Volume 211 — Massachusetts Reports

<p>Practice, Civil, Exceptions, Auditor’s report, Ordering verdict. Evidence, Presumptions and burden of proof. Contract, Validity. Sale. Lord’s Day. Estoppel.</p> <p>Four actions of replevin for the possession of the same personal property were tried together. One who was a plaintiff in the third action and a defendant in the fourth but was not a party to either of the other two, alleged exceptions in all four cases. There having been testimony at the trial that the interest of a party in the first and second actions had been transferred to the excepting party, the exceptions for that reason were treated as properly taken in all four cases, although it was doubted, whether otherwise there was any right of exception in the two cases in which the excepting party was neither a plaintiff nor a defendant.</p> <p>At the trial together of four actions of replevin for the possession of certain personal property, there was in evidence an auditor’s report finding title in the plaintiff in the first action because of a conveyance from one who, on evidence introduced as to issues in the other actions, might have been found not to have owned the property and to have had no right to convey it to the plaintiff in the first action. Held., that it could not have been ruled in the first action that, "no evidence having been offered to control the auditor’s report, and that report being in favor of the plaintiff, the jury must find for the plaintiff.”</p> <p>At the trial of an action of replevin for the possession of certain fish, an auditor’s report was put in evidence finding for the defendant, and there also was evidence tending to show that in May of a certain year two persons made a partnership agreement with regard to the securing of fishing privileges in a certain locality and the catching and sale of fish, that shortly thereafter one of the partners made an agreement with the defendant, of which the other partner did not know, to manage for the defendant the business of procuring fish in , the same neighborhood, and that, two days after the agreement with the defendant, the partner who was ignorant of it purchased for the partnership the fish in question, which subsequently were conveyed by him acting on behalf of the partnership to the plaintiff. Held, that it could not be ruled as a matter of law that the jury must find for the defendant.</p> <p>In an action of replevin there was evidence tending to show that the personal property replevied formerly had belonged to a partnership, that on a Lord’s day one of the partners had made an agreement as to the sale of the property to the plaintiff, that later, the agreement not being carried out, the plaintiff had attached the property in an action against the partner who had sold it to him and subsequently had procured a bill of sale of it from the other partner acting for the partnership, which he relied on to prove his title to the property in the action of replevin. Held, that the validity of the contract of sale made on the Lord’s day was not a material issue in the case.</p> <p>In an action of replevin there was evidence tending to show that the plaintiff had procured title by a bill of sale executed and delivered by one of two partners acting for the partnership, and that the partnership had the legal title to the property at the time of the delivery of the bill of sale. There also was evidence tending to show that the other partner had embezzled from the defendant, who was in no way interested in the partnership, the money used by the partnership to procure the property. There was no evidence that the partner who gave the bill of sale to the plaintiff knew of such misuse of funds by his partner. Held, that the misuse, in the purchasing of the property in question, of the defendant’s funds by one of the partners without the knowledge of the partner who conveyed it to the plaintiff was not a material issue in the case.</p> <p>If, at the trial of an action of replevin, there is evidence tending to show the existence of a partnership between two persons, one of whom, purporting to act for the partnership, conveyed to the plaintiff the personal property in question, and there also is evidence that before the conveyance to the plaintiff the other of the alleged partners in the presence of his alleged partner informed a representative of the plaintiff that the alleged partner was not his partner, the jury should not be instructed that, as matter of law, if they should find such declaration to have been made, the subsequent conveyance was of no effect.</p> <p>If, at the trial of an action of replevin, there is evidence tending to show the existence of a partnership between two persons, one of whom, purporting to act for the partnership, conveyed to the plaintiff the personal property in question, and it appears that, previous to the conveyance to the plaintiff, an authorized representative of the plaintiff, knowing that the other alleged partner disclaimed the existence of the partnership, had caused the property to be seized upon attachment as the individual property of such other alleged partner in an action by the plaintiff against him, that such action never was entered in court and that no one ever put any reliance upon the attachment, the plaintiff later in the action on trial replevying the property while it was in the possession of the attaching officer, the jury should not be instructed that the plaintiff by the previous attachment was estopped to deny that the property belonged solely to the partner in whose name he had attached it.</p> <p>An action of replevin was referred to an auditor, and the hearings for one reason and another were continued from time to time until the auditor was ordered to proceed with the hearing on a certain day irrespective of whether both parties were present. A hearing accordingly was held at which only one party was present, in whose favor the auditor reported. At the trial of the action the presiding judge instructed the jury, with regard to the report, as follows: “It is a proper fact to take into consideration, in determining what weight you should give to this report, that it was an ex parte hearing. The evidence was prima facie evidence. The report is not conclusive. It is prima fade evidence, and that is not conclusive evidence. The parties may introduce other evidence for the purpose of controlling the report. You are not bound by the report; you are to take all the evidence together and give it such weight as you think it may be entitled to.” Held, that the instructions were correct.</p>

<p>Fish and Game Commissioners. Constitutional Law. Words, “Of sufficient value.”</p> <p>In R. L. c. 91, § 8, as amended by St. 1906, c. 356, § 1, giving to the commissioners on fisheries and game, in case they "determine that the fish of any brook or stream in this Commonwealth are of sufficient value to warrant the prohibition or regulation of the discharge therein of sawdust from saw mills,” power to prohibit or regulate the discharge of sawdust from any particular sawmill which they find materially injures such fish, the words “of sufficient value” do not mean merely “of sufficient commercial value,” but they mean “of sufficient value to make the preservation and multiplication of the fish worth while, taking all the circumstances into account.”</p> <p>On the hearing in the Superior Court of a petition to annul or alter an order of the commissioners on fisheries and game made under R. L. c. 91, § 8, as amended by St. 1906, c. 356, § 1, empowering them, if they determined that the fish of any brook or stream were of sufficient value to warrant the prohibition or regulation of the discharge therein of sawdust from sawmills and that the discharge of sawdust from any particular mill materially injured such fish, to prohibit or regulate such discharge, the presiding judge confirmed the order and in doing so refused to find that carrying it out would render the business of the sawmill affected unprofitable or compel its proprietor to give it up, and it was held, that it was not open to such proprietor to contend, upon a report of the case to this court, that the regulation was not a reasonable one.</p> <p>Section 8 of R. L. c. 91, as amended by St. 1906, c. 356, § 1, which gave to the commissioners on fisheries and game, in case they “determine that the fish of any brook or stream in this Commonwealth are of sufficient value to warrant the prohibition or regulation of the discharge therein of sawdust from sawmills,” power to prohibit or regulate the discharge of sawdust from any particular sawmill which they found materially injured such fish, was not unconstitutional as class legislation arbitrarily selecting sawmills for regulation or prohibition from among all other industries using streams for the discharge of waste products.</p>

<p>Petition, filed in the Superior Court on October 1, 1906, under R. L. c. 12, § 78, on appealing from a refusal of the assessors of the town of Blackstone to abate a tax assessed to the petitioner for the year 1905.</p> <p>The case was referred to James A. Stiles, Esquire, as auditor, and then was heard upon the auditor’s report and the pleadings by Gaslcill, J., who found prof orina in accordance with the findings of fact and rulings of law of the auditor and reported the case for determination by this court, whereupon the decision described in the opinion and reported in 200 Mass. 82 was made. Thereafter the case was recommitted to the auditor. The substance of the auditor’s supplemental report is stated in the opinion.</p> <p>The case then was heard on the pleadings and the auditor’s supplemental report by Hitchcock, J., who found and ruled in accordance with the report and reported the case for determination by this court, the parties agreeing that, if such rulings and findings were correct, judgment was to be entered in accordance therewith; otherwise, such order and entry of judgment were to be made as to this court might appear to be just and in accordance with the law applicable to the case.</p>

<p>Contract by a deputy sheriff on a replevin bond. Writ dated May 4, 1906.</p> <p>In the Superior Court the case first was tried before Brown, J., who at the close of the evidence ordered a verdict for the plaintiff in the penal sum of the bond, which was $10,000, and that damages be assessed in the sum of $6,461.50. Both the plaintiff and the defendants alleged exceptions. The exceptions of the plaintiff were overruled and those of the defendants were sustained in a decision of this court reported in 205 Mass. 64.</p> <p>There was a new trial before King, J., at which, among other facts, appeared the following: The plaintiff as a deputy sheriff on September 9, 1902, on a writ issued in an action brought by one Messenger against the Lederer Amusement Company attached certain scenery, costumes and theatrical properties then being used in a musical production or play called “The Wild Rose” at the Colonial Theatre in Boston. On September 11, 1902, the property was taken out of the plaintiff’s hands on a writ issued from the Circuit Court of the United States in the District of Massachusetts in an action of replevin brought against the plaintiff by the Pan-American Amusement Company, the alleged purchaser of the property from the Lederer Amusement Company. In that action the Pan-American Amusement Company, the present defendant, gave to the present plaintiff the bond here sued upon. In the action of replevin, on November 17,1904, the jury returned a verdict for the present plaintiff as the defendant in replevin. After a judgment of the United States Circuit Court of Appeals affirming the rulings of the Circuit Court, on January 18, 1906, a final judgment was entered in the Circuit Court for the return to the present plaintiff of all the property replevied and for damages and costs. On February 16, 1906, execution was issued and on April 20, 1906, was returned to court in no part satisfied.</p> <p>The plaintiff offered in evidence the writ, declaration, execution and alias execution in the action of Messenger a. Lederer Amusement Company. The defendants objected to the admission of this evidence on the ground that the action was not between the same parties as those in the present action; that it was immaterial; and that such evidence might affect the verdict of the jury. The judge admitted the evidence, and the defendants excepted. The instructions of the judge in regard to this evidence and the purpose to which it was limited are stated in the opinion.</p> <p>One Lederer, who was the managing director of the Lederer Amusement Company, was called by the defendants as a witness. On his direct examination he was asked the question, “I think there is one more question, Mr. Lederer, with reference to the production of ‘The Wild Rose,’ and all plays for that matter. After the play is produced what do you have to do, or what did you do for the purpose of procuring bookings or places to perform this play? ” The counsel for the defendants stated “ that he intended to show by that that it is necessary to bring a play to a sort of a clearing house where plays are routed throughout the United States; that all plays cannot be routed; that unless a play has the trade mark of a prominent manager, or a successful manager, or has intrinsic merit itself, ... a route cannot be had. So, if this property was taken up by somebody else who was not a theatrical manager, had no standing, who would allow the personnel of the company to deteriorate, could not keep it up to standard, they could not get any bookings at all and therefore it would be useless.” The plaintiff objected to the question and the judge sustained the objection. The defendants excepted. The indefinite character of the' direct testimony of this witness in regard to a sale at auction, which the judge instructed the jury to disregard, and also the character of the evidence admitted, against the objection of the defendants, on his cross-examination for the purpose of contradicting his statements, are indicated sufficiently in the opinion.</p> <p>There was conflicting evidence from various witnesses as to the value of the costumes, scenery and other property replevied, with and without the playing rights.</p> <p>At the close of the evidence, the defendants asked the judge to make nine rulings, of which those that are material were as follows:</p> <p>" 1. The jury shall not consider what the value of the property was on the stage and in use in the production of the play of ‘The Wild Rose’ on the tenth day of September, 1902.</p> <p>“2. The jury shall not consider what the value of the property was to the Pan-American Amusement Company on September 10, 1902, in their using it for producing purposes in connection with the production of ‘The Wild Rose.’”</p> <p>“4. The value of the goods which can be recovered in this action is what they would bring at sheriff’s sale in Boston, on January 18, 1906.”</p> <p>The judge refused to make these rulings.</p> <p>The jury returned a verdict for the plaintiff in the penal sum of the bond, and assessed, damages in the sum of $7,350.50. The defendants alleged exceptions.</p>

<p>Bill in equity, filed in the Superior Court on July 14, 1911, under R. L. c. 159, § 3, cl. 7, alleging that the defendant William S. Lowe as the indorser of certain promissory notes owed the plaintiff the sum of $817.04, and that said defendant was the lawful owner of $866.97 in cash, which was in the custody of the clerk of the Superior Court, although such fund was claimed by the defendant Margaret H. Lowe, as stated in the opinion; praying that the plaintiff’s claim might be established, that the defendants Margaret H. Lowe and William S. Lowe, and also the counsel for William S. Lowe, who was made a defendant, might be restrained from collecting said fund in the custody of the clerk of the court or from making any transfer or assignment of such fund, that judgment in the action in which such fund was held might not be entered and that such action might be continued for judgment until the determination of this suit, that it might be decreed that the defendant William S. Lowe was the owner of said fund in the custody of the clerk of the court and that the plaintiff was entitled to be paid its claim out of said fund, and that an order might be issued directing the clerk of the court to pay the plaintiff’s claim and costs out of said fund in so much as it might be found to be sufficient therefor.</p> <p>The three defendants severally demurred to the bill. There was a stipulation of the parties that the fund paid into court in the case of Margaret H. Lowe v. India Mutual Fire Insurance Company, which was the action referred to above, should remain in the custody of the clerk of the court until final disposition was made of this case.</p> <p>The case was heard upon the demurrers of the defendants by Hardy, J., who made a final decree that the bill be dismissed. The plaintiff appealed.</p>

<p>Tort for an alleged malicious prosecution. Writ dated September 20, 1911.</p> <p>The answer contained a general denial, and the treasurer of the defendant filed an affidavit under St. 1911, c. 305, stating that in his belief there was no merit in the action, whereupon the clerk of the Superior Court issued an order requiring the plaintiff to show cause why he should not become nonsuit. The defendant gave notice in writing to the plaintiff of such order, and the plaintiff failed to consent to a nonsuit and failed to file an affidavit setting forth the substantive facts upon which he relied. Thereupon tfce defendant moved that the case be advanced for speedy trial.</p> <p>The motion was heard by Hardy, J., who denied the motion and made a memorandum of decision as follows:</p> <p>“The plaintiff’s counsel came into court at the time of hearing upon said motion and said that the action was upon a claim for malicious prosecution. He also stated that he intended to try the case, that he had a good case for trial. Upon the facts as stated by counsel I found that there was an intention to try the case. In my opinion I thought it was not best, in my discretion, to advance this case for speedy trial before cases that had been pending in court for a considerable time. I ruled as a matter of law that it was a question of discretion rather than a question of absolute duty on my part to advance the case, and I believed that I ought not to exercise my discretion in favor of advancing said ease for speedy trial.</p> <p>“I rule as a matter of law that the defendant, under all the circumstances in this case, has no right to have the case advanced for speedy trial, under the construction of the statute.”</p> <p>The defendant filed the following statement, called on the docket an appeal:</p> <p>“Now comes the defendant in the above cause, and being aggrieved by the judgment of the court denying the defendant’s motion to advance said cause for speedy trial, and by the ruling of the court thereon, being a matter of law apparent on the record in said proceeding, hereby appeals to the Supreme Judicial Court.”</p>

<p>Bond, In bastardy process. Bastardy.</p> <p>A bond given by the defendant in a bastardy process upon his release from arrest before the enactment of St. 1911, c. 53, amending R. L. c. 82, § 4, with a condition not only for the appearance of the defendant before the municipal court at the time "specified in said bond,” as required by said § 4, but also for his appearance before that court on subsequent days to which the hearing might be continued, for which a separate bond then was required by § 6 of the same chapter, and with an additional condition that the defendant should abide the order of the municipal court, is not good as a statutory bond and consequently under R. L. c. 82, §§ 7, 15, is not security for the performance by the defendant of the order of the Superior Court in the case after its transmission to that court, although the bond is good as a common law obligation.</p>

<p> Bankruptcy. Trust. Frauds, Statute of. Merger. Mortgage. </p> <p>A woman, who owned certain mortgages of real estate, was averse to making a will but wished that upon her death her property should go to her brother’s wife and children. She knew that upon her dying intestate her brother would inherit her property as her only heir and next of kin and asked him, if he survived her, to distribute her estate among his wife and children. Her brother agreed to do this and relying upon his promise she refrained from making a will. Upon her death her brother, who then was insolvent, in performance of what he considered to be his duty and obligation distributed the whole of the estate to his wife and children, transferring the mortgages to a daughter as a part of her share. About a year and a half later he was adjudicated a bankrupt. The trustee in bankruptcy of his estate brought a suit in equity against the daughter to set aside the assignment of the mortgages. Held, that the oral trust, which had been executed in full, could be proved by oral evidence, even if it concerned land, and that, although the bankrupt was insolvent at the time he transferred the mortgages to the defendant, those transfers were made lawfully in the execution of a valid trust and withdrew from creditors no property to which the plaintiff as trustee in bankruptcy was entitled.</p> <p>Where one, who holds the equity of redemption in certain real estate subject to a mortgage, inherits such mortgage as the sole heir and next of kin of its owner, but takes the mortgage with other property subject to an oral trust which he executes in full, and in accordance with the terms of that trust transfers the mortgage to the person equitably entitled to it, the existence of the trust prevents the extinguishment of the mortgage by merger.</p>

<p>Way, Public: defect, prescription, damages. Damages, In tort.</p> <p>If a traveller falls and is injured by reason of stepping on the inside edge of a concrete sidewalk of a public way of a town, at a place where such edge is about three inches higher than the surface of the adjoining private land and is ragged, rough and broken off, and this condition has been known for a long time to the officers of the town, a jury, who have taken a view of the premises which have remained unchanged since the time of the accident, can find that the injuries were caused by a defect in the way for which the town was liable.</p> <p>If the edge of a sidewalk of a public way of a town, which extends one inch beyond the limits of the way, has been wrought and maintained by the town and used by the public as a portion of the travelled part of the way for more than twenty years, the town is bound to keep it in repair.</p> <p>In an action against a town under R. L. c. 51, § 18, for personal injuries alleged to have been caused by a defect in a public way of the defendant, the plaintiff, if he proves the liability of the defendant, can recover as a part of his damages the amount of a reasonable bill paid by him for medical services required as a direct result of his bodily injury.</p>

<p>Two indictments, each in two counts, found and returned in March, 1911, one under R. L. c. 212, § 2, as amended by St. 1910, c. 424, § 1, for abduction and the other under R. L. c. 212, § 10, for adultery.</p> <p>The first indictment in the first count charged that the defendant on January 23, 1911, at Malden did fraudulently and deceitfully entice and take away one Esther E. Anderson, a girl between seventeen and nineteen years of age, from her place of abode in Boston for the purpose of unlawful sexual intercourse with her in a house on a certain street in Malden in a room hired by the defendant for that purpose. The second count made the same charges against the defendant in regard to one Clementine Charland.</p> <p>The second indictment in the first count charged that the defendant, a married man, on January 23, 1911, at Malden did commit adultery with one Esther E. Anderson. The second count made the same charge against the defendant in regard to one Clementine Charland.</p> <p>In the Superior Court the cases were tried before Dana, J. When the cases were called for trial, the district attorney proposed to try the defendant upon both indictments together. The defendant promptly objected to such a trial and insisted upon his right to be tried separately upon each indictment, denying the right of the court to try him upon both indictments together.</p> <p>The judge ruled that he had discretionary power to order a trial of the defendant upon both indictments at one time, and ordered such a trial. The defendant excepted.</p> <p>Thereupon the defendant was tried upon both indictments at the same time. The jury acquitted him upon both counts of the indictment charging him with abduction, and returned- a verdict of guilty upon both counts of the indictment charging him with adultery. The defendant alleged exceptions, presenting only the question stated above.</p>

<p>Negligence, Imputed, Causing death. Corporation, Powers. Lewis Wharf Company. Evidence, Presumptions and burden of proof.</p> <p>In an action against the owner of a tenement building for causing the death of a child fourteen months old, who fell through an opening in the balustrade of a hallway on the second floor of the building, there was evidence that the mother of the child, who occupied a tenement on the second floor, had another child less than two months old and was .compelled to do all the family housework and attend to her two children, that she entrusted the older child to the daughter of another tenant fifteen years of age, who had taken care of the child on other occasions, that the child then was on the floor of the hallway where two older children were playing with it, that this girl took up the child in her arms and walked with it and later, being obliged to do her housework, put the child down on the floor apparently some feet distant from the opening in the balustrade, and when she had taken three steps heard it fall, that the mother, when she went from the hallway into her own tenement adjoining it, had seen the child in the girl’s arms and within two or three minutes heard the noise of the fall. Held, that, if the girl was the custodian of the child at the time of the accident, the question of her due care was for the jury, and if, as might be found, the mother was the custodian, her due care also was a question for the jury, who could find that the oversight she gave the child was all that reasonably could be required of her under the circumstances.</p> <p>The Lewis Wharf Company, created by St. 1834, c. 115, and authorized within the limits described in that act to “erect buildings, lay out streets and passage ways, and improve and manage said property, as to them shall seem expedient,” has power to maintain a tenement house within the designated territory, and in doing so is subject to the liability for causing death by negligence imposed by R. L. c. 171, § 2, as amended by St. 1907, c. 375.</p> <p>Review by DeCottrct, J., of the statutes of this Commonwealth providing a civil remedy for death caused by negligence.</p> <p>Rlustrations given by DeCotjrcy, J., of cases where the rule of evidence requiring proof beyond a reasonable doubt in criminal proceedings does not apply to civil actions which are penal in their nature.</p> <p>In an action under R. L. c. 171, § 2, as amended by St. 1907, c. 375, for causing death by negligence, the plaintiff sustains the burden of proof by proving his case by a preponderance of the evidence.</p>

<p> Naphtha. Negligence. Evidence. </p> <p>In an action for personal injuries alleged to have been suffered from an explosion of naphtha sold under an assumed name in violation of R. L. c. 102, § 108, if it appears that the substance sold to the plaintiff by the defendant was a liquid stove polish known as “6-5-4 Self Shining Stove Lusta,” and an expert testifies that it was “naphtha with some pigment and a little thickening” and that “it is naphtha just as much as half a dollar is silver,” the jury can find that the substance sold to the plaintiff was really and essentially naphtha and that the defendant is liable for the injuries "suffered from its explosion.</p> <p>A violation of R. L. c. 102, § 108, by a sale of naphtha under an assumed name is evidence of negligence in an action at common law to recover for personal injuries suffered from the explosion of such naphtha, alleged to have been sold negligently by the defendant to the plaintiff, and the plaintiff in such an action, if he presents evidence of due care on his part and of a sale by the defendant in violation of the statute, is entitled to go to the jury without showing expressly that the defendant knew of the nature of the substance sold by him or had any information of its dangerous qualities which should have put him upon inquiry. In an action under R. L. c. 102, § 108, and at common law, for personal injuries alleged to have been suffered from an explosion of naphtha sold under an assumed name and sold negligently, where it appears that the substance sold to the plaintiff by the defendant was a liquid stove polish known as “lusta,” evidence offered by the defendant, to show that “lusta” was an article generally sold in the market before as well as after the injury to the plaintiff, should be excluded as immaterial.</p>

<p>Tort under R. L. c. 44, § 7, for the unlawful exclusion of the plaintiff from the defendant’s public schools. Writ dated May 9, 1908.</p> <p>In the Superior Court the case was tried before Bell, J. The reply, referred to in the opinion, of the defendant’s school committee to the letter of the plaintiff’s father asking for a statement in writing of the reasons for the plaintiff’s exclusion from the school stated the following: “At a meeting of the school board of this city held upon above date, the visiting committee of. the Ashburnham Street School reported to the board that your daughter Pauline had been suspended by Principal Hopkins for refusing to obey his directions. It was voted, that ‘the secretary of the board be instructed to inform Mr. Jones, the father of Pauline Jones, that his daughter may return to school upon condition that she submit to the direction of the principal of the school.’”</p> <p>At the close of the evidence the defendant asked for the following rulings, which were refused by the presiding judge:</p> <p>“1. In this case there was no permanent exclusion. The plaintiff was permitted to return to school if she would obey the proper authority of the teacher.</p> <p>“2. In this case there was no permanent exclusion.</p> <p>“3. In this case there was no unlawful exclusion.</p> <p>“4. On all the evidence the plaintiff cannot recover.”</p> <p>In answer to questions submitted to them, the jury found that the plaintiff was permanently excluded from the defendant’s schools, that her father in her behalf asked for a hearing before the school committee on the matter of the exclusion, and that in passing upon the plaintiff’s case the school committee did not act in good faith. They found for the plaintiff in the sum of $1,075, which verdict, by order of the presiding judge, was reduced to $600. The defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p> Poor Debtor. </p> <p>The condition of a recognizance entered into by a debtor and a surety upon the debtor’s arrest upon an execution, that within thirty days from the date of his arrest the debtor will both deliver himself up for examination by the proper magistrate and give notice to the judgment creditor of the time and place fixed by the magistrate for the hearing, is broken if the debtor within the thirty days so delivers himself up and asks for the assignment of a day for a hearing and the magistrate directs the clerk of the court to issue the notice to the judgment creditor, but the notice is not issued within the thirty days.</p>

<p>Contract against Percy H. Brigham as maker and Owen Goldsmith as indorser of a negotiable promissory note for $450. - Writ dated May 31, 1910.</p> <p>In the Superior Court the case was tried before Sanderson, J.</p> <p>It appeared that on July 24, 1909, the defendants gave to the plaintiff a note signed and indorsed like the note in suit for $550 payable in four months, and that the actual money lent thereon was $450. On April 8,1910, an action was brought by the plaintiff for a balance remaining due on that note. On April 14,1910, the defendants paid the plaintiff $160.50 and gave it the note in suit which was dated March 24, 1910, and was payable in two months from that date. The plaintiff thereupon surrendered the former note and dismissed the action it had brought thereon. Of the $160.50 paid in cash, $100 was to reduce the principal of the former note, $15.50 was to pay estimated costs in the suit brought thereon, and $45 was to pay interest on the new note for the two months that it was to run.</p> <p>At the close of the evidence the defendants asked the presiding judge to rule in substance that the note in suit was a renewal of the former note, and that “at the date of the writ there was due and payable to the plaintiff no more than the original sum actually borrowed, with interest at the rate of eighteen per cent per annum from the time said sum was borrowed . . . until the date of the writ, . . . and a sum not exceeding $5 for the actual expenses of making the loan; but there shall be subtracted from the principal at the date of each payment the sums in excess of such interest paid from time to time.” The rulings were refused.</p> <p>In answer to a question by the judge, the jury found that the note in suit was given as a part of the consideration for the settlement of the action brought by the plaintiff on the former note. Thereupon the judge ordered a verdict for the plaintiff for the amount of $450 with interest from the date of the writ; and the defendants alleged exceptions.</p> <p>Other facts are stated in the opinion.</p>

Tort for personal injuries caused by the plaintiff falling into an excavation in South Street in that part of Boston called Roslindale owing to the excavation not being properly guarded, it being alleged that the defendant had assumed the responsibility of keeping it guarded. Writ dated January 16, 1909. In the Superior Court the case was tried before Brown, J. The material facts are stated in the opinion.

