff when he was attempting to arrest the defendant without a warrant, where there was evidence that the deputy sheriff suspected on reasonable grounds that the defendant had stabbed a certain superintendent with intent to commit murder and had summoned a posse of six persons to assist him in arresting the defendant at his house, of which the front door finally was broken in, one of these assistants, in narrating as a witness what took place before the deputy sheriff and two of the posse broke in the front door, testified on his cross-examination that the deputy sheriff placed two men at the back door and said, “ The rest of us will go to the front and break in the door,” and that the witness considered himself one of “ the rest ” referred to and went to the front door. The counsel for the defendant then asked this question: “ That was the only invitation you had 1 ” to which the witness answered, “ He swore us in on the way up, you understand.” The defendant asked to have this answer stricken out on the ground that it was non-responsive, and excepted to a ruling of the presiding judge allowing it to stand.- Held, that the question might have been understood to ask whether the remark of the deputy sheriff was not the only invitation or authority that the witness and the others had from the deputy sheriff to act with him in making the arrest, and that thus understood the answer of the witness was responsive to it.</p> <p>At the trial of an indictment for the murder of a deputy sheriff when he was attempting to arrest the defendant without a warrant, where there was evidence that the deputy sheriff suspected on reasonable grounds that the defendant had stabbed a certain superintendent with intent to commit murder, the defendant excepted to a part of the charge of the presiding judge which was as follows: “ Where a dangerous wound is inflicted, which proves to be a felony through the death of the person wounded, the peace officer is not required to wait until the fact is ascertained whether the assaulted person dies or not. But if, as a reasonable man, he has a suspicion and probable cause to believe that the wound is of such a nature that a felony is likely to result from it through the death of the person wounded, then a condition exists upon which the jury, if they believe the facts, would be justified in finding the officer had probable cause to believe a felony had been committed, because, if the man dies of the dangerous wound, the criminal act dates from [the] time the act was done, and the felony, if ever committed, is committed when the wound is inflicted." Held, that this is a correct statement of the law.</p> <p>At the trial of an indictment for the murder of a deputy sheriff when he was attempting to arrest the defendant without a warrant, where there was evidence that the deputy sheriff suspected on reasonable grounds that the defendant had stabbed a certain superintendent with intent to commit murder, the defendant^ in objection to a certain portion of the judge’s charge, contended that there was no evidence on which the jury could find that the deputy sheriff had been told that a dangerous wound bad been inflicted. A witness testified that he informed the deputy sheriff of the stabbing and told him that the doctor had said to the witness that the wound was “ three to three and one half inches deep, by an inch and a half wide, that it had affected the breathing some but that he thought he would recover.” Held, that whether the statement was one that the wound was dangerous depended largely upon the emphasis put upon the different words used, and that, as emphasis might have been put by the witness on the word “ but ” and the word “ thought ” in referring to the expression of opinion by the doctor, this court could not say that the judge was wrong in allowing the jury to find that on the communication made to him the deputy sheriff was warranted in suspefcting that a wound had been inflicted which was likely to result in death.</p> <p>At the trial of an indictment for the murder of a deputy sheriff when he was attempting to arrest the defendant without a warrant, there was evidence that the deputy sheriff suspected on reasonable grounds that the defendant had stabbed a certain superintendent with intent to commit murder. There also was evidence warranting a finding that the defendant in fact stabbed the superintendent with murderous intent. The Oommonwealth until the evidence was concluded relied on each of these grounds as authorizing the deputy sheriff to arrest the defendant without a warrant. At the close of the evidence the defendant’s counsel asked the presiding judge to rule that there was no evidence that a felony had been committed. The judge refused to make this ruling. Thereupon the case was argued and the jury was charged, on the assumption that there was such evidence. At the conclusion of the charge, there was a conference of counsel, and the presiding judge, “ the district attorney consenting,” charged the jury that there was no evidence that the defendant made an assault on the superintendent with intent to kill, and that the Commonwealth’s case in regard to the deputy sheriff proceeding without a warrant then rested solely upon the testimony in regard to the deputy sheriff’s suspicion that a felony had been committed, and said to the jury, “You may disregard all the evidence relative to the assault by the defendant upon [the superintendent] except so far as it appears in evidénce that the facts in relation thereto were communicated to ” [the deputy sheriff]. During the trial and before the district attorney had elected not to press his contention that a felony had been committed, the judge had refused a request of the defendant to order all the evidence in regard to the assault by the defendant on the superintendent stricken from the record except so far as it appeared that the facts had been communicated to the deputy sheriff, and the defendant had excepted to the refusal. Held, that the exception must be overruled, because the ruling was right at the time it was made, the evidence having warranted a finding that the defendant had made the assault on the superintendent with intent to commit murder.</p> <p>Upon an indictment for the murder of a deputy sheriff when he lawfully was attempting to arrest the defendant, it is not necessary in order to prove this crime for the indictment to allege that the person killed by the defendant w$s a deputy sheriff, because the crime charged is murder, and one way of proving that the killing amounted to murder is to show that the deceased was a deputy sheriff who was killed by the defendant when lawfully proceeding to arrest him.</p> <p>At the trial of a criminal case, as of a civil one, no exception lies to an alleged statement by the presiding judge in the course of a colloquy with counsel during the trial, which is merely an explanation by him to the objecting counsel of his reason for admitting a question.</p> <p>At a criminal trial, as at a civil one, the determination whether questions shall be put by the presiding judge to a juror in addition to those prescribed by B. L. c. 176, § 28, is wholly within the discretion of the judge.</p> <p>In this Commonwealth the defendant in a capital case has not a right to have the jurors who already have been sworn and impanelled kept together during a recess taken by the court before the impanelling of the jury is completed.</p> <p>At the trial of an indictment for the murder of a deputy sheriff when he was attempting to arrest the defendant without a warrant, there was evidence that the deputy sheriff suspected on reasonable grounds that the defendant had stabbed a certain factory superintendent with intent to commit murder. There also was evidence that"the defendant in fact stabbed the superintendent with murderous intent, but after the close of the evidence and of the arguments the district attorney, for the purpose of showing the right of the deputy sheriff to arrest the defendant, elected to rely only on the suspicion of the officer on reasonable grounds that the defendant had committed a felony, and consented to an instruction by the judge that there was no evidence that the defendant made an assault on the superintendent with intent to kill. During the trial, and before the district attorney had changed his position, the knife with which the defendant had stabbed the superintendent was admitted in evidence and was marked as an exhibit. The defendant excepted to its admission. When the other exhibits were sent to the jury room the knife was sent with them, and the defendant at that time made no objection. The jury found the defendant guilty of murder, and the defendant argued his exception to the admission of the knife in evidence, objecting to its having gone to the jury as an exhibit when it no longer was material. Held, that the knife properly was admitted in evidence, being material evidence at the time it was admitted, and that the defendant, not having made any objection when it was sent to the jury room, could not complain thereof.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on February 23, 1911, by the Equitable Trust Company of New York, a corporation, as trustee under a mortgage made by the Standard Cordage Company, also a New York corporation, to secure its bonds, covering, among other properties, certain parcels of real estate in Boston commonly known as the Sewall and Day mill and the Pearson mill, alleging that the plaintiff in the performance of its duty as such trustee instituted foreclosure proceedings to sell the real estate at foreclosure sale, that at the time of the filing of the bill such foreclosure proceedings were pending and that the plaintiff was in possession of the properties but it was not in possession of them before December 21, 1910, that by proceedings in the State of New York begun on March 16, 1910, the cordage company was dissolved by a final order made on September 24, 1910, and one Kelsey was appointed the receiver of its property, that Kelsey instituted ancillary proceedings in the Supreme Judicial Court of this Commonwealth and on February 20,1911, was appointed receiver of all the properties and rights of the cordage company in this Commonwealth, that in the mortgage, above referred to, the cordage company covenanted with the plaintiff to pay and discharge all taxes and assessments lawfully imposed upon the mortgaged property, that on April 1, 1910, the cordage company was in possession of the real estate in question and on that day taxes were assessed upon it by the city of Boston under St. 1909, c. 490, Part I. § 15, to the amount of $7,470.20, that neither the cordage company nor the receiver ever contested the validity or the propriety of such assessment, that the taxes were payable on October 1, 1910, and that interest had been accruing thereon since November 1, 1910, that no part of such taxes had been paid and that the defendant Kelsey refused to pay such taxes, that the assets in the hands of the defendant Kelsey as receiver in the ancillary proceedings exceeded in value $30,000, and that there were no obligations of the cordage company or of the receiver by reason of debts due to the United States or debts due to or taxes assessed by this Commonwealth or by any county, city or town except the taxes mentioned above, that the defendant Parker as collector of taxes of the city of Boston had done all acts which were conditions precedent to a lawful sale of such real estate for non-payment of taxes and threatened to sell the real estate if the taxes remained unpaid, that it was the duty of the plaintiff to procure a sale of the properties in the foreclosure proceedings at as high a price as possible, and that if the properties were sold subject to the lien for taxes the proceeds of the sale would be diminished to the detriment of the holders of the mortgage bonds, that the value of the properties in this Commonwealth covered by the mortgage were far less than the amount due to the plaintiff as trustee under the terms of the mortgage and that the cordage company was hopelessly insolvent. The bill prayed, first, that the receiver should be ordered to pay such taxes; second, that, if this relief was not granted, or if the receiver should not pay the taxes forthwith, the plaintiff should be authorized by the court to pay the taxes, and, upon such payment, that it should be subrogated to the rights of the defendant Parker, as collector, to prove the claim for the taxes against the receiver in the ancillary proceedings and to receive payment thereof from the assets then held, or thereafter to be held, by such receiver, with the same right to have the claim paid in priority to all other claims against the receiver or which the defendant Parker, as collector, would have or might have had, upon proof by him of such claim against such receiver; and third, for general relief.</p> <p>The defendant Kelsey, receiver, demurred to the bill.</p> <p>The demurrer was heard by Hammond, J., who at the request of the parties sustained it pro forma, and reported the case for determination by the full court.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on August 9,1910, by the owner of certain land in that part of Boston called Dorchester against the New York, New Haven, and Hartford Railroad Company and" the Old Colony Railroad Company, to restrain the defendants from constructing, in' connection with proceedings for the abolition of a certain grade crossing, any conduit affecting the flow of the waters of Tenean Creek, an arm of the sea, in and upon the land of the plaintiff, the paragraph of the bill containing the material allegations being quoted in the opinion.</p> <p>The defendants demurred to the bill.</p> <p>The case was heard upon the demurrer by Rugg, J., who made a decree that the demurrer be sustained and that the bill be dismissed with costs. The plaintiff appealed.</p>

