Volume 213 — Massachusetts Reports

<p>Petition, filed on June 3, 1912, for a writ of mandamus commanding the respondent Rivers, as the mayor of Chicopee, to reinstate the petitioner as city marshal in place of the respondent Walsh.</p> <p>The case was heard by Hammond, J., who ruled that a writ of mandamus should issue, and at the request of the respondent Rivers reported the case for determination by the full court.</p> <p>St. 1911, c. 468, of which the title is stated in the opinion, is as follows:</p> <p>“Section 1. The provisions of chapter nineteen of the Revised Laws, entitled ‘Of the Civil Service’, and all acts in amendment thereof and in addition thereto, and the civil service rules made thereunder, and all acts now or hereafter in force relating to the appointment and removal of police officers, shall apply to the superintendent, chief of police or city marshal in all cities except Boston, and in all towns that have accepted, or may hereafter accept, the provisions of said chapter nineteen.</p> <p>“Section 2. All acts and parts of acts inconsistent herewith are hereby repealed.</p> <p>“Section 3. In cities to which it is applicable this act shall be submitted to the voters at the next annual state election; in towns to which it is applicable it shall be submitted to the voters at an annual town meeting; and in either case it shall take effect in any such city or town upon its acceptance by a majority of the voters voting thereon; otherwise it shall not take effect in any such city or town.”</p> <p>St. 1911, c. 624, of which the title is stated in the opinion, is as follows:</p> <p>“Section 1. Every person now holding or hereafter appointed to an office classified under the civil service rules of the Commonwealth, except members of the police department of the city of Boston, of the police department of the metropolitan park commission, and except members of the district police, whether appointed for a definite or stated term, or otherwise, who is removed therefrom, lowered in rank or compensation, or suspended, or, without his consent, transferred from such office or employment to any other, may, after a public hearing, as provided for by section two of chapter three hundred and fourteen of the acts of the year nineteen hundred and four, as amended by chapter two hundred and forty-three of the acts of the year nineteen hundred and five, and within ten days after such hearing, bring a petition in the police, district or municipal court within the judicial district where such person resides, addressed to the justice of the court and praying that the action of the officer or board in removing, suspending, lowering or transferring him may be reviewed by the court, and after such notice to such officer or board as the court may think necessary, it shall review the action of said officer or board, and hear the witnesses, and shall affirm said order unless it shall appear that said order was made by said officer or board without proper cause or in bad faith, in which case said order shall be reversed and the petitioner be reinstated in his office. The decision of the justice of said police, district or municipal cotut shall be final and conclusive upon the parties.</p> <p>“Section 2. This act shall take effect upon its passage.”</p>

<p>Equity Pleading and Practice, Master’s report. Deed, Validity. Undue Influence.</p> <p>A judge who hears a suit in equity upon a master’s report has a right to draw inferences warranted by the facts reported by the master, although such inferences are contrary to an inference reported as a finding by the master.</p> <p>In a suit in equity, brought in behalf of an aged man by the conservator of his property, to set aside a conveyance of real estate made by the plaintiff through a third person to his wife who conveyed such real estate to her nephew the defendant, the case was referred to a master who filed a report to which no exception was taken. The master found facts from which it could be inferred that in signing the deed in question the plaintiff’s weak will was so dominated by his wife and by the defendant that the execution of the deed was in reality their act and not his. In regard to the plaintiff’s wife and the defendant the master made the following statement: “I do not find that undue influence was exercised by them or either of them, unless under all of the circumstances surrounding the making of the conveyances . . . the court finds the procedure was an exercise of undue influence as a matter of law.” The trial judge, who heard the case on the master’s report, made a decree confirming the report and ordered the defendant to convey the property to the plaintiff. Held, that the question of undue influence was one of fact, on which the master appeared to have made no decision, or, if his language could be construed as a finding that the defendant did not exercise undue influence upon the plaintiff, such a finding was made only by an inference from the facts set out in his report, and that the trial judge had the right to draw such different inferences from the facts reported by the master as those facts reasonably warranted, so that this court could not say that the judge was wrong in reaching the conclusion on which he based his decree.</p>

<p>Tort under St. 1906, c. 463, Part II, § 247, for damages resulting from the burning on August 12, 1908, of a barn of the plaintiff in West Boylston alleged to have been caused by fire communicated by a locomotive engine of the defendant. Writ dated November 20, 1909.</p> <p>In the Superior Court the case was tried before Irwin, J. The plaintiff introduced evidence, which in its nature was circumstantial and which was controverted by evidence of the defendant, tending to show that the fire was caused by sparks from a locomotive engine of the defendant.</p> <p>It appeared that a son of the plaintiff was at home on the day of the fire, and the defendant offered to show that the son was there at the time of the fire; that when he was a young boy he had had a strong inclination to set fires, and had set several; that in the autumn of 1908 several fires occurred within a radius of a mile from the plaintiff’s barn and that the plaintiff’s son was very near the place where such fires took place at the time when they were discovered; that he was arrested by a constable, and that he admitted to the constable that he set several of these fires; that the district court of Clinton ordered an examination of the plaintiff’s son by two physicians, who committed him to a hospital on the ground that he had a mania for setting fires.. The defendant did not contend that the alleged admission to the constable in any way referred to the fire mentioned in the declaration.</p> <p>The evidence was excluded subject to an exception by the defendant.</p> <p>The jury found for the plaintiff in the sum of $2,436.23; and the defendant alleged exceptions.</p>

<p>Negligence, Railroad, Causing death, Invited person. Agency, Scope of employment.</p> <p>In an action against a railroad corporation under St. 1906, c. 463, Part I, § 63, as amended by St. 1907, c. 392, for causing the death of the plaintiff's intestate, there was evidence tending to show that on a certain morning the plaintiff’s intestate and a teamster had been sent by their employer to unload bricks from a car in a freight yard of the defendant, that the car was an ordinary open freight car with the ends and sides boarded up to a height of three or four feet from the floor, and that it stood upon a delivery track in the yard with a space three and a half feet wide between it and a brick building on one side and on the other side between it and the next track a space twenty-four feet wide which was used by teams taking freight from the cars; that usually cars were switched upon the delivery track in the night-time and were left there undisturbed during the day; that the day was warm and that, in the early afternoon, the teamster drove away with a load leaving the intestate at the car; that when last seen the intestate was sitting on a comer of the car away from the outlet of the track and toward the brick building smoking, that during the absence of the teamster a switching engine removed some cars from the track, leaving a box car next to the one on which the intestate was, that later the engine returned with cars and without warning caused the box car to be pushed against the car on which the intestate was, and that immediately thereafter the intestate’s body was found between the car and the brick building. Held, that it could not be ruled as a matter of law that the plaintiff’s intestate was not in the exercise of due care. Held, also, that a finding was warranted that while resting on the car in the absence of the teamster the intestate was acting within the scope of his employment and was there by an implied invitation of the defendant and that there was evidence of negligence toward him on the part of the defendant.</p>

<p>Public Officer. Police. Municipal Corporations, Officers and Agents. Contract, Implied in law.</p> <p>One, who was appointed and has served as a reserve member of the police department of a city and has been paid therefor at a rate less than that paid to regular members of the department, cannot recover the difference between the pay he has received and what a regular officer would have received during the same time by showing that the ordinance of the city which provided for the appointment of reserve police officers was invalid.</p> <p>There is no such relation between a city and its police officers as will oblige it to pay them for their services unless provision is made therefor by statute, ordinance or contract, and when such provision is made, the right of recovery and the amount to be recovered for services are determined, limited and regulated by its express terms, so that one, who was appointed and has served and been paid as a reserve police officer of a city under an invalid ordinance, cannot recover on a quantum meruit for the excess of the value of his services above what he had received.</p>

<p> Certiorari. County Commissioners. Railroad. </p> <p>On a petition for a writ of certiorari to quash the proceedings of county commissioners under St. 1906, c. 463, Part II, § 78, prescribing the limits within which certain land of the petitioner might be taken by a railroad corporation, the answer of the respondents is conclusive as to their findings of fact stated therein, and only errors of law apparent on the record are open to correction.</p> <p>The rule that a writ of certiorari lies only for the correction of errors of law apparent on the record is not changed by St. 1902, c. 544, § 27, which provides that the court may quash or affirm the proceedings in question, or may make such order, judgment or decree as law and justice may require.</p> <p>A railroad corporation, which has leased its property to another railroad corporation but retains its corporate existence, can maintain a petition to the county commissioners under St. 1906, c. 463, Part II, § 78, for an order prescribing the limits within which the petitioner may take land that is necessary for additional tracks and cannot be obtained by agreement with the owner, and upon such petition it is immaterial whether the lease made by the petitioner is valid or invalid.</p>

<p>Way, Public: want of sufficient railing.</p> <p>In an action against a town under Pu. L. c. 51, § 18, for an injury to a horse of the plaintiff by reason of a want of a sufficient railing on a public way of the defendant, it appeared that the way in question was a country road, that the adjoining land was two and a half feet below the level of the road and that the defendant maintained on the top of the retaining wall a one-rail fence, which was in a defective condition of which the defendant had had notice, that the plaintiff was driving a pair of horses attached to an empty wagon, that a loose stone about the size of a man’s fist, used by teamsters to block their wheels in going up hill, had been left in the road, that the right front wheel of the plaintiff’s wagon came in contact with this stone, causing the pole of the wagon to swerve and throw the right hand horse off his balance, that the horse staggered against the railing, which broke, and that his right hind leg went over the retaining wall, causing the injury. Held, that the question whether the defective railing was the sole cause of the injury was one of fact to be submitted to the jury.</p>

<p>• Contract, Performance and breach. Practice, Civil, New trial.</p> <p>In an action for the alleged breach of a contract in writing, by which the defendant agreed to hire the plaintiff for the period of one year and to pay him $4 a day, and the plaintiff agreed “to use his best efforts to father the interests of” the defendant, where the plaintiff contends that the defendant committed a breach of the contract by discharging him at the end of six months, and the defendant contends that he was justified in terminating the contract because the plaintiff had broken it, the defendant may show a breach of the contract by the plaintiff by evidence of a series of omissions in performance, no one of which alone would constitute a substantial breach of the contract, and on such evidence it is a question for the jury whether the plaintiff had failed to perform his part of the contract substantially.</p> <p>It seems, that one who, having previously been engaged in taking contracts for lathing houses, enters the employ of a lathing contractor under a contract by which he is to receive $4 a day and agrees “ to use his best efforts to further the interests of ” his employer, is not excused by an inability to read and write from an obligation to keep account of the times and amount of the work done by the men placed under him.</p> <p>The denial of a motion for a new trial, asked for on the grounds that the verdict was against the law, that it was against the evidence, and that it was against the law and the evidence, where the judge in denying the motion stated that he did so as a matter of discretion and that no ruling of law had been made, affords no ground for exception.</p>

<p> Bog. Proximate Came. </p> <p>If the act of a dog causes an automobile to skid from the right hand side of a public way and to come directly in front of a horse that is being driven slowly in the opposite direction on the other side of the way, whereupon the horse rears and descends on the top of the automobile, injuring it, in an action'.by the owner of the automobile against the owner of the dog under R. L. c. 102, § 146, for double the amount of the damages thus sustained, the jury is warranted in finding that the dog was the sole, direct and proximate cause of the injury.</p>

<p>Equity Jurisdiction, Fraud. Husband and Wife. Equity Pleading and Practice, Findings of master.</p> <p>In a suit in equity by a widow against a nephew of her deceased husband to have certain deeds of real estate from her husband to the defendant set aside as a fraud on her marital rights, where it appears that the conveyances complained of were founded on good and valid considerations, it is necessary for the plaintiff to prove not only that the conveyances were made in fraud of her marital rights but also that the defendant knew or had notice of that fact.</p> <p>In a suit in equity by a widow against a nephew of her deceased husband to have two deeds of real estate from her husband to the defendant set aside as a fraud upon her marital rights, it appeared from a master’s report that when the deeds were made the plaintiff’s deceased husband was seventy-eight years of age and that an action brought by the plaintiff against him for breach of promise of marriage was pending, that the defendant as consideration for the conveyances gave the deceased a bond for his support during his life and further agreed that the deceased should have the net income of the real estate during his life, that three weeks after the execution of the second of the deeds to the defendant the action for breach of promise was settled by the payment of a sum of money to the plaintiff, that a week later the plaintiff married the deceased, that two days before the marriage the defendant recorded the deeds, and that the defendant never informed the plaintiff that he had the deeds of the property or that he had given the bond for support. The master found that one of the motives of the deceased in making the conveyances was to deprive the plaintiff of all interest in the real estate upon his death and that “the defendant took said deeds with' full knowledge of the effect of the transfer upon the plaintiff’s rights, if any.” It further appeared, that the deceased lived for more than eight years after his marriage to the plaintiff, that during this time the plaintiff “skilfully performed the work of keeping the house and caring for her husband,” and that, although during these years the deceased was in full enjoyment of the granted premises, the defendant furnished him with support to an amount found by the master. Held, that it could be found that the bond for the support of the deceased was given in good faith and was a good consideration for the conveyances; and that, the conveyances having been made after the action for breach of promise had been brought and before it was settled, when the relation of the plaintiff to the deceased was that of creditor, it could be found that the conveyances when made were not a fraud on the plaintiff’s marital rights.</p> <p>A suit in equity by a widow against a nephew of her deceased husband, to have two deeds of real estate from her husband to the defendant set aside as a fraud upon her marital rights, came before this court on an appeal from a decree dismissing the bill upon the report of a master which did not contain the evidence before him and to which no exception was taken. The master’s report warranted findings that the deeds from the deceased to the defendant, which were made respectively six weeks and a month before the plaintiff’s marriage to the deceased, were given for good and valid considerations and that the conveyances when made were not a fraud on the plaintiff’s marital rights. The master found that on the day of the marriage and at various times previously the deceased had stated to the plaintiff, “that all his property remained in his name,” that the plaintiff relied on his statements that the real estate conveyed to the defendant was his and that this was one of the considerations which induced her to marry him. It was not found by the master that the defendant,knew of these statements. Held, that although the false statements of the plaintiff’s husband "that all his property remained in his name” were a fraud on the plaintiff’s marital rights, yet, the master having made no finding that the defendant knew of these statements and the evidence not being reported, no finding of such knowledge could be made by this court.</p>