<p>Negligence, Street railway.</p> <p>At the trial of an action by a woman against a street railway company for personal injuries caused by the plaintiff slipping upon some tobacco spit about the size of a silver half dollar upon the step of a car of the defendant as she was leaving the car, if there is no evidence tending to show how or when the tobacco spit came upon the step and none that the conductor knew or had any reason to know of its presence there, it is proper to order the jury to find for the defendant, although the conductor of the car testifies that he recognized it as his duty under the rules of the company to see that no slippery substance was allowed to fall or remain on the steps of the car.</p>

<p>Negligence, In use of highway, Due care of plaintiff, Due care of child.</p> <p>At the trial of an action against a street railway company by a girl six and one half years of age to recover for injuries caused by her being run into by a street car of the defendant as she was crossing a street at its intersection with another street, there was evidence tending to show that the plaintiff was old enough and possessed of sufficient intelligence and experience to be permitted to go upon the street unattended, that, just before she stepped upon the crosswalk she looked up the street to her right, in which direction there was a hill that prevented her seeing more than twelve hundred feet, and saw no car approaching, that from the other direction there was a car coming and that she waited on the edge of the sidewalk until that car had stopped in front of her, when she passed about four feet behind it in crossing the street and was struck by a car which was coming down the hill from her right on the farther track “quite rapidly” and upon which no warning gong had" been rung, that the defendant’s rules required the ringing of a gong at street crossings and in passing a stationary car, and that the plaintiff knew of the custom of sounding gongs under such circumstances. Held, that the question, whether the plaintiff exercised the degree of care which an ordinarily prudent and" careful girl of her age reasonably might be expected to use under like circumstances, was for the jury.</p>

Tort under R. L. c. 106, § 71, cl. 2, for personal injuries alleged to have been received by the plaintiff on May 7, 1908, while in the employ of the defendant as a carpenter at its rubber factory in Chelsea and caused by the negligence of a superintendent of the defendant, one John S. Murray. Writ dated April 8, 1909. In the Superior Court the case was tried before Sherman, J. The material facts in evidence and the course of the trial are stated in the opinion.

<p>Indictment, found and returned on October 3, 1910,. charging the defendants jointly with the murder of Francisco, otherwise known as Frank, Cusumano at Hull on September 18,1910.</p> <p>In the Superior Court the case was tried before Schofield, J.</p> <p>The bill of exceptions stated that at the trial the Commonwealth "introduced evidence tending to show, that Frank Cusumano was killed in his own house, with an axe, by the defendant Harry Marshall, on the eighteenth day of September, 1910, and that the defendant Lena Cusumano, by previous understanding and procurement, was present and assisted in the commission of the act. All of which was contradicted by and in behalf of the defendants.”</p> <p>It appeared that a badly mutilated body of a man which witnesses for the Commonwealth testified was that of Frank Cusumano was found on October 14,1910, at Sunset Point in Hull about three fourths of a mile from the Cusumano home. There was no clothing upon the body except a patchwork quilt, which was fastened around it underneath the arms with telephone wire. The quilt was made of small patchwork pieces of different colors and lined with blue cloth. The Commonwealth introduced evidence tending to show that the quilt was one which formerly had been lying in the back yard of one Martin C. Jacobson, and which Frank Cusumano had taken away from there on a team driven by Walter Jacobson, a son of Martin, and that it had been on a bed in the Cusumano home before the murder. The defendants denied that the body found was that of Frank Cusumano and also that the quilt had ever been in the possession of Frank Cusumano or of the defendant Lena.</p> <p>Walter Jacobson, between fifteen and sixteen years of age, testified that he was present at Sunset Point after the body was found and that he noticed the quilt; that “it was the quilt, or just like the quilt,” which Frank Cusumano had taken from his father’s back yard to his own home. In cross-examination in reply to inquiries made by the defendants, “in an effort to show with other things that the witness was then testifying under the influence of” the police officer who was in charge of the case and was present in the court room, the witness stated that the officer had talked with him about the quilt and had shown it to him about two weeks after the body was found and had asked him about it, and that all he did was to shake his head. He also testified in cross-examination that it did not occur to him until he was walking home from having seen the body that the quilt was the same that he had seen Frank Cusumano take from his father’s back yard. On redirect examination, subject to exceptions by the defendants, he was allowed to testify “that after seeing the body and quilt on the beach, and before Reynolds [the police officer] talked with him, he went home to dinner and said to his father, in his stepmother’s presence, ‘The quilt that was lying near the body was like the quilt which lay on the ties, and they may bring you up for the murder.’” Martin C. Jacobson then was recalled and was allowed to testify, against the defendants’ objection, that upon the day of the finding of the body after he and Walter came home and sat down to dinner, Walter said, “Why, pa, that quilt came from our place, and if they find it out they will say you killed Frank;” and the step-mother, Elizabeth Jacobson, against the defendants’ objection was allowed to testify to the same conversation, which she gave in the following language: “Walter said, ‘Pa, that is the quilt that was in our yard. If it is Frank they might say you lulled him.’”</p> <p>It appeared that Frank and Lena Cusumano had three children, the oldest of whom was between nine and ten years of age, Accusia Cusumano. She was called to testify by the Commonwealth. Before she was sworn, the defendants’ counsel stated, “I think she should be examined as to whether or not she knows the nature of an oath.” Questioned by the presiding judge in English out of the hearing of the jury, the witness stated that she could not talk English, and showed that she understood but little. The following examination through an interpreter then occurred: “Q. [Through interpreter.] When were you nine years old? A. Last month. — Q. What day of the month? A. No. — Q. How many brothers and sisters have you? A. Two sisters. — Q. How old are they? A. I don’t know. — Q. Do you know what it is to take an oath? [The interpreter raised his hand when this question was asked.] A. [Witness nodded.] Q. Have you ever been to church? A. When I was in Boston, yes. — Q. How long, did you go to church? A. All the Sundays. — Q. Did you learn about God? A. [Witness shook her head in the negative.] — Q. If you don’t tell the truth, what do you think will be done to you? A. God will punish us and send us to hell.” The witness then was sworn and gave testimony material to the case of the Commonwealth.</p> <p>' The jury found both defendants guilty of murder in the first degree; and the defendants alleged exceptions.</p>

<p>Joint Tortfeasors. Covenant, Not to sue. Release. Accord and Satisfaction. Practice, Civil, Discontinuance.</p> <p>In an action of tort against three joint tortfeasors, covenants not to sue given by the plaintiff to two of the defendants do not release the third defendant from liability.</p> <p>In an action of tort for personal injuries against three defendants sued as joint tortfeasors, where it appears that covenants not to sue have been given by the plaintiff to two of the defendants upon the receipt of certain sums of money from them, the question whether the plaintiff accepted the money so paid in full satisfaction of all injuries caused by the accident is one of fact for the jury on the evidence presented.</p> <p>In an action of tort against three alleged joint tortfeasors, the plaintiff’s discontinuance of the action as against two of them does not affect the liability of the third.</p>

<p>Negligence, Employer’s liability.</p> <p>At the trial of an action at common law by an employee against Ms employer to recover for personal injuries due to the plaintiff’s leg coming in contact with a nail wMch projected half an inch from the end of a mahogany board protruding six or eight inches into a passageway between piles of lumber along wMch the plaintiff was passing in assisting Ms employer to take account of stock, it appeared that the plaintiff was an experienced workman and at one time had been a foreman in the room where the alleged injury was received, that in taking account of stock it was necessary for two men to move each board from one pile to another, that mahogany boards had cleats nailed across their ends to prevent them from splitting and that the plaintiff knew that such cleats frequently were knocked off leaving nails exposed. Held, that the plaintiff could not recover, because the alleged injury was due to an obvious risk of the employer’s business wMch the plaintiff had assumed; and because there was no evidence of negligence of the employer.</p>

<p>Tort at common law for personal injuries sustained by the plaintiff while in the employ of the defendant at its candy factory, as stated in the opinion. Writ dated May 6, 1908.</p> <p>In the Superior Court the case was tried before Dana, J. The facts in evidence are stated in the opinion.</p> <p>The testimony of experts, referred to in the last paragraph of the opinion, which was admitted subject to exceptions by the defendant, was as follows: One Fairbairn, an expert testifying for the plaintiff, was asked in direct examination, “Assuming that this machine here is a candy cutting machine with nothing on the apron at all, and that caramel candy is to be cut into lengths on that machine, by placing that caramel candy on trays on the front end of the machine, what, if anything would be reasonably necessary to insure safety in the use of that machine? ” He answered, “A safety guard.” One Gillis, a witness for the defendant, was asked in cross-examination, “It is perfectly practicable, is it not, to have a guard across, — a stiff guard across from upright to upright in front of these knives?” He answered, “It is.”</p> <p>At the close of the evidence, the defendant asked the presiding judge to rule that, on all the evidence the plaintiff was not entitled to recover, and as follows:</p> <p>“ (6) The danger of having her hand caught under the revolving knives even if she were not set to work upon the machine, was an obvious one. The mere fact that the plaintiff could not tell the exact degree of danger if the nature of it can be readily seen is not enough to require warning and instruction to a person of the plaintiff’s intelligence.”</p> <p>“ (10) There is no evidence of any defect in the condition of the caramel cutter.</p> <p>“ (11) There is no evidence of any hidden or concealed danger in the operation of the machine.</p> <p>“(12) The tendency of a canvas belt to increase its speed in passing over a revolving roller when the belt is pressed down is obvious to any person of average intelligence.</p> <p>“ (13) In view of the length of time the plaintiff had been at work in the vicinity of the caramel cutter she must be assumed to have been familiar with the dangers incident to its operation.</p> <p>“ (14) It appears on all the evidence that the plaintiff’s regular occupation was to put the candies into trays, and the defendant had no reason to suppose that she would ever attempt to operate the machine, and was therefore under no duty to warn her of dangers incident to its operation.</p> <p>“ (15) Even if the plaintiff’s testimony that McDonald left the machine and told her to see that the candy then on the machine went straight is believed, she cannot recover; for the proximate cause of the accident was the negligence of a fellow servant.</p> <p>“ (16) The defendant is not liable, if McDonald told the plaintiff to watch and see that the candy then on the machine went straight. The plaintiff was not hired to do this work and was acting outside the scope of her employment, even if induced to do so by the direction of a fellow servant.</p> <p>“ (17) The defendant did not set the plaintiff to work upon the machine and is not liable for the act of a fellow servant of the plaintiff in directing her temporarily to act as his substitute.”</p> <p>The rulings were refused.</p> <p>The presiding judge, subject to an exception by the defendant, left it to the jury to determine whether the Mrs. Talbot referred to in the opinion had such authority as would justify her in authorizing the plaintiff to obey orders of McDonald.</p> <p>That part of the charge, referred to in the opinion, which referred to a guard upon the machine, was in substance as follows: “On the question of the machine being an unsuitable machine to be furnished to the plaintiff, and on the necessity of a guard, the law is as follows: The defendant is bound to furnish suitable machines. The defendant is not bound to furnish any particular kind of machinery, or the best, or the safest; but the defendant is bound to use reasonable care to provide a suitable machine; and, in this case, if this plaintiff had been warned of this danger, or told of this defect, the defendant had the right to use this machine, and would not be bound to use some other or different machine, even if that machine would be safer; but, if the defendant chose to use this machine, then, on the question of whether the machine was defective or not, if the plaintiff did not know of the danger or defect, that is to say, the danger or defect was hidden, then there would be a duty on the part of the defendant, if the defect or danger was not obvious, to furnish a machine that on the whole was reasonably safe; ... Of course, if the risk or danger was obvious, there was not any liability on the part of the defendant; and, if the danger or defect was hidden within the definition that I have given, then there was the duty on the part of the defendant either to give a warning of the defect or danger, or else to see to it that the machine furnished was reasonably suitable under all the circumstances for the purpose for which it was furnished.”</p> <p>At the close of the charge the presiding judge read to the jury a ruling as to damages which the plaintiff previously had asked for, stating to them before doing so, “in reading this I do not want you to understand that I intend to call specific attention to any particular portion of the case so as to give it an undue prominence."</p> <p>The jury found for the plaintiff in the sum of $8,000, of which amount the plaintiff remitted $2,000 in accordance with an order of the presiding judge directing that she should do so, or that there should be a new trial. The defendant alleged exceptions.</p>

<p>Bill m equity, filed in the Supreme Judicial Court on May 19, 1911, by the trustee under the will of Michael Shepard, late of Salem, who died on October 10, 1856, for instructions as to the distribution of one sixth part of the residue of the estate of the testator.</p> <p>The case came on to be heard before Morton, J., who at the request and with the consent of all parties interested reserved it upon the bill and answers for determination by the full court.</p> <p>The whole of that portion of the will which disposed of the residue of the estate of the testator was as follows:</p> <p>“And as to all the rest residue & remainder of my estate & property, real & personal, of every name and nature, I hereby give devise & bequeath the same as follows viz.</p> <p>“I give devise & bequeath one undivided sixth part thereof unto my son Thomas Perkins Shepard To have & to hold the same to him his heirs & assigns forever.</p> <p>“I give devise & bequeath one sixth part thereof unto my son Michael Webb Shepard, To have & to hold the same to him, his heirs & assigns forever.</p> <p>“I give devise & bequeath one sixth part thereof unto my son Henry Fairfax Shepard, To have & to hold the same to him, his heirs and assigns forever.</p> <p>“I give devise & bequeath unto Thomas Perkins Shepard, Michael Webb Shepard and John B. Silsbee one sixth part of said residue, To have & to hold the same to their heirs and assigns, upon the following trusts to wit; That my said trustees shall pay over the net annual income thereof to my daughter Harriet C. Bolles wife of Matthew Bolles of Boston, every year during her natural life, and upon her decease leaving issue my said trustees shall appropriate so much of said annual income as shall be necessary for the support and education of her children until they shall arrive at the age of twenty one years, & shall divide & pay over the principal of said sixth part to and among said children as they respectively arrive at that age, in equal portions to their use & benefit forever. And if my said daughter shall decease leaving no issue, then my said trustees shall pay over the said one sixth part equally among her heirs according to law. And the seperate receipt of my said daughter shall be a full discharge to my said trustees, said payments being made for her sole and seperate use. •</p> <p>“I give devise & bequeath unto T. P. Shepard, N. Webb Shepard and Jno. B. Silsbee one sixth part thereof, to have and to hold the same to them and their heirs and assigns upon the following trusts, to wit, that my said trustees shall pay over the net annual income thereof to my daughter Martha M. Silsbee wife of John B. Silsbee of said Salem, during her natural life; and at her decease leaving issue, if said issue shall be under age at the time of her decease, my said trustees shall appropriate so much of said annual income as shall be necessary to their support and education until they shall arrive at the age of twenty one years, and shall divide and pay over the principal of said sixth part to and among said issue, as they respectively arrive at that age, in equal portions to their use and benefit forever. And if my said daughter shall decease without issue, then my said trustees shall pay over said income to my said daughters said husband, during his natural life; and upon his decease the principal shall be divided among her heirs according to law. And the seperate receipt of my said daughter shall be a full discharge to my said trustees; said payments being for her sole & seperate use.</p> <p>“I give devise & bequeath the other sixth part of said residue unto Thos. Perkins Shepard, Michael Webb Shepard, Henry F. Shepard & John B. Silsbee, To have & to hold the same to them & their heirs and assigns upon the following trust, viz. That the said trustees shall apply & appropriate so much of the net income of said one sixth part of said residue as may be necessary for the maintainance and education of my son George Leonard Shepard until he arrives at the age of twenty one years, and shall upon his arriving at that age pay over, the full amount of said one sixth part of said residue, and any accumulation of interest, To have & to hold the same to him & his heirs & assigns forever. And if my said son shall decease before arriving at the age of twenty one years, then the whole of the sixth part of said residue, together with any accumulation of interest, as devised & bequeathed for the benefit of such son shall be equally divided among his heirs according to law.”</p>

<p>Equity Pleading and Practice, Motion of plaintiff to have bill dismissed, Master’s report.</p> <p>After a suit in equity has proceeded to a final hearing before a master, who has submitted to the counsel a draft report containing findings in favor of the defendant, the plaintiff has no right, against the objection of the defendant, to - have his bill dismissed on payment of costs. ■</p>

<p>Municipal Corporations. Notice. Statute, Construction.</p> <p>Under St. 1909, c. 514, § 23, a contractor or subcontractor who has furnished material for the construction of a school house under a contract made in behalf of a city by its mayor and its committee on city property, in order to obtain the advantage of the security provided for by the statute, must file a sworn statement of his claim within the required time “with such officers or agents” and a filing of his claim with the city treasurer is not a compliance with the statute.</p>

<p>Bill in equity, filed in the Superior Court as amended on November 10,1910, for an accounting.</p> <p>The case was heard by Pierce, J., who, upon a question raised by the defendant during the hearing, ruled “that it was open to him, in case he found that the plaintiff was entitled to an accounting, also on the same trial to determine what amount, if any, the plaintiff was entitled to recover.” At the close of the evidence, the defendant asked the judge to make the following ruling: “Upon this hearing the only decree for the plaintiff that can be entered is a decree ordering an accounting or corresponding to the other prayers of the bill, and a decree for the payment of an amount of money as found due from the defendant to the plaintiff is not proper.”</p> <p>The judge refused to make this ruling. He found for the plaintiff in the sum of $932.60; and the defendant alleged exceptions.</p>

<p>Equity Pleading and Practice, Decree dismissing bill without prejudice.</p> <p>Upon a writ containing a bill in equity seeking to restrain the sale or transfer of certain securities which had been placed in the possession of the defendant by the plaintiff and upon which the defendant claimed a lien for a sum due him, an attachment of real estate of the defendant was made, various banks were summoned as trustees and a temporary injunction restraining the defendant as prayed for in the bill was issued. Thereafter the defendant offered to deposit the securities in court and moved that the attachments be dissolved. After negotiations between the parties, an interlocutory decree was entered by consent that, upon the delivery to the defendant by the plaintiff of a bond with a proper surety conditioned upon the plaintiff’s paying to the defendant any indebtedness for which it should be determined in the suit that the defendant had a lien upon the securities, the defendant should deliver them to the plaintiff. This decree was performed by both parties. Thereafter, on motion of the plaintiff and against objection by the defendant, a decree was entered dismissing the bill without prejudice and with costs to the defendant, and the defendant appealed. Held, that the decree dismissing the bill should be reversed, as the defendant had acquired a right to have the suit proceed to a final determination.</p>

Bill in equity against Jacob Cohen, William A. Gove and Robert J. Gove, filed in the Superior Court on June 20,1910, alleging in substance that the defendant Cohen and the plaintiff made a contract in writing for the erection by Cohen for the plaintiff of a building according to certain plans and specifications, that in accordance with the terms of the contract the plaintiff mortgaged the premises to Cohen to secure a note for $5,000, the contract price; that Cohen assigned…

<p>Contract, Construction.</p> <p>An agreement made on July 3, 1899, by the grantor in a deed of a lot of land "to pay any assessment which may lawfully be made under” a vote of the board of street commissioners of Boston in 1895 to widen and extend Huntington Avenue in accordance with the provisions of St. 1894, c. 416, “for payment of which any lien now exists on said lot,” is not an agreement to pay an assessment for a betterment tax made under the provisions of St. 1902, c. 527, after assessments made for the work under St. 1894, c. 416, had been declared invalid; because the word “lien” as used in the agreement referred to a lien existing when the agreement was made, and the lien created by St. 1902, c. 527, did not arise until after the agreement was made.</p>

<p>Three actions of contract upon a bond given by one Ambrose B. Stannard and five surety companies, three of whom were, respectively, the defendants, conditioned upon the faithful performance by Stannard of a contract for the construction of the Museum of Fine Arts on Huntington Avenue in Boston. Writs dated March 21, 1910.</p> <p>The cases were referred to Charles E. Shattuck, Esquire, as auditor. After the filing of the auditor’s report they were heard together by Lawton, J., without a jury. The material facts are stated in the opinion.</p> <p>At the close of the evidence the defendants in the respective actions asked for the following rulings:</p> <p>" (1) On all the evidence the plaintiff is not entitled to recover on its first count.</p> <p>" (2) On all the evidence the plaintiff is not entitled to recover on its second count.”</p> <p>"(7) Upon all the evidence it appears that if the defendant might otherwise have been liable upon the bond, such liability has been discharged and released by reason of the dealings between Stannard and the Museum of Fine Arts fully set forth in the auditor’s report, said dealings being without the knowledge or consent of the defendant surety.</p> <p>“ (8) The loan to Stannard by the Museum of Fine Arts of the sum of $5,000 in consideration of Ms note for the same amount, said amount not then being due from the Museum of Fine Arts to the said Stannard nor paid to him under the written certificate of the arcMtect as required by the contract, said payment and arrangement being without the knowledge or consent of the defendant surety company, operated as a discharge of the defendant’s liability upon the bond! and the plaintiff is not entitled to recover on said bond.</p> <p>“ (9) The agreement to pay and the payment to Stannard, without the knowledge or consent of the defendant surety company, of the sum of $1,000 per month for a period of six months and a half, operated as a discharge of the defendant’s liability upon the bond and the plaintiff is not entitled to recover on said bond.”</p> <p>“(11) The $5,000 loaned to Stannard by the Museum of Fine Arts in exchange for wMch Ms note was taken, cannot, as against this defendant, be charged to the cost of the work.</p> <p>“(12) Inasmuch as the plaintiff still retains in its possession uncancelled, the note given by Stannard in consideration of the $5,000 loaned to him, said note must be taken to have been received in payment of the loan and as to the amount thereof, the plaintiff’s oMy claim is against Stannard and it is not entitled to charge the amount of said note to the cost of the bmlding.</p> <p>“ (13) The $6,500 paid by the plaintiff to Stannard for his . services in superintending the work after it was taken over by the plaintiff, cannot be charged to the cost of the bmlding in view of the fact that in the agreement of June 2, 1908, Stannard agreed to perform such work without stipulating for any compensation, and further, in view of the fact that such agreement for compensation was made without the knowledge or consent of the defendant surety.”</p> <p>“ (15) The amount of $2,040.66 paid as premiums for liability insurance, cannot be charged to the cost of the building and the auditor’s ruling to the contrary was erroneous.”</p> <p>The rulings were refused. The judge found that the plaintiff was entitled to judgment in each action in accordance with the terms of the bond, and ordered executions as follows: against the defendant in the first action in the sum of $7,066.29, against the defendant in the second action in the sum of $23,554.30, and against the defendant in the third action in the sum of $14,132.58, with interest in each case from December 21, 1909.</p> <p>With the consent of the parties, the cases were reported for determination by this court under the following agreement: “If the ruling that the plaintiff is entitled to recover is correct, judgment is to be entered in each case for the penal sum of the bond, execution to issue for the respective amounts found due with interest thereon from December 21, 1909, provided that if as matter of law, any of the items objected to by the defendants should, on the evidence and facts reported, have been disallowed, or if the law and the evidence require or warrant the allowance of either of the additional items claimed by the plaintiff, then in either such case, execution is to issue for such smaller or larger amount as the Supreme Judicial Court shall therefore decide that the plaintiff is entitled to on the law and the evidence. If the plaintiff is not entitled to recover, then judgment is to be entered for the defendant in each case.”</p>

<p>Tort for personal injuries received by the plaintiff, while a passenger in the rear car of a train of the defendant, caused by an engine running into the train from the rear. Writ dated April 15, 1909.</p> <p>The case was tried before Dubuque, J.</p> <p>At the time of the trial the declaration contained only general allegations as to damages. The plaintiff was allowed by the judge to offer the evidence of special damages described in the opinion, the defendant objecting, but not on any ground relating to the pleadings.</p> <p>Other facts are stated in the opinion.</p> <p>The jury found for the plaintiff in the sum of $5,000; and the defendant alleged exceptions.</p>

<p>Tax, On successions and inheritances.</p> <p>Under St. 1907, c. 563, § 1, now St. 1909, c. 490, Part IV, § 1, relating to the taxation of legacies and successions, in determining whether a “bequest, devise or distributive share of an estate” exceeds in value the limit of exemption fixed by the statute, the tax commissioner of the Commonwealth has no right to take into account the amount received by the legatee, devisee, or distributee from property situated in another State.</p>

<p>Practice, Civil, Appeal.</p> <p>After the decision of this court in Lemay v. Springfield Street Railway, reported in 210 Mass. 63, the Superior Court allowed the plaintiffs to amend their declarations by adding in each case a count alleging that the injuries sued for were caused by a defect in a car of the defendant and a failure to inspect it properly. Thereupon by the terms of the conditional rescripts of this court the defendant’s exceptions were overruled, and in the Superior Court judgments were entered on the verdicts for the plaintiffs. The defendantappealed from the judgments. Held, that, if it were assumed that the question, whether there was any evidence of a defect or of a failure to inspect, was open to the defendant on its appeals, that question was decided against the defendant when the cases were previously before this court.</p>

<p> Marriage and Divorce. Superior Court, </p> <p>Review by Rugg, C. J., of the successive statutes of this Commonwealth authorizing a decree for alimony after the entry of a decree of divorce.</p> <p>Where a decree for an absolute divorce was made in favor of a wife against a nonresident husband, who received notice of the proceedings only by mail and did not appear and whose property was not attached, the Superior Court under R. L. c. 152, § 30, although it had no jurisdiction to grant alimony when the decree for the divorce was made, has jurisdiction to grant a petition of the libellant for alimony which was filed after the libellee had become a resident of this Commonwealth and was served upon him personally.</p>

<p>Tort for personal injuries sustained by the plaintiff from being struck by a street car of the defendant on June 11, 1908, when the plaintiff was walking across Huntington Avenue in Boston at its intersection with Buggies Street. Writ dated July 18, 1908.</p> <p>In the Superior Court the case was tried before DeCourcy, J. The facts which could have been found upon the evidence are stated in the opinion. At the close of the evidence, the judge ordered a verdict for the defendant, and reported the case for determination by this court. If the ruling of the judge was wrong, a new trial was to be ordered; otherwise, judgment was to be entered on the verdict.</p>

<p>Contract, by the members of a partnership doing business in Boston, against the members of a partnership doing business in Baltimore in the State of Maryland, for the price of merchandise alleged to have been sold by the plaintiffs to the defendants. The Merchants and Miners Transportation Company, a corporation organized under the laws of the State of Maryland and having a usual place of business in Boston, was named in the writ as trustee and was served as such trustee on August 4, 1910. No service was made on the defendants. The writ was dated August 3,1910.</p> <p>The answer of the alleged trustee admitted the receipt on August 3 and 4, 1910, of certain cases said to contain boots, shoes and rubbers at its terminal in Boston for transportation to Baltimore, that all the goods received on August 3 were on its wharf at the time of the service of the plaintiff’s writ upon it, and that all of the goods were consigned to the defendants, at Baltimore. The answer concluded as follows: “All of said goods were received by the alleged trustee for immediate transportation from said Boston to said Baltimore. On the respective dates said goods were received by the alleged trustee, it issued through bills of lading covering the transit of the same from Boston to Baltimore. The alleged trustee, therefore, says that such of the goods above mentioned as may have been in its hands or possession at the time of the service of the plaintiffs’ writ were in its hands or possession for the purpose of being transported from said Boston to said Baltimore, and were strictly articles of interstate commerce and were held by it strictly in its capacity of an interstate carrier, so that the same were not attachable in this proceeding.”</p> <p>In the Superior Court the case came on to be heard by Richardson, J., upon a motion of the plaintiffs to charge the alleged trustee. At the hearing on this motion “it was agreed by counsel for the purposes of the motion that title to the goods mentioned in the alleged trustee’s answer was in the defendants.”</p> <p>The alleged trustee asked for thirteen rulings, which concluded as follows:</p> <p>“ 10. Upon the facts now appearing the alleged trustee must be discharged.</p> <p>“11. Upon the facts now appearing an order charging the alleged trustee would constitute an impairment of the obligation of the contract of carriage existing between the alleged trustee and the consignees of the goods contrary to the Constitution of the United States, so that the alleged trustee must be discharged.</p> <p>“12. Upon the facts now appearing an order charging the alleged trustee would deprive it of its property without due process of law contrary to the Constitution of the United States and to the Fourteenth Amendment thereof, so that the alleged trustee must be discharged.</p> <p>“13. Upon the facts now appearing an order charging the alleged trustee would constitute an interference with interstate commerce contrary-to the laws and the Constitution of the United States, so that the alleged trustee must be discharged.”</p> <p>The judge refused to make any of the rulings requested by the alleged trustee, and made the following order:</p> <p>“It being agreed in open court that the title to the property described in the answer of the Merchants and Miners Transportation Company was in the defendants, it is ordered that the Merchants and Miners Transportation Company be charged upon its answer as trustee of the defendants for all the merchandise, described in its answer, delivered and in its possession before and at time of the service of the plaintiff’s writ, subject to the trustee’s rights for charges, expenses or liens, if any, it may have upon or on account of said merchandise by reason of any contract or agreement for the transfer of the same according to R. L. c. 189, § 60, or otherwise.”</p> <p>Being of opinion that this order ought to be determined by this court before any further proceedings in the Superior Court, the judge, at the request of the alleged trustee and with the assent of the plaintiffs, reported the case for such determination.</p>