<p>Equity Pleading and Practice, Master’s report, Appeal, Evidence. Evidence, Of original bill in equity after substitution of amended bill. Frauds, Statute of. Novation.</p> <p>A motion in a suit in equity to recommit a master’s report in order that he may report the evidence is addressed to the discretion of the judge who hears the case, and ordinarily will not be granted by him in the absence of a special reason for doing so. An appeal from the denial of such a motion only can be sustained where it is shown that the judge in denying the motion exercised his discretion improperly.</p> <p>Exceptions to a master’s report relating to the admission or exclusion by the master of certain questions addressed to witnesses before him here were overruled as matters within the master’s discretion.</p> <p>In a suit in equity in which an amended bill had been filed by the plaintiff, which afterwards was further amended, the defendant excepted to a ruling of the master to whom the case was referred excluding from the evidence the plaintiff’s original bill before amendment, which, with the jurat attached, was offered by the defendant “ as bearing upon the genuineness of the plaintiff's claim.” The case was tried on the amended bill and no copy of the original bill was in the record which came to this court by appeal, nor was there any statement of its contents, and it did not appear in what way it was contradictory either to the claim as alleged in the amended bill or to the testimony of the plaintiff. Held, that the exception was too indefinite to be sustained, and that it also must be overruled on the ground that the record did not show that the exclusion of the original bill by the master might or could have harmed the defendant.</p> <p>The provision of the statute of frauds contained in R. L. c. 74, § 1, cl. 2, requiring a memorandum in writing to prove a promise to answer for the debt of another, does not apply where there was a novation by which the promise of the defendant was accepted by the plaintiff in substitution for the promise of the original debtor and in consideration of it the plaintiff released the original debtor and looked only to the defendant for payment.</p>

<p>Equity Jurisdiction, To set aside conveyance fraudulent as against creditors. Fraud. Husband and Wife.</p> <p>A conveyance and transfer of property by a husband through an intermediary to his wife is not shown to be in fraud of subsequent creditors simply by proof that the conveyance and transfer were made with a design to settle the property upon the wife so that it should not be exposed to the hazards of .the husband’s future business or liable for any future debts that he might contract. It is necessary to go further and to show that at the time of the conveyance the husband had an actual intent to contract debts and a purpose to avoid by the conveyance and transfer the payment of them. In a suit in equity by the trustee in bankruptcy of the estate of a husband against the wife of the bankrupt to set aside a conveyance and transfer, such a fraudulent purpose here was shown on the part of the husband of which the wife was cognizant and in which she participated.</p> <p>In a suit in equity by the trustee in bankruptcy of the estate of a husband against the wife of the bankrupt to set aside conveyances of real and personal property from the husband through an intermediary to his wife on the ground that they were fraudulent as against future creditors, there was evidence which fully warranted, if it did not require, the general finding, which was made by a master, that the conveyances were in fraud of future creditors, and no special finding was made by the master which was inconsistent with this general finding. The master also found, on evidence not reported by him, that the defendant was fully cognizant of this fraudulent intent of her husband “and participated therein, and accepted the said conveyances with knowledge that they were made to hinder, delay and defraud his future creditors.” Held, that, as both the grantor and the grantee participated in the fraud, the conveyances, whether voluntary or for a valuable consideration, were void as to creditors, and it therefore was unnecessary to consider what, if any, equitable interest the wife had in the real estate before the conveyances, because she could take nothing by the conveyances and must be relegated to such rights as she had before they were made.</p>

<p>Trust. Devise and Legacy. Husband and Wife. Equity Jurisdiction, Bill for instructions.</p> <p>By the express provision of R. L.- c. 141, § 24, beneficiaries under a trust created by will to whom gifts of annual income are made are entitled to such income from the death of the testator.</p> <p>Under the statutes of this Commonwealth, if a widow does not waive the provisions of her husband’s will, she loses the right of dower unless it plainly appears by the will that the testator intended such provisions to be in addition to dower, and, where a widow thus has lost her right of dower by not waiving the provisions of the will, the law regards her as standing in the position of a purchaser for a valuable consideration and entitled to receive the whole of the sums given to her by the will in preference toi other legatees.</p> <p>A testator, among other provisions for a son who was a minor when the will was made, provided as follows: .“ and upon my said son’s arrival at the age of twenty-one, provided I am not then living, said trustees shall pay to him out of the principal of said trust fund the sum of five thousand dollars.” When the son arrived at the age of twenty-one years the testator was living. The son survived his father. Held, that the legacy of §5,000 never became payable and never could become so.</p> <p>In a suit in equity by the trustees under a will the plaintiffs asked for instructions as to whether, in payments to beneficiaries under the will to whom gifts of annual income were made, when there had been pro rata abatements on account of deficiency of income, the trustee should make up such deficiency in income occurring in one year from a surplus occurring in a subsequent year, and for further instructions as to the disposition of excess of income under the directions contained in the will. It was stated in the argument before this court that the income of the trust was insufficient to meet the demands upon it, and all the parties agreed that there was such insufficiency. Held, that, as the question of the disposition of surplus income was not before the trustees and might never be before them, there was no occasion for this court to consider it.</p> <p>A testator in the residuary clause of his will established a trust which contained this provision for his children : “ To each of my surviving children who shall be of age at the time of my decease, and to any child of mine who shall be a minor at the time of my decease when he shall attain his majority, an annually increasing income, the amount of which shall be dependent upon the age of such child, and shall be determined as follows, to wit: §3,000 a year at the age of twenty-one years, with an increase of §1,000 a year thereafter for ten years: For instance, a child who shall be twenty-one years old at the time of my decease will receive an income at the rate of §3,000 a year, at the age of twenty-two §4,000 a year, and so on, till at the age of thirty years a child would receive the maximum income, viz., $12,000 a year.” Upon a bill by the trustee for instructions as to whether the increase of $1,000 a year should be continued for ten years after a child reached the age of twenty-one years, as directed in the first clause of the paragraph, making $13,000 a year in the thirty-first year of such child's age, or whether, as directed in the last clause of the paragraph, the maximum should be reached in the thirtieth year and should be $12,000 a year, it was held, that the first clause must yield to the last so far as it was inconsistent with it, making the maximum income $12,000 and thirty years the age beyond which there was to be no increase.</p> <p>In a suit in equity by the trustees under a will, the plaintiffs sought instructions in regard to a payment directed to be made to one of the sons of the testator in the first preferred stock of a certain corporation “ not later than his twenty-fourth birthday,” asking, whether under the circumstances stated in another bill for instructions, which had been filed by the executors of the same will, this son was entitled to any payment of this legacy in stock or money, and, if so, whether he was entitled to receive it when he reached the age of twenty-three years or when he reached the age of twenty-four years. It was stated in the bill of the executors for instructions that the stock referred to was not in the hands of the trustees and was not obtainable in the market. Held, that it was not necessary to answer this question.</p>

<p>Carrier, Oí passengers. Automobile. Negligence.</p> <p>The proprietor oí a sight-seeing automobile, designed to carry about twenty-five persons, who has a regular stand from which the vehicle starts on regular trips over regular routes at stated hours, for which tickets are placed for sale at various hotels at a stated price for each trip, while he is transporting on such sight-seeing trips persons who have purchased tickets thus offered for sale, is bound to exercise toward his passengers the highest degree of care consistent with the proper transaction of the business; whether or not he technically is a common carrier of passengers.</p>

<p>Contract, In writing. Evidence, Extrinsic affecting writings. Custom.</p> <p>At the trial of an action by a plumber and piper against a general contractor upon a contract in writing, by which the plaintiff agreed to furnish all the work of “ plumbing, gas-piping, and ice water plant piping ” in a certain building then being constructed by the defendant for the owner, it appeared that the contract contained a plain provision that the defendant should not be held to pay anything for changes, additions or extra work unless such work was ordered by the defendant in writing. The work for which the plaintiff sought compensation was extra work for which no order in writing ever was given by the defendant. The plaintiff offered to show a general custom, known to the parties, that in cases of contracts between a sub-contractor and a general contractor, which contained such a provision, it was customary for the general contractor to direct the subcontractor to proceed with extra work without waiting for a written order, for the sub-contractor so to proceed and for the written order to be delivered by the general contractor later, either during the progress of the extra work or after its completion, and that the plaintiff had proceeded with the extra work in question without waiting for written orders, relying upon this general custom. There was no evidence of an oral order for the extra work having been given by the defendant or in his behalf. The judge excluded the evidence. Held, that the evidence was excluded rightly; both because there was no evidence of an oral order by the defendant or some one authorized by him for the extra work, and because the natural meaning of the provision of the contract was that the written order to do the work should be given before the work was begun, and the evidence therefore was rejected properly as an attempt to vary the express language of the contract; and also because, even if it should be assumed that the alleged custom was not inconsistent with the contract and that the plaintiff relied upon it, he relied upon it at his peril and took the risk of no order in writing being given later, and in the present case no order in writing ever was given.</p>