<p> Gift. Savings Bank. </p> <p>At the hearing by a judge without a jury of an action by the executor of the will of one P against P’s daughter, IC, for the amount of two savings bank accounts, there was evidence which tended to show that P on the same day made two deposits in a savings bank, one under the title, “P payable in case of his death to K,” and the other under the title, “K payable in case of her death to P;” that later, in a conversation between P, the defendant and a friend, either P or the friend for him stated that the money represented by the deposits was given to the defendant, that at that time the defendant saw and examined the savings bank books and understood that the legal title to the deposits passed to her, and that later both books were delivered to her. Reid, that a finding of a completed gift of the bank deposits to the defendant was warranted by the evidence.</p>

<p>Equitable Restrictions. Equity Jurisdiction, To restrain violation of equitable .. restrictions, Laches, Mandatory injunction. Equity Pleading and Practice, Parties.</p> <p>The owner of a tract of twenty acres of land in a city laid it out as a residential section and expended large sums of money in developing it. All deeds of lots from the tract contained similar conditions and restrictions as to the kind, cost, use and position of buildings to be erected thereon. At the time when the owner purchased the tract there stood on one lot a two family house, • and he conveyed that lot and the one adjoining it by a deed containing the following restrictions: “On neither lot . . . shall there be built or main- . tained more than one dwelling house, nor a dwelling house costing less than . . . (except that the present house now standing may be maintained there as the sole house on its lot), nor shall such building be constructed or maintained other ■ than for a single family or as a double, otherwise called a semi-detached house.” • A successor in title to the grantee began to alter the building into a three-story tenement house, and the original owner, who still owned lots in the tract, sought by a suit in equity to restrain him from doing so. Seld, that the suit might be maintained, since the restrictions prohibited the construction and maintenance of a three-story tenement house, regardless of the extent to which the old building entered into its construction.</p> <p>Where the owner of a large tract of land from which he had conveyed several lots subject to valid building restrictions first learned of certain building operations by the owner of one of the lots which were in violation of the restrictions and which had been carried on for about six weeks in such a way that the owner of the large tract did not have any actual knowledge of the intent of the violator of the restrictions, and where the owner of the large tract a few days after his discovery communicated with the person violating the restrictions and, the building operations being stopped, began a suit in equity to enjoin the operations about two months later, a finding that the plaintiff was not guilty of loches is warranted.</p> <p>Where the owner of a large tract of land in a city, in furtherance of and as a part of a general scheme for the development of the tract as a residential district, in all deeds of lots therefrom included restrictions of a similar, although not of precisely an identical, character, which were imposed for the benefit of all the lots in the tract, several of the grantees of such lots may join as plaintiffs in a suit in equity to restrain a successor of a grantee of one of the lots from violating the restrictions contained in the deed to his predecessor in title.</p> <p>A mandatory injunction may be issued compelling the removal of structures erected upon land in violation of building restrictions to which the land was subject, although the defendant had received the land by descent and at the time that he erected the structures in question he was not aware of the restrictions which were in the deed to his ancestor.</p>

<p>Railroad, Location. Chelsea.</p> <p>Abandonment by a railroad corporation of its location or of any part thereof is not to be inferred from mere non-user.</p> <p>This suit in equity by a railroad corporation and its lessee to establish their rights in a certain location through certain streets of the city of Chelsea was referred to a master who at considerable length made findings of subsidiary facts and also general findings, based on such subsidiary facts, that no abutter had acquired or had any right or interest in any part of the location referred to by reason of any adverse use or occupation thereof, that there had been no abandonment or modification of the location which reduced its width to less than that described in the bill, and that the location was valid to that width. On appeal from a decree granting the prayers of the bill, it was held, after a review of the master’s report, that the general findings of the master were justified by the subsidiary facts found by him, and that therefore the appeal should be dismissed.</p>

<p>Contract or tort by the administrator of the estate of Mary L. Taft against the Athol Savings Bank, for $898.11 and interest, alleged to be the amount of a deposit which belonged to the plaintiffs intestate at the time of her death. Writ dated December 15, 1909.</p> <p>Upon a petition of the defendant A. Louie Taft was summoned in as claimant and was made a party to the action.</p> <p>The case was heard by Crosby, J., without a jury. The facts found by the judge were as follows: Mary L. Taft of Northfield, a short time before November 11, 1907, went to Brattleboro, in the State of Vermont, and there entered a hospital for the purpose of undergoing a severe operation. On November 11, 1907, she sent for one Harold E. Whitney, an attorney at law in Brattleboro, who called at the hospital to see her. She informed him that she was to undergo a very severe operation and feared that she might not recover. She told him that she had some property that she wished to leave, handed him a bank book issued by the Athol Savings Bank and asked him to make out an order in favor of her stepson, A. Louie Taft of Ludlow, Vermont. Mr. Whitney made the order as requested and it was executed by Mrs. Taft. Mrs. Taft delivered the order and the bank book to Mr. Whitney with the following instruction: “You take the book and, in the event that you learn of my death, send it by mail to A. Louie Taft of Ludlow, and in the event that I live and call for it, return it to me.” Mrs. Taft underwent the operation on November 11 and died on November 14. Mr. Whitney learned of her death shortly after it occurred and sent the order and bank book by mail to A. Louie Taft at Ludlow.</p> <p>At the close of the evidence the claimant asked the judge “to rule upon all the evidence that the claimant is entitled to a finding that the bank book became his property upon the delivery thereof by said Whitney to him and that the delivery by Mrs. Taft to Whitney on the evidence, was a valid gift causa mortis.”</p> <p>The judge refused to make this ruling, and made the fourth ruling requested by the plaintiff, which was as follows: “That upon all the evidence the claimant cannot maintain his claim and the finding must be for the plaintiff.”</p> <p>The judge made the following findings and ruling: “I find that, at the time Mrs. Taft executed the order and delivered it and the bank book, she believed she was about to die and would not survive the operation. I further find that from the language used by Mrs. Taft it is plain that she did not intend that the order and bank book should be delivered to the donee Taft during her lifetime. Whitney held the order and bank book as her attorney and representative during her lifetime and subject to her orders. I therefore find that there was no delivery to the donee, or to any one for him and so no title or possession passed to the donee during the lifetime of the donor. As there was no valid delivery of the order and bank book during the lifetime of Mrs. Taft, the property did not pass to the donee either as a gift inter vivas or causa mortis. Upon all the evidence in the case I rule as matter of law that no title to the deposit in question passed to the claimant, A. Louie Taft.”</p> <p>The judge found that the plaintiff was entitled to judgment for the amount of the deposit, less the sum of $25 allowed to the bank as costs. The claimant alleged exceptions.</p>

Petition for partition, filed in the Superior Court on December 18, 1911, praying for an order of sale of the real estate in question under the provisions of R. L. c. 184, § 47.

<p>Tax, Exemption, Street railway. Street Railway, Local taxation. Public Service Corporation. Statute, Construction. Words, “Rights of way.”</p> <p>The principle, that land taken by a public service corporation by right of eminent domain, or land which such a corporation having the right to take by eminent domain has purchased, is exempt from taxation so long as it is used for the public purpose for which it was authorized to be taken, does not apply to land purchased by a street railway corporation for the purposes of its railway under authority of a statute giving it the right to acquire such land by purchase or lease but not the right to take it by eminent domain.</p> <p>St. 1909, c. 439, § 1, relating to the taxation of poles and wires, which amends R. L. c. 12, § 23, as amended by St. 1902, c. 342, excepts from taxation in the cities or towns in which they are erected or laid poles, wires and pipes erected or laid by “street railway companies, the value of whose poles, underground conduits and pipes, together with the wires thereon or therein, for the purpose of taxation, shall, like their rails and rights of way, be included in, and not deducted from, the value of their corporate franchises.” Held, that the amending statute like the statute amended relates only to the taxation of personal property, that the "rights of way” referred to are merely the rights subject to municipal regulation to lay and use tracks in streets already appropriated to the uses of public travel, and that the statute exempts from local taxation no real estate of a street railway company on which it maintains its tracks.</p>

Tort for personal injuries sustained while the plaintiff was in the employ of the defendant and was at work sawing boards lengthwise into strips four inches wide with a circular saw. Writ dated August 18, 1911. In the Superior Court the case was tried before Hall, J. The facts which could have been found upon the plaintiff’s evidence are stated in the opinion.

Indictment, found and returned on May 15, 1912, for wilfully and maliciously burning a building, a part of which was occupied by the defendant. At the trial in the Superior Court before Hall, J., the Commonwealth called as a witness a member of the State police who in the course of his duty had had a large experience in investigating fires and had testified many times as an expert in fire cases.

<p>Carrier, Of goods. Railroad. Agency.</p> <p>In an action against a railroad corporation by the indorsee of a bill of lading of a car load of oats shipped from the State of Indiana for the loss of a part of the oats in transit, for which the plaintiff sought to hold the defendant liable as the last carrier, it appeared that there was written in the bill of lading after the word “Route” the name of a railroad corporation other than the defendant followed by a contraction of the word “Delivery” and that on the face of the bill of lading was stamped a provision that “charges at destination should be collected” at a rate named. There was evidence that the car in question was received by the defendant in the State of New York and was transported by the defendant to the city of its destination in this Commonwealth, that it there was placed by the defendant on a “ circle track” from which it was taken by a switching engine of the railroad corporation named as above in the bill of lading to a freight yard of such other corporation, that the plaintiff was notified by the defendant that the car was in the freight yard of the other corporation, whereupon he went to the office of the defendant with his bill of lading and paid to the defendant all the transportation charges including the charge for shifting the car from the “circle track” to the freight yard of the other corporation, that the car then was unloaded by the plaintiff in such freight yard, and that the plaintiff had no communication with the other corporation. Held, that on this evidence it could be found that the defendant was not an intermediate carrier but itself as the last carrier delivered to the plaintiff the oats that remained in the car, having employed the other railroad corporation as its agent to haul the car to the freight yard of that corporation and having hired the use of the freight yard for the delivery of the oats.</p>

<p>Deed. Spring. Adverse Use. Easement, By prescription, Abandonment.</p> <p>In a deed conveying an acre of land and providing that the grantee “ is to have with said acre a spring of water northeast of said land near an apple tree,” the description of the spring is not void for uncertainty if when its language is applied to the surface of the earth it identifies a particular spring.</p> <p>A deed, after describing an acre of land conveyed in fee, continued as follows: “The said [grantee] is to have with said acre a spring of water northeast of said land near an apple tree, with the right to bring it on to said premises.” The spring was identified by the description. Held, that the deed conveyed in fee so much of the land out of which the spring issued as was necessary for the reasonable use of the spring as well as a right to the water.</p> <p>In a suit in equity to restrain the defendant from interfering with the plaintiff’s use of a certain spring surrounded by land of the defendant, it appeared that the defendant’s predecessor in title conveyed the spring in fee to the plaintiff’s predecessor in title, that at the time of the conveyance the grantor used the spring as the sole source of water supply for his house and that his successors in title, including the defendant, had used it continuously for more than thirty years and until the filing of thé bill, but that the quantity of water thus used was much less than the capacity or normal flow of the spring. Nothing was done on the surface of the land in the vicinity of the spring to indicate that'the defendant or his predecessors in title were occupying it adversely to the title conveyed to the plaintiff’s predecessor in title. Held, that the prescriptive right to withdraw water from the spring acquired by the defendant and his predecessors in title was measured by the amount of water actually withdrawn, and that no title to the entire spring was acquired by them.</p> <p>In a suit in equity to restrain the defendant from interfering with the plaintiff’s use of a certain spring surrounded by land of the defendant, where it appeared that the plaintiff claimed title to the spring under a deed which conveyed in fee the spring and the land necessary for its use to the plaintiff’s predecessor in title, the defendant contended that evidence that a predecessor in title of the plaintiff asked for and obtained from a predecessor in title of the defendant permission to connect a pipe with the spring showed that the right claimed by the plaintiff under the deed had been abandoned. Held, that, even if a title in fee such as the plaintiff acquired under the deed could be lost by non-user and abandonment, the question of abandonment was one of fact to be determined on all the evidence, and that the request to use the spring, if proved, was to be weighed with all the other circumstances.</p>

<p>Practice, Civil, Appeal. Supreme Judicial Court. Mandamus.</p> <p>No appeal lies from a decree made by a single justice of this court in a proceeding at law. The remedy is by exceptions unless the justice reports the questions raised.</p> <p>The function of a writ of mandamus directed to a lower court is to compel judicial action by such corut and not to direct what that action shall be.</p> <p>A petition by a married woman for a writ of mandamus directed to a judge of a district court to compel him to issue a complaint against the husband of the petitioner for non-support will not be granted, where it appears that such judge within a period of less than three months had given two hearings upon the petitioner’s complaint against her husband for non-support and had rendered decisions thereon, and had refused to receive another complaint from the petitioner unless some additional fact was presented by her, and it does not appear that any additional fact was presented.</p>

<p>Negligence, In use of highway, Violation of statute. Law of the Road.</p> <p>The provision of R. L. c. 54, § 2, that “the driver of a carriage or other vehicle passing a carriage or other vehicle travelling in the same direction shall drive to the left of the middle of the travelled part of a bridge or way,” applies to the driver of an automobile who is attempting to pass a street railway car travelling in the same direction. Rugg, C. J., Hammond, & Loring, JJ., dissenting.</p> <p>In an action for personal injuries sustained, when the plaintiff had alighted from the right hand side of an open electric car of a street railway, from being struck by an automobile driven by the defendant, if it appears that the street railway car, which had come to a stop, was proceeding in the same direction in which the defendant was travelling and that the defendant attempted to pass to the right of it, the defendant’s violation of R. L. c. 54, § 2, is evidence of negligence on his part. Rugg, C. J., Hammond, & Loring, JJ., dissenting.</p>

<p>Tort against the Boston and Maine Railroad for the alleged wrongful obstruction of a right of way claimed by the plaintiffs across a railroad location of the defendant at Deerfield. Writ dated April 15, 1910.</p> <p>In the Superior Court the case was tried before Fessenden, J. The facts are stated in the opinion. The deed from David W. Childs to the Connecticut River Railroad Company was dated March 6,1846. The clause which is quoted in the opinion was at the end of the description of the land conveyed and was followed by the habendum clause. The whole of the clause was as follows: “And it is understood and agreed that the said Company are to erect a good and sufficient fence on the East and west side of said last lot — and on the West side of the first lot and maintain the same and to make me a good and sufficient crossing for carting across said rail road near my bar place or at such other place as we can agree upon. Also a passage over near the north end for my cows to pass over.”</p> <p>The judge ordered a verdict for the defendant; and the plaintiffs alleged exceptions.</p>

<p> Frauds, Statute of. </p> <p>Where a mortgagee of real estate orally agreed that, if the mortgagor would refrain from bidding at a foreclosure sale of the property, the mortgagee would bid in the property and afterwards would sell it at private sale and would pay to the mortgagor any balance that remained over the amount of the mortgage with interest and expenses, and where in pursuance of this agreement the mortgagee bid in the property and sold it at private sale for a sum in excess of the amount of the mortgage with interest and expenses, the statute of frauds is not a bar to an action of contract by the mortgagor to recover such excess in the hands of the mortgagee, the part of the contract relating to the purchase and sale of the real estate having been performed, and the promise to account for and pay over the excess being separable from the rest of the contract.</p>

Two actions OF tort, the first by a boy nine years of age when injured, and the second by the father of the plaintiff in the first case, for personal injuries to both plaintiffs and damage to the property of the plaintiff in the second case by reason of the alleged negligence of the servants of the defendant in operating one of its electric cars. Writs dated March 28, 1910.