<p>Six actions of tort, described in the opinion, each to recover for personal injuries suffered by reason of the falling upon the plaintiff of a cellar wall in process of construction in Waltham. The writs in the actions in which John Burke was the plaintiff were dated June 23, 1909. In the other actions against the members of the firm of McArthur Brothers the writs were dated July 9, 1909, and in those against the members of the firm of Hodge, Kerr and Company the' writs were dated April 4, 1910.</p> <p>In the Superior Court the cases were tried together before Wait, J. The seventeen questions submitted to the jury and the answers thereto were as follows:</p> <p>1. “Were Perone, Domeo and Burke each in the exercise of due care? If any were not, who?” Answer, “Yes.”</p> <p>2. “Did either Perone, Domeo or Burke assume the risk of the falling of the wall? If either did, who?” Answer, “No.”</p> <p>3. “Was John Burke a superintendent or one whose sole or principal duty was superintendence?” Answer, “No.”</p> <p>4. “What was the proximate cause of the accident?” Answer, “Removing of the forms.” ,</p> <p>5. “Were McArthur Bros, negligent in constructing forms or braces?” Answer, “No.”</p> <p>6. “Were McArthur Bros, negligent in removing forms or braces?” Answer, “Yes.”</p> <p>7. “Were Hodge, Kerr & Company negligent in constructing forms or braces ? ” Answer, “No.”</p> <p>8. “Were Hodge, Kerr & Company negligent in removing forms or braces ? ” Answer, “Yes, in removing one brace on retaining wall.”</p> <p>9. “Were Hodge or Kerr negligent in making of concrete for the part of the wall which fell ?” Answer, “Yes. Kerri”</p> <p>10. “Did the wall fall in consequence of removal of supports by McArthur Bros.?” Answer, “Yes.”</p> <p>11. “Did the wall fall in consequence of removal of supports by Hodge, Kerr & Company?” Answer, “No.”</p> <p>12. “Did the wall fall in consequence of improper making of concrete, in the constituents, or mixing ?” Answer, “Yes.”</p> <p>13. “Were the plaintiffs Perone or Burke, or either of them, negligent in the mixing of the concrete ?” Answer, “No.”</p> <p>14. “Were the plaintiffs or any of them injured in consequence of a negligent failure to warn them, or him, of danger from a falling wall?” Answer, “No.”</p> <p>15. "What are the damages of Burke?” Answer, “$2,700.”</p> <p>16. “What are the damages of Perone?” Answer, “$250.”</p> <p>17. “What are the damages of Domeo ?” Answer, “$350.”</p> <p>After questioning the jury orally and receiving the answers of certain of the jurymen, as stated in the opinion, the judge ordered verdicts for Burke in each of the actions in which he was plaintiff for $2,700, for Perone in each of his actions for $250 and for Domeo in each of his actions for $350; and the defendants severally alleged exceptions.</p>

<p>Petition, filed on June 8,1911, for a writ of certiorari, directing the mayor and the members of the board of aldermen and of the common council of Cambridge to quash proceedings with regard to the laying out of an extension of Waverly Street from Erie Street to Pacific Street in that city.</p> <p>The case was reserved for the full court by Morton, J., upon the pleadings and an agreed statement of facts. The facts are stated in the opinion.</p>

<p>Petition,' filed December 16,1907, to enforce a mechanic’s lien for labor performed and furnished for the respondents under an entire contract in writing for knocking down a stack and building four sixteen-inch chimneys.</p> <p>The case was tried before Sherman, J., upon issues agreed upon by the parties, on each of which the jury found for the petitioner. At the request of the respondents the judge reported the case for determination by this court.</p>

<p>Tort under R. L. c. 51, § 18, for personal injuries alleged to have been suffered by the plaintiff by reason of a defect in Wen-ham Street in Boston on May 18,1909. Writ dated June 29, 1909.</p> <p>The case was tried in the Superior Court before Sherman, J., on April 26 and 27, 1911. The presiding judge refused to instruct the jury that, in ascertaining the damages to which the plaintiff was entitled, they might add to what would be a fair compensation for the injury interest for the time during which the plaintiff was delayed by having to enforce her claim by bringing an action. The jury found for the plaintiff in the sum of $350; and the plaintiff alleged exceptions.</p>

<p>Way, Private. Adverse TJse. Railroad. Words, “Occupancy.”</p> <p>The acquisition by an adverse user extending from 1868 to 1908 of a right of way running longitudinally over and along a portion of the land comprised in the location granted to a railroad corporation by county commissioners in 1845 is not prevented by St. 1861, c. 100, which remained in force and is now contained in St. 1906, c. 463, Part II, § 80, and which provided that if a landowner occupied “for the purpose of cultivation or otherwise, any land belonging to or included within the location of any such railroad, no continuance of such . . . occupancy of the land . . . shall create in such adjoining owner . . . any right to the land . . . so . . . occupied.”</p>

<p>Four petitions, filed in the Superior Court under St. 1909, c. 490, Part I, § 77, the first by the executors of the will of Quincy A. Shaw, late of Boston, and the other three by the same persons as trustees under that will, appealing from the refusals of the assessors of the several respondents to abate taxes on personal property assessed as of April 1,1910.</p> <p>The cases came on to be heard before Jenney, J., upon the petitions and answers and agreed statements of facts. The judge ruled that the petitioners in the first case were not entitled to any abatement and that in each of the other cases the petitioners were entitled to an abatement. He found for the respondent in the first case and for the petitioners in the other cases, and at the request of the parties reported each of the cases for determination by this court.</p>

<p> Attorney at Law. Disbarment Proceedings. </p> <p>A proceeding for disbarment is an exercise by the court of its jurisdiction to deal with the alleged misconduct of an officer of the court, and an incorporated bar association which is the petitioner in such a proceeding is not a party to a suit but merely calls the attention of the court to the alleged misconduct of the attorney, so that honorary membership in the petitioning association does not disqualify a judge from sitting in the case.</p>

<p>Trust, Duties of trustee.</p> <p>Where a trust company holds as trustee assignments of mortgages of real estate to secure the debenture bonds of an investment company, under a trust agreement which explicitly prescribes the duties of the trustee and provides, as the only requirement in regard to recording the assignments of mortgages, that upon default by the investment company the trustee, upon the request in writing of the holders of a majority of the bonds in default, shall record at once “all unrecorded assignments to it of mortgages held by it under the provisions thereof,” and shall take all necessary steps to convert into cash the securities held by it to secure the payment of the bonds in default, and further provides that the trustee “shall be responsible only for gross negligence or wilful default,” the trustee is not liable to the bondholders for a loss suffered from the fraudulent acts of officers of the investment company in discharging some of the mortgages and misappropriating the proceeds for their own use, which were made possible by the failure of the trustee to record the assignments of these mortgages when no request to do so had been received by it from the holder of any of the bonds.</p>

<p>Appeal from a decree of the Probate Court for the County of Middlesex on a petition under St. 1905, c. 326, asking for the appointment of trustees and the distribution among them of a trust estate held by the respondent Edward E. Adams, as trustee under the will of George S. Adams, late of Belmont, for the benefit of George Franklin Adams and others.</p> <p>The appeal was heard upon an agreed statement of facts by Hammond, J., who made a final decree “that the decree of the Probate Court appealed from and dated February 13, 1911, declaring that George Franklin Adams is an absentee within the meaning of chapter 326 of the Acts of the year 1905 and ordering that the funds in the hands of Edward E. Adams, trustee under the will of George S. Adams, deceased, be transferred in equal shares to Alfred A. Adams, Emily P. Robbins and Edward E. Adams, is hereby affirmed and the case remitted to the Probate Court for further consideration.”</p> <p>The respondent Edward E. Adams, trustee, appealed. The guardian ad litem for George Franklin Adams and others, also appealed.</p>

<p>Bill in equity, filed in the Probate Court for the County of Middlesex on August 3,1909, and amended on May 15, 1911, by the administrator with the will annexed of the estate of Lennette A. Woodbury, late of Cambridge, for instructions.</p> <p>The bill was filed as such administrator by George E. Wood-bury, the father of the testatrix. He died on March 17, 1910, and Frederick G. Roby was appointed administrator with the will annexed in his place. On May 15, 1911, an amendment to the bill was allowed by the Probate Court substituting Frederick G. Roby as plaintiff and making the administrator of the estate of George E. Woodbury a defendant, also making Joseph O. Hayden a defendant as trustee under the will of Lennette A. Woodbury, he previously having been a defendant only personally.</p> <p>In the Probate Court Melntire, J., made a decree that the defendant “Joseph O. Hayden took the residue of the property and estate of said deceased upon a trust, to use and apply the same as far as necessary for the support and maintenance of Almira Augusta Woodbury, during her life; that said Almira Augusta Woodbury, the beneficiary under said trust, has deceased, leaving an unexpended balance of the trust fund so created; and that such unexpended balance remaining after the termination of the life estate was not disposed of by said will but devolves, under a resulting trust, upon the heir at law and next of kin of the said testatrix.”</p> <p>Joseph O. Hayden individually and as trustee appealed.</p> <p>The appeal came on to be heard before Sheldon, J., who reserved the case upon the pleadings and an agreed statement of facts for determination by the full court.</p> <p>The facts are stated in the opinion. The will was as follows:</p> <p>“Know all men by these presents that I, Lennette A. Woodbury of Cambridge in the County of Middlesex and Commonwealth of Massachusetts, being of sound and disposing mind make this my last will and testament. After the payment of my just debts and funeral charges I give devise and bequeath to Maude Mary Barnes of Somerville County and State aforesaid, lot number 3019 Willow Path Cambridge Cemetery. The balance of my estate both real and personal I bequeath to Joseph O. Hayden, of Somerville County and State aforesaid. The same to be used as far as necessary for the support and maintenance of my Aunt Almira Augusta Woodbury of Cambridge County and State aforesaid</p> <p>“ In testimony whereof I hereunto set my hand and seal this fifth day of February A. D. 1907.”</p>

<p>Petition against the Commonwealth, filed in the Supreme Judicial Court on May 22,1911, by the Greenfield Savings Bank, through the bank commissioner of the Commonwealth, under St. 1909, c. 490, Part III, §§ 70, 71, for the sum of $4,302.07 paid by the petitioner, which was assessed as a tax under § 21 of the same Part of the same chapter computed upon the average amount of its deposits for the six months preceding November 1, 1910.</p> <p>The case came on to be heard before Sheldon, J., who at the request of the parties reserved it upon the petition, the answer of the Commonwealth and an agreed statement of facts for determination by the full court.</p>

<p>Bill in equity, filed in the Superior Court on July 2, 1908, and a supplemental bill filed on May 3, 1911, to enforce an agreement to pay rent for an easement of light and air under the terms of an indenture described below. By an order made upon the supplemental bill Moses Williams, Jr., and Francis R. Bangs were made defendants as the trustees of the Old South Building Association and as such trustees the successors to all the property and rights previously held by the trustees of the Old South Building Trust.</p> <p>In the Superior Court the case was heard by Pierce, J., on the bill, answer and replication, and the supplemental bill, the allegations of which the defendants admitted to be true. The judge filed a memorandum as follows: “After a view and a consideration of the testimony introduced at the hearing I find as a fact that the conditions upon which the defendants were granted the right to have a possible readjustment and diminution of rent through arbitration have not become existent. I further rule as a matter of law upon the testimony that the plaintiff is entitled to the relief prayed for. A claim may be prepared accordingly.”.</p> <p>By order of the judge a final decree was entered, by which the defendants Moses Williams, Jr., and Francis R. Bangs as trustees of the Old South Building Association were ordered to pay to the plaintiff the sum of $22,558.73. The defendants appealed. The evidence was reported by a commissioner appointed under Equity Rule 35.</p> <p>The indenture containing the agreement sought to be enforced was made on December 20, 1902, between the Old South Association in Boston, a corporation created by St. 1877, c. 222, as party of the first part, and the then trustees of the Old South Building Trust under an indenture of trust dated March 1, 1902, as party of the second part.</p> <p>The paragraphs containing the material provisions were as follows: “That the said party of the first part doth hereby grant unto the said party of the second part an easement of uninterrupted light and air over the premises hereinafter described above the level of the grass plot on the northerly side of the tower of the Old South Meeting House and the right to project over not exceeding five feet of said premises and to maintain thereover cornices window-sills, blinds, shutters, window-sashes, awnings and like projections on and from the southerly wall of a building on Washington Street in said Boston now in the course of construction for the party of the second part.</p> <p>“The premises above referred to and over which said easements are granted are situated in said Boston and bounded as follows: Westerly on Washington Street; northerly by land held by the party of the second part for a term of years under said Indenture of Trust ninety-seven and 3/10 (97.3) feet; easterly by the same and southerly by a line coincident with the northerly face of the northerly side wall of the Meeting House extended in a straight line to said Washington Street. The right to maintain eaves, cornices and other ordinary projections of said side wall and to use blinds, shutters and awnings thereon is reserved.</p> <p>"The easements and rights above granted are to begin on the first day of April 1903 and are to continue until the first day of May 1977 provided however that if during the period of this grant the said Meeting House shall be damaged or destroyed in any manner or by any cause whatever or shall be in whole or part taken by right of eminent domain, or under any exercise of ‘police power’ so-called, so that said Association shall determine that it is not expedient longer to continue the use of the same for the purposes prescribed by its charter and that it is expedient to make a use of the servient premises under its charter inconsistent with their remaining open as herein provided or to sell the saipe, this agreement may then be terminated by an appropriate notice in writing served by the party of the first part upon the party of the second part and fixing the day for such termination at a date not less than three months from the time of such service.</p> <p>“And in consideration of said grant the party of the second part pursuant to the authority given it by the provisions of said Indenture of Trust hereby agrees to pay to the party of the first part and its successors or assigns the sum of Six thousand dollars yearly in quarterly payments, the first payment to be made on the first day of July 1903, and at the same rate for any part of a quarter unexpired at the legal termination of this lease, without any reduction on account of any future taking of part of the above mentioned premises by the City of Boston or other public authority for any purpose, or on account of any release or conveyance by the party of the first part of any part thereof for the widening of Washington Street, and it hereby assigns to the party of first part any claim and right of action which it may hereafter have against said city or other public authority for any such taking and any right and title to the land so released or conveyed and any claim to compensation therefor, but if the whole of the premises over which the said easements are hereby extended, or the major part thereof, is taken by the city of Boston or other public authority, or if the substantial enjoyment of the easements hereby created be impaired either by any structure placed on any portion of said premises taken by the city or other public authority pursuant. to and in connection with such taking or otherwise, the party of the second part shall have the right at its option either to terminate this agreement upon assigning to the party of the first part any claim and right of action which it may have growing out of such taking, or upon executing such assignment to demand and receive a reasonable reduction in the annual payment thereafter to be made hereunder, such reduction to be fixed by arbitration if the parties are unable to agree upon the same.”</p>

Bill in equity, filed in the Supreme Judicial Court on June 20, 1910, to restrain the defendant from selling, offering or advertising for sale any toothpicks, not manufactured by the plaintiff, in packages like those of the plaintiff or in any packages so similar as to be likely to cause the defendant’s goods to be mistaken for the plaintiff’s goods, and to recover damages and the profits which had accrued to the defendant from its alleged unlawful acts.

<p>Bill in equity, filed in the Probate Court for the County of Suffolk on January 31, 1911, by the trustee under the will of Gilbert Cummings, late of Boston, for instructions as to the construction of the fourth clause of that will, which is quoted in the opinion, and the duties of the trustee in makiqg a distribution thereunder.</p> <p>In the Probate Court George, J., made a decree that the whole of the income of the trust fund in question should be paid to the defendant Jane Maria Wheaton during her life as the only surviving child of the testator. The defendants Albert E. Cummings, Gilbert H. Cummings and Walter Cummings, children of Albert Cummings, a deceased son of the testator, appealed.</p> <p>The appeal came on to be heard before Morton, J., who at the request of the parties reserved it upon the bill and answers for determination by 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>The cases were heard together by Dana, J., who in both cases found for the plaintiff with costs. The defendant alleged exceptions to the rulings of the judge, which were overruled by this court in a decision reported in 209 Mass. 354. After the issuing of the rescripts final decrees were entered for the plaintiff, from which the defendant appealed, all of the evidence being reported by a commissioner appointed under Equity Rule 35.</p>

<p>Agency, Agent’s duty to principal: as to disclosure or use of principal’s secrets, exclusive employment. Equity Jurisdiction, To enjoin use of business secrets, Damages. Damages, In a suit in equity.</p> <p>An employee of a manufacturing corporation, who, because he was of unusual mechanical skill, was called upon for and gave valuable aid to the president of the corporation in the development of inventions which became the property of the corporation but never were patented although they were kept secret by the corporation and therefore were of great value to it, unless he also was employed to originate inventions for the corporation’s benefit, cannot be enjoined from using new machines differing from his employer’s in that they are of greater capacity and efficiency owing to inventions made by him during the period of his employment.</p> <p>In a suit in equity, brought by a manufacturing corporation to enjoin a former employee from disclosing and using knowledge of secret inventions and processes of the plaintiff which it was alleged the defendant had acquired while engaged in confidential employment by the plaintiff, and to compel the defendant to account to the plaintiff because during part of his period of employment, while drawing full salary from the plaintiff, he had used a part of his working hours in the construction and equipment of a rival manufactory of his own, the injunction prayed for was denied because it appeared that at the time the suit was brought the defendant was violating no right of the plaintiff, and the prayer for an accounting was not granted because the relation of the plaintiff toward the defendant was not fiduciary and the defendant could not be compelled to account in equity for wages or salary paid to him under a mistaken belief that his services were bestowed upon the plaintiff without interruption; but the suit was retained for the assessment of such damages as the plaintiff suffered by reason of the defendant’s breach of contract in failing to devote the whole of his working horns to the duties of his employment.</p>

<p>Bill in equity, filed in the Superior C,ourt on May 4, 1910, and afterwards amended, against Samuel F. Schofield, Annie L. Mason, administratrix, and Emma B. C. Holt, alleging in substance the following: The plaintiff was the owner of the entire beneficial interest in a lot of land on Annabell Street in that part of Boston called Dorchester. Upon the land was an apartment house divided through the middle by a briclc partition wall running northerly and southerly, on each side of which were three apartments. The record title to the land and building lying westerly of the line of the partition wall was in the plaintiff, while that of the premises easterly of that line stood in one Dalton, who held it for the plaintiff’s benefit and convenience. Dalton was not a party to the bill. The partition wall was two feet and five inches westerly of a line exactly dividing the lot upon which the building stood. The plaintiff negotiated for the sale of the westerly portion of the building to the defendant Schofield and the easterly portion to the defendant Holt. Deeds were executed and delivered to the respective purchasers which because of a mistake of the scrivener, instead of conveying to the defendant Schofield the westerly half of the building with the portion of the lot westerly of the line of the partition wall, and to the defendant Holt the easterly half of the building with the portion of the lot easterly of the line of the partition wall, as the parties intended, conveyed to Schofield by metes and bounds the westerly half of the lot “with the buildings thereon,” and to Holt, by metes and bounds, the rest of the lot and building, the building thus being divided by a line parallel to and two feet and five inches easterly of the partition wall. The defendant Schofield gave to the defendant Mason, administratrix, a first mortgage of the premises thus conveyed, and to the plaintiff a second mortgage.</p> <p>The defendants Mason and Holt were ready and willing to join in correcting the error in the deeds but, although the plaintiff had demanded of the defendant Schofield that the correction be made, he had refused to make it. The prayers were for a reformation of the deed from the plaintiff to Schofield, and of the mortgages from Schofield to Mason, administratrix, and from Schofield to the plaintiff.</p> <p>The defendant Schofield demurred to the bill as amended for want of equity. The demurrer was overruled by Hitchcock, J.; and the defendant Schofield appealed.</p> <p>The case was heard by Pierce, J., a commissioner having been appointed under Equity Rule 35 to take the evidence. The judge found the facts substantially as stated above, and a final decree was entered reforming the deed from the plaintiff to the defendant Schofield by making the easterly line of the premises conveyed to him the line of the partition wall, the decree stating that the title to all land easterly of such dividing line, which had been included in the deed to the defendant Schofield, “ is and shall be and remain the same as though that deed had not been made,” directing the defendant Mason, administratrix, to release from the mortgage to her from the defendant Schofield the strip of land wrongly included in the deed to him and the mortgage to her, and dismissing the bill as to the defendant Holt without costs.</p> <p>The defendant Schofield appealed.</p>

<p>Petition, filed in the Probate Court for the county of Suffolk on January 20,1911, under R. L. c. 147, § 20, by the administratrix of the estate of William Scollay Whitwell, third, seeking an order for distribution to the petitioner of a fund held by the respondents as trustees under the deed of trust described in the opinion.</p> <p>The petitioner was appointed administratrix by a decree of the Probate Court for the county of Middlesex which was dated November 16, 1910, and contained the following recital: “I find that on February 25, 1910, a presumption arose that the said William S. Whitwell Third was dead; that at that time his only heir at law and next of kin was the petitioner; that at the time of his death, so far as appears from the evidence, he last dwelt in Cambridge in this county as alleged in the petition.”</p> <p>Upon the filing of the petition in the Probate Court notice thereof was ordered and was given by mailing and by publication in newspapers in Boston, in New York City, in Waco, Texas, and in San Francisco, California, to “William Scollay Whitwell, Third, and his heirs, actual or apparent, to all persons interested in the distribution of” the fund, and to the trustees under the trust deed. After a hearing in that court, Grant, J., made a decree granting the petition.</p> <p>On appeal, the case was heard in this court by Loring, J. As stated in the opinion, the main issues of fact were, whether William Scollay Whitwell, third, was dead, and, if so, whether he had died before or after his aunt, Mary Hubbard Whitwell, who died on January 23,1908. If he had died before her, his brothers were entitled to the funds in question; if after, the petitioner was entitled to prevail.</p> <p>There was evidence that in' February, 1903, William Scollay Whitwell, third, was a senior in Harvard College. The previous winter his father had taken him out of college and he had been in Europe because be had over-exerted himself in college athletics and had become unduly nervous and subject to attacks of melancholy and depression. The next year he resumed his work in college with unusual zeal. On February 26, 1903, he disappeared from Cambridge. The next day his room mate received a letter, signed by him and postmarked the afternoon of February 26, 1903, showing great depression and stating his intention to commit suicide from on board the steamship running from Fall River to the city of New York. He never was seen or heard of again, although diligent advertising, detective bureaus and personal search were resorted to by his relatives. The single justice, “without resort to presumption,” found that he had died on or about, or soon after, February 26, 1903.</p> <p>The case was reserved for determination by the full court on a report of all the evidence before the single justice, which was “to be considered upon the question of death if, and only if, that question” was “held to be open in these proceedings.”</p> <p>Other facts are stated in the opinion.</p>

<p>Equity Pleading and Practice, Amendment of bill, Recommittal of master’s report.</p> <p>In a suit in equity for an accounting by the defendant as to the profits of an enterprise which the plaintiff alleged had been created by the joint efforts of himself and the defendant under an agreement whereby the profits should be shared, where a master finds that the enterprise was the result of the joint efforts of the parties but that there was no agreement for a sharing of profits, that the plaintiff’s services were rendered at the request of the defendant and with the understanding that the defendant would pay for them if the enterprise was a financial success, and that it was a financial success, the plaintiff may recover a fair compensation for his services under the prayer in the bill for general relief.</p> <p>After the allowance of an amendment to a bill in equity adding allegations which were unnecessary to give the plaintiff relief, it is within the discretionary power of the court to recommit the case to a master although the issues added by the amendment already have been heard by him and findings made thereon.</p>

<p>Bill m equity, filed in the Supreme Judicial Court on March 20, 1911, against Eugene A. Stowell, trustee under the will of Charles A. Ranlett, late of Billerica, and Charles R. Darling, conservator of the property of E. Minnie Ranlett. The facts alleged in the bill were in substance as follows:</p> <p>Charles A. Ranlett died in 1878 leaving a will containing the following paragraph: “After the death of my wife should our daughter E. Minnie Ranlett survive her, my said trustees are hereby directed and required to set aside and invest and themselves to hold in trust so much of my property either real or personal or both as may be sufficient to produce an annual income of not less than six hundred dollars which income shall be from time to time applied to the support and maintenance of my said daughter E. Minnie Ranlett during her life. She to be provided with such suitable home as my said trustees or any two of them may elect.” Other provisions of the will are stated in the opinion.</p> <p>The testator was survived by his wife, three sons and the daughter, E. Minnie Ranlett, who was not and never had been “of sufficiently sound mind to manage her property or interests.” The widow died in 1892. The sons and the survivor of them were the trustees under the will until June, 1909, when the sole surviving son resigned as trustee and the defendant Stowell was appointed as sole trustee. In September, 1909, E. Minnie Ranlett was committed to Danvers Insane Hospital and in November of the same year the defendant Darling was appointed conservator of her property.</p> <p>The plaintiff was employed by the trustee in 1879 to take care of E. Minnie Ranlett, and did so until she was removed to Danvers. She also rendered to the trustee other services from that time to October 29,1909. For her services she was paid until July 8, 1907, but received no pay for her services between July 8, 1907, and October 29, 1909. On May 10, 1906, the then trustee, as trustee and for the benefit and uses of the estate, borrowed $350 from the plaintiff and gave her a note reading as follows: "Six months after date, for value received, the Estate of Charles A. Ranlett promises to pay to Louise King, or order, three hundred and fifty dollars, without interest before or after maturity. Estate of Chas. A. Ranlett, by Horace D. Ranlett, Trustee;” and “therefore,” the bill averred, "the defendant trustee, in the trust represented by him, is indebted to the plaintiff for her services and for the money loaned by her as aforesaid in the sum of $1,907.”</p> <p>The following facts then were alleged in the fourth paragraph of the bill: The predecessors of the defendant trustee never set aside a definite fund that would yield an annual income of $600 for the support of E. Minnie Ranlett, as required by the will, and never filed any trustee’s inventory or account. While there were when the bill was filed funds in the hands of the defendant trustee, it was uncertain and not ascertained what part of the property in his hands was principal and what was accumulated and unexpended income, but, it was averred, that some portion of the property then on hand certainly was such income.</p> <p>The conservator had no funds in his hands. The trust estate owed no considerable money other than to the plaintiff.</p> <p>There was also an allegation that the plaintiff had no sufficient remedy at law by which she could reach the trust fund and obtain the payment of her claim.</p> <p>-• The prayers of the bill were, (1) for an accounting as to what was due to the plaintiff from the defendant trustee or the trust estate; (2) “that it be ascertained what portion of the property in the hands of the present trustee is income, and that said trustee be ordered to apply such portion in payment of the indebtedness of the trust to the plaintiff, until such indebtedness is satisfied; and if the income now in the trustee’s hands does not equal such indebtedness, then that the trustee be ordered also to apply future income to such payment until said indebtedness becomes satisfied; ” (3) that the defendant conservator should be restrained from demanding further income from the trust estate until the plaintiff’s indebtedness was paid; and (4) for general relief.</p> <p>The defendants severally demurred to the bill for want of equity. The demurrers were sustained by Loring, J.; and the plaintiff appealed.</p>