<p>Tort, for personal injuries received by the plaintiff, who was three years and eight months of age when injured, and caused by a loaded wagon of the defendant running over her when it was being backed as stated in the opinion. Writ dated December 7, 1904.</p> <p>In the Superior Court the case was tried before Richardson, J.</p> <p>There was evidence tending to show that the plaintiff and her sister Catherine, eleven years of age, her brother Timothy and a playmate Walter Doyle, each six years of age, were playing at making mud pies in a yard about, thirty feet square in front of their home, numbered 140" on Ward Street in Boston, on August 18,1903; that the yard opened upon the public street and that there was no gate that could be closed; that her mother, having occasion to go to a store for groceries some five minutes’ walk from her house, before starting directed the plaintiff’s sister to care for the children and not to allow them to go on the street. In pursuance with this order of her mother, the plaintiff’s sister sat on the front door steps of the house, caring for and watching over the children while the mother was away. Some five or six minutes, after the mother had departed, the plaintiff asked her sister for a slice of bread and butter and she, seeing the children playing at their mud pies within three or four feet of the steps of the house and telling them to remain there until she returned, went into the house and got the bread and butter, and was absent about three minutes. Hardly had the door closed behind her, when the plaintiff’s brother seized her shovel and ran from the yard into the street. He was pursued by Walter Doyle, who took the shovel from him and threw it under the defendant’s wagon. The plaintiff followed and stood behind the wagon, weeping and crying out, “ Give me that shovel.” Other facts are stated in the opinion.</p> <p>At the close of the evidence for the plaintiff, the presiding judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The case was argued at the bar in March, 1911, before Knowlton, C. J., Hammond, Braley, Sheldon, & Bugg, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Negligence, In use of highway, Street railway.</p> <p>At the trial of an action against a street railway company, there was evidence tending to show that the plaintiff, while a passenger upon a vestibuled car of the defendant upon a street where there were double tracks, and as he was about to alight therefrom, looked ahead through the vestibule, but could not determine whether a car was approaching on the other track because his view was “troubled” by the vestibule, that thereupon he alighted, stepped a “ foot or so ” from the car and looked forward, but that, because of the position of the car from which he had alighted, he could see no car approaching; that thereupon he passed around behind the car from which he had alighted, and, as he reached its farther side, looked thirty or forty feet up the other track and saw no car coming, that a man passed across the track just before him and showed no “ signs of an approaching car,” that thereupon the plaintiff “ assumed that it was safe for him to cross ” the other track and did so, and, when he reached the middle of the track, was struck by a car which was coming from his right past the car which he had just left at the rate of twenty-five miles an hour and upon which no warning gong had been sounded. Held, that the questions, whether the plaintiff was in the exercise of due care and whether the motorman was negligent, were for the jury.</p>

<p>Equity Pleading and Practice, Reservation, Report, Decree, Dismissal of reservation for failure to prosecute. Words, “Reported.”</p> <p>A suit in equity, reserved for consideration by this court in accordance with the provisions of R. L. c. 159, § 29, after a hearing by a judge of the Superior Court, upon the pleadings, the evidence and certain findings made by the trial judge, is a case reported within the meaning of R. L. c. 173, § 115, which among other things provides that, if the plaintiff in a case “ reported ” in equity neglects to enter the report in the Supreme Judicial Court or to take the necessary measures for the hearing of the case, the court by which the case was reported may, upon application of the adverse party and after notice to all parties interested, order that the report be discharged and that the judgment, opinion, ruling, order or decree appealed from or excepted to be affirmed.</p> <p>A suit in equity, after it had been heard in the Superior Court and the trial judge had made findings of fact and rulings of law, and after many further delays, for which the plaintiff in some degree was responsible, finally came before the court for final decree, and thereupon on an October 18 a reservation under R. L. c. 159, § 29, was signed by the trial judge. On the following December 5 a motion by the defendant under R. L. c. 178, § 115, that the reservation be discharged and that the rulings of the trial judge be affirmed because the plaintiff had neglected to take the necessary steps or measures for the completion of the reservation and the hearing of the case in the Supreme Judicial Court, was allowed and a final decree in accordance with those rulings was made. Held, that the order of the judge was within his power, because under R. L. c. 159, §§ 29, 19, the reservation should have been entered in the Supreme Judicial Court at least within thirty days after October 18.</p> <p>Where, in a suit in equity seeking to enjoin the defendant from certain alleged violations of equitable restrictions upon the use of his land, the trial judge rules, “I find that I ought not, in the exercise of my discretion, to issue any injunction as prayed for in this case ” and that the plaintiff had suffered no damages because of the alleged acts of the defendant, and, upon motion of the defendant under R. L. c. 173, § 115, a reservation of the case, which was made under R. L. c. 159, § 29, is discharged and the rulings of the judge are affirmed because the plaintiff neglected to take the necessary steps or measures for the completion of the reservation and the hearing of the case in the Supreme Judicial Court, the rulings of the judge, whether right or wrong, become the law of the case, and therefore a final decree dismissing the bill with costs is proper.</p>

<p>Contract, with a declaration described in the opinion, for sums alleged to be due to the plaintiffs for work done and materials furnished upon a power electric and heating plant for the county buildings of the defendant in that part of Cambridge, called East Cambridge. Writ dated October 17, 1899.</p> <p>The case was referred to Henry E. Warner, Esquire, as auditor, and in the Superior Court was heard by Hardy, J., without a jury, upon the auditor’s report and other evidence, both oral and documentary.</p> <p>At the close of the evidence the plaintiffs asked the trial judge to rule as follows:</p> <p>“(1) That-upon all the evidence the plaintiffs are entitled to recover.</p> <p>“ (2) That the plaintiffs, by offering to supply an air cell class A covering, fulfilled the terms of their contract.</p> <p>“ (3) That if it is found that the covering furnished by the plaintiffs was not inferior in quality, or otherwise, to that of the Asbestos Paper Company, the architect and engineer had no legal right to reject the same for the reasons stated by them in their evidence.</p> <p>“ (4) That on all the evidence the architect did not exercise that judgment and capability required of an architect with such powers as are delegated to him under the contract.</p> <p>“ (5) That on all the evidence the engineer did not exercise that judgment and capability required of an engineer with such powers as are delegated to him under the contract.</p> <p>“ (6) That the plaintiffs had a right to use any covering of a kind embodied in the term ‘ Air Cell Class A,’ and that the architect and engineer could only refuse to accept the same because of quality, and that on all of the evidence it appears that neither the architect nor the engineer exercised any judgment on the question of quality.</p> <p>“ (7) That the burden of showing good faith in the exercise of the power vested in the architect and engineer is on the defendant, and that from all the evidence it does not appear that either the architect or the engineer had sufficient knowledge of air cell sectional coverings to exercise the rights given them under the contract.</p> <p>“ (8) That the plaintiffs, in offering the covering which they did, fulfilled the terms of their contract, and upon all the evidence the defendant failed to show any legal justification for not accepting the same.</p> <p>“ (9) That upon all the evidence the architect failed to exercise the good faith and judgment legally required of him, and his failure to approve the covering offered by the plaintiffs does not bar them from a recovery in this action.</p> <p>“ (10) That upon all the evidence the engineer failed to exercise the good faith and judgment legally required of him, and his failure to approve the covering offered by the plaintiffs does not bar them from a recovery in this action.”</p> <p>The judge refused to rule as requested by the plaintiffs, and found for the defendant. The plaintiffs alleged exceptions.</p>

<p> Devise and Legacy. Will. </p> <p>Upon a bill for instructions by a trustee under a will, if it appears that, by the literal terms of the will, property devised in trust is left undisposed of in an event which has happened, but from a reading of the whole will it appears that the testator’s intention was that the property in such event should go to the issue of his children, the trustee will be instructed to carry out the intention of the testator as expressed in the whole will.</p> <p>A testator by his will gave the residue of his estate to a trustee with instructions to pay the income to his nine children, naming them, to be equally divided among them, and, “ in case of the decease of either of my said children without children or lawful issue, I then will that the income and interest so given as aforesaid shall in like manner be divided among the survivors, but in case my said children die leaving issue, then the capital of such deceased child’s share shall be equally divided among such issue share and share alike, to their heirs and assigns forever.” The last of the children died without issue. The trustees, under instructions from this court given in Cook v. Smith, 101 Mass. 341, had paid to the issue of each of the other children, as such children died, the fractional part of the fund of which their representative parents had received the income. In a suit in equity seeking instructions as to whether that portion of the principal which was left after the death without issue of the survivor of the children should be distributed as intestate property or should be divided among the issue of the deceased children, it was held, that the plain intention of the testator was to dispose of his whole estate, and, in the contingency which had happened, that the remaining principal should be divided in equal shares among his grandchildren and among the issue of any deceased grandchildren by right of representation.</p> <p>If real estate is devised to a trustee in trust to pay the income to certain named children of the testator until the death of the survivor of them, and an intention of the testator is apparent from a reading of the whole will, although it is nowhere expressed therein in terms, that, if after several of the children had died leaving issue the survivor should die without issue, then the trust estate should pass to the grandchildren of the testator in equal shares and to the issue of deceased grandchildren by right of representation, upon the happening of such a contingency the fee of the real estate does not pass to those entitled thereto without further action of the trustee, but he should convey it to them.</p>

Tort for personal injuries received by the plaintiff on January 28, 1907, when less than fourteen years of age, while employed in the defendant’s factory, the declaration containing three counts, the first and third counts alleging as the cause of the injury a failure properly to instruct and warn the plaintiff ás to the dangers of his employment, and the second count alleging as the cause of the injury “ the act of the defendant in employing the plaintiff contrary to the…