<p>Negligence, Due care of plaintiff, Street railway, Violation of town regulation.</p> <p>Where the track of a street railway is laid on one side of the wrought part of a road of a town, the nearer rail of the track being less than twelve feet distant from the piazza in front of a store, and the driver of a delivery wagon employed by the proprietor of the store, after looking in both directions and seeing no car approaching, backs his horse and wagon across the track, dismounts from the wagon, lets down the tailboard, and, climbing into the wagon, proceeds to unload a barrel from it, when he hears a gong and almost immediately the team is struck by a car approaching at an excessive rate of speed and he is thrown out and injured, in an action for his injuries thus caused the question whether he was in the exercise of due care is for the jury to decide upon the evidence presented.</p> <p>The violation by a street railway company of a regulation, established by the selectmen of a town and approved by the board of railroad commissioners, concerning the speed of cars upon street railways in the town, is evidence of negligence in an action against the street railway company for personal injuries alleged to have been caused by a car of the defendant when running at an excessive rate of speed.</p>

<p>Negligence, Street railway. Street Railway. Way, Public. Practice, Civil, Rulings and Instructions.</p> <p>An action against a street railway company by a passenger for personal injuries received in an accident caused by the giving way of a culvert maintained by a town under a highway upon which the defendant’s railway was constructed was heard by a judge without a jury, who ruled that the defendant “was bound to maintain beneath its tracks within the highway over the culvert such structure or foundation as to enable it to run cars safely thereover in the event that the town . . . failed so to do,” and found for the plaintiff. On exceptions by the defendant this ruling was interpreted to mean, not that the defendant was bound to guard against every conceivable emergency, but that it was bound to discharge the obligations of a common carrier in regard to the foundations of its tracks, and that it did not discharge such obligations by relying upon the town and its officers to do their duty as to the culvert, and, so interpreted, the ruling was held to be correct.</p> <p>The grant to a street railway company of the privilege of laying tracks and running cars upon a highway for the transportation of passengers by necessary implication includes the power and imposes the obligation to construct and maintain within the limits of the highway such foundations and supports as are required for the reasonable conduct of its business and the safety of its passengers.</p>

<p>Practice, Civil, Appeal. Supreme Judicial Court.</p> <p>No appeal lies to this court from an order of the Superior Court overruling an answer in abatement, such order being interlocutory.</p>

<p>Tort, by a boy eleven years and nine months of age when injured, for personal injuries sustained on June 17, 1908, from being struck by an open electric car alleged to have been operated negligently by the servants of the defendant upon the defendant’s street railway on a country road in the town of Agawam. Writ dated November 23, 1908.</p> <p>In the Superior Court the case was tried before King, J. The material facts which might have been found upon the evidence are stated in the opinion. At the close of the evidence the defendant asked the judge to rule that on all the evidence the plaintiff was not entitled to recover and to order a verdict for the defendant. The judge refused to rule as requested and submitted the case to the jury.</p> <p>In the course of his charge the judge instructed the jury as follows: “The court said in one opinion as illustrating one feature that may bear upon this case Tn our opinion, if one crossing the tracks of a street railway testifies that he looked to see whether a car was coming (when the car was in fact in plain sight) and that he did not see it, he must have looked carelessly and is in no better position than if he had not looked at all. ’ [194 Mass. 243.] Whether or not, however, that applies to one who is not on the track, nor about to cross it, but who is simply getting out of a wagon that is driven four to seven feet from and parallel to the track, and away from it, and aiding another to dismount from that wagon, it is for you to say.” The defendant excepted to the statement of the judge contained in the last sentence of this instruction.</p> <p>The jury returned a verdict for the plaintiff in the sum of $500; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Practice, Civil, Appeal. Marriage and Divorce.</p> <p>Upon a petition for the enforcement of decrees for alimony in a suit for divorce in which certain savings banks summoned by trustee process had been charged as trustees, a petition of an adverse claimant was filed alleging that the libellee had been adjudged a spendthrift and that the claimant had been appointed his guardian and claiming as such guardian the money of the libellee in the hands of the trustees. The answers of the trustees alleged that they had had notice of the appointment of the claimant as guardian and of his claim before the service upon them of the trustee process. On evidence, which was not before this court, a judge of the Superior Court made a decree that the claimant was entitled to the funds in the hands of the trustees. On an appeal by the libellant, it was held, that this court could not say that the decree was not justified by the evidence not before them, and that it was not necessary to decide whether in such a proceeding the rights of an intervenor ought to be considered, because it did not appear that any objection on this ground had been made in the court below.</p>

Tort for personal injuries sustained by the plaintiff on July 30, 1910, when he was employed as a helper in the wire mill of the defendant at Worcester. Writ dated September 23, 1910. In the Superior Court the case was tried before Irwin, J. The facts which could have been found upon the plaintiff’s evidence are stated in the opinion.

<p>Devise and Legacy, Identification by extrinsic evidence, Specific legacy. Evidence, Extrinsic afiecting writings.</p> <p>Where a will provided that certain legacies should be paid from the money of the testatrix deposited in three savings banks named in the city of Worcester, and one of those named was the Worcester Five Cents Savings Bank, it can be shown by extrinsic evidence that the testatrix never had a deposit in the Worcester Five Cents Savings Bank but that at the time of making her will and at the time of her death she had a deposit in the Worcester County Institution for Savings, which was not named in the will, as well as deposits in the other two savings banks named, and it can be found that the testatrix intended to designate, instead of the Worcester Five Cents Savings Bank, the Worcester County Institution for Savings.</p> <p>A will made ten pecuniary legacies and then provided as follows: “The last ten legacies aforesaid are to be paid only out of the monies now deposited in” three savings banks designated. At the time of making the will and at the time of her death the testatrix had deposits in the three savings banks designated, amounting in all to a little more than the amount of the ten legacies. Held, that the ten legacies were specific and not general legacies.</p>

<p>Contract, Performance and breach. Tender. Equity Jurisdiction, Specific performance.</p> <p>An attempted revocation of a contract, which attempt afterwards is abandoned when the other party insists on performance, cannot be treated as a refusal of performance that relieves the other party from his obligation to perform his part of the contract.</p> <p>In a suit for specific performance it appeared that the defendant, by an instrument under seal dated March 9 in a certain year, agreed to sell his farm to the plaintiff for a price named and to deliver a deed of it on or before April 10 on payment of the purchase money, that on March 17 the defendant sent to the plaintiff an attempted revocation in writing, that about April 1 the defendant at the plaintiff’s request went to the office of the plaintiff’s attorney, where the plaintiff demanded a deed of the farm and the defendant replied that he was not bound to deliver a deed before April 10, that the plaintiff then asked the defendant to remain a short time until the plaintiff could procure money to make a tender, that the defendant refused to wait and left the office, that thereafter1 the defendant caused a proper deed of the farm to be prepared and on April 10 remained at his dwelling house during the entire day ready and able to deliver possession of and title to the farm in accordance with his agreement, but that the plaintiff did not then or at any time thereafter before the filing of the bill demand a deed of the farm or tender or offer to tender the purchase money. A decree was made dismissing the bill. Held, that the bill was dismissed properly, the plaintiff never having made a tender of the purchase money, and there having been no such refusal to convey on the part of the defendant as to dispense with a tender.</p>

<p>Negligence, Employer’s liability, In use of explosives.</p> <p>In an action against a city under the employers’ liability act for causing the death of a workman, who was assisting in the blasting of a rock with dynamite in excavating for a sewer and who had had many years of experience at such work, it appeared that holes for the blasting had been drilled in the rock, into each of which had been put dynamite fitted with an exploder, and that one set of electric wires was used to explode the dynamite in all of the holes simul-</p> <p>taneously; that after an explosion and before the debris was removed the only way to ascertain whether the dynamite in all of the holes had been exploded was by the condition of the rock; that while the workman in question was clearing away the debris after a blast, when the condition of the rock indicated that all of the dynamite had been exploded, there was an explosion of one piece of dynamite that had been left unexploded. There was no evidence that there was any better exploder in the market than that used by the defendant. Held, that the accident was caused by a danger incident to • the work which the workman was employed to perform.</p> <p>In an action against a city under the employers’ liability act for causing the death of a workman who was assisting in blasting a rock with dynamite in excavating for a sewer, it appeared that dynamite had been placed in several holes drilled in the rock and had been fitted with exploders to be set off by the use of a single set of electric wires; that the exploder used in one hole had failed to work, and that later the dynamite in this hole had exploded, causing the accident; that the defendant had been using in its work two kinds of exploders, both of which had given trouble by not always exploding. At the time of the accident the defendant was out of one of the kinds, which the foreman in charge preferred, and the other kind was being used. There was no evidence that there was any better exploder in the market than the two kinds in use by the defendant. Held, that there was no evidence of negligence of the defendant in failing to provide a suitable exploder.</p> <p>Permitting a workman in the employ of a city, who is assisting in clearing away debris caused by the blasting of a rock with dynamite in excavating for a sewer, to work until twenty minutes after four on the afternoon of the eighth of December, even if the workman had only one eye, is not in itself evidence of negligence toward the workman on the part of the superintendent in charge of the work.</p>

<p>Deed, Construction. Boundary. Evidence, Extrinsic affecting writings.</p> <p>yVhen on the face of a deed of land no uncertainty is disclosed as to the monuments or boundaries described, but the description is shown to be ambiguous when it is applied on the land to the monuments referred to, extrinsic evidence is admissible to show what boundaries the language of the deed was intended to describe.</p>

<p>Practice, Criminal, Verdict, Arrest of judgment. Pleading, Criminal, Indictment.</p> <p>A verdict of not guilty on a count in an indictment charging the defendant with a violation of R. L. c. 208, § 98, in that he “did wilfully and maliciously administer” poison to “certain cattle belonging to” a certain person, is not inconsistent with a verdict of guilty on a second count in the same indictment charging the defendant with a violation of the same statute in that he “did wilfully and maliciously expose” poison “with intent that it should be taken or swallowed by cattle belonging to” the same person.</p> <p>An objection that, in an indictment for a violation of R. L. c. 208, § 98, in exposing poison with intent that it should be swallowed by "cattle belonging to” a certain person, the word “cattle” is not sufficiently definite, even if it were a valid objection to the indictment, would not be a ground for arresting judgment after verdict, since it would be a cause existing before verdict which did not affect the jurisdiction of the court.</p> <p>In an indictment charging that the defendant “did wilfully and maliciously expose certain poison . . . with intent that it should be taken or swallowed by cattle belonging to” a certain person, the word "cattle” is sufficiently definite to show a violation of R. L. c. 208, § 98, which in substance provides a penalty for administering or exposing poison with intent that it shall be taken or.swallowed by “any horse, cattle or other beast of another person.”</p>

<p>Tort against a street railway company for personal injuries sustained by the plaintiff on July 10, 1910, from being run into by a car of the defendant on Main Street, a highway in Worcester, when the plaintiff was operating an automobile of which he was the owner. The declaration alleged that the street railway car was operated negligently and carelessly by the agents or servants of the defendant and that the plaintiff’s injuries were caused by the negligence of the defendant. Writ dated March 16, 1911.</p> <p>At the trial in the Superior Court before Lawton, J., there was evidence of the plaintiff’s due care and of the defendant’s negligence.</p> <p>The evidence showed that the plaintiff had. procured a license to operate automobiles in 1905, and that he was experienced in their operation and mechanism and was perfectly competent to run them. At the time of the accident the plaintiff had failed to have his license renewed in accordance with St. 1909, c. 534, § 8, because he had been out of the Commonwealth. In the winter of 1909 the plaintiff had ordered a new automobile. While he was out of the Commonwealth the automobile was delivered at his residence in Worcester. His wife, who had a license to operate automobiles, had the automobile registered in her own name. The plaintiff returned to the Commonwealth only a few days before the accident. At the time of the accident he owned the automobile, which was not registered in his name but was registered in the name of his wife.</p> <p>At the close of the plaintiff’s evidence the judge ordered the jury to return a verdict for the defendant, on the ground that the automobile was not registered in the name of the owner. The judge reported the case for determination by this court with an agreement of counsel that, if this ruling was wrong, judgment should be entered for the plaintiff, in the sum of $150; otherwise, that judgment should be entered for the defendant.</p> <p>The case was submitted on briefs.</p>

<p>Complaint, received and sworn to in the Third District Court of the County of Bristol on March 30, 1912, charging that the defendant on three different occasions “did ... do certain work in plumbing which was subject to inspection, . . . [he] . . . not being then and there registered or licensed as a journeyman plumber in accordance with the provisions of” St. 1909, c. 536.</p> <p>On appeal to the Superior Court, the case was tried before Fox, J. The defendant moved to quash the complaint “for the reason that no offense or offenses known in law are therein charged.” The motion was overruled; and the defendant alleged an exception.</p> <p>There was evidence introduced tending to show that the defendant was twenty-two years of age; that at the different times alleged in the complaint he was working for one Bolduc, a master plumber, who was duly licensed and also was the holder of a license as journeyman plumber, Bolduc placing him in different new houses to do plumbing work with the assistance of a helper; that much of this plumbing work was subject to inspection under the ordinances of New Bedford, where the houses were located and where the defendant worked; that the defendant was not licensed nor registered either as a journeyman plumber or as a master plumber; that the defendant had worked'at the plumbing business for about five years and was trying to learn the trade of journeyman plumber; that he had taken examinations on four different occasions before the State board of examiners for plumbing licenses and had failed to pass each time; that Bolduc’s duties were mostly overseeing the work of his various employees, who numbered twelve or fifteen persons and among whom there were from three to five men doing plumbing work, only one of whom was a licensed journeyman plumber; that the defendant on the days alleged in the complaint had been seen caulking joints, wiping joints and installing a fresh air vent pipe which extended from the cellar through the roof and connected with the various “traps,” which was work subject to inspection; that Bolduc called upon the defendant once or twice a day, each call lasting from one half hour to two hours, gave him directions as to how to perform his work and what should be performed, and later examined the work which had been performed; that afterwards, when all of the plumbing had been completed, examined and tested by Bolduc, it was re-examined and tested by an official of the board of health of New Bedford before the plumbing which had been performed by the defendant could be used; and that all plumbing before it was used by the owners or tenants was made to conform with the plumbing regulations and was inspected and approved by the official of the board of health as required by law.</p> <p>At the close of the evidence the defendant made seventeen requests for rulings, of which the first twelve, the sixteenth and the seventeenth were based on an assumption that the defendant was an apprentice "or a person working under a verbal agreement for instruction.” The thirteenth request was for a ruling that on all the law and the evidence the defendant was entitled to be acquitted, and the fourteenth and fifteenth were for rulings that St. 1909, c. 536, was unconstitutional. The judge refused to give any of the rulings asked for, and charged the jury that there was but a single question to be tried, namely, whether the defendant "did work in plumbing and without a license. Of course, it is agreed that he didn’t have any license, and I understand that it is agreed that the business that he was engaged in, the kind of plumbing that he was engaged in, the putting together of soil pipe, was business that was subject to inspection. So if you accept the testimony, what is admitted by the defendant as to what he was doing, and the kind of work, and the way he was doing it with a helper, on his statement you would be clearly warranted, gentlemen, in finding that he committed the offense which is described in this complaint.”</p> <p>The jury found the defendant guilty; and the defendant alleged exceptions.</p>