<p>Savings Banh, Duties and liability of members of investment committee. Equity Pleading and Practice, Bill. Limitations, Statute of.</p> <p>The members of the investment committee of a savings bank in this Commonwealth are liable to the bank and its depositors for losses incurred from the making of loans largely in excess of the limit imposed by St. 1894, c. 317, § 21, cl. 1, of which they might have known “by the exercise of a reasonable degree of care and prudence.”</p> <p>In a bill in equity by the bank commissioner in the name of a savings bank against the members of the investment committee of the bank for losses incurred from loans made in violation of St. 1894, c. 317, §§ 21, 24, certain allegations, which were not essential to the liability of the defendants and merely set forth the circumstances in the light of which their conduct was to be judged, were held to be in no way repugnant to the ground for relief stated by the bill.</p> <p>The requirements of St. 1894, c. 317, §§ 21, 24, in regard to the investment by savings banks in mortgages of real estate, to the amount there limited, that they shall be first mortgages, that “no loan on mortgage shall be made except upon the report of not less than two members of the board of investment, who shall certify to the value of the premises to be mortgaged, according to their •best judgment, and such report shall be filed and preserved with the records of • the corporation,” and that “all applications for loans shall be made in writing, through the treasurer of the corporation, who shall keep a record thereof,” are mandatory and not merely directory, and, although a loan made without the observance of these requirements may be valid as between the bank and the borrower or as to third parties, its making is beyond the powers of the investment committee of the bank as between them and the bank and its depositors, and constitutes a wrongful diversion of the funds of the bank, for which-the members of such committee are liable.</p> <p>The powers of the investment committee of a savings bank in relation to the bank and its depositors are limited not only by the provisions of the statutes but also by the terms of the by-laws of the bank.</p> <p>In a suit in equity by the bank commissioner in the name of a savings bank against the members of the investment committee of the bank for losses incurred from loans made in violation of St. 1894, c. 317, §§ 21, 24, the defendants stand in the relation of trustees toward the bank and its depositors, and consequently the statute of limitations begins to run against the bank only from the time that it learned of the defendants’ wrongdoing.</p>

<p>Voluntary Association, By-laws, Suspension of membership.</p> <p>When the members of a voluntary association, which is a subordinate circle subject to the jurisdiction of a grand circle of a fraternal beneficiary order, have a beneficial interest in property and funds of such subordinate circle, they cannot be expelled or suspended from membership by the officers of the grand circle for non-payment of dues or taxes to the grand circle, under a by-law authorizing such expulsion or suspension for such cause, without reasonable previous notice of the charges against them and an opportunity to appear and be heard upon the subject, although the by-laws contain no provision requiring the giving of such notice.</p>

<p>Negligence, Of servant. Agency, Existence of relation. Automobile.</p> <p>In an action against the owner of an automobile for injuries from a collision caused by the negligence of a minor son of the defendant who was operating the car, if it appears that the defendant had bought the car for the general use of his family, that it was registered in his name but that the only member of his family licensed to operate it was his minor son and that it never was operated except by the son, that the defendant had given his wife permission to use the car whenever she wished without making any special request and expected the son to mind his mother if she asked him to take her out with the car, and that the collision occurred when the son was driving the car in transporting his mother at her request, there is evidence for the jury that the car at the time of the accident was being operated upon the business of the defendant under authority from him.</p>

<p>Negligence, Of one controlling real estate.</p> <p>In an action for injuries sustained from being struck by a board falling from the roof of an unoccupied house owned and controlled by the defendant while the plaintiff was walking near it on the highway, where there is evidence of the dilapidated condition of the house and of the rottenness of the board that fell from the roof upon the plaintiff and also of the defendant’s failure to attend to the house or to make any repairs upon it, the question of the negligence of the defendant is for the jury.</p> <p>In an action for an injury to a traveller upon a highway by reason of a rotten board falling upon him from the roof of an unoccupied and neglected house owned and controlled by the defendant, it is proper for the presiding judge to refuse to make a ruling which correctly states the obligation of a landlord to a tenant but has no application to the case on trial.</p>

<p>Practice, Civil, Parties, Amendment, Dismissal of action, Stipulation in report to full court. Executor and Administrator.</p> <p>An action purporting to be brought for injuries sustained by a person named as the plaintiff, who died before the date of the writ and for whose estate no executor or administrator had been appointed, has no legal existence, and an administrator subsequently appointed cannot be made the plaintiff by an amendment under R. L. c. 173, § 48.</p> <p>An action nominally standing upon the docket of the Superior Court, which in legal effect never has been brought because at the date of the writ there was no person who could bring it, should be dismissed, and it is wrong to order a verdict for the defendant.</p> <p>A stipulation contained in the report of. a case for determination by this court, that if the rulings of the Superior Court were wrong “the case should stand for trial,” here was held to mean that the case should stand for such disposition as was required by the decision of this court.</p>

<p>Two actions of tort, the first for personal injuries alleged to have been caused by the plaintiff’s foot being run over by a wagon driven by an employee of the defendant, and the second by the husband of the plaintiff in the first action for loss sustained by reason of her injuries. Writs in the Municipal Court of the City of Boston dated January 12, 1910.</p> <p>On appeal to the Superior Court the cases were tried together before Lawton, J. There was evidence that the wagon of the defendant was being driven rapidly and that the driver was “fooling” with a man on the seat with him. Other facts material to the decision are stated in the opinion. At the close of the evidence the defendant asked for rulings that the plaintiffs could not recover. The rulings were refused. The jury found for the plaintiff in the first action in the sum of $321, and for the plaintiff in the second action in the sum of $165; and the defendant alleged exceptions.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on April 8, 1911, and afterwards amended, by Francis E. Bowker, executor and trustee under the will of Edwin Bowker, late of Waltham, and the beneficiaries under that will, against Adelaide J. Torrey and Charles T. Gallagher, conservator of her property, seeking relief from a mistake committed in the adjustment, after the deaths of Edwin Bowker, and Charles Torrey, of the affairs of the partnership of Bowker, Torrey and Company, formerly composed of Edwin Bowker, Franklin Torrey and Charles Torrey. From the allegations of the bill it appeared that Adelaide J. Torrey was the executrix of and sole devisee under the will of Charles Torrey and was his widow.</p> <p>Specific allegations relating to delay in the bringing of the bill were as follows: “The plaintiffs, with the exception of Francis E. Bowker, executor and trustee, never knew the facts herein set forth until shortly before filing this bill, and the plaintiff Francis E. Bowker, executor and trustee, who was acquainted with the facts, except as to the amount of the true indebtedness of Charles Torrey to the firm, of which he was ignorant, in all matters relating to the formation of the corporation, the transfer of property to the corporation and the distribution of its stock and all matters relating to the settlement of the partnership affairs, acted under a misapprehension as to the effect upon the rights of the parties of omitting the said real estate from the transfer to the corporation, while, at the same time, proceeding in all other respects as though the real estate had been so conveyed, and never discovered the effect of said purported settlement until shortly before the filing of this bill.”</p> <p>The bill also alleged, with regard to the death of Charles Torrey and the appointment of his executrix, that he died on April 9, 1905, and “by his will devised and bequeathed his property, real and personal, to his widow, the defendant Adelaide J. Torrey, and thereby constituted her sole executrix thereof. The defendant Adelaide J. Torrey was appointed executrix by the Probate Court of Suffolk county, and duly qualified” at some time previous to July 29, 1905. There was no allegation that the executrix had given the notice required by R. L. c. 139, § 1.</p> <p>The bill also contained the following allegation: “The plaintiffs bring this bill for the benefit of Franklin Torrey, as well as for themselves, if, upon learning the facts, he desires to become a party plaintiff and join an the expense thereof.”</p> <p>Other allegations of the bill are stated in substance in the opinion.</p> <p>The second prayer of the bill was as follows: “That the settlement of the partnership affairs made on or about April 30, 1905, may be reopened so far as necessary to correct the errors herein set forth, namely, by charging the share of Charles Torrey with interest on his overdrafts, and readjusting and correcting the amount due from him and the amounts due to the plaintiffs according to the facts set forth herein, and that the defendant Adelaide J. Torrey may be charged with such sums as she may be shown to have received in excess of the sum to which she was entitled, and the amount which in justice and equity ought to have been paid to the plaintiffs determined and established.” In the third prayer the plaintiffs asked that a trust might be decreed and enforced against property which the defendant Torrey then held in place of the undivided interest in real estate which formerly had been Charles Torrey’s, as stated in the opinion, to secure the payment to the plaintiffs, of what was found due to them upon the accounting sought in the second prayer.</p> <p>The defendants severally demurred to the bill as amended. The demurrers were overruled by Morton, J., who, at the request of the parties and because he was of the opinion that the questions of law involved so affect the merits of the controversy that, before further proceedings, the matters ought to be determined by the full court, reported the case for that purpose, stating that, if the order overruling the demurrer was affirmed, the defendants were to plead or answer.</p>

<p>Probate Court, Jurisdiction, Petition for compromise of controversy as to allow, anee of will.</p> <p>One named as a legatee in a will offered for probate, whose legacy is revoked by the ■ terms of a codicil offered for probate with the will, is a necessary party to a compromise of a contoversy concerning the will and codicil under R. L. c. 148, § 15; St. 1903, c. 222, and the Probate Court has no jurisdiction to authorize such a compromise against the objection of such person. •</p>

<p>Equity Pleading and Practice, Exceptions, Appeal. Husband and Wife.</p> <p>From the allegations in a petition filed in the Supreme Judicial Court and entitled a “petition to vacate a judgment decree of the Probate Court for suitable maintenance” it appeared that the petitioner, who was the respondent in the Probate Court, had appealed from an adverse decision there to the Superior Court where he had been defaulted. In the Supreme Judicial Court, a plea in bar having been filed denying the jurisdiction of the court and, at a hearing upon the petition and the plea, no evidence whatever having been introduced, the single justice dismissed the petition. On exceptions and an appeal by the petitioner, the exceptions were overruled and the decree dismissing the petition was affirmed.</p>

<p>Trust, Construction. Devise and Legacy. Words, “My surviving children,” “Between,” “All this property.”</p> <p>A testator, who at the age of seventy-five years wrote his will with his own hand, evidently intended to divide his property after the death of his wife, who was of about his age, so that, taking into account gifts which he previously had made to some of his children and losses which he had sustained through the improvidence of a son, the result of the division would be as nearly equal as possible. One article of the will began “After my deceas” and provided that certain real estate should be held in trust for the improvident son during his life, and “at his deth all this property is to be equally devided between my surviving children” and the son’s daughter. Held, that by the words “my surviving children” the testator meant his children surviving at his death, and by the word “between” he meant “among,” and that the words "all this property” included accumulated income; so that, after the death of the son, the property and accumulated income should be divided equally per capita among those of the testator’s children, except the son, who were surviving at the testator’s death and the daughter of the son and their heirs and assigns.</p>

<p>Municipal Corporations, By-laws and ordinances. Statute, Construction. Words, “ Construction,” “ Alteration.”</p> <p>R. L. c. 104, § 1, providing that any city, except Boston, which has accepted the provisions of that section, for the prevention of fire may “ regulate the inspection, materials, construction, alteration and use of buildings,” and may prescribe penalties not exceeding $100 for each violation of such regulation, does not authorize such a city to pass an ordinance regulating the repairing of roofs and imposing a maximum penalty of $100 for its violation.</p>

<p>Tort, against a corporation occupying and using for its business a building on the corner of Washington Street and Temple Place in Boston, for personal injuries sustained by the plaintiff on Jan-. uary 15,1910, shortly after eight o’clock in the morning, when the plaintiff was walking on the sidewalk of Washington Street adjoining such building, from being struck by a mass of snow and ice alleged to have been negligently thrown by the servants and agents of the defendant from the top or from near the top of such building. Writ dated March 25, 1910.</p> <p>In the Superior Court the case was tried before Dana, J. The defendant admitted that it was in charge and control of the premises on the day of the accident, and that the person who removed the snow and ice from the roof and the ledge of the building was working in its employ on that day. The material facts which could have been found upon the evidence are stated in the opinion.</p> <p>At the close of the evidence the defendant asked the judge to rule that upon all the evidence and the pleadings in the case the plaintiff was not entitled to recover, urging among other grounds that the plaintiff had failed to prove notice by the plaintiff to the defendant, as required by law where snow or ice is involved.</p> <p>The judge refused to make this ruling and submitted the case to the jury. At the request of the defendant two special questions also were submitted to the jury, which with the answers to them were as follows:</p> <p>“ 1. Was Etta Mallen (the plaintiff in this action) struck by snow or ice or both while on the sidewalk on Washington Street in front of the defendant’s store, and if so, was it snow or ice or both which fell from the defendant’s building without actually being thrown down by any person working for the defendant? Answer Yes or No.” The jury answered “No.”</p> <p>“ 2. Was Etta Mallen struck by snow or ice or both while on the sidewalk on Washington Street in front of the defendant’s store, and if so, was it snow or ice or both which was thrown from the defendant’s building by some person working for the defendant? Answer Yes or No.” The jury answered “Yes.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $5,000; and the defendant alleged exceptions.</p> <p>St. 1908, c. 305, is as follows: “Theprovisions of sections twenty, twenty-one and twenty-two of chapter fifty-one of the Revised Laws, in so far as they relate to notices of injuries resulting from snow or ice, shall apply to actions against persons or corporations founded upon the defective condition of the premises of such persons or corporations, or of an adjoining way, whenever such defective condition is caused by, or consists in part of, snow or ice. Leaving the notice with the occupant of said premises, or, in case there is no occupant, posting the same in a conspicuous place thereon, shall be a sufficient compliance with the foregoing provisions.”</p> <p>The case was submitted on briefs.</p>

<p>Unlawful Interference. Strike. Labor Union. Equity Pleading and Practice, Parties. Equity Jurisdiction, To enjoin unlawful strike, Damages.</p> <p>In a suit in equity against the officers and members of an unincorporated labor union for unlawfully causing the discharge of the plaintiff as the foreman of a granite company, if it appears that the defendants instituted and continued an unlawful strike which compelled the superintendent of the granite company as a last resort to agree to leave the question whether he should discharge the plaintiff to a vote of the workmen at the quarry and that upon a majority of such workmen voting against the retention of the plaintiff the superintendent discharged him, the plaintiff is entitled to relief against the defendants who instituted and maintained the strike and not merely against those workmen who voted at the quarry for his discharge.</p> <p>In a suit in equity against the officers and members of an unincorporated labor union for unlawfully causing the discharge of the plaintiff as the foreman of a granite company, if it appears that unlawful acts of the defendants caused the discharge of the plaintiff and made it impossible for him to procure other employment, the plaintiff is entitled to recover damages not only for the loss of wages due to his discharge but also, once for all, for his present and prospective inability to procure employment, which may continue for an indefinite time, caused by the unlawful acts of the defendants.</p>

<p>Bill in equity, filed in the Supreme Judicial Court as amended by a substitute bill on October 27, 1911, praying for an order for the return to the plaintiff of an endowment policy of life insurance for $5,000 issued to the plaintiff by the defendant and also for the return and cancellation of a note for $800 signed by the plaintiff, on which, with the policy as security, the defendant had agreed to lend that sum of money to the plaintiff.</p> <p>The fourth paragraph of the bill alleged that the defendant had neglected and refused to pay or deliver to the plaintiff the sum of $770 or any part thereof.</p> <p>The defendant’s answer denied the allegations of the fourth paragraph of the bill and alleged that it had paid to the plaintiff the sum of $770 referred to and that it was entitled to retain the policy and the note.</p> <p>The case was heard by Morton, J. Among other facts there was evidence of the following: On May 1,1911, the plaintiff had applied to the defendant for a loan upon his policy. He gave the note in question and his policy to the defendant’s loan clerk, who said to him, “You will hear from us in about a week.” On the morning of Saturday, May 6, 1911, when the plaintiff was busy at his office at Waltham, he was called upon there by one Phinney, a soliciting agent of the defendant.</p> <p>The defendant had sent by mail to Phinney a check for $770 payable to the plaintiff’s order representing the amount of the loan with interest discounted. There was sent with it a letter addressed to the plaintiff requesting a receipt. The plaintiff testified in regard to his interview with Phinney as follows: “Mr. Phinney, an agent of the Mutual Life Insurance Company, came into my office, and stated that — I said to him — in the course of my talk I said, ‘ What can I do for you ?’ — he was ushered into the private office, — and he said, T am Mr. Phinney of the Mutual Life of New York.’ He said, ‘ You made an application for a loan from the company on your policy?’ I said, 1 Yes.’ And he said, ‘ I brought out a voucher for you to sign.’ And I said, ‘ All right.’ And he pulled out the slide part of the desk, the leaf, and laid it right down there, and held it in his hand, with his four fingers on the four corners, and I signed it where he indicated, and then he says, ‘ I will bring you the check in two or three days, either Tuesday afternoon orWednesdaymorning.’ I said, ‘All right, sir.’ ” The plaintiff testified that he believed he was signing a voucher, that he had no reason to doubt the honesty of Phinney and that he “ never dreamed but what” he' was signing a voucher. The paper which Phinney held face downward for the plaintiff to sign was the check for $770. On leaving the plaintiff, Phinney immediately cashed the check and absconded with the money.</p> <p>The justice made a memorandum of decision as follows:</p> <p>“ I do not. think that the loss in this case should fall on the plaintiff. To begin with, Phinney was the defendant’s agent, not Barry’s. The check, though in a sealed envelope directed to Barry, was entrusted by the defendant to Phinney, to be delivered by him to the plaintiff. He was also to attend to certain other matters in connection with the delivery of the check. He did not deliver the check to the plaintiff, but, by means of a fraud practised upon him, converted the check and its proceeds to his own use. I do not think that what took place constituted a delivery of the check to the plaintiff, and I so find. The check never having been delivered to the plaintiff, the loss arising from Phinney’s fraud should be borne by the defendant, unless the plaintiff’s negligence, assuming that he was negligent, bars him from relief. I do not think that it does. If there was any negligence on his part, it was induced by Phinney’s fraud while acting, as it seems to me, and as I find, within the apparent scope of his authority, and the defendant cannot, therefore, I think, set up the plaintiff’s negligence in bar of his claim to relief. I find, if that is material, that the plaintiff was not culpably negligent in relying upon Phinney’s representations. What Phinney did was not within the apparent scope of his authority as an agent for soliciting insurance. But the defendant reposed special confidence and authority in him in connection with the delivery of the check, and it is therefore immaterial that what he said and did was not within the apparent scope of his authority as an agent for soliciting insurance. I find that what purports to be the plaintiff’s indorsement on the back of the check was procured by Phinney’s fraudulent representations that what the plaintiff was writing his name upon was a voucher, and that the plaintiff did not know or believe, and had no reason to know or believe, was a check for the amount due him on the loan or for any other purpose, but believed that, according to Phinney’s representations, it was some sort of a voucher required of him by the company, preliminary to issuing a check for the amount coming to him on the loan. I think that there should be a decree for the plaintiff.”</p> <p>By order of the justice a final decree was entered ordering that the policy be returned to the plaintiff and that the note be delivered up to the plaintiff to be cancelled, and that the plaintiff recover costs in a sum named. The defendant appealed, the evidence being reported by a commissioner appointed under Chancery Rule 35.</p>

<p>Contract for alleged breaches of a contract for the building of a stable on Brimmer Street in Boston. Writ dated November 1, 1908.</p> <p>The plaintiff’s declaration contained three counts. The first count alleged that the defendant wholly failed to construct the stall room floor of the stable according to the specifications, in that it did not cover the entire area of the stall room floor one inch thick with Warren’s ICiola Asphalt Floor, nor put the same down in the best manner, nor underlay the same with two layers of best roofing paper acceptable to the architects. The third count alleged that the defendant guaranteed the floor for two years, but refused to perform its guaranty.</p> <p>The second count was as follows:</p> <p>“ The plaintiff says that on or about March 22, 1906, he made a contract in writing with the defendant, whereby the defendant undertook in consideration of certain payments to be made by the plaintiff, to build a stable upon land at the corner of Brimmer, Chestnut and Byron streets, Boston, owned by the plaintiff, in a skilful and workmanlike manner, according to drawings and specifications incorporated in said contract. Á copy of said contract and such of said drawings and specifications as are material to the issues raised in this action are annexed hereto and made a part of this declaration. In order that the floor of the stall room in said stable should be water-tight, and to prevent the leakage of drainage through the same, it was provided in said specifications that the entire area of stall room floor should be covered one inch thick with Warren’s ICiola Asphalt Floor put down in the -best manner, underlaid with two layers of best roofing paper acceptable to the architects, and guaranteed and kept in repair for two years from the time of completion of the work. And it was further provided in said specifications that the defendant should set the stall partitions and posts and finish off the partitions as shown on sketches forming a part of the drawings hereinbefore referred to, and copies of which are hereto annexed.</p> <p>“The defendant thereupon proceeded to build said stable, and the plaintiff duly paid the defendant all sums to be paid under said contract, and did all other things which, by the terms of said contract, were to be done by him.</p> <p>“ But the defendant wholly failed to set the stall partitions and posts and finish off the partition as shown on said sketches, in that it did not lay or bed the planking upon the asphalt as shown thereon, but on the contrary nailed said planking to and through said asphalt floor, and set said stall partitions and posts in a negligent, unskilful and unworkmanlike manner, and in other respects failed to set the same as shown on said sketches.</p> <p>“ By reason of the defendant’s failure to set the stall partitions and posts as shown on said sketches, and the negligent, unworkmanlike and faulty construction thereof as above described, said asphalt floor was not water-tight; but as soon as said stable became used as such and said stall room occupied, large quantities of drainage from the stalls leaked through said floor and caused great damage to other parts of said stable and made the same untenantable and unfit for use.</p> <p>“ But the defendant, though requested by the plaintiff to reset said stall partitions and posts as shown on said sketches, or to repair said asphalt floor, neglected and refused so to do; and the plaintiff has been obliged to expend and has expended large sums of money to reset said stall partitions and posts, and make said asphalt floor water-tight and render the stable tenantable, and has suffered other and further damages in the premises.”</p> <p>In the Superior Court the case was tried before Sherman, J. Among the provisions of the contract were the following: “Article I. The contractor shall and will provide all the materials and perform all the work for the Stable to be erected corner Brimmer, Chestnut and Byron streets, Boston, as shown on the drawings and described in the specifications prepared by Coolidge & Carlson, 22 Congress street, Boston, Mass., Architects which drawings and specifications are identified by the signatures of the parties hereto, and become hereby a part of this contract.</p> <p>“ Article II. It is understood and agreed by and between the parties hereto that the work included in this contract is to be done under the direction of the said Architects, and that their decision as to the true construction and meaning of the drawings and specifications shall be final. . . .”</p> <p>“ Article IX. It is hereby mutually agreed between the parties hereto that the sum to be paid by the Owner to the Contractor for said work and materials shall be $49,157.31 Forty-nine thousand, one hundred and fifty-seven 31/100 dollars, subject to additions and deductions as hereinbefore provided, and that such sum shall be paid by the Owner to the Contractor, iii current funds, and only upon certificates of the Architects, as follows:</p> <p>“ In monthly payments of eighty-five per cent of money due him at time of application for payment. Said payments shall be only for work actually done on the building and for material actually incorporated into the building.</p> <p>“ The final payment shall' be made within thirty-three days after the completion of the work included in this contract, and all payments shall be due when certificates for the same are issued....</p> <p>“ Article X. It is further mutually agreed between the parties, hereto that no certificate given or payment made under this contract, except the final certificate or final payment, shall be conclusive evidence of the performance of this contract, either wholly or in part, and that no payment shall be construed to be an acceptance of defective work or improper materials.”</p> <p>The specifications, among other things, contained the following: “ All materials throughout the building are to be new and the best of their several kinds (unless otherwise specified) and the work executed in the best and most substantial manner and to the satisfaction of the architect.”</p> <p>The following was under the heading “ Asphalt Floors.”</p> <p>“ The entire area of stall room floor and where shown on second floor to be covered 1" thick with Warren’s ICiola Asphalt Floor put down in the best manner under laid with two layers of best roofing paper acceptable to architects, aisles scored as shown, and to be guaranteed and kept in repair for two years from time of completion of work.”</p> <p>Here followed detailed specifications under the headings “ Stall Floors” and “ Laying.”</p> <p>.It was not in dispute at the trial that the design of the stable contemplated the keeping of horses on the third or stall room floor and the storage of carriages on the second floor immediately beneath the stall room floor; that the area of the stall room floor was approximately seven thousand square feet; and that there were about one hundred stalls occupying about two thirds of the area of the floor.</p> <p>The plaintiff offered to show that, after the floor was completed, it leaked. The defendant contended that the specifications did not require that the floor should be water-tight, that if the floor was constructed in accordance with the plans and specifications, no liability against it could arise, whether the floor leaked or not, and asked the judge to rule as matter of law that the specifications did not call for a water-tight floor. The judge refused so to rule and, subject to an exception by the defendant, permitted the plaintiff to introduce testimony tending to show that after the asphalt floor and the stalls had been constructed the floor leaked from various causes.</p> <p>The findings of fact which were warranted by the evidence are stated in the opinion.</p> <p>At the request of the plaintiff the judge made the following rulings:</p> <p>“The defendant was bound to do the work in a proper and workmanlike manner. If leaks were caused by driving nails through the asphalt, the jury would be warranted in finding that this was neither proper nor workmanlike, and if the defendant failed to repair the leaks, the defendant is liable.</p> <p>“ The defendant is not relieved from liability due to poor workmanship and materials by the fact that final payment under the contract was recommended by the architects, unless the architects knew or ought to have known of such poor workmanship and materials.”</p> <p>At the request of the defendant the judge made the following rulings:</p> <p>“ 4. In order to recover the plaintiff must show that the defendant failed to comply in some respect with the requirements laid down in the specifications relating to the stall room floors.”</p> <p>“ 7. Neither the specifications nor the plans contain anything prohibiting the use of nails in fastening the posts and partitions of the stalls to the floor.”</p> <p>“ 12. If the floor as planned by the architects was a faulty floor, the defendant is not liable to the plaintiff, if the floor was constructed in accordance with such faulty plan of the architect.</p> <p>“ 13. The defendant is not liable to the plaintiff for the negligence or incompetence of architects selected by the plaintiff.”</p> <p>“ 16. The architect having issued a final certificate, in the absence of fraud or palpable error it is not open to the plaintiff to contend that the defendant failed to comply with the contract in relation to the original construction of the floor, but he is limited to his rights under the alleged agreement to keep in repair.”</p> <p>The defendant also asked the judge to make the following rulings:</p> <p>“ 2. On all the evidence the plaintiff is not entitled to recover on the second count.”</p> <p>“ 5. The fact, if it be a fact, that the stall room floor leaked, or that the floor was not suited to the purpose it was intended for is of no consequence, if the floor was constructed in accordance with the plans and specifications.</p> <p>“ 6. The specifications did not require that the floor should be water-tight.”</p> <p>“ 14. If the defendant failed in some particular to comply with the specifications, but the same damage to the plaintiff would have occurred irrespective of such failure, by reason of the defective design or plan of the architects, it is not liable to the plaintiff, for it cannot be said that the defendant’s failure to comply with the specifications was the proximate cause of the damage.</p> <p>“ 15. Under the provisions of Article X of the contract, the final certificate of the architect is made conclusive evidence of the performance of the work.”</p> <p>The judge refused to make any of these rulings, and the defendant excepted.</p> <p>The judge reported the case for determination by this court as follows:</p> <p>“ It appeared in evidence that after the asphalt floor had been laid, the stalls and flooring of plank were constructed and that the portion of the flooring which was specified to be stationary, was made so by means of nails or spikes which were driven through the asphalt to the wooden flooring beneath. The plaintiff contended, among other things, as set forth in its second count, that this method of making the floor stationary was negligent and not in accordance with the specifications.</p> <p>“At the close of all the evidence, and over the defendant’s objection and exception, I submitted the following questions to the jury, which were answered as follows:</p> <p>“1. ‘ Was the third floor laid according to the specifications? ’ The jury answer: ‘ Yes.’</p> <p>“ 2. ‘ Was the work performed in the best manner as required in the specifications under the title asphalt ? ’ The' jury answer : ‘ Yes.’ .</p> <p>"3. 'Taking the contract with specifications, and considering the use to be made of the second and third floors, where the stalls were, was the third floor to be made water-tight?’ The juryanswer: 'Yes.’</p> <p>“ 4. ‘ Did the manner of nailing and spiking in the stalls cause leakage through the floor?’ The jury answer: 'Yes.’</p> <p>“ 5. ‘ Was that an improper and negligent way of complying with the specifications?’ The jury answer: ' Yes.’</p> <p>“6. ‘Was the fact that the tarred paper was not turned up and mopped against the walls, etc., a failure to comply with the requirements in the specifications that the floor be laid in the bestmanner ? ’ The jury answer: ‘No.’</p> <p>“ 7. ‘ Has the plaintiff suffered any damage?’ The jury answer: ‘Yes.’</p> <p>“ 8. * If so, how much?’ The jury answer: ' $1,800.’”</p> <p>“ I then ruled that the action could not be maintained on the first and third counts, which were thereupon waived by the plaintiff, and I directed the jury to bring in a verdict for the plaintiff in the sum of $1,800 on the second count.</p> <p>“By consent of the parties I now report the case for the-consideration of the full court. If my ruling directing a verdict for the plaintiff on the second count was wrong, or if any of my rulings or refusals to rule during the trial, excepted to by the defendant, were erroneous and prejudicial to the defendant on the issues raised under the second count, final judgment is to be entered for the defendant; provided, however, that if the only error prejudicial to the defendant shall be found to relate to the damages, then judgment is to be entered for the plaintiff in the sum of $864; otherwise judgment is to be entered for the plaintiff on the verdict.”</p>