<p>Practice, Civil, Agreement as to facts, Ordering verdict. Evidence, Presumptions and burden of proof.</p> <p>At the trial of an action by the assignee of a corporation, engaged in the sale and lease of milking machines and the sale of dairy supplies, against one who had been its “ division manager ” for a certain territory, to recover upon an account annexed for certain supplies alleged to have been furnished to the defendant by the corporation, the plaintiff introduced in evidence an agreement, signed by the attorneys for the parties to the action, providing that the items and credits stated in the account annexed were substantially cprrect so far as they went; “ that the defendant had some agency relations with the corporation previous to April 9 of a certain year; that thereafter up to some time in the following July they had business dealings and relations, agency or otherwise, when their dealings and relations ceased”; that “during the period of his said agency relations with the ” corporation “ the defendant received certain milking machinery supplies from the company, and was charged therefor by the company in his accounts with them; that some of the supplies were in his possession at the time of the termination of his relations with the company. The defendant claims and the plaintiff denies that the defendant should be credited for such supplies as were in his, possession at the time of the termination of such relations, the defendant contending and the plaintiff denying that the relations and agreements of the defendant with such company were such that said credit should be given. It therefore is agreed that the only question to be tried before the jury shall be whether or not the defendant shall have any credit for such' goods as were in his possession at the termination of his relations with said company; and that if the jury answer that the relations between the defendant and said company were such that said defendant should not have such credit, then the jury may find for the plaintiff in” a certain sum; “but that if the relations between the defendant and the ” corporation “ were such as to entitle him to credit for such supplies which he had on hand at the termination of his relations with said company, then the court may refer the case to an- assessor who shall determine the amount of credit to which the defendant is entitled because of such supplies.” Held, that the foregoing did not amount to an agreement to shift the burden of proof from the plaintiff as to his general right to recover and to impose it upon the defendant to establish as an independent defense his right to return the supplies on hand and to receive credit for them.</p> <p>At the trial of an action by the assignee of a corporation, engaged in the sale and lease of milking machines and the sale of dairy supplies, against one who had been its “ division manager ” for a certain territory, to recover upon an account annexed for certain supplies alleged to have been furnished to the defendant by the corporation, it appeared that the items in the account annexed were correctly stated. The defendant introduced evidence tending to show that he was elected “ division manager ” by the directors of the corporation in November of a certain year, at a meeting when a majority of the directors were present, and that it also then was voted that his “ commission ” be twenty per cent “ of installation fees and rentals of ” milking machines “ installed in his territory,” that the corporation had its depot of supplies in Holyoke, that immediately after the directors’ meeting the defendant had a talk with them and asked that they send him supplies at his place of business, to which the president replied that they did not have money enough to run two stations of supplies and that if he had them he would have to advance money toward them; that thereafter and until the time of the severance of his relations with the corporation two years later the defendant acted for the corporation in the selling and leasing of milking machines and kept supplies at his place of business, both supplies and machines being shipped to him on his order and invoiced to him at a gross price less his commission; that the defendant made collections and remitted to the corporation, but at no stated times; that in April of the second year of his service as “ division manager,” the directors of the corporation discontinued that office and notified him thereof; that during April a statement was made by the defendant and his agent of all transactions between the corporation and himself to that date, and the amount shown thereby to he due to the corporation from him was paid by him, the amount being accepted by the corporation in full satisfaction of all items previous to the time when the defendant ceased to be division manager with exceptions not material; that thereafter the corporation made to the defendant a proposition that he deal with it as a “dealer” subject to certain conditions, and that milkers and supplies be furnished to him at certain stated “ discounts ” from the list prices, and until the following July efforts were made to reach a mutual working basis, which proved futile. It was agreed that previous to the discontinuance of the office of " division manager,” the defendant had had some agency relation with the corporation. All of the items in the account annexed which were material were for transactions which occurred after the defendant ceased to be “ division manager.” In letters to the defendant in May, the general manager of the corporation used the term “agent” as to the defendant. At the termination of his relations with the corporation in July, the defendant had on hand certain supplies and contended that he then had a right to return the supplies and have credit for them. The corporation refused to receive the supplies, and the defendant contended that he was entitled to credit for them in the action by the assignee. The parties agreed that, if the defendant’s contentions were not sustained, judgment should be entered for the plaintiff on the account annexed, and that if his contentions were sustained the case should be referred to an assessor to determine the amount of the credit to which he was entitled. The presiding judge ordered a verdict for the plaintiff. Held, that the verdict was ordered improperly, since there was evidence for the consideration of the jury in support of the defendant’s contention.</p>

<p>Trust, Accounting by trustee, Trustee’s duties as to preservation of trust property, Liability of co-trustee. Equity Jurisdiction, For an accounting, Plaintiff must have “ clean hands.” Evidence, Presumptions and burden of proof.</p> <p>In a suit in equity by a beneficiary under an express trust against the trustee for an accounting, the burden is upon the defendant to show that in the discharge of his duties he has exercised reasonable skill, prudence and judgment.</p> <p>A suit in equity by the beneficiaries of a real estate trust against the trustee for an accounting was referred to a master, who found the following facts: The trust property consisted of a hotel which for a number of years had been leased to a tenant who, about six years before the commencement of the suit, had become $20,000 in arrears in his rent. About a year later, the tenant being still in arrears about $19,000, the trustee dispossessed him. Shortly thereafter the tenant died insolvent. The trustee then placed a manager in the hotel to run it on behalf of the trust. In doing so, certain furniture which had heen used by the tenant was taken possession of by the trustee. A liquor license under which the tenant had operated the hotel had been issued in the name of his wife. Of $60,000 worth of furniture which he had used in the hotel, $56,000 worth had been purchased by him subject to a right of the vendor to resume possession on non-payment of the purchase price, of which the tenant owed $12,000 at the time of his death. The widow of the tenant claimed title to the rest of the furniture, and, “ on advice of able and competent counsel,” ■ the trustee settled her claim by paying her $4,000. At the hearing before the master the trustee gave no other explanation of his action. Edd, that upon the findings of the master it did not appear that the settlement with the tenant’s widow was so injudicious or unwarranted that the trustee should be charged personally with the amount he paid her.</p> <p>A suit in equity by the beneficiaries of a real estate trust against the trustee for an accounting was referred to a master, who found the following facts: The trust property consisted of a hotel which about six years before the commencement of the suit was held by a tenant who was $19,000 in arrears in his rent. Friends of the tenant then took charge of the hotel and ran it with the tenant as manager until he died, hopelessly insolvent, when the trustee placed a manager in charge and ran it for the trust. In doing so, he took possession of certain supplies which belonged to the tenant’s friends. The friends owed the trust for rent $3,933, and, upon their making claim upon the trustee for the supplies of which he had taken possession, he settled with them by paying to them $2,810. The entry in the trustee’s cash book was “ Supplies and equity all that ” the tenant’s friends “ owned, $2,810.” What the value of the supplies was did not appear. The only explanation given by the trustee of his action was that he acted in accordance with the advice of able and competent counsel. Held, that upon the findings of the master it did not appear that the settlement witli the tenant’s friends was so injudicious or unwarranted that the trustee should be charged personally with the amount he paid them.</p> <p>A suit in equity in the Superior Court by the beneficiaries of a real estate trust against two, who were the trustees, for an accounting was referred to a master who found the following facts: The trust property consisted of a hotel in Boston worth about $500,000. Under the trust instrument shares were issued to the beneficiaries to represent their interests in the trust. The owner of a majority of the shares, one P, who was not a party to the suit, had procured the appointment as one of the two trustees of his confidential secretary and bookkeeper, who did not appear to have been possessed of any knowledge as to the duties of a trustee or to have had any experience in the management of real estate, and who “ must have regarded this service only as one of the many which he was employed to render to ” P “ and for which he looked to ” P “ for compensation.” He became the managing trustee. The other trustee was old and partially blind. Neither trustee had any other interest in the trust than as trustee. Five years before the commencement of the suit the trustees had dispossessed a tenant who had been in possession of the hotel for many years and who was $19,000 in arrears in rent, and, being unable to find a new tenant, had placed a manager in charge to run the hotel for the trust. In doing so they had taken possession of the furniture which had been used by the tenant. All but $4,000 worth of this the tenant had procured at a price of $56,000, subject to a right of the vendor to resume possession on non-payment of the purchase price, on which he had paid $44,000. For failure of the tenant to pay the entire purchase price the vendor then took possession of the furniture and claimed title to it. The managing trustee was absent from the Commonwealth on P’s business and the master found that “ The furniture matter was, as might have been expected, handled by P.” The remaining $4,000 worth of furniture was claimed by the tenant’s widow, and, under advice of competent counsel, the trustees paid her that amount. They then conveyed that furniture to P for $5,000. He purchased the other furniture from the vendor for $12,000. At a later date, when the trustees had found a tenant, P sold the furniture to the tenant for $9,000 and made a claim upon the trustees for the $8,000 actual loss on his advances and for $400 a month for thirteen months during which the trustees had used the furniture in the hotel under their own management. The trustees paid the amount demanded, and later signed a paper, antedated to correspond with the date of the transaction and purporting to be a vote by them to make the payment in accordance with a previous oral contract under which the new tenant was procured and “ to reimburse ” P “ for his loss sustained in behalf of the ” trust property “ in the sale of the furniture, and for the use of the same.” The master found that the payment of $8,000 to P to reimburse him for cash lost in the transaction was warranted, but that the payment of $400 a month for the use of the furniture was unwarranted, five per cent on the amount invested being sufficient. The defendants excepted to the master’s findings. The judge of the Superior Court overruled the exceptions, and the defendants appealed. Held, that the trustees should be charged in accordance with the master’s report.</p> <p>Ignorance on the part of a trustee of an express trust as to the scope of his duties or as to the legal requirements of his office does not free him from liability for losses sustained by the trust by reason of a breach of such duties on his part or a failure to fulfil the requirements of his office.</p> <p>A suit in equity by the beneficiaries of a real estate trust against two, who were the trustees, for an accounting was referred to a master who found the following facts: The trust property consisted of a hotel in Boston worth about §500,000. Under the trust instrument shares were issued to the beneficiaries to represent their interests in the trust. The owner of a majority of the shares, one P, who was not a party to the suit, had procured the appointment as one of the two trustees of his confidential secretary and bookkeeper, who did not appear to have been possessed of any knowledge as to the duties of a trustee or to have had any experience in the management of real estate, and who “ must have regarded this service only as one of the many which he was employed to render to ” P “ and for which he looked to ” P “ for compensation.” He became the managing trustee. The other trustee was old and partially blind. Neither trustee had any other interest in the trust than as trustee. The trust property was subject to a first mortgage for §250,000 and a second mortgage for §50,000. The second mortgage had been held by a former trustee. It came due about the time that P procured the election as trustee of his nominee. The managing trustee “ did not realize that” the mortgage “ought to be paid,” and no effort was made to renew it. The original mortgagee having died, the mortgage had been assigned by his son, who had succeeded to the mortgage title, to a stranger to the trust without the knowledge of the trustees and the assignment was not recorded for some years. After it had been overdue for about five years a financial panic occurred and the assignee demanded payment. Both the trustees and P and the original mortgagee’s son sought funds with which to save the property from a sale. The mortgagee’s son found one who offered to lend the necessary amount although he demanded a bonus of §5,000 and twelve per cent interest per year. This offer was communicated to both trustees. The managing trustee and P and their personal counsel considered what should be done without consulting with the other trustee and, without informing him, decided to attend the sale, to bid the property up to about §80,000 above the first mortgage, and then to let it go. They did so and the property was sold for §77,250 above the first mortgage. In the transaction, the managing trustee not only “ kept ” his co-trustee “ in the dark, but. . . actually misled ” him. The property was worth $100,000 more than it was sold for. Held, that both trustees were personally chargeable for the §100,000 thus lost.</p> <p>Although one of two trustees of a real estate trust is not responsible for acts or misconduct of a co-trustee, who is the managing trustee, in which he has not joined or to which he does not consent or which he has not aided or made possible by his own neglect, he is chargeable for losses resulting from his failure to inform himself of business transactions involved in the execution of the trust even if he is deceived and purposely kept uninformed by the managing trustee, because he cannot properly discharge Ms duty by surrendering the substantial or entire control of the trust to the managing trustee, and this is especially true where with the co-trustee’s knowledge the managing trustee is entirely under the control of the owner of a majority of the interest of the beneficiaries and is used by such owner to further his own ends at the expense of the trust.</p> <p>In a suit in equity by several of the beneficiaries of a real estate trust against the trustees for an accounting, in which the defendants were held to be liable for a loss sustained by the trust by reason of a sale during a financial panic of the property of the trust in foreclosure of a second mortgage which should not have been allowed by the trustees to become overdue, it appeared that about ten years before the sale the mortgage had been held by a former trustee of the trust and that shortly thereafter the mortgagee had died and the mortgage had become overdue. Both trustees thought that the mortgage continued to be held by one of two sons of the original mortgagor, who had succeeded to his father’s title, and checks to pay interest had been sent to the son. About five years before the foreclosure, the mortgage had been assigned by the son to a stranger to the trust. The trustees had not been informed of the assignment and it was not recorded for some years. One of the plaintiffs was a corporation, shares in which were owned or controlled equally by the two sons of the original mortgagor. Held, that the corporation was not estopped from sharing in the distribution of the amount recovered in the suit because of the action of the owner of one half of the shares of its capital stock.</p> <p>In a suit by several beneficiaries of a real estate trust against the trustees for an accounting, it appeared that shares were issued to the beneficiaries in proportion to their investments therein, and that the trust had suffered losses by reason of neglect and mismanagement on the part of the trustees which were participated in and in the main caused by one P, the owner of two thirds of the shares of the trust. Held, that the defendants should pay to each of .the plaintiffs such a portion of the loss sustained by the trust as his shares bore to the total of the shares issued; but that the trustees should not be charged with the proportion of the loss represented by shares formerly owned by P.</p>