<p>Negligence, Employer’s liability.</p> <p>At the trial of an action by an employee against his employer for personal injuries received in the course of his employment, it appeared that the defendant was installing a steam heating apparatus in a new mill, that just before the accident the plaintiff was assisting in the hanging of a line of pipe to a ceiling and in doing so was standing upon a wooden horse four feet high, that in getting down from the horse his shoe caught upon a projecting nail and he was thrown to the floor. He had received no warning of any likelihood of the presence of a nail. The horse was not the property of the defendant but was found on the premises when the defendant’s work began and was used by the carpenters and other workmen. There was no evidence to explain the presence of the nail or tending to show that others using the horse would be likely to drive nails into it, or that any one saw the nail before the accident, and the appearance of the nail was not indicative of age. Held, that there was no evidence which would warrant a finding of negligence on the part of the defendant.</p>

<p>Tort under the employers’ liability act, against a corporation which was engaged as contractor in constructing a building in New Bedford, for personal injuries sustained on July 20, 1910, when the plaintiff was employed as a teamster by the defendant, from the alleged negligent operation of a stone crusher used by the defendant in its business, whereby the horse of which the plaintiff was in charge was caused to bolt and to throw down and injure the plaintiff. Writ dated September 24, 1910.</p> <p>In the Superior Court the case was tried before Lawton, J. The facts which could have been found upon the evidence are stated in the opinion. Wilson, the foreman in charge there mentioned, was standing on the hub of the wheel of the cart when he opened and shut the slides of the hoppers as described</p> <p>in the opinion. At the close of the evidence the plaintiff elected to go to the jury solely on the fourth count of his declaration which, under St. 1909, c. 514, § 127, cl. 2, alleged that his injuries were caused by the negligence of a person in the service of the defendant who was entrusted with and was exercising superintendence and whose sole or principal duty was that of superintendence. Thereupon the defendant asked the judge ■ to rule, first, that upon the whole evidence the plaintiff could not recover upon the fourth count of his declaration. The defendant also asked the judge to make the following ruling, numbered 3: “If the jury find that it was a part of the regular duty of Wilson to open and close trap 1, and that he negligently failed to properly close it and thereby caused the injury, his act was the act of a fellow servant, for which the defendant is not liable.” The judge refused to make the first ruling requested, and refused to make the ruling numbered 3 except as given in his charge, which was held by this court fully to have covered the subject matter of this request.</p> <p>The jury returned a verdict for the plaintiff in the sum of $3,500; and the defendant alleged exceptions.</p>

<p>Negligence, Employer’s liability.</p> <p>Evidence tending to show, that a workman, who was assisting in unloading lumber for his employer by means of a hoisting engine and derrick, was crushed and killed by the falling of a load of the lumber by reason of the defective condition of the hoisting engine in consequence of which it did not hold up the load, will warrant a finding that the death of the deceased was caused by a defect in the ways, works or machinery of his employer within the meaning of R. L. c. 106, § 71, cl. 1, § 73.</p> <p>In an action under R. L. c. 106, § 71, cl. 2, § 73, for the death of the plaintiff’s husband alleged to have been caused by the negligence of a superintendent of the defendant, where it appears that the plaintiff’s husband was in the employ of the defendant and was assisting another man in the defendant’s employ in unloading lumber by means of a hoisting engine and derrick when he was crushed and killed by the falling of a load of lumber that was being hoisted, if there is evidence tending to show that the load fell by reason of the improper way in which the sling, which was put around the load, was suspended from the hook on the derrick boom, that the principal work of the man whom the plaintiff’s husband was assisting was to have charge of the derrick, that his work was overseeing, taking off the loads, piling up the lumber and making all hitches, and that "he had full charge of the derrick, unloading, piling, signalling and one thing and another,” a finding is warranted that the death of the plaintiff’s husband was caused by the negligence of one entrusted with and exercising superintendence whose sole or principal duty was that of superintendence.</p>

<p>Negligence, Toward licensee, Res ipso loquitur. Mail Clerk.</p> <p>The owner of a horse and wagon, who has a contract with a railroad corporation to carry the mail between the railroad station and the post office in a town, in transporting in the wagon a railway mail clerk in the employ of the United States, whose duty it is to keep the mail in his custody until it is delivered at the post office, owes him at the most no greater duty in regard to the wagon than to exercise reasonable care to provide one that is safe.</p> <p>The fact, that the irons which held in place the seat of an open wagon broke when the horse attached to the wagon started suddenly and that a person sitting on the seat fell backward into the body of the wagon, is not evidence of negligence on the part of the owner of the horse and wagon in failing to provide a safe wagon for the transportation of the person on the seat.</p>

<p>Elections. Statute. Salem. Words, “Ballots,” “Votes.”</p> <p>St. 1912, c. 559, Part III, § 1, provided that the registered voters of the city of Salem at the State election in the year 1912 should “vote primarily on the following question: ‘Shall the present charter of the city of Salem be repealed?’ and secondarily on the following question: If the present charter of the city of Salem is repealed, shall the new charter of the city be: ‘Plan 1, . . . ’ or ‘Plan 2 . . . ?’” and then continued as follows: “If on a majority of the ballots cast at said election, the votes shall be for a repeal of the present charter of the city of Salem, the plan receiving the larger number of votes on the secondary question shall be adopted as the charter for the city.” The official ballot which contained these questions contained also the names of a large number of candidates for State and national offices and several other questions, including two upon the adoption of amendments to the Constitution. A majority of the votes upon the question of repealing the charter of the city of Salem were for such repeal, but a majority of all the official ballots lawfully deposited in the ballot boxes at that election by the registered voters of the city of Salem were not cast in favor of such repeal, a large number of such ballots having been left blank upon that question. Held, that the “majority of the ballots cast at said election,” required by the statute for the repeal of the charter, was a majority of the votes cast upon that question, and that the charter was repealed.</p>

<p>Mechanic’s Lien. Practice, Civil, Agreed statement of facts.</p> <p>Upon an appeal from a decree dismissing a petition to establish a mechanic’s lien which was submitted to the trial judge upon an agreed statement of facts containing no stipulation that inferences of fact might be drawn, the only question presented is whether upon the facts stated, without any deductions being drawn from them, the petitioner is entitled to a decree establishing his lien.</p> <p>A lien on real estate under R. L. c. 197 for labor and materials is not lost by mere delay in completing the contract if the contract was completed in good faith and without any conduct which could constitute an estoppel, although after the making of the contract and before its completion a mortgage of the property was made and foreclosed without any knowledge of the contract on the part of the mortgagee or of the purchaser at the foreclosure sale.</p> <p>On a petition to enforce a mechanic’s lien on real estate for the balance due upon an entire contract made by the petitioner with the owner of the land for furnishing labor and materials, it appeared, by an agreed statement of facts containing no stipulation that inferences of fact might be drawn, that after the making of the contract the owner made a mortgage of the property whiehjwas foreclosed before the contract was completed, that neither the respondent, who held title under the purchaser at the foreclosure sale, nor the mortgagee nor such purchaser had any knowledge of the petitioner’s contract, that the respondent acquired his title more than nine months after the contract was made, that more than a year and four months after the respondent acquired his title the petitioner furnished several days’ labor and a small amount of material and that thereby the work required by the contract was completed, that such work was done by the petitioner in good faith for the purpose of finishing his contract and that he had no notice of any change in title until just before filing his sworn statement in compliance with R. L. c. 197, § 6. The trial judge made a decree dismissing the petition on the ground that “the petitioner unreasonably delayed the complete performance of Ms contract without any explanation or excuse.” On appeal, it was held, that the record did not show unreasonable delay, and that, if such delay had been shown, it could not have been ruled rightly that the petitioner must fail because he unreasonably delayed the complete performance of Ms contract; and the decree dismissing the petition was reversed.</p>

<p>Petition, filed on January 5, 1911, for a writ of certiorari to review the proceedings of the county commissioners of Worcester County in abating a tax on personal property assessed for the year 1910 by the assessors of the town of Milford to the Proprietors of the Pine Grove Cemetery of Milford, a Massachusetts corporation.</p> <p>The ground on which the county commissioners abated the tax was that they found the corporation to be a charitable institution within the meaning of St. 1909, c. 490, Part I, § 5, cl. 3, and therefore, under the provisions of that clause, exempted from taxation.</p> <p>The petitioner objected to the finding of the county commissioners as stated in its petition, on four grounds, contending (1) that the county commissioners had no jurisdiction and could not lawfully act in the matter because the Proprietors of the Pine Grove Cemetery had not paid the tax before commencing its proceedings before the county commissioners for an abatement thereof; (2) that the county commissioners wrongly found that the Proprietors of the Pine Grove Cemetery was a charitable institution; (3) that the county commissioners wrongly found that there was reasonable cause for delay on the part of the Proprietors of the Pine Grove Cemetery in filing the list required under St. 1909, c. 490, Part I, § 41; (4) that the county commissioners could not lawfully abate the tax because the Proprietors of the Pine Grove Cemetery had not in fact filed the statement required under St. 1909, c. 490, Part I, § 41, for charitable corporations.</p> <p>Other facts are stated in the opinion.</p> <p>The case was reserved by Rugg, C. J., for determination by the full court.</p> <p>The case was submitted on briefs.</p>

<p>Appeal from a decree of the Probate Court for the county of Worcester granting a petition for the partition of certain real estate in the town of Hardwick which was filed on September 7, 1911.</p> <p>The appeal was heard by Rugg, C. J., upon an agreed statement of facts, by which the following facts appeared:</p> <p>Mary Ann Orcutt, who was the mother of the petitioner and the respondent, died on February 24, 1893. She left a will containing the following provisions:</p> <p>“First. I give and bequeath to my daughters Emma B. and May M. Orcutt the home place which was deeded to me by my husband Almon M. Orcutt, M.D., as long as they remain single. The one marrying first, then giving up all her right and title in the place to the unmarried sister;</p> <p>"Second. All things contained in the house to be divided equally between Emma B. and May M. Orcutt, with the exception of last silver spoon bought of William Bodwin, Cameo pin, and black silk dress which I give to May M. Orcutt.</p> <p>“Third. I give and bequeath all other property which I hold in my name in whatever form or shape it may appear either real or personal and my share in my deceased husband Almon M. Orcutt, M.D., estate to my daughters Emma B. and May M. Orcutt to be equally divided between them.”</p> <p>The fourth, fifth, sixth and seventh clauses of the will contained small pecuniary bequests which are not material. The eighth clause, which was the last before the attesting clause, was as follows:</p> <p>“Eighth. I hereby nominate and appoint Emma B. and Mary M. Orcutt, executrixes and residuary legatees of this will, and that they shall not be required to give bonds under this will.”</p> <p>The property of which partition was sought was “the home place” described in the first clause of the will of Mary Ann Orcutt. Her daughter Mary M. Orcutt, mentioned in that clause as May M. Orcutt, married on January 31, 1894, and became Mary O. Buggies. The daughter Emma B. Orcutt, mentioned in that clause, married on November 20, 1895, and became Emma O. Jewett. The petition for partition was brought by Mary O. Buggies. The respondent, Emma 0. Jewett, claimed the entire title to the property in question. In the Probate Court Chamberlin, J., made a decree, which, after reciting that the respective shares or proportions of the persons interested were not in dispute and uncertain but that all parties requested that the case should not be removed to the Superior Court and that the Probate Court should proceed to a decree upon the partition, and after reciting further that the real estate could not be divided advantageously, ordered that partition should be made and appointed a commissioner to sell the property. The respondent appealed. At the request of the parties the Chief Justice reserved the appeal for determination by the full court.</p> <p>The case was submitted on briefs.</p>

<p>Contract, with two counts, the first for the price of certain cotton cloth alleged to have been sold and delivered to the defendant, and the second for an alleged breach of contract by the defendant in refusing to accept and pay for certain cotton cloth which it had agreed to buy from the plaintiff. Writ dated October 12, 1908.</p> <p>In the Superior Court the case was tried before Keating, J. The plaintiff and the defendant were both manufacturing corporations, the plaintiff owning and operating a large cotton mill in New Bedford and the defendant. owning and operating a large cotton mill in Fall River. The evidence included the report of an auditor, William H. Fox, Esquire, and also correspondence and oral testimony. The facts which could have been found upon the evidence are stated in the opinion. The auditor reported that the plaintiff under its first count could recover on the first eight items of its bill of particulars, amounting to $13,563.44. He reported that there was no evidence before him in regard to the market value of the goods at the time and place of delivery, and that therefore the plaintiff was entitled to recover only nominal damages on its second count. For that he added $1, finding that the plaintiff was entitled to recover in all $13,564.44 with interest from the date of the writ.</p> <p>At the close of the evidence the defendant asked the judge to make the following rulings:</p> <p>“ 1. Aside from the auditor’s report there is no evidence in this case that twelve hundred pieces of goods were delivered by the plaintiff to the defendant on March 31, nor that any goods were delivered by the plaintiff to the defendant after the twelve hundred pieces on April 7.</p> <p>“ 2. On all the evidence in the case, the plaintiff is not entitled to recover for the following items: [enumerating seven items.] “ 3. The defendant is not liable for any goods except those delivered at the Arkwright Mills or to a common carrier to be forwarded to the Arkwright Mills.</p> <p>“ 4. Even if the Arkwright Mills requested the Bristol Mill to hold the goods covered by insurance subject to its order, that would not change the rule as to delivery.</p> <p>“ 5. The letter of April 1, 1908, from the Arkwright Mills to the Bristol Mill which has been put in evidence, does not vary the terms of delivery as stated in the contract, but is in effect a request to withhold deliveries. It does not warrant the Bristol Mill in recovering the purchase price of goods held in accordance therewith but not delivered.”</p> <p>The judge refused to make any of these rulings and submitted the case to the jury with other instructions.</p> <p>The defendant excepted to the instructions on the ground that as to the goods held at the Bristol Mill there was no evidence of constructive delivery as defined by the court. The jury returned a verdict for the plaintiff in the full amount claimed; and the defendant alleged exceptions.</p>