<p>Bill in equity, filed in the Superior Court, as amended by consent and leave of court, on June 10, 1909, as of May 14, 1909, to redeem certain horses and other personal property from a chattel mortgage.</p> <p>The case was referred to Ralph E. Joslin, Esquire, as master. Later the case was heard by Dana, J., upon the master’s report and exceptions thereto. The judge made a final decree that the first and ninth exceptions of the defendants Harlow and Cummings and the first exception of the defendant bank be sustained, all other exceptions being waived, that upon the facts stated in the master’s report the foreclosure of the mortgage was valid and effectual and that the bill be dismissed. The plaintiff appealed.</p> <p>The exceptions of the defendants Harlow and Cummings sustained by the judge were as follows:</p> <p>“ 1. Because the master finds, as a matter of law, that the Woburn National Bank did not legally and effectually foreclose the mortgage of March 13, 1907, given by the plaintiff to Charles Cummings and assigned by Cummings to said bank, although the facts found by the master clearly show that the foreclosure of said mortgage was legal and effectual.”</p> <p>“ 9. Because upon the evidence and the facts found and reported by the master the title to the property passed to the bank by the foreclosure, then from the bank to Cummings by the transfer, then from Cummings to Harlow by the bill of sale, and the master erred in his ruling that the plaintiff has a right to redeem the mortgaged property upon paying to Cummings a certain amount of money.”</p> <p>The exception of the defendant bank sustained by the judge was in substance the same as the first exception quoted above.</p> <p>The motion to dissolve the injunction, which is referred to in the opinion, was as follows: “Now comes the respondent Florence S. Harlow and moves that the injunction previously ordered in this case be dissolved upon the ground that the facts found and reported by the master show that the plaintiff has no right to have said injunction continued, and upon the further ground that the property is being damaged and much depreciated in value by being held in storage.” The memorandum of the judge referred to in the opinion was as follows: “Motion to dissolve injunction granted. It does not appear to the court, that the plaintiff has the ability or the intention to redeem, or that the master’s ruling relative to the foreclosure of the mortgage is justified upon the facts set forth in the report and made the basis of said ruling.”</p> <p>The facts found by the master are stated in, the opinion.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on November 25, 1910, by the holder of a third mortgage on a parcel of land with the buildings thereon numbered 35 on Elmo Street in that part of Boston called Dorchester, to set aside a foreclosure sale of the property under a second mortgage.</p> <p>The case was referred to Arthur P. Hardy, Esquire, as master. The facts found by him are stated briefly in the opinion. The second mortgage was held and foreclosed by one Shapira, who was made a defendant. The date of the second mortgage was April 30, 1910. In the published notice of the foreclosure sale the date of this mortgage was stated to be April 30,1909. The sale was advertised for and took place at nine o’clock on a Monday morning. The master found that the mistake in the date was unintentional, that there was no such plot or conspiracy as alleged-by the plaintiff between the defendants or any of them, “ and that said foreclosure sale under the power contained in the mortgage to Shapira was not a pretended sale but was valid and genuine in all respects, except so far as the court may rule as a matter of law that there was some defect therein.”</p> <p>The case was heard by Morton, J., upon the plaintiff’s exceptions to the master’s report. He made a memorandum of decision as follows:</p> <p>“ I see no just ground for reversing the finding of the master in regard to the alleged fraud concerning the foreclosure sale. I do not think that the error in regard to the date of the mortgage contained in the notice of the sale, or the hour at which the sale was held, or the failure to state the terms of sale at the auction require that the sale should be set aside. It is well settled that mere inadequacy of price does not require a sale to be set aside. Shapira acted, it seems to me, with entire good faith throughout the proceedings. He did not know of the plaintiff’s mortgage and she took no steps to inform him of the fact that she held a mortgage on the property or to request information or notice of any foreclosure proceedings that he might institute. The fact that the case may be a hard one for the plaintiff if the sale is allowed to stand is not, of course, of itself enough to justify setting it aside. I think that the exceptions to the master’s report should be overruled, the report confirmed and the bill dismissed.”</p> <p>Later by order of the justice a final decree was entered that the master’s report be confirmed and that the bill be dismissed. The plaintiff appealed.</p>

<p>Bill in equity, filed in the Probate Court for the County of Bristol on November 28, 1911, by the trustees under the will of George O. Crocker, late of New Bedford, for instructions as to their power and duties under the tenth article of that will.</p> <p>On appeal the case came on to be heard before DeCourcy, J., who reservéd it for determination by the full court upon the bill and the answers of the several defendants, the objections to the decree being made a part of the report.</p> <p>The testator died on May 24, 1887, and his will was proved on July 1, 1887. Oliver C. Stevens of Boston and Charles P. Rugg of New Bedford, who were named in the will as executors and trustees, were appointed trustees under the tenth article of the will for the benefit of Amos E. Lawrence, junior, afterwards Amos E. Lawrence, one of the defendants; Stevens and Rugg acted as joint trustees until the death of Rugg, on June 9, 1896, and thereafter Stevens acted as sole trustee under the tenth article until his death on March 25, 1911. Neither Stevens and Rugg acting as joint trustees nor Stevens acting as sole trustee ever paid to the defendant Amos E. Lawrence, any part of the principal of the trust fund created by the tenth article of the will, but they paid him all the income of the fund except the sum of about $18,000, which they accumulated and added to the principal of the fund. On May 12, 1911, the plaintiffs were appointed trustees under the tenth item of the will in place of Rugg and Stevens, deceased, and qualified as such trustees. At the time of the filing of the bill the defendant Amos E. Lawrence was unmarried and had no issue.</p> <p>The tenth article of the will was as follows:</p> <p>“X. The remaining seventh of the balance aforesaid of my property, I give, devise and bequeath to my said executors as trustees for my nephew Amos E. Lawrence, Junior. And I authorize and direct my said executors as such trustees to invest the said share, both the principal and the income thereof as it shall accrue, with full authority to them to sell and to reinvest the said principal and income as often as they may deem it expedient for the interest of the trust. Whenever, and not before, they shall in their discretion be satisfied that it is safe and proper to do so, they may pay to the said Amos E. Lawrence, Junior, any part or the whole of the accumulation of said trust. If any balance of such trust fund shall be remaining in the hands of my executors as such trustees upon the death of the said Amos E. Lawrence, Junior, then, in that event, the same shall be paid by them as- follows: If he leave issue, or issue and a widow, in equal shares to said widow and issue, that is to say one half to the widow, and one half divided among his issue. And if he leave no widow the whole to be divided among his issue. If he leave a widow and no issue, the widow is to receive twenty-five thousand dollars of said trust fund, and the remainder is to be divided among my heirs at law. If he (my said nephew) leave neither widow nor issue, then the said trust fund is to be divided among my heirs at law, or so much of the same as shall remain in the hands of said trustees, at the death of my said nephew.”</p> <p>The Probate Court made a decree instructing the plaintiffs that they had the same power and authority as the original trustees to pay any part or the whole of the accumulation of the trust to the defendant Lawrence, and that “the accumulation” of the trust included the original principal of the trust fund as well as the accumulated income. The guardian ad litem appointed by the Probate Court to represent the interests of persons unascertained or not in being, and also the executor of the will of Oliver C. Stevens, who was one of the heirs at law of George O. Crocker at the time of his death, appealed from the decree. The guardian ad litem objected to the decree on the ground that the authority to pay to the defendant Amos E. Lawrence, which by the will was given to Charles P. Rugg and Oliver C. Stevens, did not pass to the petitioners. The defendant executor of the will of Oliver C. Stevens objected to the decree on the ground that the words “any part or the whole of the accumulation of said trust” referred to and included only income and investments of income, and that the plaintiffs had not the power to pay to the defendant Lawrence any part of the property in their hands as trustees which was the original principal of the trust fund as invested and reinvested.</p>

<p>Trust, Duties of trustee under compromise agreement. Probate Court. Compromise Agreement. Equity Pleading and Practice, Amendment, Report, Decree, Appeal.</p> <p>A testator by his will left the residue of his estate to trustees, who were the executors named in his will, to accumulate for twenty years and eleven months after his decease, and then to be paid in equal shares to four minor children who survived him and of whom his widow was appointed the guardian. The residue included extensive mills manufacturing cotton and woollen goods conducted under one management and operated as a whole. The will authorized the executors to carry on the testator’s cotton manufacturing business “for the purpose of winding it up, so long as they find it advisable so to do, to close it up without serious loss . . . and when as executors they shall have wound up said business, they are to pay over the proceeds thereof to themselves as trustees.” By authority of the Probate Cotut and with the consent of all persons interested all the manufacturing properties and business were conveyed to a corporation formed for the purpose, and the executors held the bonds, preferred stock and common stock of this corporation representing the manufacturing properties. Later an agreement of compromise, approved by the Probate Court, was made between the executors and trustees and the testator’s widow as guardian of the beneficiaries of the trust. This recited that “Whereas a controversy has arisen between the said guardian and the said executors and trustees respecting their powers and duties as regards the securities” of the corporation, “the continued operation of said mills by the said executors and trustees” and other subjeets-matter, “the executors shall transfer to themselves as trustees, all of the securities” of the corporation “which are now held by them as executors, and thereupon their executors’ accounts shall, as between all parties in interest, be considered as closed, settled and allowed.” There followed provisions that the trustees as shareholders of the corporation should cause to be elected a board of directors consisting of themselves and the guardian and her counsel and that the trustees as directors should be “subject to no further or other responsibility or liability than that imposed upon directors in similar corporations.” This agreement contained a provision that any party to it might at any time apply for an order and decree for the sale of the securities of the corporation. There was no appeal from the decree of the Probate Court by which the agreement of compromise was approved. More than two years later the trustees brought a bill for instructions praying that the court would determine whether the plaintiffs might sell the securities of the corporation and, if so, upon what terms and conditions. These securities constituted more than half of the trust fund and their estimated value was more than $6,000,000. The trust had existed more than eleven years and would terminate in about nine years. The agreement of compromise had become unworkable. Before the making of that agreement there had been no necessity of borrowing money but since then it had been necessary to borrow large sums of money, the amount of capital needed for the business was increasing constantly and at the time of the filing of the bill it had become necessary soon to invest large sums of new capital for replacement and extension of the plant. The guardian of the beneficiaries objected to a sale of the securities. Held, that, assuming that under the agreement of compromise the property should be retained by the trustees until there had been some material change in the situation looking to the contrary, a change had occurred, which had increased the unfitness of the property for trust investment and the impropriety of the carrying on of the business by the trustees, indicating that at least the shares of stock of the corporation both common and preferred should be sold. Morton & Braley, JJ., dissenting.</p> <p>Where, in a case in which the Probate Court has jurisdiction of the subject matter and of the parties, that court makes a decree approving an agreement of compromise under St. 1907, c. 447, and there is no appeal from the decree, the question whether the Probate Court in approving the agreement rightly interpreted the statute is not open in any further proceedings in that case.</p> <p>In a suit in equity by the trustees named in a will for instructions as to their duty, under an agreement of compromise approved by the Probate Court, in regard to selling certain securities forming a part of the trust property, a motion made by the defendants to strike out from their answer an admission that the compromise agreement was unworkable here was held to have been denied rightly within the discretion of the single justice who heard the case, and it further was held that the defendants were not harmed by the denial of the motion, because the justice found as a fact, on evidence warranting such a finding, that the agreement had become unworkable. Morton & Braley, JJ., dissenting as to the character of the alleged admission and as to the finding warranted by the evidence.</p> <p>In a suit in equity by the trustees named in a will for instructions as to their duty, under an agreement of compromise approved by the Probate Court, in regard to selling certain securities forming a part of the trust property, where a petition was pending for the removal of the trustees, it was held, that, although the petition for the removal of the trustees might have been heard with the bill for instructions, yet on the facts of the case it was not so closely allied to the question whether the securities in question should be sold as to make the consideration of both at the same time essential for the purposes of justice, and that it could not be said that the single justice who heard the case exercised his discretion wrongly in declining to hear the petition for the removal of the trustees with the bill for instructions; and, irrespective of the personality of the trustees, it was ordered that a sale of at least a part of the property should be made by the trustees for the time being, subject to the approval of a single justice of this court. Morton & Braley, JJ., dissenting.</p> <p>By the equity practice established under the statutes of this Commonwealth, when a final decree in a suit in equity has been entered formally and an appeal has been taken, the case cannot be reported for determination by this court, and the appeal comes before this court with or without a report under R. L. c. 159, § 23, by the justice who made the decree, not of the case, but only of the material facts found by him.</p> <p>In a suit in equity by the trustees named in a will for instructions as to their duty, under an agreement of compromise approved by the Probate Court, in regard to selling certain securities constituting more than half of the trust fund, a decree made by a single justice, authorizing a sale at a fair price but ordering “that the terms of such sale and the adequacy of such price shall be submitted and subject to the approval of a single justice of this court,” is not a final decree, and under R. L. c. 159, § 27, may be reported as an interlocutory decree for determination by this court.</p> <p>In a suit in equity by the trustees named in a will for instructions as to their duty, under an agreement of compromise approved by the Probate Court, in regard to selling certain securities of an estimated value of more than $6,000,000 and constituting more than half of the trust fund, a single justice made an interlocutory decree authorizing a sale by the trustees subject to the approval of the court, and denied a motion of the defendants to restrict the order to the sale of the securities without authorizing the plaintiffs to conduct the sale. He declined to consider charges against the general ability or inclination of the plaintiffs to act as trustees ought to act in such a matter, and found as a fact that none of the trustees had any such personal interest in the proposed sale of the securities as disqualified him from acting loyally and to the best of his ability for the trust in making the sale. Held, that it did not appear that the justice exercised his discretion wrongly in denying the motion. Morton & Braley, JJ., dissenting.</p> <p>In a suit in equity by the trustees named in a will for instructions as to their duty, under an agreement of compromise approved by the Probate Court, in regard to selling certain securities of great value constituting more than half of the trust fund, where a single justice makes an interlocutory decree authorizing a sale of the securities subject to the approval of the court, it is right for the justice to deny a motion for the insertion in the decree of a provision to the effect that the price at which the securities shall be sold shall be determined finally and without right of appeal by a decree of a single justice, because a single justice would have no jurisdiction to make a decree either interlocutory or final from which an appeal could not be taken.</p>

<p>Agency, Broker’s commission. Broker. Contract, Performance and breach.</p> <p>In an action by a broker for a commission for procuring a purchaser for certain real estate of the defendant, if the plaintiff shows that he procured as a purchaser a person with whom the defendant made a contract in writing for the sale of the real estate in question, it is not necessary for the plaintiff to prove further that the proposed purchaser was able, ready and willing to perform his part of the contract, the defendant having accepted him as a purchaser by entering into the contract in writing with him and the plaintiff’s commission having been earned when the contract was made.</p>

<p>Negligence, In use of highway, Street railway.</p> <p>, A man sixty-three years of age, who in crossing a city street in broad daylight at a place where there is nothing to distract his attention sees a street car, which could have been seen for a distance of at least five hundred feet, rapidly approaching, and deliberately attempts to cross in front of it when very near and is struck by the car, is negligent as matter of law.</p>

<p>Husband and Wife, Unlawful enticement, Loss of consortium. Alienation of Affections. Evidence, Of unlawful enticement.</p> <p>A declaration, in an action by one woman against another, which alleges that the defendant, intending to injure the plaintiff, unlawfully gained the affections of the plaintiff’s husband and enticed him to leave the home of the plaintiff and to continue absent from it, “whereby the plaintiff lost the comfort, society, aid, assistance and support of her said husband, and his affection for the plaintiff was wholly alienated and destroyed,” states a cause of action for loss of consortium.</p> <p>In an action, by one woman against another, for wrongfully enticing away the husband of the plaintiff, evidence was admitted, against the exception of the defendant, of familiar and suspicious conduct of the defendant with the plaintiff’s husband in the defendant’s bedroom. The plaintiff’s counsel disclaimed any suggestion of adultery and offered the evidence as bearing on the defendant’s “mental attitude.” Held, that the evidence was admissible, even if it tended to show adultery and if adultery was not charged in the declaration, because, if believed, it tended to throw some light on the methods of enticement used by the defendant and also upon her motives.</p>

<p>Tort for alleged deceit, changed from a bill in equity by an amendment filed and allowed on December 19, 1910.</p> <p>The defendant demurred to the declaration and, after an amendment by the plaintiff, demurred to the declaration as amended. The allegations, which, it was assumed in favor of the plaintiff were contained in the declaration, are stated in the opinion., The case was heard upon the demurrer by Pierce, J., who sustained the demurrer and ordered judgment for the defendant. From the judgment entered in pursuance of this order the plaintiff appealed.</p>

<p>Tort by an employee of the defendant for injuries sustained on February 17, 1908, from the falling of an elevator or dumb waiter in the building of the defendant in the manner described in the opinion. Writ dated June 10, 1908.</p> <p>The declaration contained three counts, the first alleging negligence in allowing the elevator to be in an unsafe and dangerous condition, the second alleging negligence of a superintendent, and the third alleging a defect in the ways, works or machinery of the defendant. A fourth count, added by amendment, alleged negligence of a person who in the absence of the superintendent was acting as superintendent.</p> <p>In the Superior Court the case was tried before Brown, J. It was agreed that the defendant was a corporation created by St. 1829, c. 22. The following facts appeared in evidence: The building of the defendant was at the corner of Massachusetts and Huntington Avenues in Boston and was known as Horticultural Hall. One Spry was the engineer of the building and had entire charge of its mechanical parts. The plaintiff “was hired to do janitor work, which consisted of keeping the place clean, sweeping, dusting, scrubbing, cleaning brass work, etc.” He was instructed by one Rich, who was the general superintendent of the building and the secretary of the defendant, to take orders from Spry.</p> <p>A secret society, known as the Order of the Eastern Star, hired for the week beginning February 17,1908, certain portions of Horticultural Hall consisting of the large exhibit room, the lecture room, the restaurant in the basement and, in connection with that, the kitchen, which was in the third story. On the morning of February 17 the caterer in charge of the kitchen wished to have some tables brought up, and asked Spry to send up some tables. Spry thereupon said to the plaintiff, “Tom, they want a table in the kitchen. Get one up.” The plaintiff thereupon got a table eight feet long and three feet wide, and with another man tried to get the table up through some spiral stairs to the third floor. Finding that this was not practicable, they put the table on the elevator or dumb waiter, which was used for the purpose of carrying supplies from the basement to the kitchen. The plaintiff then went to Spry and said, "Joe, we can’t get the table up the stairway; I have got it on the elevator,” to which Spry replied, “That is all right, Tom. Send it up. Can you do it?” to which the plaintiff replied, "I guess I can.” The table was accordingly sent up to the third floor and taken off. A little while after, Spry came to the plaintiff and told him that more tables were wanted, to which the plaintiff replied that he would get them up just as soon as he could. The plaintiff and another man then got more . tables and put one on the elevator in the same manner that they had put the first one on. When they went up to take the table off, it was found that something was wrong with the elevator, and the plaintiff went to see what the trouble was. He saw that the lifting . cable of the elevator had parted from the cross beam at the top of the elevator. The cable had run off the wheel and fallen down toward the platform of the motor so that it hung down the well. Spry then came upstairs and the conversation between him and the plaintiff occurred which is quoted in the opinion, followed by the accident as there described.</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 the ruling was right, judgment was to be entered upon the verdict; but that, if the ruling was wrong, judgment was to be entered for the plaintiff in the sum of $2,500.</p>

<p>Negligence, Street railway, Res ipso loquitur. Evidence, Presumptions and burden of proof.</p> <p>In an action against a corporation operating passenger cars in a tunnel, for injuries caused by a sliding door of a car of the defendant closing by mechanism upon the plaintiff while she was in the act of entering the car, which was standing for the reception of passengers at a station, if there is no explanation whatever of the cause of the movement of the door, its closing upon the plaintiff is prima fade evidence of negligence, although it was possible for some passenger to have started the machinery by which the door was closed.</p> <p>It is the duty of a corporation operating passenger cars in a tunnel, not only to use care to see that its servants manage properly the machinery for closing the sliding doors of its cars by which the passengers enter, but also to use care to see that no stranger starts the mechanism so as to cause injury to a passenger.</p>

<p>Contract to recover $675 for professional services alleged to have been rendered to the defendant and $32 for cash disbursements alleged to have been made for and in behalf of the defendant at her request. Writ dated June 18, 1908.</p> <p>The defendant in a supplemental answer alleged that one of the plaintiffs at the time the services were rendered was not admitted to practise law in this Commonwealth in accordance with the provisions of the Revised Laws and statutes in amendment thereof.</p> <p>In the Superior Court the case was tried before Sanderson, J. The material facts are stated in the opinion. At the close of the evidence, the plaintiffs asked the judge to instruct the jury as follows: “That even though one of the plaintiffs was not a member of the bar of Massachusetts, the other member being a member of the bar of Massachusetts, the plaintiffs can recover, both being partners.” The judge refused to give this instruction.</p> <p>The judge instructed the jury as follows: “For services rendered in contravention of law there can be no recovery, either by the person who rendered them or by him jointly with one who might legally have rendered said services. A person not admitted to the bar cannot recover for services rendered by him as an attorney at law, even if he was in partnership with an attorney at law and he brings suit jointly with said attorney. The license to practise law is personal and enures solely for the benefit of the person admitted so that it is illegal for another person not admitted to practise upon his own account under the license to the person admitted, or in partnership with him; and in case of such partnership the partners can maintain no joint action to recover fees or expenses for conducting cases in court if the parties not admitted had no written power of attorney and had not been nominated in open court.”</p> <p>The judge then gave the instruction in regard to a nomination in open court which is quoted in the opinion. He continued as follows: “A nomination in open court at a hearing upon a motion or other preliminary matter in a case would not be sufficient to legalize the conduct of the case before a jury not authorized by a written power of attorney or especially authorized; that is unless the special personal nomination was intended to give the special authority to the attorney to act in the trial of the case.</p> <p>“In an action for services as an attorney at law, no recovery can be had for services in conducting a case in court rendered by one who is not admitted to the bar, unless he is specially authorized.”</p> <p>After the above instructions were given there was a conference between the judge and counsel, and thereafter the judge further instructed the jury as follows: “It is agreed by counsel for the defendant that the defense of illegality does not apply to the reasonable sum for cash disbursements, if you find there is any such sum due.”</p> <p>The jury returned a verdict for the defendant; and the plaintiffs alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Fraternal Beneficiary Corporation, By-laws, Benefits. Waiver.</p> <p>A section of the constitution of a fraternal beneficiary corporation, composed of persons of Italian birth and ancestry, was as follows: “Within a year from their admission all members must be supplied with the society uniform . . . otherwise they shall lose all the rights to benefits and may be cancelled from membership.” Other sections required the wearing of the uniform by those appointed as pall bearers to represent the society at the funerals of members and by all members taking part in any public parade of the society. Held, that it could not be said that the requirement that the members should provide themselves with uniforms was outside the general purposes for which the society was incorporated or that it was unreasonable; also, that it could not be said as matter of law that the penalty for non-compliance was too severe.</p> <p>Under a valid by-law of a fraternal beneficiary corporation requiring that all members must be supplied with the society uniform and that “otherwise they shall lose all rights to benefits and may be cancelled from membership,” where another by-law provides that “they shall be punished with suspension of the sick benefit . . . who shall not have the society’s uniform,” it would seem, that so long as a member does not have the society uniform his right to benefits is suspended without any action by the directors. In the present case the member’s right to benefits was declared lost by a vote of the directors before the injury by reason of which the benefit was claimed, and such action was not waived by another similiar vote passed after the injury.</p>

<p>Charter Party. Ship. Contract, Performance and breach.</p> <p>In an action on a charter party for a balance of charter hire, it appeared that the defendant chartered a steamship of the plaintiff for a period of six months, that the plaintiff was to furnish the vessel with a full complement of officers and crew and that she was to be employed in the carriage of any “ lawful merchandise, including petroleum and its products,” between ports named in the charter party, including certain Atlantic ports of North and South America and the West Indies. The defendant excepted to the exclusion of evidence that in one of the months covered by the charter party there was a hurricane in the island of Jamaica which so devastated that island that no merchantable fruit could be obtained during the remainder of the charter period. The defendant contended that the hurricane was an “act of God” within the exception clause of the charter which prevented the defendant from performing his contract. Held, that the hurricane, as it affected only one kind of merchandise, was not an “act of God” excusing non-performance of the charter" party, and that the evidence was excluded properly.</p> <p>In an action on a charter party, under which the defendant hired a steamship of the plaintiff for a period of six months, for a-balance of the charter hire for the last two months of the period, it appeared that the charter party contained the following provision: “Ship’s bottom to be kept cleaned and steamer to be docked whenever captain and charterers think it necessary, but at least once in every four months, and payment of hire to be suspended until she is again in proper state for the service.” The plaintiff’s agent told the defendant that the plaintiff would have the vessel docked and cleaned at any time the defendant desired to have it done. The defendant did not at any time during the six months for which the vessel was hired ask that she should be docked or her bottom cleaned, and this was not done. It did not appear that the defendant, who had full control of the vessel, ever gave the plaintiff an opportunity to do this work, and he returned the vessel only at the expiration of the six months. The defendant contended that the failure of the plaintiff to dry dock and clean the vessel was a bar to the action. No claim in recoupment was made. Held, that under the circumstances the failure of the plaintiff to dry dock and clean the vessel was no ground of defense to the action; and that, if the defendant had suffered any loss from the failure to clean the vessel, his remedy was by way of recoupment.</p>