<p>Negligence, Due care of plaintiff’s decedent, Causing death. Death.</p> <p>An employee of a town in the course of his duties was in a tree within the'limits of a highway destroying gypsy and brown tail moth nests. Through the tree ran three telephone wires and above them seven electric light wires, one of which, a primary wire which carried twenty-three hundred volts of electricity, had the insulation worn off from it in the tree. Before going into the tree the employee’s attention had been called to the worn place on the wire. He went past and above the wire safely and, having completed Ms work, handed Ms tools down, and, as he was descending, asked a fellow workman whether the wire above described, pointing to it, “ was a street light,” and the fellow workman answered that he thought it was. The foreman on the ground, hearing the question and answer, told him that if it was “ there is no current on.” The employee then descended to a point below the wire. He was not seen alive again. Less than a minute later he was heard to groan and was found dead about a foot below the wire with his left arm extending above his head in a bent position and the inside of the tip of the third finger in contact with the wire at the place where the insulation was worn off. He was standing rigid, bent a little backward, with a spur which he wore on his right foot driven into a limb. In an action by his administrator against the electric light company which maintained the wire to recover for the death under R. L. c. 171, § 2, as amended by St. 1907, c. 375, it was held, without deciding whether there was evidence of negligence on the part of the defendant, that there was no evidence to warrant a finding that the employee was in the exercise of due care when he was killed, the manner of his death being left a matter of conjecture.</p>

<p>Practice, Civil, Variance, Conduct of trial: requests and rulings. Pleading, Civil, Variance. Contract, Construction, Performance and breach. Evidence, Relevancy and materiality.</p> <p>At the trial of an action for breach of a contract in writing, it appeared that the contract provided that the defendant should deliver to the plaintiff a certain number of shares “ of the capital stock of a company formed or to be formed to take over ” certain property, “ above company to be known as the East Butte Mining Company. In case of failure of these properties being sold as at present agreed this agreement to be null and void.” There was evidence that when the contract was signed a corporation had been formed by the defendant under the laws of Arizona named the East Butte Copper Mining Company, that negotiations were being had with a Boston firm of stockbrokers to handle the enterprise for the defendant, and that they proposed to organize a new corporation under the laws of the State of Maine to be named the East Butte Mining Company ; that the Boston firm finally refused further consideration of the matter; that the Arizona corporation was known as the “ East Butte Mining Company ” and as “ East Butte,” and that the defendant had admitted in substance that the Arizona corporation was the corporation referred to in the contract. The plaintiff had demanded from the defendant shares in the Arizona corporation, and the defendant’s refusal to comply with that demand was the breach of the contract assigned in the declaration. The defendant asked for a ruling, that the fact, that the evidence showed that the plaintiff had demanded shares of the East Butte Copper Mining Company instead of shares of the “ East Butte Mining Company ” which the contract called for, constituted a variance fatal to the maintenance of the action. The presiding judge refused to make this ruling. Held, that the refusal was warranted by the evidence.</p> <p>In an action for the breach of a contract in writing, it appeared that the provisions of the contract were as follows: “ For and in consideration of the surrender of a certain agreement . . . signed by W in regard to the payment of a commission, ... I [the defendant] hereby agree to deliver to [the plaintiff] two thousand shares of the capital stock of a company formed or to be formed to take over said property. Said stock to be delivered as soon as issued; . . . above company to be known as East Butte Mining Company. In case of failure of these properties being sold as at present agreed this agreement to be null and void.” At the trial of the action there was conflicting evidence as to the meaning of the words “ as at present agreed,” and the presiding judge under proper instructions left to the jury as a question of fact the determination of the question,- what agreement was referred to by those words. Held, that the contract was ambiguous and that the action of the judge was proper.</p> <p>In an action for the breach of a contract in writing, it appeared that the provisions of the contract were as follows: “For and in consideration of the surrender of a certain agreement . . . signed by W in regard to the payment of a commission, ... I [the defendant] hereby agree to deliver to [the plaintiff] two thousand shares of the capital stock of a company formed or to be formed to take over said property. Said stock to be delivered as soon as issued; . . . above company to be known as East Butte Mining Company. In case of failure of these properties being sold as at present agreed this agreement to be null and void.” The defendant asked for and the presiding judge refused a ruling to the effect that, if the contract had become “ null and void ” because the properties had not been conveyed “ as at present agreed,” then the plaintiff was in the same position with reference to his rights under the agreement with W as he was before he surrendered them. Held, that the refusal was proper, the ruling asked for not being germane to the issue being tried.</p> <p>In an action for the breach of a contract in writing, it appeared that the provisions • of the contract were as follows: “For and in consideration of the surrender of a certain agreement . . . signed by W in regard to the payment of a commission, ... I [the defendant] hereby agree to deliver to [the plaintiff] two thousand shares of the capital stock of a company formed or to be formed to take over said property. Said stock to be delivered as soon as issued; . . . above company to be known as East Butte Mining Company. In case of failure of these properties being sold as at present agreed this agreement to be null and void.” There was evidence tending to show that at the time the agreement was made the defendant had formed a corporation under the laws of Arizona called the East Butte Copper Mining Company, that he had entered into negotiations with a firm of stockbrokers in Boston, who had proposed to organize a corporation under the laws of the State of Maine to be called the East Butte Mining Company and to be controlled by them, which negotiations were pending when the contract sued on was made, that later those negotiations had fallen through, when the defendant entered into negotiations with a second firm of Boston stockbrokers, who undertook the defendant’s enterprise through the use of the corporation he already had formed. The plaintiff demanded and the defendant refused to deliver shares in the Arizona corporation. The defendant contended that the words in the contract, “ In case of failure of these properties being sold as at present agreed” referred to the negotiations with the first Boston firm, and that, they having fallen through, the contract according to its terms became “null and void,” and he offered and the presiding judge refused to admit evidence tending to show that responsible persons had been ready to furnish money needed for the enterprise if the report of the first Boston firm and their mining expert were satisfactory, and had furnished a part of it, and also evidence as to a pooling of the stock of the Arizona corporation and as to expenses incurred by the defendant between the time when negotiations with the first Boston firm were discontinued and those with the second firm were completed. Held, that the evidence rightly was excluded as immaterial.</p>