<p>Contract for $62 as stated in the opinion. Writ in the Second District Court of Bristol dated June 19, 1911.</p> <p>On appeal to the Superior Court the case was tried before Fox, J., without a jury. The judge found for the plaintiff in the sum of $65.72; and the defendant alleged exceptions to the admission of the evidence which is described in the opinion. It was stated in the bill of exceptions that the defendant waived all questions except those relating to the defense that the plaintiff had recovered judgment, which had been satisfied, in an action against the New York, New Haven, and Hartford Railroad Company for the same cause of action. That action was brought in the' Second District Court of Bristol and was tried before one of the special justices of that court, who was the witness referred to in the opinion.</p>

<p>Landlord and Tenant, Repairs, Eviction. Theatre. Covenant. Practice, Civil, Consolidation of cases, Discontinuance, Parties. Equity Pleading and Practice, Consolidation of cases, Decree.</p> <p>Where real estate is leased to be used for a vaudeville and moving picture show, and the lease contains a statement that “a license, for operating a vaudeville and moving picture show on the premises as now equipped, has been obtained,” and also contains a covenant by the lessee that the premises "shall be kept in good and tenantable repair and condition during the term of said lease at the expense of the lessee,” the lessor to make outside repairs, and thereafter the State police notify the lessor that certain interior changes must be made in the theatre under penalty of a revocation of the license if not made, and the lessee knows of these requirements, but the changes are not made and the license is revoked, the revocation of the license, which is due to the failure of the lessee to perform his obligations under the lease, gives him no claim upon the lessor and does not excuse him from his obligation to pay the stipulated rent.</p> <p>A covenant of the lessor in a lease of certain real estate “that the heating apparatus to be connected with and used in the premises hereby leased and demised shall be installed at the expense of the lessor” does not require a heating apparatus to be installed on the premises, and may be performed by the installation in the cellar of an adjoining building belonging to the lessor of a heating apparatus connected with and sufficient to warm the demised premises.</p> <p>Where the lessor of a theatre during an inspection of the theatre by the State inspector ordered the lessee off the premises and was the aggressor in a controversy with the lessee in which they came to blows and the lessee was expelled, but the lessor did not intend permanently to evict the lessee, his purpose being to keep the lessee away from the inspector rather than out of the building, and the acts of the lessor did not deprive the lessee of the beneficial use of the premises after the inspection, such temporary forcible expulsion of the lessee does not constitute an eviction.</p> <p>Discussion by Rugg, C. J., of three different methods by which cases at law and in equity may be consolidated.</p> <p>In a suit in equity by a lessee against his lessor, to enjoin the defendant from collecting any rent until he should perform the covenants and conditions of the lease according to the contention of the plaintiff, it appeared that the plaintiff had brought an action at law against the defendant for damages from an alleged breach of the covenants of the lease, and that the defendant had brought an action at law jointly against the plaintiff and a guarantor of the rent for damages from the plaintiff’s alleged breach of the covenant to pay rent. An interlocutory decree in the suit in equity, made with the consent of all the parties, ordered that the two actions at law “be consolidated with this proceeding and damages assessed herein, should any be found due; and that said two actions be heard with this suit at a session of the court without juries.” The cases were referred to a master, who filed in the suit in equity a single report eoveringthe mattersin issue inall the cases. Thefinal decree ordered that in the suit in equity the bill be dismissed, that in the plaintiff’s action at law judgment be entered for the defendant, and that in the defendant’s action at law, which the defendant had discontinued as against the plaintiff, judgment be entered against the guarantor of the rent. Held, that the consolidation of the cases by the interlocutory order was merely for convenience of trial, and that the two actions at law had not become merged in the suit in equity but still were pending, so that the separate judgments properly could be given in them.</p> <p>The plaintiff in an action at law against two defendants may discontinue his action as against one of them after a hearing by an auditor but before the case has been tried on its merits.</p> <p>Whether a lessor in an action for rent due under a covenant in a lease properly can join as defendants the lessee and one who guaranteed the payment of the rent under a separate instrument, quaere.</p>

<p>Practice, Civil, Appeal, Memorandum of judge, Exceptions, Report. Partition.</p> <p>No appeal lies to this court from the findings of fact or the rulings of law made by a judge before whom a proceeding at law has been tried without a jury, nor from an order to enter an interlocutory judgment where no such judgment has been entered.</p> <p>A memorandum filed by a judge before whom a proceeding at law has been tried without a jury, which states his findings of the material facts in the case and his rulings of law upon them without embodying them in a bill of exceptions or a report, is not a part of the record.</p> <p>It seems, that upon a petition for partition, questions of law raised by the rulings of a judge upon the facts found by him at a hearing of the case without a jury, on which he ordered that an interlocutory judgment should be entered, may be brought before this court by a bill of exceptions before the case is ripe for final judgment; or such questions of law may be brought before this court by a report made by the judge under R. L. c. 173, § 105, as amended by St. 1910, c. 555, § 5.</p>

<p>Practice, Civil, Exceptions, Rulings and instructions.</p> <p>An exception, to the disallowance of a bill of exceptions on the ground that the exceptions were not taken within a reasonable time after the rulings excepted to were made, properly can be alleged in a separate bill of exceptions.</p> <p>An adverse finding by a trial judge, who has heard a case without a jury, without passing upon pertinent requests for rulings, is to be construed as a refusal of the rulings thus requested.</p> <p>Exceptions to the refusal of requests for rulings involved in the finding of a trial judge, who heard the case without a jury, must be taken within a reasonable time after the filing of such decision. Eighteen days after notice of the filing of the decision is not a reasonable time.</p>

<p>Practice, Civil, Exceptions. Buies of Court.</p> <p>Under St. 1911, c. 212, § 2, where the judge who presided at a trial, upon a motion made more than three months after the filing of exceptions which have not been presented for allowance, orders that the exceptions be dismissed and that judgment be entered in the same manner as if no exceptions had been filed, on the ground that the exceptions were not presented to the court for allowance within such time as the court finds to be reasonable, the determination by the judge that there has been unreasonable delay is final and is not open to revision.</p> <p>Rule 64 of the Superior Court, regulating the practice under St. 1911, c. 212, § 2, and providing that, where exceptions have remained without any action thereon for three months after filing, the clerk shall notify the parties, and that, if such exceptions are not presented for allowance within thirty days thereafter, they shall be dismissed as of course unless an order is made extending the time for hearing and allowance, does not prevent the granting of a motion to dismiss such exceptions, which was filed after the expiration of the three months but before thirty days thereafter had elapsed, upon the decision of the trial judge that the delay in the presentation of the exceptions for allowance was unreasonable.</p>

<p>Tort, by the administrator of the estate of Margaret Mahoney, for causing the death of the plaintiff’s intestate, a child two years and eleven months of age, on July 15, 1910, on North Beacon Street in that part of Boston called Brighton, by alleged negligence in the operation of an electric street railway car of the defendant. Writ dated October 3, 1910.</p> <p>At the trial in the Superior Court before Morton, J., the jury returned a verdict for the plaintiff in the sum of $500; and the plaintiff alleged exceptions, relating solely to the alleged wrongful admission of certain evidence introduced by the defendant and the alleged wrongful exclusion of a question asked by the plaintiff on the cross-examination of a witness called by the defendant, both of which are described sufficiently in the opinion.</p>

<p>Practice, Civil, Appeal.</p> <p>An appeal to this court in an action at law brings before the court only errors of</p> <p>law apparent on the record.</p>

<p>Bill in equity, filed in the Superior Court on April 8, 1910, under St. 1909, c. 490, Part II, § 76, by an attaching judgment creditor of the defendant Heed, to redeem certain land in Leominster from a tax sale made on February 11, 1907, for non-payment of taxes assessed to the defendant Reed as the owner of the land on May 1, 1905, the bill alleging that the plaintiff was ignorant of the default in the payment of taxes and of the sale for non-payment thereof until December 31,1909, when the plaintiff first had notice of such default and sale after the legal period of redemption had expired.</p> <p>The case came on to be heard by Hall, J., and in accordance with an agreement of all the parties was reserved and reported by the judge under R. L. c. 159, § 29, upon the pleadings and an agreed statement of facts for determination by the full court.</p>

<p>Bill in equity, filed in the Superior Court on August 8, 1911, under R. L. c. 159, § 3, cl. 7, by the assignee, under an assignment in writing from Julie Monneret, otherwise Julie Gagnon, as the administratrix of the estate of Lotus Monneret, of a claim against the defendant Gagnon, seeking to reach and apply to the payment of the plaintiff’s claim a verdict, and the judgment about to be entered thereon, in favor of the defendant Gagnon against the defendant Legare.</p> <p>The case was submitted to Crosby, J., upon an agreed statement of facts, as follows:</p> <p>The Julie Monneret referred to in the plaintiff’s bill was the wife of the defendant Gagnon. Her real name was Julie Gagnon. She was married to the defendant Gagnon on January 25, 1906. She previously had been married to one Louis Monneret, who died intestate on August 10, 1904, leaving as his heirs and next of kin Julie Monneret and one minor son, Gaston Monneret. Julie Monneret was appointed administratrix of her deceased husband’s estate on September 2,1904. No inventory or account ever was filed by her in the Probate Court. As such administratrix she had funds in her hands amounting to about $2,000. In August, 1905, she lent the defendant Gagnon $300. In October and December, 1905, the defendant Gagnon repaid $100 of this amount. In February, 1906, she lent the defendant Gagnon, to whom she then was married, $110 out of the funds of the estate of Louis Monneret as the defendant Gagnon knew.</p> <p>On July 12, 1907, Julie Gagnon brought a libel for divorce, which on March 10, 1908, was dismissed. On March 19, 1908, she brought in the Probate Court a petition for a decree that she was living apart from her husband, the defendant Gagnon, for justifiable cause, and for an allowance. This petition was heard in the Probate Court, and, on appeal of the defendant Gagnon, in the Superior Court, and a decree was made as prayed for.</p> <p>Subsequently other proceedings and hearings were had in the Probate Court on the matter of the allowance. On June 17,1907, Julie Gagnon, under the name of Julie Monneret, brought a suit in equity, as administratrix of her former husband’s estate, in the Superior Court against her husband, the defendant Gagnon, for money lent. In this suit the defendant demurred, alleging that the plaintiff could not maintain the suit against her husband. The demurrer was sustained and the plaintiff appealed. The plaintiff failed to enter her appeal, and a final decree dismissing the bill with costs was entered on November 11, 1910.</p> <p>On October 8, 1908, the defendant Gagnon obtained a verdict for $175 damages against the defendant Legare, a deputy sheriff, in an action of tort for conversion for attaching household furniture in the above suit of Monneret v. Gagnon. Exceptions were filed by the defendant Legare, on the allowance of which hearings were had. The exceptions were not allowed and finally were waived, and judgment was entered on October 2, 1911.</p> <p>In all of these proceedings L. Elmer Wood, Esquire, an attorney at law, appeared as counsel for the defendant Gagnon. There was due to him from the defendant Gagnon, apart from taxable costs, for disbursements made by him for the defendant in the case of Gagnon v. Legare, $4.46, and for services as such attorney rendered in that case, $79. There also was due him for services as such attorney and disbursements in the other proceedings mentioned above the sum of $185.83.</p> <p>In June, 1911, the defendant Gagnon proposed to his attorney Mr. Wood that the latter should take the proceeds of the judgment to be obtained in the action against the defendant Legare, and apply it to the amount due to Mr. Wood from Gagnon for services and disbursements in the case against the defendant Legare and for all other amounts due as aforesaid from Gagnon to Mr. Wood. This proposition was accepted by Mr. Wood.</p> <p>On July 22, 1911, Julie Gagnon, under the name of Julie Monneret, was by license of the Probate Court authorized to sell and assign her claim as administratrix against her husband, the defendant Gagnon, for money lent, and on that day by an assignment, a copy of which was annexed to the bill, she assigned the claim to the plaintiff in this case.</p> <p>The defendant Gagnon had no other goods or effects.</p> <p>The judge found and ruled that the plaintiff was not entitled to the relief prayed for in her bill, and ordered that a decree be entered dismissing the bill. From the decree entered in accordance with this order the plaintiff appealed.</p> <p>The case was submitted on briefs.</p>

<p>Lord’s Day. Agency. Practice, Civil, Rulings and instructions.</p> <p>The appointment on Sunday of an agent to execute on Monday a contract to sell certain land is void as the transaction of secular business on the Lord’s day.</p> <p>At the trial of an action for the alleged breach of a contract in writing to sell certain land to the plaintiff, where there is evidence that the only authority of the person who signed the contract as the agent of the defendant was derived from his appointment by the defendant on Sunday, but the defense of the Lord’s day act is not pleaded, if the judge instructs the jury in regard to the effect of the Lord’s day act upon the contract, he properly cannot refuse to instruct them that, if the authority of the alleged agent was given by the defendant on Sunday, the creation of such agency was void.</p>

<p>Mortgage, Of personal property. Sale, Conditional.</p> <p>A person in possession of chattels as the vendee under a contract of conditional sale has a special property in them which he can mortgage.</p> <p>Where the owner of personal property successively executes mortgages of it to two different persons, and neither of the mortgages is recorded within the time fixed by R. L. c. 198, § 1, if either of the mortgagees obtains delivery of the property from the mortgagor and thereafter retains it, his mortgage is valid against the other mortgagee.</p> <p>Where the holder of an unrecorded mortgage of personal property takes possession of the property under a right given him by the mortgage, the property has been delivered to him within the meaning of R. L. c. 198, § 1.</p> <p>In an action for the alleged conversion of certain personal property, which had been mortgaged by the owner successively to the plaintiff, and to the defendant by mortgages which were not recorded as required by R. L. c. 198, § 1, if it appears that, after the defendant lawfully had taken possession of the property under his mortgage and had put a paid agent in charge of it, the plaintiff induced such agent to agree to hold the mortgaged property for the plaintiff under the plaintiff’s mortgage and that such person who had been employed as the defendant’s .agent did thereafter hold possession for the plaintiff, this does not show a delivery of the mortgaged property by the mortgagor to the plaintiff within the meaning of R. L. c. 198, § 1; and, if the violation of the agent’s duty to the defendant was procured for the plaintiff by the mortgagor, this does not better the plaintiff’s position, because a delivery to one mortgagee of property taken out of the rightful possession of another mortgagee by the joint wrongful act of the recipient and the mortgagor is not a delivery within the meaning of that statute.</p>