<p>Contract or tort, with a count for an alleged conversion, a count to recover money paid under a mutual mistake, and a count on an account annexed for money paid to the defendant as clerk of the courts of Norfolk County for travelling expenses, incurred in going between his house in the town of Weymouth and the clerk’s office in the town of Dedham upon days when the court was in session, to which the defendant was not entitled.</p> <p>In the Superior Court the case was submitted to Hardy, J., upon an agreed statement of facts. The judge made a pro forma finding for the defendant and reported the case for determination by this court. The facts are stated in the opinion.</p>

<p>Contract against Winfield C. Jordan and his father Charles Jordan as the indorsers upon a promissory note signed “Wake-field Reed Chair Co., by W. C. Jordan, Treas.,” dated August 4, 1898, for $1,500, payable three months after date “to the order of ourselves ” with interest, and indorsed by the Wakefield Reed Chair Company, by the defendants and by one Henry H. Savage. Writ dated November 22, 1898.</p> <p>Neither the Wakefield Reed Chair Company nor Henry H. Savage were made defendants. The defendant Winfield C. Jordan pleaded his discharge in bankruptcy.</p> <p>In the Superior Court the case was tried before Wait, J., against the defendant Charles Jordan, who it was contended by the plaintiffs had waived demand and notice. The plaintiffs called the defendant Charles Jordan as a witness. Certain questions put to him were excluded by the judge against the plaintiffs’ exception. At the close of the plaintiffs’ evidence the judge ordered a verdict for the defendants; and the plaintiffs alleged exceptions. The facts which could have been found upon the evidence are stated in the opinion.</p> <p>The question asked in regard to the defendant Charles Jordan’s testimony given previously in the Probate Court, which is referred to in the opinion, was whether the witness then testified that the note in suit was given in renewal of a note given in 1897. The judge excluded the question on the ground that its subject matter had been excluded and that there was no testimony of the witness which the answer to the question would tend to contradict.</p> <p>The case was submitted on briefs.</p>

<p>Contract, What constitutes. Equity Jurisdiction, Specific performance. Corporation, Identity, Reorganization. Estoppel.</p> <p>In a suit in equity by the alleged assignee of a lease of real estate and of a subsequent agreement of modification, to enforce the provisions of such subsequent agreement, it appeared that the lease was given by the defendant to a certain South Dakota corporation, which entered into possession of the premises as lessee, that such lessee caused to be organized under the laws of Maine another corporation of the same name with the same amount of capital stock, which was issued to its stockholders in exchange for their shares, that the officers were substantially the same, that the business to be carried on was the same, and that the South Dakota corporation transferred all its property to the Maine corporation and assigned to it the lease made by the defendant, but that the existence of the Maine corporation and the assignment purposely were concealed from the defendant, that thereafter the agreement of modification was drawn purporting to be made by the parties to the lease and its execution was authorized by a vote of the directors of the South Dakota corporation, whereupon it was executed for and in behalf of the Maine corporation by the person who was president of both companies. The officers of the Maine corporation intended the defendant to believe that the agreement was executed by the South Dakota corporation, the original lessee, and the defendant executed the agreement, believing and having reason to believe that it was an agreement with the South Dakota corporation. The assignment to the plaintiff was from the Maine corporation. Held, that the minds of the parties never met as to the alleged agreement of modification and that it never was made.</p> <p>If a corporation conveys all its property and assets to a new corporation of the same name organized under the laws of a different State, which assumes all the liabilities of the first corporation, and if the new corporation has the same stockholders, officers and agents as the first one and carries on the same business at the same place in the same manner and under the same management, the two corporations have separate and distinct existences, being subject to different laws, and are not the same person at law or in equity.</p> <p>In a suit in equity to enforce an agreement assigned to the plaintiff by a certain corporation, which was executed and intended to be made with the defendant by the plaintiff’s assignor when the defendant was ignorant of the existence of that corporation and by reason of the fraudulent concealment of the truth by the plaintiff’s assignor believed that he was making an agreement with another corporation of the same name organized under the laws of a different State, acts of the defendant, based upon the same erroneous belief, recognizing the plaintiff as the assignee of the agreement and permitting the plaintiff to incur expense relying upon the validity of the agreement and in expectation of its fulfilment, do not estop the defendant from setting up the defense that he never made the alleged agreement wither the plaintiff’s assignor.</p> <p>In a suit in equity to enforce an alleged agreement to furnish to the plaintiff refrigeration, steam, electricity and water, if it appears that there was an expectation of both parties that these things would be furnished by the defendant to the plaintiff upon terms mutually satisfactory, that there were some negotiations toward this end, and that the plaintiff relying on such expectation and negotiations incurred great expense, this does not estop the defendant from maintaining the defense that no contract ever was made between the parties.</p>

<p>Attorney at Law. Lien. Evidence, Presumptions and burden of proof. Infant, Next friend. Rehace.</p> <p>R. L. c. 165, § 48, which gives to an attorney at law a lien upon money collected by him on an execution in favor of a client for the amount of his fees and disbursements, gives such attorney no lien for counsel fees for services, and, if he is sued by his client for money had and received, and it appears that he retained from the money collected on the execution an amount in excess of the amount of the fees and disbursements upon a claim for compensation for his services, the burden of proof is on the defendant to show that his claim for counsel fees is at least equal to the balance thus retained by him, and the question of the amount of the defendant’s claim is for the jury on the evidence presented.</p> <p>A father who has acted as next friend for his minor son in an action by the son for personal injuries, after a judgment for the plaintiff has been entered and execution has issued and has been satisfied, has no authority to settle a controversy with the attorney at law who conducted the action as to the amount to be retained by the attorney for his services out of the money collected by him upon the execution, or to give in behalf of the minor a release of the attorney from all claims.</p>

<p> Probate Court. Judgment. Bank. Equity Jurisdiction. </p> <p>A decree" of a Probate Court made upon the account of a deceased administrator, determining the amount due from the estate of such deceased administrator to the estate of his intestate, is conclusive in a suit in equity brought by a successor of the deceased administrator against a bank, seeking to hold it liable for certain funds of the estate of the intestate embezzled by the deceased administrator.</p> <p>In a suit in equity by an administrator de bonis non against a bank, seeking to hold the defendant liable for sums of money drawn from the account with the defendant of the estate of the plaintiff’s intestate by a former administrator by checks payable to his own order which he deposited in his individual account with the defendant and used for his own purposes, it is no defense that the surety on the bond of the dishonest administrator negligently failed to require him to perform his duties as administrator, if it does not appear that the defendant had any relations with the surety or knew that it was surety on the administrator’s bond; and it is immaterial that the plaintiff had brought suit against the surety and that the surety had paid to the plaintiff the penal sum of the bond, and that the plaintiff and the surety had made an agreement that the surety might sue the defendant in the name of the plaintiff, the surety bearing the expenses of the suit, and that any amount recovered should be divided equally between them.</p> <p>In a suit in equity by an administrator de bonis non against a bank, seeking to hold the defendant liable for sums of money drawn from the account with the defendant of the estate of the plaintiff’s intestate by a former administrator and dishonestly deposited in his individual account with the defendant, it is no defense that the intestate’s next of kin made no attempt to keep track of the dishonest administrator or to compel him to account, if it does not appear that there had been any relations of any kind between any of the next of kin and the defendant or that the defendant knew who the next of kin were.</p> <p>In a suit in equity by an administrator de bonis non against a bank, seeking to hold the defendant liable for sums of money drawn from the account with the defendant of the estate of the plaintiff’s intestate by a former administrator and dishonestly deposited in his individual account with the defendant, it appeared that at certain times the dishonest administrator overdrew his individual account with the defendant and on notice of each overdraft deposited in that account a check, for an amount larger than the amount of the overdraft, drawn by him as administrator on the account of the estate with the defendant payable to his own order, and that thereafter the dishonest administrator con-tinned to deposit in his individual account such checks thus drawn by him as administrator. A master found that, on and after the date when an overdraft on the individual account first was made good by the deposit of a check drawn on the estate account, the defendant had knowledge of such facts as reasonably would lead it to suspect that the administrator was using without authority funds of the estate for his own private purposes, but he also found that the defendant at no time had any actual knowledge or suspicion that the administrator was making such use of the funds of the estate. Held, that the defendant was liable to account to the plaintiff for the whole amount of the checks deposited by the administrator in his individual account out of which the defendant reimbursed itself for the overdrafts, because .as to these checks the defendant had profited by and participated in the unlawful acts of the administrator; but that the defendant was not liable for the amounts of other like checks deposited subsequently by the administrator in his individual account and credited to him by the defendant when there were no overdrafts and when on the master’s finding the defendant had no actual knowledge or suspicion of the administrator’s wrongdoing.</p> <p>It seems, that a bank, in which an administrator has an account of the estate of his intestate and also an individual account, is not liable to the estate of the intestate for the amount of a check drawn by the administrator to his own order from funds of the estate of his intestate in another bank and dishonestly deposited in such individual account for his own use, if such check is presented in good faith by the bank in which it is deposited to the bank on which it is drawn and is paid without question.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on April 25, 1911, by the holders of forty-six per cent of the common stock and about twelve per cent of the preferred stock of the defendant corporation, to restrain the defendant corporation and the individual defendants as the holders of about fifty-three and one half per cent of the common stock and about fifty-three and one half per cent of the preferred stock of the defendant corporation from carrying out a plan, approved by the directors, to raise additional capital for the defendant1 corporation by reducing its common stock from eight thousand shares to one thousand shares and then increasing such common stock to four thousand shares by issuing three thousand shares of common stock at par, the preferred stockholders to have the right to subscribe for one new share for each old share and the common stockholders to have the right to subscribe for one new share for each share of common stock after the reduction, representing eight of the old shares.</p> <p>The case was referred to James D. Colt, Esquire, as master. The important facts found by him are stated in the opinion. The plaintiffs filed exceptions to the master’s report relating to certain findings of fact made by the master.</p> <p>The case was heard by Morton, J., who made a memorandum of decision as follows: “I see nothing inequitable or unjust in the proposed scheme. The master finds that the net value of the common stock, after the proposed reduction, will not be in excess of $100 a share, and that the proposed scheme, if carried out, will result in no pecuniary gain to the defendants, except in so far as it will enable the company to conduct its business profitably in the future. He finds that the defendants have a little more than a majority now of each class of stock, and that if the proposed reduction and increase are carried through, and they take what they will be entitled to, they will then only have a little more than a majority of each class of stock. He finds that, owing to their having very much less of the preferred stock, the plaintiffs will lose in voting power. But that seems to me to be unavoidable. The master finds that the defendants are acting in entire good faith, and I see nothing to lead me to question the correctness of that finding. Under the proposed plan every stockholder, common and preferred, will have the right to subscribe for his proportion of the increase, and if a majority of the stockholders of each class think that the plan that is proposed is, under all the circumstances, the best plan, and vote to adopt it, I do not see how the rights of the minority are interfered with. The result is that I think that the exceptions to the master’s report should be overruled, the temporary injunction dissolved, and the bill dismissed, and it is so ordered.”</p> <p>By order of the justice a final decree was entered accordingly; and the plaintiffs appealed.</p>

<p>Estoppel. Pledge. Custom. Equity Jurisdiction, Fraudulent pledge, Marshalling of assets. Corporation, Transfer of shares.</p> <p>Where there is a custom, that a certificate of shares in a corporation accompanied by an instrument of power of transfer signed in blank by the person named in the certificate as owner, in the possession of a person who is known and is of good reputation, “if the signature is guaranteed by a stock exchange house,” is treated as “capable of good transfer and delivery by such holder” for sale or pledge, the owner who has entrusted such a certificate and power of transfer to such a holder is estopped to deny the title of a pledgee who took the certificate and power of transfer from the holder under such custom in good faith. In the present case it was held that the operation of the estoppel was not affected by certain representations made by the holder of the certificate as to his right to use the stock, or by the fact that the guaranty of the signature of the owner of the certificate by the stock exchange house on the power of transfer was procured without the knowledge of the owner after its delivery to the holder.</p> <p>In a suit in equity to enforce an alleged equitable pledge of certain shares of a corporation in the possession of a trust company subject to a prior pledge to the trust company, it appeared that the shares were transferable only on the books of the corporation on surrender of the certificate, that the. owner of the shares, in whose name they stood, entrusted the certificate together with an instrument of transfer and power of attorney signed by him in. blank to a stockbroker, then known as of good reputation, that the stockbroker dishonestly pledged the shares for his own benefit to the trust company, which took them in good faith under a custom by which such a certificate with an instrument of transfer executed and witnessed as this one was “when in the possession of a person who is known and is of good reputation,” is treated “when offered for sale, pledge or transfer ... as capable of good transfer and delivery by such holder for such sale or pledge," and that thereby the owner of the shares was estopped to deny the validity of the pledge to the trust company. Later the stockbroker, in consideration of the promise of the plaintiff not to sue him at that time for money which he owed the plaintiff, executed an assignment in writing to the plaintiff of all his “right, title and interest” in the shares of stock pledged by him to the trust company, subject to the rights of that company as pledgee. Before accepting this assignment, the plaintiff went to the trust company and inspected the certificate of stock and the instrument of transfer and gave notice to the trust company of the assignment. Held, that there was no pledge to the plaintiff because there was no delivery, and that the owner of the shares was not estopped to assert his title as against the plaintiff, because the custom had no application when the person to whom the owner had delivered the certificate and the instrument of transfer no longer was in possession of them, and because the instrument of transfer from the owner to the stockbroker did not transfer the title to the shares but only a right to acquire such title by surrendering the old certificate to the corporation and obtaining a new one.</p> <p>In a suit in equity by the owner of certain shares of stock held by the defendant under a pledge from a dishonest stockbroker which the plaintiff under a custom is estopped to deny, if it appears that the broker who pledged the plaintiff’s shares to the defendant also pledged to the defendant to secure the same indebtedness other shares of stock to which the broker had the title, the shares to which the broker had title first should be resorted to in satisfying the defendant’s claim before applying the shares to which the plaintiff has the title subject to the pledge.</p>

<p>Deed, Construction. Easement. Way, Private. Land Court. Railroad.</p> <p>In a deed conveying to a railroad corporation two parcels of land adjoining on either side the location of its railroad, the granting clause and the habendum clause were in the usual and proper terms to convey the land in fee. Following the description of the land was the following clause: “It is hereby intended to convey the above premises to the said railroad company to be used for a public road and depot and railroad purposes only. Reserving to the grantor, her heirs and assigns, the use of said granted premises for ingress and egress to and from her land adjoining.” There was a clause of general warranty which excepted from its operation only “the aforesaid reservations.” On acquiring the land the railroad corporation constructed across it a public road and over a part of it built a railroad station. Afterwards the station was destroyed by fire and was rebuilt on other land but it was approached from the highway over the land in question. Held, that, subject to the right of ingress and egress reserved for the benefit of the grantor’s adjoining land, the land was conveyed to the railroad corporation unconditionally in fee simple.</p> <p>A grantor conveyed to W certain lots of land together with the fee in half of a town way adjoining one of them, “reserving to herself and her heirs and assigns all right to the aforesaid town road opposite the last named lot of land, in case the said road be discontinued, allowing the said W to pass and repass to and from his land.” The town way was discontinued, and the fee in half of the part of it opposite the lot passed to the successor in title of the grantor. The title of W had passed to another person. Held, that such half of the part of the old town way was subject to a right of passing and repassing appurtenant to the land formerly of W, the right of way not having been personal to W but having been granted in fee with the land to which it was appurtenant under the habendum clause of the deed to him as a part of the estate out of which the reservation was carved.</p> <p>Under R. L. c. 128, § 18, as amended by St. 1905, c. 249, § 2, the Land Court may register the title to an estate in fee in land under a railroad location, although the rights of the railroad corporation, assuming them to have been acquired by eminent domain, are substantially permanent and practically exclusive so long as the land is used for the purposes of a railroad.</p>

Tort by the administratrix of the estate of Louis M. Upson to recover for the death of the plaintiff’s intestate alleged to have been caused by the negligence of the defendant when the intestate was in the employ of the defendant as an assistant station agent and telegraph operator at Pepperell on February 9, 1909.

<p>Tort for loss of services of the plaintiff’s wife and child through the alleged wrongful and negligent acts of the defendant as set forth in the declaration printed below. Writ dated July 14,1904. The declaration was as follows:</p> <p>"And the plaintiff says that on or about April 2, 1903, the defendant extensively advertised a food preparation of malt and hops known as ‘Malt Nutrine’ as being manufactured and prepared by the defendant with great care and as being compounded in such a manner that the same was extremely healthful and nutritious for women and children requiring nourishment and strength.</p> <p>“And the plaintiff says that on. or about said date, relying upon such representations, the plaintiff purchased a bottle of said ‘Malt Nutrine’ and had the same given to his child, John Joseph Roberts, the plaintiff’s servant, and to his wife.</p> <p>"And the plaintiff says that said 'Malt Nutrine’ was so improperly and negligently compounded by the defendant that the same contained poisonous and deleterious substances so that when the contents of said bottle, purchased by the plaintiff as aforesaid, was given to the child and wife of the plaintiff, as aforesaid, the said wife and child of the plaintiff became suddenly and terribly ill and suffered great pain of body and mind from the effects of which the said child of the plaintiff, as aforesaid, died and from the effects of which the wife of the plaintiff, as aforesaid, has been caused and will be caused to suffer great pain of body and mind and has been permanently injured.</p> <p>“And the plaintiff says that the injury and death to the plaintiff’s child, as aforesaid, was caused by the negligence and improper compounding of said 'Malt Nutrine’ by the defendant in consequence of which said bottle of 'Malt Nutrine’ contained poisonous and deleterious substances. That by reason of said injuries to the plaintiff’s wife and child, as aforesaid, the plaintiff has lost the services of his said child and has lost and will lose the services, comfort and assistance of his said wife and has been,put to great costs and expenses for medical services and attendance all to his great damage.”</p> <p>In the Superior Court the case was tried before Morton, J. There was an answer in abatement on the alleged ground that the action was not brought properly in the county of Suffolk. This was overruled by the judge and the defendant excepted. The facts which could have been found upon the plaintiff’s evidence are stated in the opinion.</p> <p>The defendant offered no evidence. The judge ordered a verdict for the defendant, and reported the case for determination by this court. After a statement of the evidence, the report of the judge closed as follows: “This being all the material evidence I directed a verdict for the defendant and under agreement of the parties I report the case for the consideration of the Supreme Judicial Court under the usual agreement. It is agreed that if judgment should be entered for the plaintiff it is to be for the sum of $300.”</p>

<p>Contract for the breach of an alleged contract to employ Charles E. Pye, the plaintiff’s assignor, for one year from the malting of the contract in June, 1903, as marine superintendent of the defendant’s transportation business and to pay him for such services the sum of $3,600, alleging also that on March 19,1909, Pye made an assignment in writing to the plaintiff of his claim against the defendant. Writ dated May 10, 1909.</p> <p>In the Superior Court the case was tried before Aiken, C. J. The defendant was a corporation, established under the laws» of the Province of Nova Scotia. The charter and by-laws of the defendant were put in evidence, and contained the following provisions:</p> <p>From the charter:</p> <p>“Sec. 7. (1) At the annual general meeting, the shareholders assembled who have paid all calls due on their shares shall choose five persons to be directors of the Company; but the Company may, by by-law, first approved of by the shareholders, increase the number of directors to any number not exceeding fifteen, and a majority of such directors shall be a quorum.</p> <p>“(2) The directors may annually appoint from among themselves an executive committee, for such purposes and with such powers and duties as the directors by by-law determine, and the president shall be ex-officio a member of such executive committee.”</p> <p>From the by-laws:</p> <p>“Sec. 7. The affairs of the Company shall be under the control of a board of seven directors, elected by the shareholders by stock ballot. The directors so elected will choose from among their number a President and Vice-President. They will also appoint a Treasurer and Secretary, who shall perform such duties as may be required by the President, Board of Directors or Executive Committee.</p> <p>“Sec. 8. The Directors shall annually appoint from among themselves two directors, who with the President, shall form an Executive Committee, and said committee shall have full powers of the Board of Directors when said Board is not in session.”</p> <p>These by-laws were in force in June, 1903. The other material facts which could have been found on the evidence are stated in the opinion.</p> <p>At the close of the evidence the defendant asked for twenty-eight rulings, as referred to in the opinion. The first four rulings requested were as follows:</p> <p>“1. As a matter of law the plaintiff cannot maintain this action and the verdict must be for the defendant.</p> <p>“2. On all the evidence the plaintiff cannot maintain this action and the verdict must be for the defendant.</p> <p>“3. The plaintiff has not proved the making of the contract declared on and the plaintiff cannot, therefore, recover.</p> <p>“4. The plaintiff has not proved any vote of either the stockholders or directors to employ Pye for a year, and, therefore, the plaintiff cannot recover.”</p> <p>i The judge refused to make any of these rulings. He submitted to the jury three special questions, which with the answers to them were as follows:</p> <p>“1. Did the executive committee pass the vote of June 15, 1903?” To which the jury answered, “Yes.”</p> <p>“2. Did the executive committee pass the vote of June 16, 1903?” To which the jury answered, “No.”</p> <p>“3. Was the employment by the month or by the year?” To which the jury answered, “By the year.”</p> <p>The vote of June 15, 1903, referred to in the first question, was relied upon by the plaintiff as making with Pye the contract sued upon. The alleged vote of June 16, 1903, referred to in the second question, was relied upon by the defendant and purported to make with Pye a contract of different character.</p> <p>The jury returned a general verdict for the plaintiff in the sum of $3,575.50. The defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Evidence, Matters of common knowledge, Judicial notice. Railroad. Street Railway, Operation in subway.</p> <p>The court here took judicial notice of the fact that cars in the Boston subway stop only at fixed stations.</p> <p>It is right for the conductor of a surface car, which has started from a station in the Boston subway and has moved about two feet with another car coming about twenty feet behind it, to refuse to stop the car or to allow a passenger to leave it in order that the passenger may recover a valuable violin, which in its case has slipped from under his arm and has fallen from the car.</p>

<p>Negligence, Street railway, In use of highway. Practice, Civil, Ordering verdict.</p> <p>At the trial together of two actions of tort, one against the keeper of a livery stable and the other against a street railway company, for personal injuries received by the plaintiff, while being driven in a cab of one defendant, because of a collision between the cab and a street car of the other defendant, where the plaintiff’s due care was not in controversy and the driver of the cab and the motorman of the car, called as witnesses by the plaintiff, each gave testimony on which it could have been found that the collision was caused by negligence of the other, and there was no other evidence as to the cause of the collision, it was held, that the questions, whether negligence of either or of both of the defendants caused the injury, should be submitted to the jury.</p>

<p>Practice, Civil, Amendment of writ, Conduct of trial.</p> <p>It is within the discretionary power of a presiding judge to allow after a verdict an amendment increasing the ad damnum of the writ.</p> <p>After the charge to the jury in an action by one woman against another for the enticing away of the plaintiff's husband and the alienation of his affections, the presiding judge, in the course of a colloquy with counsel and in the presence of the jury, stated in substance that it was competent for the jury to return a verdict for damages beyond the ad damnum of the writ, and that he understood the plaintiff’s counsel to suggest that, if the amount of damages returned should exceed the ad damnum of the writ, the plaintiff would move to amend, which could be done after the verdict as well as before, whereupon the plaintiff’s counsel stated that he should desire to make such an amendment. Held, that the language of the judge was not beyond his power and did not tend to prejudice the defendant.</p>

<p>Negligence, Railroad, Trespasser, Of child. Reckless or Wilful Misconduct.</p> <p>In an action against a railroad corporation by a child twenty-seven months of age to recover for personal injuries due to his being run into by a train of the defendant while he was a trespasser upon the defendant’s track, neither his age, his due care, due care on the part of his parents, or negligence or gross negligence on the part of employees of the defendant is an issue, and the plaintiff can recover only upon showing that his injuries resulted from wilful or wanton misconduct on the part of the defendant or of'its employees.</p> <p>Where, at the trial of an action against a railroad corporation by a child twenty-seven months of age who, while a trespasser upon a track of the defendant, was run over by a locomotive engine running backward and drawing four loaded freight cars, the plaintiff’s evidence tends to show only that it was one of the duties of the engineer to keep a lookout along the track in the direction in which he was going, that the plaintiff might have been seen by the engineer when six hundred feet distant and that a whistle was sounded at that distance at a point where there was a post directing that it should be sounded, while evidence of the defendant tends to show that the engineer did not see the plaintiff until he was one hundred feet from him and then did all in his power to prevent the accident, a verdict should be ordered for the defendant, there being no evidence of reckless or wilful misconduct on the part of any of the defendant’s employees.</p>

<p>Negligence, Employer’s liability.</p> <p>At the trial of an action against a street railway company by an employee for personal injuries due to being struck by a passing car while he was working between tracks of the defendant, the plaintiff testified that general instructions had been given to all employees similarly employed to look out for themselves, and also that a superintendent of the defendant had told him to go ahead with the work and he would look out for the cars. There also was evidence that, while the plaintiff was at work, the superintendent shouted a warning to him of the approach of the car which struck him, but that the warning came too late for him to avoid injury. Held, that the questions, whether the plaintiff when injured was in the exercise of due care and whether the superintendent was negligent, were for the jury.</p>

<p> Saugus. Revere. Water Rates. </p> <p>Under the provisions of St. 1904, c. 457, § 1, that the town of Revere might supply with water itself and its inhabitants and such inhabitants of the town of Saugus as then were supplied or might thereafter “make application to be supplied with water under the provisions of” St. 1889, c. 382, § 7, and that it might “regulate the use of such water and fix and collect rates to be paid for the use of the same,” the town of Revere was given full and unqualified power to fix the rates to be paid for water furnished to inhabitants of Saugus and was not bound by the provision of St. 1889, c. 382, § 7, to the effect that the Revere Water Company, incorporated by that statute, if it supplied water to inhabitants of Saugus, must not charge rates in excess of those paid in the city of Lynn.</p>

<p>Practice, Civil, Exceptions.</p> <p>An exception by a defendant in an action of contract to a refusal by the judge presiding at the trial of the action to rule that on all the evidence the plaintiff was not entitled to recover will not be sustained if the bill of exceptions does not purport to contain the substance of all of the evidence at the trial material to the ruling, although from such evidence as it does contain it may appear that the ruling should have been given.</p>

<p>Deed. Boundary. Words, “Beach.”</p> <p>Two of the boundaries in a deed of land by an arm of the sea were, "southerly by the upper edge of the beach, southeasterly by land of the grantor, there measuring about twelve feet as the fence now stands.” The deed also stated, “No part of the beach is hereby conveyed.” Fifteen feet back from the mean high water mark a grass grown bank from six to fifteen feet high rose abruptly at an angle of about forty-five degrees from a smooth sandy beach. Heavy spring tides rose to the foot of the bank. The fence mentioned in the deed came to the edge of the bank and no farther. Held, that there was nothing in the circumstances to give to the word “beach” any other than its ordinary meaning, that is, the space between ordinary high and low water mark; and therefore that the land between the bank and mean high water passed by the deed.</p>

<p>Tort for an assault and battery alleged to have been committed by a porter of the defendant, the proprietor of the New American House in Boston. Writ dated June 10, 1909.</p> <p>In the Superior Court the case was tried before King, J. There was evidence tending to show that the plaintiff went to the defendant’s hotel, intending to get dinner there; that he first went to the toilet room to have his shoes polished; that, having a new pair of stockings with him, he told the porter that he would like to change his stockings, and that the porter replied that he could not change them there; that the plaintiff then entered one of the toilet closets and began to change his stockings, whereupon the porter forcibly ejected him. No third person saw the assault committed. Other facts are stated in the opinion.</p> <p>• There was a verdict for the plaintiff for $500; and the defendant alleged exceptions.</p>

<p>Tort for personal injuries from being struck by one of a pair of horses belonging to the defendant, which were left unattended attached to a dray or caravan standing near the sidewalk of Water Street in Boston. Writ dated January 15, 1910.</p> <p>In the Superior Court the case was tried before Brown, J. “It was agreed that at the time of the accident the horses and team belonged to and were engaged in the business of the defendant transporting United States mail.” The time of the accident and the way in which it happened are stated in the opinion. 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. If his ordering of the verdict was correct, judgment was to be entered for the defendant; otherwise, the case was to be sent back to the Superior Court for trial.</p> <p>The case was submitted on briefs.</p>

Bill in equity, filed in the Superior Court on December 6, 1908, by Mary F. Lyons and Thomas F. ICelley, children of Honora Kelley, who died on November 24, 1908, to set aside a deed of certain real estate in Somerville made on September 24, 1908, by Honora Kelley to the defendant, a sister of the plaintiffs, alleged to have been procured by the undue influence of the defendant; with a prayer for further relief. The case was referred to Stephen H. Tyng, Esquire, as master.