<p>Equity Jurisdiction, To restrain unlawful acts of officers of a corporation. Corporation, Officers and agents, Rights of stockholders. Equity Pleading and Practice, Parties.</p> <p>A bill in equity by individual stockholders in a corporation against the corporation, other stockholders and its officers and directors, seeking relief from an alleged wilful breach of duty on the part of the defendants resulting in a sacrifice of the corporation’s interests, cannot be maintained unless it appears from the averments of the bill that it is brought, not only on behalf of the plaintiffs as individuals, but either on behalf of the corporation or on behalf of all other stockholders of the corporation who are not plaintiffs or defendants and who may join therein.</p>

<p>Way, Private. Prescription. Practice, Civil, Conduct of trial: order of opening and closing arguments. Land Court. Evidence, Presumptions and burden of proof, Declarations of deceased persons.</p> <p>At a hearing in the Land Court before the repeal of St. 1905, c. 288, of a petition for the registration of the title to a strip of land adjoining other land of the petitioner, the respondent contended that he had acquired by prescription a right of way over the strip appurtenant to adjoining land owned by him, and the judge of the Land Court found and reported to the Superior Court in accordance with the respondent’s contention. At the trial in the Superior Court on appeal from the Land Court of the issue, whether the respondent had acquired such a way by adverse user, the respondent relied on the report of the judge of the Land Court, and there also was evidence that in 1841 by an agreement under seal, which had been recorded, owners of the strip in question had attempted to dedicate it to the use of the public as a public street, that because it was not accepted by the municipal authorities before the enactment of St. 1846, c. 203, which did away with the establishment of public ways by dedication, it never became a public way by dedication, that from 1841 the strip continuously remained open, that since 1859 it had been paved and kept in repair by the petitioner and his predecessor in title, who had maintained there a sign with the words “Private Way ” upon it, and that the respondent continuously and openly had used the strip as a way to and from.his land. The judge of the Superior Court submitted the issue to the jury. Held, that the action of the presiding judge was right.</p> <p>If, after an attempt by the owner of a strip of land, by a deed under seal duly recorded, to dedicate it to the use of the public as a public way, which failed because there was no acceptance of the way by the municipal authorities before the enactment of St. 1846, c. 203, doing away with the establishment of ways by dedication, there was for over twenty-five years an open and uninterrupted use of the land by another landowner in connection with land of his near by, such landowner may acquire by adverse user a right to the use of the way, although after the failure of the consummation of the dedication the owner may have had an intention, which remained undisclosed, to withdraw the land from use other than in connection with his own land.</p> <p>A right of way may exist over the same land in favor of different persons who acquired their respective rights in different manners, some by grant and some by prescription through adverse use.</p> <p>Before 1846 the owner of certain land attempted to dedicate it to use as a public way but the dedication did not become effectual because the municipal authorities did not accept the way before the enactment of St. 1846, c. 203, which did away with the establishment of public ways by dedication. After 1859 the owner erected beside the way a sign reading, “ Private Way,” and a successor petitioned in the Land Court for the registration of an unincumbered title to the land. The Land Court decided adversely to the petitioner and he appealed. The judge framed for the trial in the Superior Court the issue, whether the respondent had obtained a right of way over the land by adverse user. Held, that the question, whether the maintenance of the sign was indicative of a purpose to withdraw the attempted dedication or to prevent the acquirement of a right to use the way, was for the jury.</p> <p>Where an attempted dedication of certain land to .use as a public way in 1841 failed because it was not accepted by the municipal authorities before the enactment of St. 1846, c. 203, which did away with the establishment of public ways by dedication, and after the enactment of that statute the owner of the land has assented to the use of the land as a way by certain persons for more than twenty years, a .jury may find that such persons have gained a right of way over the land by adverse user, since the assent of the landowner may be found to have indicated, not the granting of a permission, but acquiescence in the exercise of a right inconsistent with unincumbered ownership on his part.</p> <p>From the fact of open, continuous and persistent user of a way over certain land, knowledge of such user, or acquiescence therein on the part of the owner of the land, can he inferred.</p> <p>At the trial in the Superior Court of an issue framed on an appeal from the Land Court by the owner of certain land who sought to have his title registered, the issue being, whether the respondent had acquired a right of way over the locus by adverse user, it appeared that the petitioner was the proprietor of a mill bordering on the locus, and evidence was offered by the respondent, for the purpose of showing that the petitioner had knowledge of the use of the way by him, which tended to show that a former superintendent of the petitioner’s mill, who at the time of the trial was dead, had said that the passageway must be kept unobstructed for the use of the respondent. The evidence was admitted. Held, that the evidence was admitted rightly.</p> <p>At the trial in the Superior Court of an issue framed on an appeal from the Land Court by the owner of certain land who sought to have his title registered, the issue being, whether the respondent had acquired a right of way over the locus by adverse user, it appeared that the petitioner was the proprietor of a mill bordering on the locus, that the respondent owned land bordering on a way, an extension of which passed over the locus, and that continuously for over twenty years he had used the locus as a way, that the petitioner’s predecessor in title before 1846 had attempted to dedicate the locus to use as a public way, but that the dedication had been ineffectual because it had not been accepted by the municipal authorities before the enactment of St. 1846, c. 203, which did away with the establishment of public ways by dedication, that thereafter the way was used practically only by those having business dealings with the petitioner and his predecessor in title and by the respondent and those having dealings with him. The petitioner at the trial contended that, as the dedication had failed, the way should be considered as appropriated and used for the exclusive occupation of himself and of those having business dealings with him, and the evidence offered was confined to that inquiry, the respondent contending only that he had a right to use the way in connection with his estate. The issue was determined in favor of the respondent, and the petitioner alleged exceptions. At no time did the petitioner admit that a public way had been established by prescription. Held, that the petitioner could not be heard to contend in support of his exceptions that the respondent could not prescribe for a right of way over the locus in connection with his estate because the land was used as a way by the public, such contention being inconsistent with his previous contention and with his petition, which sought the registration of an unincumbered title to the land.</p> <p>At the trial in the Superior Court of an issue framed on an appeal from the Land Court by the owner of certain land who sought to have his title registered, the issue being, whether the respondent had acquired a right of way over the locus by adverse user, the petitioner has a right to open and close before the jury, irrespective of who has the burden of proof as to the issue.</p>

<p>Negligence, In use of highway. Nuisance. Ice and Snow. Way, Public. Practice, Civil, Parties, Misjoinder of counts.</p> <p>At the trial of an action against the owner of a house abutting upon the highway for injuries alleged to have been caused by the plaintiff slipping upon a ridge of ice caused by drippings from eaves of the defendant’s building which overhung the way, the plaintiff testified in direct examination that upon a slippery, misty morning she was approaching a store in the defendant’s building by walking in a dry place close to the building as the rest of the sidewalk was covered with ice, that as she walked she looked down for five or six feet ahead of her and that there was nothing to prevent her seeing any ice that was there, that when she got opposite the door of the store she stepped upon the ridge of ice in question and fell, that the ridge of ice was not more than four or five inches wide and stood up two or three inches across the dry bricks. In cross-examination she testified that she could not account for her not seeing the ridge of ice. Held, that the question of the plaintiff’s due care was for the jury.</p> <p>Where, at the trial of an action against the owner of a building to recover for injuries alleged to have been caused by the plaintiff slipping upon a ridge of ice ' alleged to have been formed by water dripping from the roof of a bay window of the building which overhung the sidewalk, there is evidence from which the jury might find that the roof projected so that snow would and did accumulate upon its top and there melt and drip upon the sidewalk and freeze, and that the ridge of ice upon which the plaintiff fell was formed thus, the case is for the jury although different parts of the building may have been occupied by various tenants at will, especially if there is evidence that the defendant procured and paid for all the repairs that were made upon the building and assumed the care of keeping the sidewalk clear of snow and ice, employing one of the tenants to do it for him.</p> <p>Since a landlord is responsible for injuries resulting to third persons from the maintenance upon his property in the possession of a tenant of a nuisance caused by a condition of the premises which was in existence at the time when they were let, the owner of a building, so constructed that a bay window overhangs a public sidewalk and drippings from it cause a ridge of ice upon the sidewalk, is liable to one who, while in the exercise of due care, was injured from a fall upon the ice, although the premises were in the possession of a tenant.</p> <p>If a declaration in an action of tort against two defendants contains three counts, each of which alleges that the plaintiff was injured by falling upon ice negligently allowed to accumulate in front of certain premises, the first count being against both defendants and the second count against one defendant and the third against the other, and if one of the defendants has died after the injury to the plaintiff and before the bringing of the action but the officer who served the writ makes a return of service at that defendant’s “ last and usual place of abode ” and the other defendant files an answer and a suggestion of the death of his co-defendant but does not demur to the declaration, the case properly may proceed to trial against the only defendant served upon and answering and upon the count which sets out a cause of action against him alone.</p>