<p>Theatre. License. Statute, ^Repeal. Constitutional Law. Words, “ At their pleasure.”</p> <p>St. 1904, c. 450, which requires, in towns and in all cities other than Boston, that a license for the building in which a theatrical entertainment is to be given shall be obtained from the chief of the district police, does not dispense with the necessity of obtaining also from the mayor of the city or the selectmen of the town the license for such an entertainment required by R. L. c. 102, § 172, as amended by St. 1905, c. 341. Section 15 of St. 1904, c. 450, which repealed only so much of R. L. c. 102, § 172, as was inconsistent with the later statute, did not repeal the requirement of a license from the mayor or selectmen.</p> <p>R. L. c. 102, § 172, providing, as amended by St. 1905, c. 341, that the mayor of a city or the selectmen of a town may grant a license for theatrical exhibitions and “may revoke or suspend such license at their pleasure,” is constitutional as a proper exercise of the police power, the words “at their pleasure” meaning in the exercise of a wise discretion for the purpose of preventing theatrical performances which are injurious to the morals of the public.</p> <p>The sixteenth article of the Declaration of Rights in the Constitution of this Commonwealth, which declares that “the liberty of the press” ought not to be restrained, has no application to the restraint of the oral publication of the text of a play in a theatrical performance.</p>

<p>Contract, Performance and breach. Pleading, Civil, Answer. Evidence, Relevancy.</p> <p>In an action against a corporation for the alleged breach of a contract in writing to employ the plaintiff as the general manager of a paper mill for a period of five years, where the contract provided that, in case the plaintiff’s work as general manager should not be satisfactory, the defendant might give the plaintiff other work instead, and where it appears that the defendant gave notice to the plaintiff of such a change of work and that the plaintiff declined to accept such change, the defendant under a general denial may introduce evidence of damages suffered by the defendant through mismanagement of the plaintiff as tending to show that the plaintiff was deposed justifiably from the position of general manager because of his incompetence.</p>

<p>Dog Officer. Officer. Statute, Construction.</p> <p>In an action by a city in a county other than Suffolk against the county under the provisions of St. 1910, c. 629, for reimbursement of the amount of a bill for the services of a dog officer approved by the mayor and paid by the plaintiff, it appeared that the dog officer was appointed by the mayor on July 26, 1910. St. 1910, c. 629, which was the first statute authorizing such reimbursement, did not go into effect until July 15, 1910. R. L. c. 102, § 143, of which that statute is an amendment, provides that the mayor of each city shall appoint one or more dog officers “annually, within ten days after the first day of July.” Held, that the requirement that the appointments shall be made within ten days after the first day of July is merely directory and not mandatory, and that St. 1910, c. 629 applies to payments made to dog officers who were appointed in the year 1910 after it went into effect.</p> <p>In an action by a city of more than twenty-five thousand inhabitants in a county other than Suffolk against the county under St. 1910, c. 629, amending R. L. c. 102, § 143, as previously amended, for reimbursement of the amount of a bill for the services of a dog officer approved by the mayor and paid by the plaintiff, it appeared that the regular police officers of the plaintiff received as wages $2.25 a day during their first year of service, $2.50 a day dining their second year of service, $2.75 a day during their third year of service, and $3 a day after four years of service, that the person paid as dog officer previously had served as a dog officer of the plaintiff for more than four years, and that his bill was approved for compensation at the rate of $3 a day. Held, that, under the provision of the statute that in cities of twenty-five thousand inhabitants, or more, dog officers ■ “shall be paid the .same wages per diem during the term of their employment which the regular police officers of such cities receive,” the bill of the dog officer properly was approved at the rate of $3 a day for the period of his actual service as dog officer.</p>

<p>Attempt to commit Larceny. Pleading, Criminal, Indictment. Practice, Criminal, Bill of particulars, Sentence.</p> <p>In an indictment for an attempt to commit larceny from the person of a person unknown by stealing property in his pocket, it is not necessary to describe the property attempted to be stolen or to allege its value, or to aver that the person unknown had anything in his pocket which could have been the subject of larceny.</p> <p>Upon an indictment for an attempt to commit larceny from the person it is proper to deny a motion for a bill of particulars which asks only for a description of the property attempted to be stolen, this not being essential to the offense charged.</p> <p>Numerous exceptions, which were designated by this court as without merit, relating to the admission of evidence at the trial of three defendants on an indictment for an attempt to commit larceny from the person of a person unknown by picking his pocket, here were disposed of briefly on principles fully established.</p> <p>When R. L. c. 215, § 6, cl. 4, was in force, which provided that the punishment by imprisonment for an attempt to commit a crime should not exceed one half of the greatest punishment which might have been inflicted for the commission of the attempted crime, and when by R. L. c. 208, § 24, larceny from the person was punishable by imprisonment in the State prison for not more than five years or in jail for not more than two years, a sentence of eighteen months in the house of correction for an attempt to commit larceny from the person was authorized.</p>

<p>Tort by a mason’s tender for personal injuries sustained on October 6,1904, while in the employ of the defendants, who had a sub-contract to do mason, terra cotta and stone work in a building in process of construction in Lawrence, by falling into the basement of the building through an opening in-the first or street floor. Writ dated October 5, 1905.</p> <p>In the Superior Court the case was tried before Bell, J. The building was two hundred feet long and seventy-five feet wide. At the time of the accident the walls were up to about the seventh story, and the first rough flooring had been laid on all of the seven floors. The stairway, elevator and other openings, about four or five on each floor, were open and were not guarded or covered. The hole through which the plaintiff fell was used to take up brick, but had not been in use for a month. The plaintiff testified that he had been a hod carrier for over twenty years -and that he went to work for the defendants on October 4, 1904; that on that day and on the succeeding day he was at work in the basement of the building and had no occasion to go and did not go to the street floor or to any other floor of the building; that on October 6 he was ordered to go to work on the seventh floor; that in going there he went from the ground to the second or third floor by an outside ladder and then went to the seventh floor by a series of inside ladders; that in going to dinner at noon and in returning to work after dinner he followed the same route; that at five o’clock on the afternoon of that day he had quit work and followed the other men who had been working with him down the series of ladders leading from floor to floor; that from the second story to the first or street floor the men went down an inside ladder and he followed them; that it was dark on the street floor on account of the setting of the sun and of the obstructions on the outside of the building and around the hole; that he followed close after the man in front of him for fear that he should fall into a hole or other place; and that he was about ten feet away from the man in front of him when he fell into the hole and was injured. The facts shown by the evidence in regard to the character of the hole and the condition of its surroundings at the time of the accident are stated in the opinion.</p> <p>The judge refused to order a verdict for the defendant. He “instructed the jury that the plaintiff, was not entitled to recover by reason of the unguarded or uncovered condition of this opening in the floor through which he fell, and further instructed them that in order to recover the plaintiff must prove that there had been such change in the condition, of the terra cotta surrounding this opening from October 4, the date when he went to work, to October 6, the date when he was injured, as to render it more dangerous, and they must further find that this accident was caused by this change in the condition of the terra cotta.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $1,500, and by agreement of the parties the judge reported the case for determination by this court. If the case should have been submitted to the jury, judgment was to be entered on the verdict; otherwise, judgment was to be entered for the defendants.</p> <p>The report having been discharged by an order of- this court for any amendment which the judge might think necessary bearing upon the question whether the building in the course of construction in which the plaintiff was injured was a steel framed building within the meaning of R. L. c. 104, § 44, the judge, after a hearing, made a supplemental report in which he stated that the question whether the building was a steel framed building was not raised at the trial before him and was not passed upon by the jury. The supplemental report was presented to this court with further argument on November 6, 1912.</p> <p>The case first was argued at the bar in November, 1911, and again in November, 1912, before Rugg, C, J., Hammond, Braley, Sheldon, & DeCourcy, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Indictment, found and returned on January 5, 1912, for alleged violation of the provisions of St. 1909, c. 534, § 22, with four counts.</p> <p>The first count charged the defendant with operating an automobile recklessly at Wilmington on November 11, 1911; the second count charged him with operating an automobile at the same time and place while under the influence of intoxicating liquor; the third count charged that the defendant on the same day “while operating an automobile on a way in Wilmington did knowingly go away without stopping and making himself known after causing injury to the person of Ruth Kittredge;” and the fourth count charged that the defendant'on the same day “while operating an automobile on a way in Wilmington did knowingly go away without stopping and making himself known after causing injury to the property of Albert H. Zepp.”</p> <p>At the trial in the Superior Court before McLaughlin, J., the facts appeared in evidence which are stated in the opinion. The defendant’s automobile, besides striking the aged woman there mentioned, also struck and injured the stationary automobile near which she was standing.</p> <p>At the close of the evidence the defendant asked the judge to give to the jury the following instructions:</p> <p>“1. If the defendant had no reason to believe that a woman was standing at the point where this woman was struck and if, after it was first possible for him, under existing conditions, to see the woman, he did everything that was possible to avert the accident, then your verdict should be not guilty upon the first count of this indictment.</p> <p>“2. The driver of an automobile is not bound, in the operation of his car, to anticipate and guard against unusual dangers, the existence of which he has no reasonable grounds to anticipate, and he is bound only to use the utmost care after he has become aware of them to prevent an accident.”</p> <p>The judge refused to give these instructions, and instructed the jury in regard to the reckless operation of an automobile as stated in the opinion. The defendant excepted to the refusal of the instructions requested by him and to certain portions of the judge’s charge which are described sufficiently in the opinion.</p> <p>The jury found the defendant guilty on the first, third and fourth counts and not guilty on the second count. The defendant alleged exceptions.</p>

<p> Nuisance. Autrefois Acquit. </p> <p>At the trial in the Superior Court of an appeal from a conviction by a municipal court on a complaint under R. L. c. 101, §§ 6, 7, for maintaining a common nuisance during a certain period by the maintenance of a tenement resorted to for prostitution and lewdness, it is no bar to the complaint that the defendant was acquitted in the municipal court on another complaint on which he was tried there at the same time charging him with maintaining a commpn nuisance during the same period by the maintenance of a tenement used for the illegal sale of intoxicating liquor.</p>

<p>Two bills in equity, filed on June 27, 1910, to set aside tax deeds of two parcels of land in Sheffield in which the plaintiff owned an undivided seven ninths interest, alleging that such deeds were void by reason of the invalidity of the assessment of the taxes for the years 1904 and 1905, for the non-payment of which the tax sales were made.</p> <p>The cases were referred to Sanborn Gove Tenney, Esquire, as master, and afterwards were heard on the plaintiff’s exceptions to the master’s report by Irwin, J., who in each of the cases made a decree overruling the exceptions to the master’s report and ordering that the bill be dismissed. The plaintiff appealed.</p> <p>The cases were submitted on briefs.</p>

<p>Negligence, Employer’s liability. Evidence, Presumptions and burden of proof.</p> <p>In an action against the proprietor of a cotton mill for causing the instant death of a back boy in its employ, whose duty it was to bring roving for the mules from the card room on the floor below, going there by a stairway, it appeared</p> <p>that in some unexplained manner the boy was struck and killed by the counterweight of an elevator that in ascending passed through trap doors in the different floors. No one had seen the boy from the time he started in the direction of the elevator until his lifeless body was found with the head partially in a hole in the mule room floor made for the passage of the counterweight and with the counterweight resting upon the side of the face. The plaintiff contended that it could have been found that, when the boy was looking through the hole in the floor to ascertain whether there was any roving in the card room before going for it, the elevator was set in motion and ascended, opening the trap doors, by one of which the boy was caught and held while the counterweight came down and killed him. Held, that, the conduct of the boy before and during the opening of the trap doors being a matter of pure conjecture, there was no evidence that he was in the exercise of due care at the time of the accident and consequently that the action could not be maintained.</p>

<p>Practice, Civil, Election between counts.</p> <p>Where the declaration in an action of contract contains two counts, one on an instrument in writing purporting to be a promissory note and the other on an account annexed for money lent, if the plaintiff elects to rely on his count for money lent and there is evidence to support it, he is entitled to go to the jury • on that count.</p>

<p>Petition, filed in the First District Court of Eastern Middlesex on October 22, 1910, and, on appeal, filed in the Superior Court on March 6, 1911, to vacate a judgment against the petitioner in an action of contract.</p> <p>On June 26, 1911, Fox, J., in a letter addressed to the assistant clerk of the courts for the county of Middlesex ordered that the entry should be made “Petition dismissed with costs.” This letter also contained a direction to return the briefs to the parties and to keep the “requests” on the files. On July 3, 1911, the petitioner filed a paper containing the following statement: “Respectfully represents your petitioner, James Given, who requests the court to give the rulings of law and findings of facts in the above entitled cause.” On September 6,1911, the respondents filed a motion that the request for rulings of law and findings of fact be dismissed and that judgment be entered for the respondents. On February 15,1912, this motion was allowed. On March 4, 1912, the petitioner filed a paper containing the following statement: “Now comes the petitioner in the above entitled cause and appeals from the order, dismissing his request for findings of fact and rulings of law and also from the order allowing the respondents’ motion for judgment, both orders being entered on the 15th day of February, 1912.”</p> <p>Three requests of the petitioner were printed with the record before this court. The first two requests were for rulings of law and the third was for the finding of a particular fact. It was stated in the briefs of the parties that these requests were presented to Fox, J., at the time of the hearing before him in March, 1911. Opposite the first request was the word “Yes” and opposite the second request was the word “No.” It was stated in the petitioner’s brief that these words were written in pencil.</p>