<p>Negligence, Street railway, Motor cycle, In use of highway. Evidence, Competency, Opinion: experts. Witness.</p> <p>At the trial of an action against a street railway company for personal injuries received when the plaintiff, while riding a motor cycle, was run into by a street car of the defendant, there was evidence tending to show that tracks of the defendant’s street railway were in the middle of a street forty or fifty feet wide which the plaintiff was approaching from an intersecting street intending to turn to the left thereon, that the plaintiff’s view of the street to his right was obscured by a building, that just before he entered from the intersecting street, he listened and looked to see whether a car was coming and shut off his power so that he was going about six miles an hour, that as soon as he could see the street to his right, he noticed a car about forty feet distant coming from that direction at the rate of twenty miles an hour, that no gong had been sounded on the car, that, seeing that he could not continue safely across the defendant’s tracks, the plaintiff sought to turn sharply to his left, propelling the cycle by foot power, and to get between the car and the left hand curb of the street, and that before he could do so he was struck by the part of the car just back of the vestibule. Held, that the questions, whether the plaintiff was in the exercise of due care and whether the accident was due to negligence for which the defendant was liable, were for the jury.</p> <p>At the trial of an action for injuries caused by a collision of a street car with a motor cycle which the plaintiff was riding, after the plaintiff had been recalled by the defendant and had been submitted to further cross-examination following a long cross-examination as to details, he was allowed to be asked in redirect examination, "Was there anything you could have done that you did not do to have avoided this collision?” Held, that the question was permissible, because, properly interpreted, it called for further facts and not for the plaintiff’s opinion.</p>

<p>Passenger. Negligence, Railroad, Causing death.</p> <p>At the trial of an action against a railroad corporation under R. L. c. Ill, § 267, for the death of the plaintiff’s intestate, it appeared that the intestate, who owned and had in his possession a mileage book of the defendant, with the intention of travelling wholly on the defendant’s lines to a point beyond a junction point took a train to the junction point, the conductor taking from the mileage book his fare to that point only; that the car in which he had arrived at the junction was left standing on the second track from the station platform and the train on which he intended to complete his journey was due to arrive immediately on the other side of the platform; that without objection on the part of the defendant he remained in the car in momentary expectation of the other train instead of crossing the intervening track and going to the station platform; that, when the train arrived, he left the car to cross the platform to the train, when he was struck and killed by an engine which had been detached from the train on which he had arrived and, at a speed of from eight to ten miles an hour, was being backed down the intervening track without any warning signals being given. Held, that the evidence warranted findings that the plaintiff’s intestate was a passenger of the defendant when killed, and that his death _was due to negligence of the defendant.</p>

<p> Novation. Contract. Statute of Frauds. </p> <p>At the trial of an action by a subcontractor against the owner of a building to recover for work done by the plaintiff under a contract originally made by the plaintiff with a general contractor, there was evidence tending to show that, because of a failure by the general contractor to pay the plaintiff in accordance with his agreement with him, the plaintiff ceased work, that after the work had ceased for some days, there was a conversation between the defendant and the plaintiff in the presence of the general contractor in which the defendant showed to the plaintiff some work not described in the contract which he wanted done, saying "I don’t want to pay you one cent for it, but I want you to finish up the balance of your contract and I will pay you your money at any time, either before or after the work is done.” Thereafter the plaintiff did the extra work described and completed the contract. Held, that there was evidence that for a good consideration the defendant had agreed to assume the obligation of the general contractor to the plaintiff and that the plaintiff had accepted the substitution of the defendant for the general contractor as his debtor; and that the defendant’s promise was not within the statute of frauds.</p>

<p>Tort for personal injuries from being run into by a street car of the defendant on Devonshire Street in Boston, the declaration being in a single count and alleging as the cause of the injuries "negligence and carelessness of the defendant, its servants, agents or employees.” Writ dated July 20, 1907.</p> <p>In the Superior Court the case was tried before King, J. The defendant excepted to the admission of evidence as to the length of time of the employment of, and the extent of instructions given to the motorman in charge of the car which ran into the plaintiff, and to the admission of testimony of the plaintiff that he was in business as a photographer, that he had an “average income” for several years previous to the accident which amounted to from $50 to $75 or $100 per week and also that by reason of his injury he was unable to fulfil a contract with a committee of a high school graduating class for photographs.</p> <p>The jury found for the plaintiff in the sum of $550; and the defendant alleged exceptions.</p>

<p>Petition in equity, filed in the Probate Court on July 29, 1909, by the trustee under the will of Jennie G. Greene, late of Milton, for instructions with regard to the disposition of certain specified money of the trust estate.</p> <p>In the Probate Court the case was heard by Flint, J. After the hearing and pending the entry of a decree, the petitioner moved that the petition might be dismissed or that he might be permitted to withdraw it. The motion was denied; and the petitioner appealed.</p> <p>The judge of the Probate Court thereafter made a decree that the “ trustee account for said money in accordance with the terms of said trust.” The petitioner appealed and stated as objections to the decree (1) that the Probate Court had no jurisdiction to make it, and (2) that certain statements in the petition were incorrect.</p> <p>Both appeals were heard by Rugg, J., who made a decree affirming the decree of the Probate Court refusing to dismiss the petition or to allow it to be withdrawn.</p> <p>An extended amendment of the petition was allowed by the single justice by consent of the respondents, and an answer to the amended petition and a replication were filed. After a hearing a detailed decree was made by the single justice; and the petitioner appealed.</p>

<p>Petition, filed in the Land Court on October 21, 1910, and amended on January 11, 1911, for the registration of title to a parcel of land in Lincoln, being the first parcel mentioned in the second clause of the will of Jonas Smith, late of Lincoln, so much of the petition as related to the second parcel there mentioned having been stricken out by the amendment.</p> <p>In the Land Court the case was heard by Davis, J. Jonas Smith was the petitioner’s grandfather. He died in 1875, and his will, which was dated in 1862, was proved. The petitioner claimed title to the parcel in fee simple under that will and under a deed to her from her mother, Sarah Caroline Pierce, dated March 4, 1910, purporting to be made in execution of a power contained in the will.</p> <p>The second clause of the will was as follows:</p> <p>“2d. I give, bequeath and devise to my three children Francis Smith, Webster Smith and Caroline Pierce wife of Samuel H. Pierce, the certain tract of land with the buildings thereon, containing seven acres more or less, being the same upon which my new house and barn now is, and situated in said Lincoln about one half mile from the centre thereof, on the road from said Lincoln to Concord. Also a certain other parcel of land, being woodland, situated in said Lincoln between the above mentioned lot and the Depot road, and adjoining the Beaver Gray Meadow, containing two acres more or less. — to hold to the said Francis, Webster and Caroline as joint tenants, for and during their joint lives and the survivor of them; and upon the decease of the survivor of them, (no conveyance thereof having been made according to the power hereinafter set forth), said estate to be equally divided among the children of said Francis, Webster and Caroline, who shall at that time be living, their heirs and assigns forever. — “Giving however to either of my said children full power to convey his, her or their interest in said Real estate to my other children or either of them and such conveyance so made, shall vest in the child or children to whom it is made an estate for life, and upon the decease of the grantee or grantees thereof, the share or shares so conveyed shall be equally divided among & between the children of said grantee or grantees share and share alike, and shall vest in them an estate in fee simple —</p> <p>“And in default of issue of said grantee or grantees then to the heirs of said grantee or grantees, their heirs and assigns forever.</p> <p>“ And further giving to my said children or to either of them full liberty and power, to convey his, her or their interest in and to said Real estate or any part thereof to either one or more of the children of any of them, and such conveyance so made shall vest in the grantee thereof a full and perfect title in fee simple, notwithstanding the above devise to my children as joint tenants.”</p> <p>Jonas Smith at his death left the three children named in his will. Webster and Francis died, and Sarah Caroline Pierce was the sole survivor at the time that she gave the deed to the petitioner, who was one of her three children. At the time of the hearing seven grandchildren of Jonas Smith were living, of whom three were children of Francis Smith and one was the child of Webster Smith. Each of the children of Francis and Webster claimed a remainder in fee in the parcel in question, in common with the other grandchildren, contingent upon surviving Sarah Caroline Pierce. They asked the judge to rule in accordance with this claim, and he refused to do so. He ruled that, by the will of Jonas Smith, Sarah Caroline Pierce took a power to convey, and by her deed did convey, the parcel in fee simple to her daughter, the petitioner.</p> <p>The petitioner claimed a right of way appurtenant to the land in controversy over adjoining land, which belonged to the respondent Abigail P. Smith by devise from her late husband Francis Smith. Both parcels formerly belonged to Jonas Smith, who conveyed the parcel comprising the adjoining land to his son Francis Smith by a deed dated April 1, 1850, the parcel containing one hundred acres described as beginning at the corner “on the path leading to Lilly Ditch then running south on east side of pathway on my land to Lilly Ditch,” and so on, followed by these words: “ Reserving however to the owners and their assigns of the lot of seven acres on which a new house and barn now stands the right to pass and repass said Lilly Ditch pathway at such times and for such purposes as they shall desire.” The petitioner relied upon this clause for her claim of the right of way. The “lot of seven acres on which a new house and barn now stands” was the parcel sought to be registered. There was no evidence regarding this pathway excepting the above language in the deed of Jonas Smith. The respondent Abigail P. Smith asked the judge to rule that Jonas Smith reserved a right of way for his life only. The judge refused to make this ruling.</p> <p>The judge ordered a decree for the petitioner; and the respondents alleged exceptions.</p>

Tort for personal injuries sustained on February 5, 1909, while the plaintiff was in the employ of the defendant engaged in assisting in work upon an elevator well in a building then in process of construction on Washington Street in Boston, from the tipping up of a staging on which the plaintiff was working. Writ dated March 15, 1909. In the Superior Court the case was tried before King, J. The facts which could have been found upon the evidence are stated in the opinion.

<p>Marriage and Divorce. Judgment. Practice, Civil, Exceptions, Trial by judge without jury.</p> <p>At the trial of a libel for divorce against a wife for a specified act of adultery it appeared that the husband had brought a previous libel for divorce which had been dismissed. The judge, against the exception of the libellee, “ permitted evidence to be introduced as to matters testified to in the former case so far as the same might indicate an adulterous disposition on the part of the libellee.” There was direct evidence ample to prove the act of adultery charged in the present libel and the record recited that the “court unaffected by the evidence excepted to, relative to the previous conduct of the libellee, found as a fact that the allegations of the libel were sustained.” Held, that, without deciding whether the former judgment was a bar to the admission of the evidence, its admission was made immaterial by the subsequent action of the judge.</p> <p>At the trial of a case before a judge without a jury the admission of incompetent. evidence, which the judge states that he afterwards disregarded in his findings of fact, is not to be commended.</p> <p>Where a libel by a husband for divorce, charging the libellee with one specified act of adultery, contains the allegation, usual in this Commonwealth, that the libellant always has been faithful to his marriage vows and obligations and the answer is a general denial without any specification under Divorce Rule 9 of the Superior Court of any substantive fact which the libellee intends to rely upon at the hearing, the libellee cannot be allowed to show that the libellant has been unfaithful to his marriage vows by misconduct which has no relation to the offense charged against the libellee. And it seems, that, even before the adoption of the rule of court in 1906, the better practice was in accordance with this conclusion.</p>

<p>Contract, by the administratrix of the estate of Eugene J. Brogi for $9,888, being the amount of two policies of insurance on the life of the plaintiff’s intestate collected by the defendant from the Travelers Insurance Company of Hartford, Connecticut. Writ dated October 28, 1908.</p> <p>In the Superior Court the case was tried before Lawton, J. The plaintiff was the former wife of Brogi and obtained a divorce from him on the ground of adultery by a decree made on June 23, 1903. Brogi after the plaintiff left him kept a room at the defendant’s lodging house. The defendant knew that he had been divorced and had two children. She testified that she thought that Brogi had procured a divorce. On December 29, 1903, the defendant and Brogi went to New York and there entered into a marriage and returned to Boston and thereafter lived as husband and wife. On June 21, 1905, the defendant and Brogi entered into a second marriage in Boston and thereafter continued to live as husband and wife.</p> <p>- On December 19, 1904, and on August 3, 1905, Brogi applied to the Travelers Insurance Company at Hartford for two twenty-payment life insurance policies of $5,000 each on his own life. In both applications he stated in his answer to the question whether he was married, that he was married and that he desired the policies payable at his death to Mary E. Brogi. When asked to give the full name, relationship and residence, he gave the relationship as “wife” in both applications; and he gave the residence as “Winthrop, Mass.” At the time the applications were signed and the policies of insurance were issued the insured and the defendant lived together as husband and wife at Winthrop. The policies were issued by the company respectively on December 21,1904, and on August 5, 1905, and the beneficiary named in them was Mary E. Brogi, wife. On the death of Brogi, on March 11, 1906, the insurance company paid to the defendant $9,888 as beneficiary under the policies. The defendant testified that she helped to pay the premiums on the first policy and paid all the premiums on the second policy out of her own money earned by keeping boarders and lodgers.</p> <p>When the plaintiff was appointed administratrix of the estate of Brogi by the Probate Court, the defendant appealed to the Supreme Judicial Court and contended that she was entitled to be appointed administratrix on the ground that she was the wife of the deceased. The decree of the Probate Court was affirmed.</p> <p>At the close of the plaintiff’s evidence the judge ruled that there was no evidence to submit to the jury, and ordered a verdict for the defendant. The plaintiff alleged exceptions, raising the questions stated in the opinion.</p>

Tort by a boy, ten years and five months old when injured, for personal injuries sustained from having fallen off or jumped off a moving car of the defendant on which the plaintiff was stealing a ride. Writ dated July 10, 1909.

<p>Negligence, In use of highway.</p> <p>If a man, before starting to cross an unobstructed street fifty feet wide on which are parallel tracks of a street railway, looks in both directions and sees a car three hundred feet distant approaching upon the farther track, and, having formed the opinion that it is safe to cross, proceeds to do so upon a cross walk, walking at a rate of less than three miles an hour without paying further attention to the approaching car, and is struck by the car and injured, he is not negligent as matter of law.</p>

<p>Tort under St. 1906, 6. 463, Part I, § 63, as amended by St. 1907, c. 392, § 1, by the administrator of the estate of Helen Josephine Breen to recover for her death alleged to have been caused by gross negligence of the motorman of a street car of the defendant, as a result of which the car ran into the plaintiff’s intestate, then seven years of age, as she was crossing Sumner Street in East Boston. Writ dated August 7, 1908.</p> <p>In the Superior Court at the close of the evidence the presiding judge ordered a verdict for the defendant and by agreement of counsel the case was reported for determination by this court, judgment to be entered on the verdict if his ruling was right, and otherwise the case to “stand for trial on the merits.” The material facts are stated in the opinion.</p> <p>The case was submitted on briefs.</p>

<p>Way, Public. Prescription. Conflict of Laws. Negligence, Railroad, Licensee.</p> <p>Where a question at issue at a trial was .whether a certain road in Connecticut was a public way by prescription and there was evidence that the law of Connecticut required for the establishment of such a way fifteen years’ uninterrupted use, but there was no further evidence of the law of Connecticut as to the nature of such use, it must be presumed that the common law of Connecticut is the same as that of this Commonwealth in requiring that the use should be adverse as well as continuous.</p> <p>Where in a deed of land to a railroad company the grantor reserved a right of way across the railroad tracks for himself and his successors in title and those having business with him and them, and the way is used by such persons and incidentally by the general public by permission of the grantor and his successors, there is no such adverse use by the general public as is necessary for the creation of a public way by prescription.</p> <p>Although a way may have been used by the general public adversely to the rights . of the owner and for a period sufficient to give rise to a prescriptive right to its use if the use were continuous and uninterrupted, if it appears that the way was wholly within land of a manufacturing corporation which maintained at one end of it a gate which was closed and locked at times, and at the other end at times a chain attached to posts which prevented access to the way, no public way by prescription has been acquired.</p> <p>A railroad company cannot be found to have invited a member of the general public to use a crossing at grade over its railroad on a private way which was wholly within land of a private owner and was maintained at his expense, if the railroad company did not plank the crossing, made no graded approaches to it and maintained no sign nor flagman there, and it does not appear that any of the railroad company’s officers or agents knew that the general public ever used the way. A member of the general public so using the crossing is at most a bare licensee to whom the company owes no duty greater than to refrain from wanton or wilful misconduct toward him.</p>

<p>Negligence, In use of highway, Street railway.</p> <p>At the trial of an action for personal injuries against a street railway company by a boy who when injured was less than twelve years of age, there was evidence tending to show that, while the plaintiff was walking along a sidewalk of a street on which street cars ran in the same direction as that in which he was going, he had to turn out into the street to avoid obstructions placed upon the sidewalk by a builder which extended for about one hundred and twenty-five feet along the street, that there were two fences, one at each end of the obstructed portion of the street, which left fifteen or eighteen inches between them and the nearer rail of the street railway track, that before passing the first fence the .plaintiff looked to see whether a car was coming and saw none, that when about midway between the fences he looked to see whether his companions who were with him were following him and saw that they were directly behind him, but that he did not look for a car then, that he heard no gong or bell of a car, that as he was going around the end of the second fence he was struck by a car, which ran from two hundred to two hundred and fifty .feet farther before it was stopped, and that the motorman’s view as he approached the plaintiff was unobstructed. Held, that the questions of the plaintiff’s due care and of the negligence of the motorman were for the jury.</p>

<p>Damages, In abolition of grade crossing. Evidence, Relevancy and materiality, Presumptions and burden of proof. Deed,, Recording. Landlord and Tenant.</p> <p>At the trial of a petition for the assessment of damages alleged to have been suffered by a corporation engaged in receiving, storing and selling coal on a wharf by reason of the abolition of a grade crossing of a railroad and a highway, where the petitioner contends that the change of grade made less valuable the railroad facilities available for its use, it is proper to admit evidence offered by the respondent as to the number of tons of coal shipped by the petitioner by railroad during the three years preceding and the three years following the change of grade, if the presiding judge instructs the jury that the evidence is to be used not as bearing upon what business the petitioner did before and after the change, but solely as bearing upon the questions, what effect the change had upon the railroad facilities at the petitioner’s command, and how it affected the market value of the petitioner’s premises.</p> <p>At the trial of a petition by a corporation which was in possession of land under a lease in writing for the assessment of damages alleged to have been suffered by reason of the abolition of a grade crossing of a railroad with a highway, an issue was, whether the petitioner had surrendered to the lessor a portion of the premises leased, and it was held, that, upon conflicting evidence, that question properly was left to the jury.</p> <p>At the trial of a petition against a city for the assessment of damages alleged to have been suffered by the abolition of a grade crossing of a railroad with a highway, where it appears by the petition that the petitioner’s title to the land alleged to have been damaged was under a lease in writing for a term of twenty years dated before the institution of the proceedings for the abolition of the crossing, and a copy of the lease is annexed to the petition, and, although at the time of the filing of the petition the lease never had been recorded in accordance with R. L. c. 127, § 4, it was recorded before the completion of the trial, it is proper for the judge to refuse to rule that the lease was not valid as against the respondent and could not be used for the purpose of increasing damages.</p> <p>At the trial of a petition for the assessment of damages alleged to have been suffered by reason of the abolition of a grade crossing of a railroad with a highway, where it appears that the petitioner is a corporation engaged in the coal business on a wharf which it held under a lease from one who owned a larger tract which included the wharf, and that the petitioner claimed damages because of loss of access to the wharf, it is proper for the judge to refuse to rule in substance that the assessment of damages should be “the same as if the owner of the fee was the only party interested,” and that, if the portion of the entire wharf property leased to the petitioner was of as much value as a part of the lessor’s property after the change of grade as it was before, then the jury should find for the respondent even though the petitioner’s leasehold estate had been damaged.</p>

<p>Contract for the amount of a deposit placed with the defendant bank by one Patrick J. Brannan, who on March 3,1911, three days before his death, delivered to the plaintiff, his brother, the deposit book together with an order in writing signed by him and directing the payment to the plaintiff of the amount standing to his credit on account of the book. The plaintiff presented the book and the order to the defendant within an hour or two of his brother’s death, stating the fact of the death, and payment was refused by the defendant. Writ dated March 13, 1911.</p> <p>In the Superior Court the case was heard by Crosby, J., without a jury.</p> <p>St. 1908, c. 590, § 65, relied on by the defendant, reads as follows: “Such [savings bank] corporation may pay an order, drawn by a person who has funds on deposit to meet the same, notwithstanding the death of the drawer, if presentation is made within thirty days after the date of such order; and at any time if the corporation has not received written notice of the death of the drawer.”</p> <p>The by-law of the defendant relied on by the defendant was as follows: “On the death of any depositor, the money standing to the credit of such depositor shall be paid to the legatees, heirs-at-law, or legal representatives of such depositor, conformably to the laws of the State; and if the sum' shall not exceed one hundred dollars, the same may be paid to the legatees, or next of kin, or legal representatives, without the expense of any probate of will, or letter of administration; provided however, that in case the deposit shall exceed one hundred dollars, the same may be paid as above provided, at the discretion of the committee on investment; and it is agreed that such payment shall discharge the corporation. If the deceased depositor leaves a will, the bank may require the executor or executrix to furnish it with an attested copy of the same, before making payment.”</p> <p>At the close of the evidence the defendant asked the presiding judge to rule that on all the evidence the action could not be maintained. The judge refused so to rule and found for the plaintiff in the sum of the amount of the deposit with interest; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Tort for personal injuries sustained by reason of a collision of an automobile driven by the defendant with a milk wagon in which the plaintiff was driving. Writ dated January 10,1911.</p> <p>In the Superior Court the case was tried before Hitchcock, J. The facts which appeared in evidence and the admissions of the defendant are stated in the opinion. The defendant asked the judge to rule that upon all the evidence as a matter of law the plaintiff could not recover. The judge refused to make this ruling and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $1,400. The defendant alleged exceptions.</p>

<p>Tort for personal injuries sustained by the plaintiff on January 10, 1908, when she was alighting from the front platform of a vestibule car of the defendant. Writ dated January 19, 1910.</p> <p>In the Superior Court the case was tried before Fessenden, J. The facts which could have been found upon the evidence are stated in the opinion.</p> <p>At the close of the evidence the defendant asked for the following rulings:</p> <p>"1. Upon all the evidence the plaintiff is not entitled to recover.”</p> <p>"3. The fact that the sand-plunger on which the plaintiff’s dress was caught protruded one or two inches above the floor of the vestibule is of itself no evidence of the defendant’s negligence.”</p> <p>"7. There is no evidence of any defect in the sand-plunger on which the plaintiff’s dress caught, and your verdict must be for the defendant.</p> <p>“8. There is no evidence which will justify you in finding that the motorman was negligent because he did not remove the plunger before the plaintiff came out upon the platform to leave the car.”</p> <p>The judge refused to make any of these rulings, and submitted the case to the jury. He also submitted to them two special questions, which with the answers of the jury were as follows:</p> <p>“1. Was the sand plunger as it was located necessary for the car?” The jury answered “Yes.”</p> <p>“2. Was it in improper condition ?” The jury answered “Yes.”</p> <p>The jury returned. a verdict for the plaintiff in the sum of $1,000; and the defendant alleged exceptions.</p>

<p>Agency, Scope of authority. Stockbroker. Custom.</p> <p>In an action against a stockbroker by a customer for the amount of a dividend .upon certain shares of stock, which had been placed by the plaintiff in the hands of the defendant for salé at a certain price and which the defendant had sold with the “dividend on” after the dividend had been declared and before it was payable, the defendant contended that by a custom, of brokers, of which he introduced evidence, he had authority in such a case to sell with the “dividend on,” and also contended that in order to carry out the plaintiff’s instructions to sell the stock for the price named it was necessary to sell with the “ dividend on.” The judge instructed the jury in substance that, if they found that there was such a custom as was testified to or if they found that it was necessary for the defendant in order to carry out the instructions of the plaintiff to include the dividend in the sale, they must return a verdict for the defendant. The jury found for the plaintiff. Held, that the instructions were, at the least, sufficiently favorable to the defendant, and that the above questions were settled against the defendant by the verdict, the finding of the jury making it unnecessary to consider whether the alleged custom, if found to exist, would have been valid.</p>

<p>Bills and Notes, Indorser.</p> <p>In an action by the payee of a promissory note secured by a mortgage on real estate, against the indorser of the note before delivery, for a balance alleged to be due on the note after a foreclosure sale of the real estate, the facts, that the defendant paid interest on the note and collected the rents of the mortgaged property before the foreclosure sale, do not preclude him from establishing the defense that he indorsed the note for the plaintiff’s accommodation and without consideration.</p>

<p>Agency, Scope of employment. Negligence. Assault.</p> <p>In an action against the proprietor of a stable by a customer, who, while going across a wagon yard of the defendant toward a horse and wagon that he had hired from the defendant, was thrown to the ground by a collision with a stableman of the defendant who was returning to the stable after having helped to hitch the horse to the wagon, if there is evidence that, while the plaintiff was proceeding with due care, the stableman came along in a hurry, called out “Get out of my way,” and immediately afterwards jostled the plaintiff or pushed him aside when there was ample unobstructed space in which to pass, the plaintiff is entitled to go to the jury both on a count alleging negligence and on a count alleging an assault, and the jury are warranted in finding that the stableman when he ran into the plaintiff was acting within the scope of his employment.</p>