<p>Bill in equity, filed in the Superior Court on April 26,1909, averring in substance that the defendants, William W. Reed, George H. Reed, and Harrison W. Conner, individually, and William W. Reed, George G. Stone, George L. Gilmore, as trustees of the Lexington Club, acted in concert in inducing the plaintiff by deceit and fraud to enter into a contract with the defendant Cornier to furnish certain materials and labor for the construction of apartment houses upon land abutting on Longwood Avenue in Brookline, the defendant trustees taking a construction mortgage upon the premises of such a nature as to prevent the plaintiff from being paid. The prayers of the bill in substance were that the mortgage be cancelled, the land be sold and the plaintiff be paid its claim for the proceeds.</p> <p>An interlocutory decree was made that the case be “ referred to Wade Keyes, Esquire, as master.” The decree contained no specific directions to the master. The substance of material facts found by him is stated in the opinion. Among other findings and rulings were the following:</p> <p>“ The crucial legal proposition in this case appears to the master to be simply whether the deceit practised on Stearns by Conner and W. W. Reed makes W. W. Reed and the Lexington Club legally responsible for the consequent loss to other persons who fall naturally and innocently into the mesh and suffer as did this plaintiff. . . .</p> <p>“ On the part of the defendants W. W. Reed and Conner, it is urged in‘argument that if there was any fraud in the acquisition of the land from Stearns he alone might complain, and he having complained in Court and been appeased by one of these defendants they are not now together liable to any person who dealt with Conner alone with reference to the erection of buildings on the land in question. I do not so find. On the contrary, I do find that the plaintiff has actually suffered damage by reason of its dealings with Conner on account of its unrequited labor upon the land, which entire damage it would not and could not have suffered when and where it did suffer if the fraudulent device for the acquisition of the land had not been put in successful execution against Stearns. The work done on the land by the plaintiff was primary work fundamentally necessary for the erection of buildings thereon, which work and consequent erection at somebody’s labor and expense other than at Conner’s expense was a necessary part of the building operations and known to W. W. Reed on January 4. The work of the plaintiff was actually in progress when the title to the land was acquired from Stearns. This fact was known to W. W. Reed as well as to Conner, but notwithstanding they concocted a financial arrangement at the time which was designed not only to trick Stearns, but of necessity to disregard the welfare and jeopardize the rights of this plaintiff and such other credulous persons as Conner might induce thereafter to contribute labor and materials to the enterprise on the financial credit of Conner.</p> <p>“As a matter of fact W. W. Reed thought the loan safe to make from his standpoint and thought Conner, as mortgagor, so likely a man to be profitable to himself, as mortgagee, that he, Reed, was inclined and did actively assist Conner to become a landowner in order that Conner might become a mortgagor with himself, Reed, trustee of the Lexington Club, as first mortgagee. When this point was reached the joint action of the two, so far as the active interest of Reed was concerned, ended, but I am constrained to report that Reed under the circumstances could not thus embark with Conner upon such an enterprise in such a way and withdraw from beneath the burdens of it at his pleasure while retaining the privilege and capacity as mortgagee of realizing on the construction mortgage whatever future benefits might thereafter legally accrue to the holder of it.</p> <p>“The financial relations between W. W. Reed and Conner were so framed up between them that when title to the land passed to Conner on January 4, it was morally certain from their standpoint that each had nothing to lose and each had a likelihood of gain. From the foregoing facts I report it to have been their expectation that if Conner succeeded in completing his buildings and obtaining his permanent mortgage loans the construction mortgagee would be fully repaid with interest and Reed would profit personally by way of commissions, services and other incidental methods peculiar to his craft. While on the other hand, if Conner did not succeed then the construction mortgage would be foreclosed and its holder could on foreclosure sale receive from another purchaser its due or purchase itself and gather in as an unearned increment added to the premises the value of such labor and material thereon as had been contributed by such persons as Conner had persuaded on his representations of personal credit thus to improve the land. And Conner, of course, would have as his profit, in the event of his failure, such sums of money received from Reed as he had been enabled to retain for his personal use. . . .</p> <p>“ The occupancy, and subsequent title to the land, in Conner, who had invested practically nothing therein, enabled him to procure and maintain a credit he was not entitled to and caused this plaintiff to expend labor and materials of considerable value over a considerable period of time and thus far without recompense. Upon all the foregoing findings I find that the work done by this plaintiff for Conner and the damages it suffered by reason of not getting any portion of its pay from Conner for its work are the natural and obvious result of the situation existent at the time the conveyance of land and transfer of title went into effect January 4,1909, which situation was created by W. W. Reed and Conner acting in conjunction at the time. . . .</p> <p>“ It seems to the master to be the especial province of equity to fasten the responsibility for harm done upon those who do it. And I therefore find and rule upon all the foregoing findings in this case that the harm done this plaintiff of which it justly complains in its bill was primarily occasioned by the joint acts of the defendants, W. W. Reed and Conner. I find and rule that W. W. Reed, representing the Lexington Club as his principal, having actively aided and entrusted Conner with the means of deceiving without repudiating him or disclosing the deception is responsible in damages to such innocent person dealing with Conner as may naturally and legally suffer in consequence of the wrongful use of said means by Conner. I find the plaintiff to be such an innocent person. Therefore ... I further find and rule that the plaintiff is entitled to recover said sum of $8,216 with interest from April 5, 1909, together with the costs of this suit, from the defendants, Harrison W. Conner, William W. Reed and the Trustees of the Lexington Club.”</p> <p>The defendant Reed and the defendant trustees filed the following among other exceptions to the master’s report: (1) “in that the master rules that the plaintiff is entitled to relief in this suit, the master having no authority to make any ruling of law whatsoever (2) “ because said ruling is not warranted by the facts stated in said report.” The defendant Conner filed the following among other exceptions: (5) “ the defendant Conner objects to the master’s report because of the finding that the plaintiff has suffered legal damage.”</p> <p>The exceptions were heard by Richardson, J., who made a memorandum stating: “I am unable to see, upon the facts stated by the master, that the trustees of the Lexington Club or said Reed are liable in damages to the plaintiff for the amount stated by the master, either on the alleged ground of conspiracy, or on the ground of false or fraudulent representations, made or authorized to be made by them, deceit or otherwise. The facts stated do not show that there was any such conspiracy between or by Conner and the trustees of the Lexington Club, as to make statements of Conner, not made in their presence or by their authority, evidence against them.”</p> <p>A final decree dismissing the bill accordingly was entered. The plaintiff appealed.</p>

<p>Contract, Validity, In writing, Consideration. Fraud. Guaranty. Evidence, Of book accounts. Equity Pleading and Practice, Master’s report.</p> <p>The principle of law, that mere ignorance of the contents of a contract in writing which a party voluntarily executes is not sufficient ground for setting it aside when he subsequently discovers that its contents are different from what he supposed them to be, was applied in this case where the party seeking to set aside the contract was an old foreigner who was led to sign the instrument through deception practised upon him by his son, in which the other party to the contract in no way participated.</p> <p>A master, to whom was referred a suit in equity by a wholesale dealer in shoes against the signer of a certain alleged guaranty, seeking equitable relief, found that, upon the defendant’s son, a customer of the plaintiff, becoming in arrears in the payment of his account, the plaintiff stated to him “ that his account must be protected and that unless he could get it guaranteed by a responsible person the plaintiff would have to close it,” and “ that to make his account good it must be changed to a consigned account and his present indebtedness guaranteed”; that the son communicated to the defendant the plaintiff’s statement; that thereupon the defendant signed and delivered to the plaintiff an instrument in writing as follows: “Bor valuable considerations, I hereby guarantee full and complete payment to the” plaintiff “ of all debts now owed or to be owed in the future by ” the son “ to the ” plaintiff; that there was no evidence that thereafter any goods were sold to the son on open account. Held, that the guaranty could not be enforced because of lack of a consideration running from the plaintiff to the defendant, it not appearing that any continued credit was given to the son or that any proceedings against the son were forborne at the defendant’s request.</p> <p>Books of account as to mercantile transactions, the entries in which were transcribed from temporary memoranda made by clerks who had no knowledge of the sale and delivery of the goods therein mentioned except upon information received from other clerks whose duties are not shown, are not admissible in evidence to prove the state of the account upon the sole supporting testimony of the clerks who made the entries in them.</p> <p>If the plaintiff in a suit in equity discovers, after the filing of a report, adverse to him, of a master to whom the suit was referred, that through inadvertence he neglected to offer evidence which would have supported his contentions, he should move to recommit the report to the master for the hearing of further evidence. After the report has been confirmed and a decree entered dismissing the bill, from which the plaintiff has appealed, it is too late to ask that the case be reopened.</p>