<p>Way, Private: extent of easement. Deed, Construction. Automobile. Words, “Necessary use,” “As now used.”</p> <p>In a suit in equity, against the owner of land adjoining that of the plaintiff, to enjoin the defendant from obstructing the use by the plaintiff of a certain right of way across the defendant’s land for the passage of an automobile and of a paint cart, it appeared that, when the land of the plaintiff and of the defendant was owned by a common grantor, such grantor conveyed to the plaintiff with his land “the necessary use of a private right of way from said Goose Lane as now used, across our premises on the east and south sides of said house to the within granted premises,” and that by a later deed the same grantor conveyed to the defendant his land “excepting the right of way on the east and south sides of the house on the granted premises, as now used by and recently deeded to” the plaintiff. Goose Lane was a public way on which both lots of land abutted, and the plaintiff’s lot also abutted on another public way. A master found, on evidence warranting such a finding, that “the right to use the way . . . for driving an automobile, paint carts, teams, and otherwise in a similar way, to the barn and the rear of the buildings on the plaintiff’s premises and as used by the plaintiff,” was “reasonably necessary for the full enjoyment of said premises.” Held, that the words “necessary use” in the grant of the way to the plaintiff meant not a use by necessity but such use as was reasonably necessary to the full enjoyment of the plaintiff’s land, that the words “as now used” were descriptive of the location of the way and not of the nature or manner of its use, and that the use reasonably necessary to the plaintiff’s full enjoyment of the premises might vary from time to time with what constituted such full enjoyment, so that the plaintiff was entitled to a decree protecting him in his right; to use the way for driving an automobile as well as for driving a paint cart.</p>

<p>Tort for personal injuries sustained by the plaintiff from slipping on the floor of the defendant’s market at the corner of Borden Street and Main Street in Fall River on November 15, 1907. Writ dated June 20, 1908.</p> <p>In the Superior Court the case was tried before Fox, J., who at the close of the plaintiff’s evidence, which is described in the opinion, ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Tort under the employers’ liability act by the parents of Alexander Beauregard, as his next of kin, to recover for his instant death without conscious suffering on December 13, 1909, alleged in the first count to have been caused by a defect in the ways, works or machinery of the defendant, and alleged in the second count to have been caused by the negligence of a superintendent of the defendant. Writ dated March 23, 1910.</p> <p>The answer was a general denial.</p> <p>In the Superior Court the case was tried before Hall, J. The defense principally relied upon was that the plaintiffs’ son on and after November 9, 1909, was in the employ of another corporation and was not in the employ of the defendant. It appeared that before November 9, 1909, the plaintiffs’ son had been employed by the defendant as a laborer in a ledge which the defendant was engaged in blasting out, in the course of constructing a building in New Bedford known as the Nashawena Mills; that the plaintiffs’ son continued working in and about this ledge as a laborer up to the time of his death, which occurred at about eleven o’clock on the morning of December 13, 1909, while he was acting as signal man in whistling to notify the engineer when to operate a derrick in use on the ledge; and that his death was caused by the falling of the derrick.</p> <p>The defendant introduced evidence tending to show that the defendant was incorporated under the laws of Rhode Island on March 10, 1898; that it operated a saw mill and planing mill at Pawtucket in that State, and also was engaged in the construction business, taking contracts for the erection of buildings in Massachusetts and in other States; that in the autumn of 1909, the defendant decided to sell out its construction business and confine itself to its saw mill and planing mill work, and that for the. purpose of purchasing such construction business a new corporation was formed under the laws of this Commonwealth on November 6, 1909, which was called the B. F. Smith Construction Company; that the new company had a capital stock of $300,000, held by thirty or forty stockholders; that Benjamin F. Smith was president of both companies; but that all the other officers were different; that on November 9, 1910, the defendant transferred to the new corporation its entire construction business, including all its outstanding contracts; that about $48,000 then was due on the unfinished contracts and that this amount was collected by the new company for its own use, as well as the money that became due for completing contracts; that after November 9, 1909, the defendant had nothing whatever to do with the construction business, which was conducted entirely by the new company for its own benefit; that the transfer was made between the two companies upon the basis that the defendant should receive fifty-one per cent of the capital stock of the new company in payment for the construction business and that the new company should retain forty-nine per cent of its capital stock in its treasury to sell for the purpose of raising a working capital; that up to the time of the trial the new company had sold at par about $90,000 worth of its stock, the proceeds of which it had used as worldng capital; that after November 9,1909, none of the men, from the superintendent down, who had been in the employ of the defendant at the Nashawena Mills were employed by the defendant; that they all were taken over by the new company, who also engaged new foremen and conducted the business as it saw fit; that the plaintiffs’ son continued in the employ of the new corporation after the transfer; and that no notice of the transfer was given to the employees except to the general superintendent in charge of the work. There was no direct evidence that the plaintiffs’ son knew of the transfer of the business.</p> <p>The judge, in regard to the notice of the transfer, instructed the jury as follows:</p> <p>“On the other hand, if you should find that this was a valid lona Me transaction; that for sound business and prudential reasons, and for no other purpose, this defendant did transfer its assets, its credits, and its contracts in good faith to the B. F. Smith Construction Company, then another question would arise for your consideration; and that question is, did Beauregard have knowledge of that transfer? In answering that inquiry you are to take the evidence, and all of it, and determine that as a question of fact. Is there anything here either from evidence, or fair deduction from it, or from the circumstances fairly arising in this case, that leads you to the conclusion that Beauregard knew that there had been a transfer of employer or employment?</p> <p>“On the other hand, is there anything that put him on his inquiry to know if there was any such changed condition at the quarry, either in the persons who directed him, who gave him orders, change of instrumentalities, of doing business, change in the conduct of the business, change in the terms or time of payment, change in wages or change in manner of the payments? Was there anything anywhere arising out of this case that should have put this deceased Alexander Beauregard upon his inquiry, because if you find upon the second branch of inquiry, that there were sound prudential reasons for this transfer, and that it was in fact made, then I instruct you, that, if Beauregard did not have knowledge of this transfer, either from some person authorized to give it; or that the whole transaction was such that he was not bound to be put upon his inquiry; or having been put upon his inquiry, that there was nothing that would lead him as a sound reasonable prudent man to believe that there had been a change of employment, then I shall instruct you that, if you do so find, and all the other branches of this case with respect to liability are made out, these plaintiffs, as the next of kin of the deceased Alexander Beauregard, can recover.”</p> <p>The defendant excepted to so much of the judge’s charge as permitted the plaintiffs to recover if the plaintiffs’ son did not have notice of the transfer from the defendant to the B. F. Smith Construction Company, calling attention to the paragraph of the charge last above quoted.</p> <p>The testimony of the deputy sheriff, excepted to by the defendant and referred to in the opinion as admitted properly, was to the effect that the witness served a notice of the accident upon the defendant at an office in a certain building in New Bedford and that in the corridor near the door of the office there was a sign bearing the name of the defendant. Before this evidence was offered the notice of the accident had been read at the trial and the defendant had admitted that it had been served upon the defendant. The defendant objected to the evidence on the ground that it was not the officer’s official return of the service and that the fact of the service could be shown only by such return. It was admitted by the judge as tending to show that the service was made on the defendant at the office in question, there being near it in the corridor a sign bearing the defendant’s name. The plaintiff contended that the evidence was admissible to show that the defendant still was doing business in New Bedford at the time that the plaintiffs’ son was killed.</p> <p>The witness Burton, the question put to whom is referred to in the opinion as having been excluded properly, was the superintendent of the Nashawena Mills and was called as a witness by the defendant. He testified that he knew of his own knowledge who was doing the work for the Nashawena Mills on December 13, 1909: The judge refused to allow the defendant to ask the witness the question, "Who was doing the work?” but permitted the defendant to examine him in regard to “all the transactions that the Nashawena Mills had with any person or persons, corporation or corporations, that were engaged in the work.”</p> <p>The jury returned a verdict for the plaintiffs in the sum of $3,000; and the defendant alleged exceptions.</p>

<p>Negligence, In use of highway. Evidence, Presumptions and burden of proof.</p> <p>In an action against a street railway company for injuries caused by the collision of an electric car of the defendant with a wagon in which the plaintiff was driving, when he was turning from one street of a town into another and in order to do so was obliged to cross a single track of the defendant laid at the side of the street into which he was turning, the defendant admitted that there was evidence of negligence in the operation of the car, and the plaintiff testified that, as he approached the street into which he was about to turn, he listened for a street car or an automobile and heard no noise of an electric motor or of the buzzing of a wire, that he also looked along the track and saw no car at that time, and that he knew that no car was due at that place for nearly ten minutes, that he then proceeded to cross the track, seeing the defendant’s car when it was too late to avoid it, and that the car, moving at an unreasonable rate of speed, struck the hind wheel of his wagon. Held, that the question whether the plaintiff was in the exercise of due care was for the jury.</p> <p>In an action of tort for personal injuries, where the direct testimony of the plaintiff, with the other evidence in the case, warrants a verdict for the plaintiff, if there is a discrepancy between some of the answers of the plaintiff on his cross-examination and his direct testimony, this is a matter for the jury to weigh and consider and does not justify the presiding judge in ordering a verdict for the defendant.</p> <p>In driving from one street of a town into another at a right angle with it, where it is necessary to cross a single track of a street railway to pass into the second street, if at or near the comer which the driver is turning there is a tree which obstructs his vision, he is not necessarily wanting in due care in not stopping and looking again after passing the tree to see whether a street car is approaching on the track, if he listened and looked reasonably before reaching the tree. The rule of law that a traveller on a highway approaching a crossing of a steam railroad necessarily must look and listen in order to be in the exercise of due care does not apply to a traveller about to cross a single track of a street railway on a street of a town.</p>

<p>Tort for personal injuries sustained when the plaintiff was a passenger on an electric street car of the defendant on Lynn Street in the town of Peabody on the evening of January 27, 1910. Writ dated March 29, 1910.</p> <p>In the Superior Court the case was tried before Fessenden, J. The plaintiff testified that he boarded a car of the defendant at Peabody Square about 8.35 o’clock in the evening to go to his home on Lynn Street in Peabody; that he had been travelling over this route morning, noon and night for about three years; that the track on Lynn Street was a single track with a turnout in front of the plaintiff’s house; that his house was about midway of this turnout; that at the Peabody end of the turnout was a white post, a stopping post; that this post was about one hundred and twenty feet distant from the switch that a car passes over in entering upon the turnout in travelling from Peabody to Lynn; that on the night in question the plaintiff was seated eight or ten feet from the rear door, the seats running lengthwise of the car; that as the car approached that white post and before it got to it, he motioned to the conductor; that the conductor pulled the bell, but that the car did not slacken its speed; that he got up and stepped to the rear door to notify the conductor that he wanted to get off; that he did not step through the doorway but “grabbed hold of the side of the door with his hand;” that at this time the car was going at a high rate of speed and that when it struck the switch it “wrenched his grasp from the door and threw him out into the vestibule against the controller box and completely down onto the vestibule floor,” causing the injury complained of; that when the car struck the switch “it seemed like being snapped on the end of a whip;” that “there was quite a racket and it seemed as if the car was going over;” that the car did not come to a stop until it travelled a full length of the car below the next white post at the Lynn end of the turnout; that the plaintiff had been in the habit of signalling to get out at the white post at the Peabody end of the turnout because the cars always on a signal for that post ran up to the switch and that that made it a little nearer and a little handier for him than to ride to the white post at the Lynn end of the turnout.</p> <p>The plaintiff further testified that in passing to the rear door he did not pass by any passengers and there was no one in the vestibule other than the conductor; that he stood at the door long enough to take a good grip of the door jamb; that he did not take any particular time in going to the door, did not go slow or run; that the car was going at a high rate of speed, but that he could not describe it exactly; that, after he had stood at the door long enough to get a good grip, something happened, the car went from right to left and that as the car went from right to left he went out into the vestibule, head first; that he was taken right off his feet; that he had received an injury to his leg about sixteen months before this accident and had not wholly recovered from it.</p> <p>One Hardy testified in behalf of the plaintiff that he was a passenger on the same car with the plaintiff, sitting on the opposite side of the car, a little more than half way down from the rear door; that he got up from his seat to follow the plaintiff out, and that, when the car passed over the switch at the Peabody end of the turnout, it gave a quick and sudden lurch, throwing him across the seat so that he grabbed the window sill to save himself from falling; that at the time of the lurch the plaintiff was standing at the door, inside of the car; that as the car approached the Peabody end of the turnout it was going twice or more than twice as fast as it generally did over that turnout; that he had been accustomed to ride frequently on these cars; that on the night in question this car did not come to a stop until it had reached the white post at the Lynn end of the turnout; that the lurch not only threw him across the seat but upon the seat.</p> <p>A witness, who occupied the house next to that of the plaintiff, testified that at the time of the accident he was awakened from sleep by the unusually loud noise made by the car in going over the turnout.</p> <p>At the close of the evidence the judge at the request of the defendant ordered a verdict for the defendant, and at the request of the parties reported the case for determination by this court, with the stipulation that, if the ordering of the verdict was right, judgment should be entered for the defendant; and that, if the case should have been submitted to the jury, judgment should be entered for the plaintiff in the sum of $325 with costs.</p> <p>The case was submitted on briefs.</p>

<p>Contract to recover from the town of Nahant money paid in the years 1904, 1905 and 1906 for licenses to sell intoxicating liquors at the Tri-Mountain House, alleged to have been in a United States reservation and not in the town of Nahant during those years. Writ dated November 19, 1908.</p> <p>In the Superior Court the case was submitted to Bell, J., upon an agreed statement of facts, which included the following:</p> <p>By St. 1902, c. 373, the consent of the Commonwealth was granted to the United States to acquire by purchase or condemnation a tract of land in the town of Nahant containing about forty-five acres, to be described in the plans provided for in § 4 of the act, to be used for the purposes of national defense. By § 4 it was provided that the act should be void unless a suitable plan or plans of the premises acquired by the United States under the act should be deposited in the office of the secretary of the Commonwealth within six months after the acquisition thereof.</p> <p>On February 5, 1904, by a decree of the District Court of the United States, the tract including the land on which the TriMountain House was situated was condemned to public uses of the United States. On June 8, 1904, the United States filed a plan of this reservation in the office of the Secretary of State of the Commonwealth.</p> <p>U. S. St. February 2, 1901, c. 192, § 38, 31 U. S. Sts. at Large, 758, is as follows: “The sale of or dealing in, beer, wine or any intoxicating liquors by any person in any post exchange or canteen or army transport or upon any premises used for military purposes by the United States, is hereby prohibited. The Secretary of War is hereby directed to carry the provisions of this section into full force and effect.”</p> <p>For many years up to and including 1906, the plaintiff applied for and was granted a license of the first class to sell intoxicating liquors to be drunk upon the premises at the Tri-Mountain House during the summer season, in accordance with the provisions of Chapter 100 of the Revised Laws and of the corresponding provisions of earlier laws, and he continued to sell liquor and to conduct the business of a summer hotel there until November, 1906.</p> <p>The plaintiff paid a license fee of $1,000 in each of the years 1904, 1905 and 1906.</p> <p>On April 1, 1900, the United States had acquired by purchase and deed the tract of land including the site of the Tri-Mountain House. At that time the plaintiff had a lease of the Tri-Mountain House which did not expire until April 1, 1903. On July 30, 1903, the plaintiff received from the Secretary of War, a new lease of the premises for five years, dating from April 1,1903. This lease was revoked on April 1, 1907, and a new lease was given to the plaintiff in place of it. The deed to the United States was recorded on January 4, 1901. On and after April 1, 1900, the plaintiff was a tenant of the United States and paid rent to the United States. The plaintiff continued to be a tenant of the United States and to pay rent for the premises up to and including November 15, 1907. In each of the years 1904, 1905 and 1906 the plaintiff paid to the United States an internal revenue tax of $25 a year on the business of a retail liquor dealer at the Tri-Mountain House. On November 7,1906, authorized representatives of the United States forbade the plaintiff to deal in or sell beer, wine or any intoxicating liquors upon the premises of the Tri-Mountain House. No use of the reservation including the Tri-Mountain House was made by the United States for purposes of national defense before November 7, 1906.</p> <p>“The sum of $3,000 paid by the plaintiff for the said licenses went into the treasury of. the town of Nahant, and three fourths of said amount, namely, $2,250 was retained by the town of Nahant and expended by it for municipal purposes. The balance was paid to the Commonwealth in good faith as required by law. A demand was made upon the town of Nahant for the return of the money paid for the licenses on September 12, 1908.”</p> <p>It was agreed that no question of pleading should be raised. It also was agreed that the court might draw all proper inferences from the facts agreed upon.</p> <p>The judge ruled that the action could not be maintained and found for the defendant. By agreement of the parties he reported the case for determination by this court. If his ruling was correct, judgment was to be entered for the defendant; if upon the case stated the plaintiff was entitled to judgment, such judgment was to be ordered for $2,250 or for $3,000 as this court might deem just, or such other order was to be entered as in the opinion of the court justice and equity required.</p> <p>The case was submitted on briefs.</p>