<p>Tort under R. L. c. 171, § 2, to recover for the death of Albert E. F. Rasmussen on April 22, 1907. Writ dated June 15, 1907.</p> <p>In the Superior Court the case was tried before Brown, J.</p> <p>On the question of due care of the plaintiff’s intestate, there was evidence tending to show that the intestate was a bright, intelligent newsboy a little over twelve years and two months of age, selling papers in Mattapan Square in Boston; that just before the accident he had been called by two men who were standing near the curb on a reserved space in the middle of Blue Hill Avenue at its entrance into the square, and had sold a paper to one of them; that the other man asked him for a paper which he did not have and he stated that he would get it and turned and started across the street to do so, when he was struck and killed by the defendant’s automobile which passed within arm’s reach of one of the men. There also was evidence, described in the opinion, tending to show that Mattapan Square was much frequented, that no signal was given by the automobile sufficient to warn the plaintiff’s intestate, and that the automobile was moving at a high rate of speed. The defendant was on the front seat of the automobile beside the driver.</p> <p>Other' facts are stated in the opinion.</p> <p>At the close of the plaintiff’s evidence and again at the close of all the evidence, the defendant moved that a verdict be ordered in his favor. Both motions were denied and the case was submitted to the jury, who returned a verdict for the plaintiff in the sum of $2,000. The presiding judge refused to receive that verdict, and ordered the jury to return a verdict for the defendant and reported the case for determination by this court, judgment to be entered for the plaintiff in the sum of $2,000 if there was evidence warranting a submission of the case to the jury; and, if there was no such evidence, judgment was to be entered for the defendant.</p>

<p>Tort under St. 1906, c. 463, Part II, § 247, for damages resulting from the destruction on November 11, 1909, by fire alleged to have been communicated by a locomotive engine of the defendant, of a two story wooden tenement house and certain shade trees owned by the plaintiff on Factory Street in the town of Sandwich. Writ dated March 17, 1910.</p> <p>In the Superior Court the case was heard by Fox, J., without a jury. It appeared that the shade trees were on the side of the street in the line of the sidewalk. The plaintiff owned land on both sides of the street.</p> <p>The testimony relating to the value of the trees, referred to in the opinion, was as follows: The plaintiff was asked, “What was the value of the real estate damaged in your opinion by the destruction of the trees?” He answered, “Well, I should say, those trees were easily worth $200 each to the place.” The defendant moved that the answer be stricken out. The judge denied the motion.</p> <p>Other facts are stated in the opinion. The judge found for the plaintiff; and the defendant alleged exceptions.</p>

<p>Practice, Civil, Conduct of trial: requests and rulings, closing argument, Exceptions. Witness.</p> <p>Where at the trial of an action of tort for personal injuries two of four witnesses who have testified for the plaintiff are shown in cross-examination statements in writing signed by them setting forth many of the facts essential to the plaintiff’s case in a manner contrary to their testimony in direct examination, and they then testify that the facts as set forth in the statements in writing are true, and that, so far as their testimony in direct examination was inconsistent with the statements in writing, it was wrong, the presiding judge, because he is not obliged to select any portion of the evidence and rule upon its effect independently of the other evidence, cannot be required to rule or to. instruct the jury that they would not be warranted in finding the defendant liable upon the testimony of either or of both such witnesses.</p> <p>At the trial of an action against a street railway company for injuries caused by the plaintiff being thrown down by the sudden starting of a street car of the defendant from wMch he was alighting in a station in a subway in Boston, it appeared that an employee of another corporation operating cars in the same station procured the names of several persons as possible witnesses to the accident, and he was a witness for the defendant. While the defendant called as many witnesses as there were persons who gave their names to the employee of the other corporation, it did not appear that all the persons whose names he procured were called to testify. In his closing argument to the jury the plaintiff’s counsel argued in substance that the names so procured were known to the defendant, and that the witnesses had not been called because they would have testified to facts favorable to the plaintiff. At the close of the arguments the defendant’s counsel asked the judge to rule in substance that there was no evidence that the defendant had not produced every witness to the accident that it was in its power to produce. The ruling was refused. The defendant did not ask for any other instruction or ruling with regard to the plaintiff’s argument. Held, that on the evidence the ruling asked for could not have been given; .and that, although the argument of the plaintiff was not proper because the names referred to were in the possession of a stranger to the litigation so that it was no more the duty or right of the defendant than of the plaintiff to produce the witnesses in question, yet, because the defendant had not asked for any action by the trial judge with regard to such impropriety in the argument, no such question was before this court.</p>

<p>Tree. Statute, Construction. Evidence. Words, “Wilfully.”</p> <p>R. L. c. 185, § 7, which in substance provides that one who wilfully cuts down, carries away, girdles or otherwise destroys any trees, timber, wood or underwood on the land of another without license and without good reason to believe that the land was his own or that he was authorized so to do, shall be liable to the owner in an action of tort for three times the amount of damages assessed therefor, is remedial and not penal.</p> <p>At the trial of an action under R. L. c, 185, § 7, for three times the damages alleged to have been caused by the defendant wilfully cutting down trees on the plaintiff’s land without license and with no good reason to believe that the land was his own or that his acts were authorized, the defendant admitted that he had cut down the trees and that he had no right to do so, and a deed was in evidence, the language of which was unambiguous and from which it appeared that the defendant had no right to cut the trees in question. The defendant offered to show that when he cut the trees he believed he had a right to do so. The evidence was excluded, and the jury were instructed in substance that the word "wilfully” was used in the statute in the sense of consciously and intentionally, “in contradistinction to casual and involuntary.” Eeld, that the evidence was excluded properly and that the instructions to the jury were correct as applied to the case.</p>

Contract upon an account annexed containing two items of charges, hereinafter described, for work done in drilling and blasting. Writ in the District Court of Northern Norfolk dated October 24, 1905.

<p>Tree Warden. Municipal Corporations. Negligence, Causing death. Way, Public: defect in highway. Words, “Corporation,” "Business.”</p> <p>A tree warden is a public officer, whose duties are established by statute, and in the performance of those duties he does not act as the servant or agent of the town or city in which he is appointed.</p> <p>R. L. c. 171, § 2, as amended by St. 1907, c. 375, relating to the liability of “ a person or corporation” for causing death “by his or its negligence, or by the negligence of his or its agents or servants while engaged in his or its business,” does not apply to a town or city in connection with its ordinary municipal functions.</p> <p>If a boy, who is a traveller on the sidewalk of a highway of a city, knows that the work of removing a dead tree on the edge of the opposite sidewalk is in progress and stops for a brief time to watch what is going on, when the tree for want of proper support unexpectedly falls across the street and causes his death, in an action by the administrator of his estate against the city under B. H. c. 51, § 17, it may be found that the boy was in the exercise of due care.</p> <p>In an action by an administrator against a city under B. L. c. 51, § 17, for the loss of life of the plaintiff’s intestate by reason of an alleged defect in a highway of the defendant consisting of a dangerous tree which fell upon the plaintiff’s intestate, if there is evidence that the tree was on the edge of the sidewalk of a street of the defendant and was from two and one half to three feet in diameter at the base, that it had been struck by lightning a year or two before and was dead, that the tree warden was taking it down because it was dangerous to the travelling public, that men had been at work about the tree for a day or possibly two days before the accident, that on the day before the accident upper limbs had been sawed off and earth had been dug away from the roots, that no part of the street was roped off and no guards or signs were set up to warn the public of danger, although there was considerable travel on the street, and that the tree unexpectedly fell across the street apparently from want of support, the question, whether the tree had been a menace to travel for a sufficient length of time to constitute a reasonable notice to the defendant, is one of fact for the jury.</p>

<p>Negligence, Railroad, Employer’s liability.</p> <p>In an action against a railroad corporation by a car cleaner for personal injuries sustained when in the employ of the defendant, there was evidence that the plaintiff in the course of his duty was returning to a car yard of the defendant and was walking close to a fence by the side of a spur track leading to the car yard where there was not room for him to walk or stand without being struck by a train coming on that track, that for years this route had been used by the employees of the defendant and that it was the only way permitted by the foreman for reaching the yard from the place where the plaintiff had been at work, that it was custoniary for the rear brakeman of a train that was being backed down to the yard to blow a whistle on the air hose as a warning signal at this place and to look out for persons on and near this track, that the plaintiff relied somewhat on this 'custom and that no signal was sounded, that the plaintiff also looked behind him a number of times during the minute and a half that he was on or near this track, but saw no train, and that he was struck from behind by a train of empty cars that was being backed down to the yard under the control of a rear brakeman of the defendant, who was negligent both in failing to give the customary signal and in failing to stop the train by the air brakes. Held, that the question whether the plaintiff was in the exercise of due care was for the jury, as also was the question whether the plaintiff appreciated the risk and voluntarily assumed it.</p> <p>A car cleaner in the employ of a railroad corporation does not by his contract of employment assume the risk of an injury due to the negligence of a rear brakeman of the railroad corporation in failing to give a customary signal of the approach of a train of empty cars in his control on a spur track leading to a car yard and his further negligence in failing to stop the train.</p>

<p>Railroad. Way, Public: defect in highway. Words, “Traveller.”</p> <p>A railroad corporation, which under R. L. c. Ill, § 129, is bound to keep in repair the portion of a public way crossed by its road at grade, is not liable under the highway act for injuries to a boy caused by his foot catching between one of the rails of the track and the planking at such a crossing when he was running a race with his companions, even if the edge of the planking next the rail was so worn as to constitute a defect in the highway, because the boy in using the way simply as a playground was not a traveller within the meaning of the word as established by the decisions of this court.</p>

<p>Negligence, Employer’s liability, Res ipso loquitur.</p> <p>In an action by a boy against Ms employer for injuries sustained from the bursting of a bottle while the plaintiff was operating a bottling machine of the defendant, it appeared that the breaking of bottles was expected to occur, and the plaintiff contended that Ms injury was due to the defective working of doors of the machine wMch should have closed automatically to prevent the fragments of glass from reachmg Mm. Twice before the day of the accident the plaintiff had worked on the machine and it then was in good order and there was no evidence that it was used by any one else before the accident. There was no evidence of previous trouble in regard to the closing of the doors or of any defect in their condition or adjustment or of any lack of proper inspection. Held, that, assuming that the failure of the doors to close had caused the plaintiff’s injury and was due to some defect in the mechamsm that controlled them, there was no evidence that the defendant was negligent m failing to anticipate that the doors would not close as usual and that the plamtiff was not entitled to go to the jury.</p>

<p>Practice, Criminal, Trial of one defendant indicted jointly with another, Conduct of trial. Evidence, Admissions and confessions, Statements of co-conspirator. Constitutional Law, Right of one accused of crime not to incriminate himself. Conspiracy, Trial of one defendant alone, Statements of co-conspirator.</p> <p>An indictment against two defendants for conspiracy to steal money from a certain person can be tried against one of the defendants alone in the absence of his alleged co-conspirator in parts unknown.</p> <p>At the trial of an indictment for conspiracy to steal money from a certain person the testimony of the defendant, given before the grand jury when the transactions on which the indictment was based were the subject of inquiry, may be put in evidence against him, if the presiding judge fully guards the defendant’s rights and instructs the jury not to consider the evidence unless they are satisfied that the statements were made by the defendant voluntarily and after he had been informed that he was not obliged to furnish any evidence tending to incriminate himself.</p> <p>At the trial of one of two defendants indicted jointly for conspiracy to steal money from a certain person, the other defendant being absent in parts unknown, after evidence of the existence of an unlawful conspiracy between the two defendants has been presented, the presiding judge may admit in evidence stater ments of the absent defendant not made in the presence of the defendant on trial, if he instructs the jury that in determining the preliminary question whether a conspiracy existed they must consider only the acts and declarations of the defendant on trial, and must not consider the alleged declarations of the absent defendant as against the defendant on trial unless and until the evidence of the conduct and statements of the defendant on trial satisfy them that he was engaged in an unlawful conspiracy with the absent ’defendant.</p> <p>At the trial of an indictment for conspiracy as in other trials the order in which evidence shall be allowed to be introduced is within the discretion of the presiding judge.</p>

Contract for rent for the period from October 1, 1909, to January 13, 1910, alleged to be due under a lease in writing of a room in the Tremont Building in Boston. Writ in the Municipal Court of the City of Boston dated February 18, 1910. The lessors assigned their rights under the lease to Eugene A. Pope, who originally was the plaintiff in this action. On his death the executrix of his will was admitted as plaintiff.

<p>Contract upon a promissory note. Writ dated September 19, 1908.</p> <p>In the Superior Court the case was tried before Lawton, J. The facts are stated in the opinion. At the close of the plaintiff’s case, the defendant rested and asked for the following rulings:</p> <p>“1. That the plaintiff cannot recover on all the evidence.</p> <p>“2. That the note sued on refers to a mortgage that secures the note and the burden of proof is upon the plaintiff to produce the mortgage to show whether it has been partially or wholly discharged, as determining whether anything is due on the note.</p> <p>“3. That the burden of proof is upon the plaintiff to show that due notice under the terms of the mortgage was given to each defendant or it cannot recover.</p> <p>“4. The discharge of the mortgage carries with it payment of the note secured thereby, and the burden of proof is upon the plaintiff to show that the mortgage has not been discharged and the mortgage not yet paid.</p> <p>“5. The discharge of the mortgage and the cancellation of the note are not independent transactions, although perfected in different ways peculiar to each other.</p> <p>"6. If the plaintiff has not offered evidence to show it has lived up to the terms and covenants of the mortgage to be performed on its part it cannot recover against these defendants.”</p> <p>“8. That the mortgage and not the note is the gist of the right of action for breach of condition or conditions of said mortgage, and the conditions and terms of the mortgage must be observed and lived up to by the mortgagee before a right of action begins on the note for a breach or breaches of conditions on the part of the mortgagor, and evidence of the observance of these conditions must be offered affirmatively by the plaintiff or it cannot recover in this action.”</p> <p>The rulings were refused; and a verdict was ordered for the plaintiff. The defendants alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Negligence, Employer’s liability, Railroad, Due care of plaintiff’s decedent.</p> <p>At the trial of an action under the employers’ liability act against a railroad corporation to recover for the death of a fireman upon a locomotive engine, there was evidence that the plaintiff’s decedent at the time of his death was at work upon a switching engine in a yard where several tracks in turn branched from a “lead” track, and that bis engine was moving on the lead track past one of the branching tracks to another; that it was his duty to take signals from the switching crew and to transmit them to the engineer when, by reason of the position of the train on a curve or the position of the crew or the construction of the engine, the engineer could not receive the signals himself; that, because of the construction of the locomotive, it sometimes was necessary for him to lean out of the cab window to get a signal, and that the conductor of the train knew this; that it was an established custom in the yard not to leave cars on the branching tracks so that they were within a certain distance of the lead track, to do so being deemed unsafe; that a car was left on one of the branching tracks in dangerous proximity to the lead track in violation of the custom; that the conductor, without making any inspection or giving any warning of the danger from the position of the car, signalled to the engineer to back the engine past the track upon which the car was, and that, within two minutes later the plaintiff’s decedent was found sitting in the fireman’s seat with his head outside the cab window and his skull fractured, and blood was found on the level of the cab window on the comer of the car which had just been passed. Held, that there was evidence of due care on the part of the plaintiff’s decedent and of negligence on the part of the conductor of the train.</p> <p>One employed as a fireman on a locomotive engine of a railroad corporation does not assume as a matter of law the risk of injuries caused either by a car on a branch track in a freight yard being left in switching too near to the lead track, or by negligence of a conductor of a switching train in signalling, without inspecting the car’s position or warning the fireman, for an engine to run by a car so placed.</p>

<p>Two actions OF tort, the first for personal injuries suffered by-reason of the plaintiff falling down a step in an unoccupied house of the defendant on Chandler Street in Boston, when she was examining the house in response to an advertisement offering it to let. The second action was brought by the husband of the plaintiff in the first for loss sustained by reason of her injuries, and, after the husband’s death, was continued by the administrator of his estate. Writs dated December 22, 1905.</p> <p>In the Superior Court the cases were tried together before Bishop, J.</p> <p>There was evidence tending to show that an advertisement, signed by one Hobbs with no mention of the defendant’s name and stating that the house in which the plaintiff afterwards was injured was to let, was published in a Boston newspaper, and that a sign was placed in the window of the house reading, “To Let. Fred W. Hobbs, Agent, 23 Court St.” Hobbs and the defendant both were called to testify by the plaintiff. Their testimony tended to show that the defendant employed Hobbs, a real estate agent, to care for and rent eight of his houses, of which the house in question was one; that Hobbs had authority to advertise, and that he did whatever he chose to do in the way of showing the house to possible tenants; that Hobbs deducted from rent received all expenses and a “commission” of five per cent and paid the balance to the defendant, and that he employed one Otis to sweep and dust the house and to show it to possible tenants.</p> <p>Otis died after the accident to the plaintiff. His widow testified that after the accident her husband talked to her and one Smiley and his wife about the accident, and told her that the place where the plaintiff fell was dark and that she made a misstep. Mrs. Smiley testified to a more detailed statement made by Otis, and a police officer, who was summoned to assist in caring for the plaintiff after her fall, testified to a statement made to him by Otis. The testimony as to the statements of Otis was admitted by the trial judge subject to exceptions by the defendant.</p> <p>Other facts are stated in the opinion.</p> <p>At the close of the evidence the defendant asked for the following rulings:</p> <p>“1. Upon all the evidence the plaintiff is not entitled to recover in this action.</p> <p>“2. If the plaintiff was standing on the platform in the basement of the premises in question looking at the furnace and turned around quickly to look at the coal bin without looking to see where she was going and stepped into space and fell and was injured, she was not in the exercise of due care and cannot recover.</p> <p>“3. The defendant owed no legal duty to the plaintiff, if she entered his vacant house by invitation or on business, to place lights or guard rails at or near the steps leading from the wooden flooring to the concrete flooring in the basement of said premises if said steps were neither defective in construction nor in want of repair.</p> <p>“4. Mr. Hobbs, the real estate agent, was an independent contractor, exercising a certain degree of skill and experience and, as to the details, his acts were not under the supervision or control of the defendant, and he was therefore not such an agent and servant of the defendant as would render the defendant liable for his neglect or omission in showing the defendant’s premises to a prospective tenant.”</p> <p>The rulings were refused. The jury found for the plaintiff in each case; and the defendant alleged exceptions, which, after the death of Bishop, J., were allowed by Jenney, J.</p>

<p>Negligence, Employer’s liability, Res ipso loquitur. Evidence, Presumptions and burden of proof.</p> <p>In an action against a ship building corporation to recover for the conscious suffering and death of an employee while working near the bottom of the boiler room hatch of an uncompleted vessel, where it appeared, that the hatch was wholly sheathed in, forming a casing for the smoke stack open at the top, that there was no motion to the vessel, that there was a coaming around the top of the hatch on the deck eighteen inches high, and that the employee’s injuries and death were caused by the falling upon him of an angle iron, but there was no evidence as to where the angle iron was before it fell, as to whose property it was or as to what caused it to fall, it was held that a verdict properly was ordered for the defendant.</p> <p>In order for the plaintiff in an action for personal injuries to make out a prima fade case in proof of negligence of the defendant by the use of the presumption that arises from the occurrence of the accident, it must appear that the instrumentality which inflicted the injury was in the control of the defendant and subject to his use and inspection, and that the accident was one which in the ordinary experience of mankind would not have happened except from negligence of the defendant or of others for whose negligence the defendant was legally responsible.</p>

<p>Equity Jurisdiction, To enforce alleged dedication for public use. Equity Pleading and Practice, Master’s report: exceptions, motion to recommit.</p> <p>Upon an information by the Attorney General against a land company and others to compel the keeping open of a certain parcel of land extending along the sea and overlooked from a part of the lots at a seashore resort, a master found that .from the year 1869 the lots were sold with reference to certain plans, and that on these plans the locus was not marked as a public park or otherwise and was separated from the lots marked on the plans by a street and by other land upon the other side of the street not laid out into house lots, that from 1869 to 1885 the proprietors, and their successor the defendant land company, built and permitted to be built about twenty buildings upon the locus extending from one end of it to the other, and that there was no time from 1870 to the filing of the bill when there had not been buildings upon it. A master found that the plaintiff had failed to prove a dedication of the locus for a public use. Held, that the general finding of the master that the plaintiff had failed to prove a' dedication was not inconsistent with any fact found by him but on the contrary was supported by all the basic findings and must stand.</p> <p>Upon an information by the Attorney General against a land company and others to compel the keeping open of a certain parcel of land, extending along a portion of the sea, where there formerly had been a fresh water pond covering more than ten acres, and overlooked from a part of the lots at a seashore resort, the plaintiff contended that by virtue of. a dedication of the owners and an acceptance by the public the locus had been set apart for public use. A master made a general finding that the plaintiff had failed to prove a dedication. The master had found that when the former pond was dredged sand was dumped on the locus and on “what was originally part of the bed of the lake.” The only allusion to this matter was in an exception of the plaintiff to the general finding of the master, in which one of the grounds of exception was stated to be, “because ... it appears that the Commonwealth has title to at least a part of the land in dispute, as the former bed of a great pond, without reference to the doctrine of dedication.” Held, that the exception to the general finding related only to the question of dedication and could not be sustained upon a ground which had no reference to that question.</p> <p>An exception to a master’s report in a suit in equity founded on the failure of the master to make a certain finding cannot be sustained when the evidence to which the exception relates is not before the court.</p> <p>Where a suit in equity has been referred to a master under an order which directs him to report “so much of the evidence as he may deem necessary,” an exception to his report on the ground of his failure to report certain evidence cannot be sustained, especially when, as in the present case, it does not appear that the report of such evidence was necessary to bring clearly before the court any question of law raised before the master.</p> <p>A motion in a suit in equity to recommit the case to a master, for the purpose of determining a question suggested by a certain finding in the master’s report but having no bearing on the principal question raised by the pleadings and tried before the master or upon the finding of the master on that question, properly may be denied by the trial judge in the exercise of his discretion.</p> <p>Where a suit in equity was referred to a master under an order directing him to report “so much of the evidence as he may deem necessary” a motion to recommit the case to the master for the purpose of reporting certain testimony is addressed to the discretion of the trial judge, which here was held to have been exercised rightly.</p>

<p>The following order was passed by the House of Representatives on April 17, 1912, and on April 26, 1912, was transmitted to the Justices of the Supreme Judicial Court. On May 3, 1912, the Justices returned the answer which is subjoined.</p> <p>Ordered, That the opinion of the Justices of the Supreme Judicial Court be required upon the following important question of law: Would the provisions of House Bill No. 833, entitled “An Act relative to the marking of goods made in penal institutions,” be constitutional and legal if enacted into law?</p> <p>Ordered, That copies of the said bill be sent to the Justices of the Supreme Judicial Court.</p>

<p>The following order was passed by the Senate on March 19, 1912, and on March 25, 1912, was transmitted to the Justices of the Supreme Judicial Court. On May 6, 1912, the Justices returned the answers which are subjoined.</p> <p>Ordered, That the opinion of the Justices of the Supreme Judicial Court be required by the Senate upon the following questions of law:</p> <p>First. If the Legislature has the constitutional right to authorize the payment from the treasury of the Commonwealth of money, or the erection of statues, or the bestowal of medals, decorations or other badges of honor as appropriate recognition of distinguished and exceptional service to the Commonwealth, believing such recognition to be founded upon moral and honorable obligation and upon principles of right and justice, and believing further that the dignity of the State will be enhanced and the loyalty and patriotism of the people will be promoted by such action, and that the public good will be served, — is the action of the Legislature subject to review by the judicial branch of the government, or is the decision as to such appropriations left to the conscience of the Legislature?</p> <p>Second. If the Legislature enacts a law providing for the payment of sums of money to certain veterans of the civil war who volunteered, believing that such recognition will serve the public good by bringing home to all minds by visible facts that, should the call again come for volunteers, those who offer their lives in defense of their country can receive such recognition from a grateful people, would the enactment of such a law be within the constitutional power of the Legislature?</p> <p>And be it further ordered, That the Justices of the Supreme Judicial Court be informed that the foregoing questions are propounded with a view to legislation upon the subjects therein mentioned, and that, for their more particular information, a copy of Senate document No. 240, being a bill accompanying a petition now pending in the Legislature and relating to the subject matter concerning which the foregoing questions are propounded, be transmitted to the justices.</p> <p>[The bill Senate document No. 240 was entitled “An Act to provide for suitably rewarding certain veteran soldiers and sailors.” See St. 1912, c. 702.]</p>

<p>The following order was passed by the Senate on April 22, 1912, and on April 26, 1912, was transmitted to the Justices of the Supreme Judicial Court. On May 8, 1912, the Justices returned the answer which is subjoined.</p> <p>Ordered, That the opinion of the Justices of the Supreme Judicial Court be required by the Senate upon the following question of law:</p> <p>Is an act of the Legislature constitutional which provides that an action shall not be entertained by any court against a trade union, or an association of employers, or against any members or officials thereof, in respect to a tortious act alleged to have been committed by or on behalf of a trade union or an association of employers ?</p> <p>And be it further ordered, That the Justices of the Supreme Judicial Court be informed that the foregoing question is propounded with a view to legislation upon the subject therein mentioned, and that, for their more particular information, a copy of House Document No. 377, being a bill accompanying a petition now pending in the Legislature and relating to the subject-matter concerning which the foregoing question is propounded, be'transmitted to the Justices.</p>

<p>Whether under c. 3, art. 2 of the Constitution the Governor alone can require the opinions of the Justices in regard to a bill laid before him for his revisal under c. 1, § 1, art. 2 of the Constitution, here was referred to as a question left open for future consideration.</p> <p>A statute, forbidding any person engaged in the production or distribution of a commodity in general use to discriminate in the price of such commodity between different parts of the Commonwealth or between different purchasers, either maliciously or for the purpose of destroying the business of a competitor and of creating a monopoly, and also prohibiting combinations for the purpose of destroying the business of any person engaged in selling commodities and of creating a monopoly, is within the police power of the Legislature, and, as it affects interstate commerce only indirectly, is not in violation of art. 1, § 8 of the Constitution of the United States.</p>

<p>The Legislature have no power to authorize the use of money of the Commonwealth, or of money deposited in the treasury of the Commonwealth by savings banks under St. 1908, c. 590, § 56, to purchase land, and develop, build upon, rent, manage, sell and repurchase it, for the purpose of “providing homes for imechanics, laborers or other wage-earners,” or “for the purpose of improving the public health by providing homes in the more thinly populated areas of the State for those who might otherwise live in the most congested areas of the State.”</p>

<p>On May 1, 1912, the following order was adopted by the Council and on May 2, 1912, was transmitted to the Justices of the Supreme Judicial Court. On May 31, 1912, the Justices returned the answer which is subjoined.</p> <p>Ordered, That the opinion^ of the Justices of the Supreme Judicial Court be required upon the following important question of law:</p> <p>When the law calls for action "by the Governor and Council,” is the Governor to concur with a majority of the Council in order to make its decisions effective, or is he to be considered a member of the deciding body, with one vote?</p>

<p>Under St. 1909, c. 504, § 18, by which the trustees of a State institution covered by the provisions of that chapter are authorized to determine the salaries of all the officers of the institution, “subject to the approval of the Governor and Council,” such approval must be given by the Governor and also by the Council, each acting independently of the other and not sitting together as a single executive board,</p>