<p>Bill in equity, filed in the Superior Court on February 12, 1906, and, after the sustaining of a demurrer, six times amended, with a supplemental bill and an amendment thereto, against James Thorpe, Charles E. Cashin, Thomas E. Wilde and the Jeremiah Clark Machinery Company, seeking an accounting by the defendants Thorpe and Cashin regarding the transactions described in the opinion, seeking to fix upon the defendant Wilde liability for the amount to be found due to the plaintiff from Thorpe and Cashin because of alleged partnership relations of the three, and also praying that the defendant corporation be ordered to pay to the plaintiffs what was found to be owing to them from the other defendants; also a</p> <p>Cross bill by the Jeremiah Clark Manufacturing Company against Thorpe, Cashin and the plaintiffs setting out the terms of the transfer from the partnership to the corporation, described in the opinion, and alleging that before the original suit was brought one Giles Taintor acted at the same time as attorney for the original plaintiffs and for Cashin and obtained from Cashin information and assistance in the preparation of the case; that it was then the duty of Taintor and therefore of the original plaintiffs his clients, to protect Cashin against liability arising out of these disclosures and to advise Cashin that unless he received from the plaintiffs a release or agreement sufficient to relieve the corporation from liability under the original bill the corporation would have a right of indemnity and exoneration against Cashin as a party primarily liable on this claim, if the corporation had to pay it; that the plaintiffs through their attorney failed so to protect and advise Cashin and by suing Cashin and subjecting him to this liability, the plaintiffs became liable for any damages that might be incurred by him and were bound to indemnify and exonerate him from liability. The prayers of the cross bill were, (1) “that if the corporation is held liable under the original bill, Cashin, Thorpe and the plaintiffs in the original bill may be ordered to indemnify and exonerate the corporation from the same ”; and (2) “ that the obligation of the original plaintiffs to Cashin to exonerate him from liability on their claim be specifically performed for the benefit of the corporation and be applied in payment of any liability that may be imposed upon the corporation in the original biff.”</p> <p>The suit was referred to Franklin T. Hammond, Esquire, as master. The substance of his report is stated in the opinion.</p> <p>The master’s statement as to the transfer of the property of the partnership to the corporation was as follows:</p> <p>“ An indenture was drawn up and executed dated October 7, 1904, by which Thorpe and Cashin together with ” the two who originally had owned interests in the business but who had sold out to Thorpe as stated in the opinion, “ conveyed to one Pearson trustee 'for the benefit of and pending the proper organization of a corporation in the manner and upon the terms hereinafter more specifically set out ’ all the business and assets including all real estate of the firm known as the Jeremiah Clark Machinery Company subject however ‘ to all and singular the debts and liabilities of the grantors contracted in or arising from or on account of the granted premises as and when the same are or shall become payable or dischargeable respectively.’ The conveyance was declared to be upon trust to convey all these assets to a new corporation to be formed and to be called the Jeremiah Clark Machinery Company 'subject to the debts and liabilities of the grantors as aforesaid which the corporation shall expressly assume and agree to pay or provide for.’ And in consideration of the transfer and conveyance the corporation was to issue its capital stock to the order of the grantors in proportion to the interests which they owned in the property transferred. . . .</p> <p>“ Immediately upon the execution of this indenture steps were taken to organize the new corporation under the Massachusetts laws. The agreement of association was signed October 13, 1904. The meeting for organization was held on the same day and officers were elected. . . . On October 17, 1904, the charter was issued to the corporation under the name of the Jeremiah Clark Machinery Company.</p> <p>“ About the same time, October 17,1904, Pearson the trustee executed an indenture stated to be made between him and the corporation, the Jeremiah Clark Machinery Company, by which in consideration among other things ‘ of the mutual promises and agreements herein made ’ Pearson conveyed to the corporation all the assets acquired by him under the conveyance of October 7 subject to all ‘ the debts and liabilities of James Thorpe and Charles E. Cashin contracted in or arising from or on account of the business and property hereby transferred and conveyed as and when the same are or shall become payable or dischargeable respectively. ’ The indenture further provided that in consideration of this transfer the corporation ‘ hereby assumes and covenants to pay and discharge all and singular the debts and liabilities of James Thorpe and Charles E. Cashin contracted in or arising from or on account of the conduct of the said business carried on under the name of the Jeremiah Clark Machinery Company as and when the same are or shall become payable or dischargeable respectively . . . but the grantee hereby expressly repudiates and refuses to pay or in any way provide for any debts or liabilities contracted or incurred by James Thorpe or by Charles E. Cashin outside of the said business heretofore carried on under the name of the Jeremiah Clark Machinery Company.’ ”</p> <p>Exceptions of the defendant corporation to the master’s report were heard by Pierce, J., who overruled them; and a final decree was entered that the defendants Thorpe, Cashin, Wilde and the Jeremiah Clark Machinery Company “ are jointly and severally liable to the plaintiff in the sum of $17,943.08, and that the said defendants jointly and severally pay to the plaintiffs the said sum with interest from the date of this decree ” together with costs of suit, “ and that the cross bill of the defendant Jeremiah Clark Machinery Company be dismissed as against the original plaintiffs, and that the defendants Cashin and Thorpe are liable to the defendant Jeremiah Clark Machinery Company under the cross bill of the latter in damages in the sum of $926.91, and that execution issue therefor and that the defendant the Jeremiah Clark Machinery Company deliver to the plaintiffs the articles found by the master to be the properly of the plaintiffs and in the possession of the said defendant.”</p> <p>The defendants appealed.</p>

<p>Executor and Administrador. Equity Jurisdiction, Protection of property from apprehended conversion-</p> <p>A testatrix, by the fourth article of her will, devised and bequeathed the residue of her estate to her brother “ to have and to hold, use and improve the same, without the intervention of any trustee, for and during his natural life; and on his decease I give, devise and bequeath whatever may then be remaining of said rest and residue and accumulations, if any, to said town of W,” to be used for public purposes. The brother of the testatrix was made executor of the will. He died without rendering any probate account, and after his death an account of his administration of his sister’s estate was presented to the Probate Court in which he was credited with the amount of the “ rest and residue paid over, transferred and delivered ” to himself “ as residuary legatee under article fourth of will.” The Probate Court made a decree allowing the item. On an appeal-from the decree there was no extrinsic evidence. Held, that the beneficiary was entitled as trustee in his own behalf to the possession and control of the principal of the personal property of his sister’s estate with the right of unrestricted expenditure of the income, that a decree of distribution for the transfer of the property was unnecessary, as the allowance of the account in which the executor was credited with the transfer of the residue to himself had the same effect as a decree of distribution, and that the decree allowing the account should be affirmed.</p> <p>An action at law will not lie against an executor for the alleged conversion of the residue of the personal estate of his testator by transferring it to himself as residuary legatee, if it appears by the declaration that the question of the legality of such transfer is pending in the Probate Court in the proceedings upon the allowance of the executor’s account, in which all persons interested in the estate have the right to appear. If an interested person is apprehensive that, before the account is passed upon, the property for which the executor is bound to account may be wasted or converted, his remedy is by a bill in equity.</p>

<p>Corporation, Liability of stockholder. Contract, What constitutes. Equity Pleading and Practice, Parties.</p> <p>A statute of another State, providing for the incorporation of associations “ organized for the purpose of constructing railways, maintaining and operating the same,” contained the following provision : “ Each stockholder of any corporation formed under the provisions of this act shall be held individually liable to the creditors of such corporation to an amount not exceeding the amount unpaid on the stock held by him, for any and all debts and liabilities of such corporation, until the whole amount of the capital stock of such corporation so held by him shall have been paid.” Held, that one, who voluntarily became an original stockholder in such a corporation and did not pay for his shares, was liable to a creditor of the corporation, in an action of contract brought in this Commonwealth; on proof of those facts and of the debt of the corporation to the plaintiff, although the plaintiff had obtained no judgment against the corporation, the liability being made direct by the statute and not enforceable through the corporation.</p> <p>In a suit in equity under R. L. c. 169, § 3, cl. 7, to reach and apply equitable assets in the hands of divers defendants alleged to be held for the benefit of the principal defendant, it appeared that the debt from the principal defendant consisted of his liability under a statute of another State as a stockholder of a corporation organized in that State to the plaintiff as a creditor of such corporation, and that the language of the statute made the principal defendant directly liable to the plaintiff on proof that the plaintiff was such a creditor of the corporation and that the principal defendant was a stockholder who had not paid for his shares, without showing that any judgment had been obtained against the corporation. Held, that neither the corporation nor other delinquent stockholders were necessary parties to the suit, and that there was no occasion for the appointment of a receiver to wind up the affairs of the corporation and distribute its assets, so that the plaintiff could have recovered from the principal defendant in an action of contract, had not the reaching and application of equitable assets given ground for equitable relief.</p>

<p>Carrier, Of passengers: liability for loss of personal baggage. Interstate Commerce Act. Damages, Limitation of liability. Contract, What constitutes.</p> <p>The interstate commerce act does not change the common law rule prevailing in this Commonwealth, that a passenger on a railroad is not bound by a limitation of liability of the corporation operating the railroad as to the amount in value of personal baggage which will be carried upon a passenger ticket without extra charge and for which the corporation will be liable in case of loss, unless the passenger agreed to such limitation by express contract or by assent to a known regulation.</p> <p>It here was assumed that the subject matter of passengers’ baggage in interstate travel is within the control of Congress.</p> <p>The fact, that a railroad corporation has inserted in its schedules of rates, fares and charges, filed and published under the orders of the interstate commerce commission, a statement that “ baggage liability is limited to personal baggage not to exceed $100 in value for a passenger presenting a full ticket . . . unless a greater value is declared and stipulated by the owner and excess charges thereon paid at time of taking the baggage,” does not make such limitation of liability a part of the established rate filed with the commission and thus binding on passengers whether they knew of it or not.</p>

<p>On July 18 and 19,1911, the following orders were passed by the Senate and on the last named day were transmitted to the Justices of the Supreme Judicial Court. On July 24, 1911, the Justices returned the answer which is subjoined.</p> <p>Senate, July 18, 1911.</p> <p>Whereas, There is now before the Senate a bill entitled “An Act relative to payments to employees for personal injuries received in the course of their employment and to the prevention of such injuries,” being House Document No. 2154; and</p> <p>Whereas, No similar legislation has ever been enacted in this Commonwealth; and</p> <p>Whereas, An act for a similar purpose was enacted in the State of New York, and has been decided to be in violation of the Constitution of the State of New York and of the Fourteenth Amendment to the Constitution of the United States; and</p> <p>Whereas, There appears to be no precedent bearing on said subject in other jurisdictions in the United States;</p> <p>Be it Ordered, That the opinion of the Justices of the Supreme Judicial Court be required on the following important questions of law:</p> <p>First. Is the said bill, House Document No. 2154, in conformity with the provisions of the Constitution of the Commonwealth of Massachusetts which requires that property shall not be taken from a citizen without due process of law ?</p> <p>Second. Is the bill in conformity with the fourteenth amendment to the Federal Constitution ?</p> <p>.Senate, July 19,1911.</p> <p>Ordered, That in submitting to the Justices of the Supreme Judicial Court a copy of the order adopted by the Senate requiring the opinion of the said Justices as to the constitutionality of the House Bill relative to payments to employees for personal injuries received in the course of their employment and to the prevention of such injuries, the clerk be directed to forward to the Justices a copy of the amendment of the said bill adopted by the Senate; and that, in rendering their opinion, the Justices be directed also to take into account the effect of the said amendment on the bill.</p> <p>The amendment adopted by the Senate was the insertion in Part V. after § 2 of the following new section:</p> <p>“ Section 3. Any liability insurance company authorized to do business within this Commonwealth shall have the same, right as the association to insure the liability to pay the compensation provided for by this act, and a policy holder of such liability company shall be regarded as a subscriber so far as applicable within the meaning of this act, and when any such company insures such payment of compensation it shall be subject to all the regulations and obligations imposed upon the association.”</p> <p>[House bill No. 2154, as amended by the insertion of the section printed above was enacted, practically without change, in St. 1911, c. 751, which was approved on July 28,1911.]</p>