<p>Bill in equity, filed in the Superior Court on November 4, 1909, by the administrators de bonis non with the will annexed of the estate of Samuel Nelson Hardy against the executor of the will of Ann Maria Hardy, who was the widow of Samuel Nelson Hardy, and a bank and a trust company, to determine whether certain deposits and certain shares of capital stock belonged to the estate of Samuel Nelson Hardy, and, if they did, to compel the payment of such deposits and the transfer of such shares of stock to the plaintiffs as such administrators.</p> <p>In the Superior Court the case was referred to Forrest L. Evans, Esquire, as master, and later was heard by Brown, J., upon the exceptions of the defendant executor to the master’s report. The judge made a final decree granting the relief prayed for, and the defendant executor appealed.</p> <p>The first three articles of the will of Samuel Nelson Hardy were as follows:</p> <p>“Article I. After the payment of my just debts and funeral charges, I give, devise and bequeath all my property and estate, of whatever nature, real, personal or mixed, and wherever situated, of which I may die seized and possessed, or to which I may be entitled, or of which I may have the right of disposal at the time of my decease, to my beloved wife, Ann Maria Hardy, provided she be living at the time of my decease to be used and enjoyed by her for her comfort and support during her natural life.</p> <p>“Article II. In case there shall be any part of my estate, given, devised and bequeathed as aforesaid to my said wife, Ann Maria Hardy, not used by her for her comfort and support during her natural life, and shall be remaining upon her decease, such property and estate, of whatever nature, real, personal or mixed, and wherever situated, I give, devise and bequeath in the following manner:</p> <p>“1. To my cousin, Charles Nelson Hardy, for his name, three hundred dollars.</p> <p>“2. To Fanny Nelson Allen, for her name, two hundred dollars.</p> <p>“Article III. All the rest and residue of my estate, of whatever nature, real, personal or mixed, and wherever situated, remaining at the time of the decease of my said wife, Ann Maria Hardy, I give, devise and bequeath to my three nephews, Frank Hardy, William Nelson McKenzie and William Nelson Hardy, and my niece, Lucy Mary Parsons, to be divided equally between them, share and share alike.”</p> <p>The testator’s wife, Ann Maria Hardy, was made executrix.</p> <p>The estate of the testator at the time of his death included no real estate and consisted of certain bonds and shares of stock, $1,000 of life insurance and a deposit in a bank. At the time of the death of Ann Maria Hardy there were standing in her name a deposit in the City National Bank of Gloucester, two deposits in the Gloucester Safe Deposit and Trust Company and seven shares of the capital stock of that trust company. Ann Maria Hardy was appointed executrix of the will of her husband in January, 1906. She continued to be such executrix until her death on July 23, 1909, without having fully administered her husband’s estate. On September 6, 1909, the defendant Hunt was appointed the executor of her will. After her death Benjamin F. Allen, 2nd, was appointed administrator de bonis non with the will annexed of the estate of Samuel Nelson Hardy, and, said Allen having died, the present plaintiffs were appointed such administrators in his stead.</p>

<p>Tort against the town of Rockport for personal injuries sustained by the plaintiff by reason of the defective condition of a plank walk at Long Beach in the possession and control of the defendant as a landlord, when the plaintiff was passing over the walk as the guest of her son, who was the lessee from the defendant of certain of the lots of land referred to in the opinion, one of which was bounded by the way twelve feet in width there mentioned. Writ dated September 1, 1910.</p> <p>In the Superior Court the case was tried before Raymond, J. The material facts shown by the evidence are stated in the opinion. By agreement of the parties the case was submitted to the judge and not to the jury. The judge ruled that the defendant was not liable and found for the defendant. He reported the case for determination by this court, with a stipulation of the parties, that, if the ruling of the judge was wrong or if the jury could have found for the plaintiff on all the evidence, judgment should be entered for the plaintiff in the sum of $750 as of October 3, 1911; otherwise, that judgment should be entered for the defendant.</p>

<p>Negligence, Employer’s liability.</p> <p>At the trial of an action by a carpenter against his employer for personal injuries, there was evidence tending to show that the plaintiff, who had begun to learn the trade of a carpenter only a year before, was directed by the foreman under whom he worked, who had called him from other work for the purpose, to' get upon a wooden canopy attached to a building in order to assist in removing the canopy, that he did so without knowing or being informed how the canopy was attached to the building, that, while he was working upon the canopy, a fellow workman, seeing the canopy move, shouted to him, “ Look out,” and that he continued with the work, not understanding that the warning related to the condition of the canopy, but thinking that it related to danger to other persons from the throwing down of boards, that the canopy fell because it was insufficiently fastened to the building and that the plaintiff was injured. Held, that a finding was warranted that the plaintiff at the time of his injury was in the exercise of due care.</p> <p>In an action by an employee against his employer for injuries caused by the falling of a wooden canopy attached to a building while the plaintiff was at work upon the canopy tearing it down, there was evidence tending to show that the plaintiff was inexperienced in his work, that the canopy fell because it was insecurely fastened to the building, that the plaintiff was doing his work as he was directed to by a superintendent of the defendant and within fifteen feet of him, that the superintendent, before he directed the plaintiff to get upon the canopy, knew that it formerly had been supported by columns which had been taken down and that therefore it was not likely that it was intended to be supported by its fastening to the building, and that just before the canopy fell it moved enough to attract attention, showing its insecurity. The superintendent testified that he had told the plaintiff to keep off from a timber upon which the roof timbers of the canopy rested. Held, that a finding was warranted, that the plaintiff’s injury was due to negligence of the superintendent.</p>

<p>Negligence, Employer’s liability, In blasting.</p> <p>At the trial of an action by a workman in a quarry against his employer to recover for injuries caused by the plaintiff being struck by a stone which was thrown by a blast from a pit adjoining that in which the plaintiff was working against the side of the pit and rebounded, it appeared that before the blast a warning was given to the workmen such as was required for a seam blast which was expected to cause only so many rocks to fly as the workmen could protect themselves from without leaving the pit, and the plaintiff contended that the defendant should have given a warning such as was used by the employer in case of heavy blasts when a great many stones were expected to fly. The plaintiff introduced in evidence interrogatories which he had propounded to the defendant and the answers thereto, from which it appeared that a seam blast generally was not called a heavy blast unless five or more kegs of powder were used, that for the blast which caused the injury only a keg and a half of powder was used, and that ample time was given for the workmen to protect themselves before the blast. There was no evidence controlling or contradicting the answers to the interrogatories, and none tending to show that the person in charge of giving the warning had reasonable ground to expect that many stones would be thrown out by the blast. Held, that the jury would not have been warranted in finding the defendant liable.</p>

<p>Contract, Performance and breach, Construction. Executor and Administrator. Survival of Action.</p> <p>In an action against an executor for the breach by the defendant of a contract under seal made by the defendant’s testator, the defendant contended that the obligation of the testator was personal and that performance of the contract had been rendered impossible by his death. The contract was for the sale to the testator of certain securities and provided for payment within ninety days from the date of the contract in part in cash and in part by the testator’s interest bearing promissory notes, payable to himself on or before three years from the date of the contract and by him indorsed in blank, and that within the ninety days “all the moneys, checks, securities, deeds and documents” to be paid or delivered by either party to the other should be deposited as escrows with a designated trust company. The contract closed with the express stipulation that it should be “binding upon and inure to the benefit of the respective heirs, executors and administrators” of the parties, “as to each and all of its provisions, whether so expressed in appropriate words or not.” The testator died forty-two days after the date of the contract without having made any of the deliveries called for by the contract. Held, that the contract could not be enforced against the executor. Held, also, that the express stipulation that the contract should bind the heirs, executors and administrators of the parties referred only to the performance of the obligations growing out of the contract after all the papers and instruments required by it had been delivered as escrows to the trust company.</p>

<p>Two actions of tort for damages resulting from the discharge by the defendant of sewage into a dock adjoining a wharf of the plaintiff, the first action being for damages arising during six years preceding June 2, 1908, and the second for those arising</p> <p>between that date and January 10, 1910. Writs dated June 2, 1908, and January 10, 1910.</p> <p>In each action the declaration contained two counts, the first for expenses caused by the filling up of the dock and the second for diminution in the value of the plaintiff’s real estate because of the water being rendered unhealthy and offensive.</p> <p>The cases were referred to James W. Sullivan, Esquire, as auditor. In the Superior Court they were tried together before Fessenden, J. The material facts are stated in the opinion. At the close of the evidence the defendant requested the judge to instruct the jury as follows: “If the jury find that the city of Salem through its negligence has filled up the so called Fairfield dock, then the duty of the plaintiff is to keep the damage as small as possible and the measure of damage in this case is the dredging of the dock at such times as is necessary, plus the additional cost of doing business while the dock is being dredged.” The request was refused.</p> <p>The jury found for the plaintiff in the first action in the sum of $4,147.99, and in the second action in the sum of $18,877.09; and the defendant alleged exceptions.</p> <p>The cases were submitted on briefs.</p>

<p>Two actions of contract for use and occupation of land, the claim in the first action being $1 a day for the fifty-three days from August 10 to October 2, 1909, and that in the second action being $2 a day for the thirty-seven days from October 2 to November 8, 1909. Writs in the Lynn Police Court dated respectively October 2 and November 8, 1909.</p> <p>On appeal to the Superior Court the cases were heard together by Irwin, J., without a jury. It appeared that an ell of a building of the defendant projected between two and three feet upon land of the plaintiff. The only dealings between the parties as to the subject matter of the suit were contained in the following letters: Previous to August 3, 1909, the plaintiff’s attorney wrote to the defendant seeking an interview but not stating why he sought it. On August 3 he wrote again, stating: “Your house on said lot [referring to the lot adjoining the plaintiff’s] projects over on to the property of Fannie Sellers by actual measurement four feet. I desire to see you to see if arrangements can be made to remove the house from the premises without taking any action.” Receiving no reply, he wrote to the defendant again on August 10, stating: “You are hereby notified to remove forthwith that portion of your building which now is on the land of Fannie W. Sellers. If not attended to forthwith we are instructed to take action to have same removed. I am instructed to say that if you desire to hire the land on which your building rests, it will be leased to you for such term as you may desire. The rent will be one dollar per day.”</p> <p>On August 12, the defendant replied with a letter containing the following: “The alleged claim that that portion of the building you refer to as resting upon the land which was recently sold by my wife to her sister, Mrs. Sellers, has but recently come to my knowledge. Mrs. Sellers claims to have had the knowledge of the situation of the building some time prior to the time that I purchased the lot. She had knowledge of that fact at the time I was induced to sign the deed conveying the adjoining lot to her, therefore I feel that she cannot be harmed, provided that the matter is allowed to stand until I have had a chance to verify her claims. In the meantime I propose to consider the advisability of cutting away that portion of the building which she claims extends on to her land. Now that she has seen fit to undertake process against me I feel it my duty that I should first get from her permission to go on to her premises in order to get at that part of the ell at the time that I seek to remove same, therefore will you be kind enough to let me know whether or not I can procure from your client, through you, a license so to do?”</p> <p>The next letter which passed between the parties was one of October 5, 1909, directed to the defendant and signed in the name of the plaintiff, stating: “You are hereby notified that on and after the date hereof the rental of my premises occupied by you will be two dollars per day. Your continued occupation of these premises will be considered by me as an acceptance of these terms during the period that you so occupy them.” The defendant’s attorney replied on October 6, stating: “Your letter of the fifth inst., addressed to Mr. Harris Frank has been handed to me for reply. Mr. Frank denies your right to make a claim as therein specified. I have taken steps to determine the interest of the parties; due notice of which you will receive.”</p> <p>On October 8, the plaintiff’s attorney wrote to the defendant’s attorney: “Mr. Frank admitted, and his engineer corroborated him that his building was over upon our land between two and three feet, and in a letter to me promised if given time to remove the same. I am somewhat surprised at your statement now that you have taken steps to determine the interest of the parties, as I supposed that was all agreed upon or admitted. What we desire is for Mr. Frank to remove that part of the building that is upon our land, and as long as it stands upon our land we will make this claim for rent and endeavor to enforce same by suit, if necessary.”</p> <p>Receiving no reply, the plaintiff’s attorney wrote again to the defendant on January 1, 1910, on the subject. The defendant removed the building from the plaintiff’s premises in November, 1910.</p> <p>The defendant asked the judge to rule that on all the evidence the plaintiff was not entitled to recover. The ruling was refused, and the judge found for the plaintiff in the first action in the sum of $53, and in the second action in the sum of $37. The defendant alleged exceptions.</p> <p>The cases were submitted on briefs.</p>

<p>Agency, Scope of employment. Negligence.</p> <p>A man employed to take care of horses and a carriage, one of whose ordinary duties is to drive the horses in transporting the wife or daughters of his employer whenever required by any one of them to do so without further direction of his employer and even without his knowledge in the particular instance, while thus driving the horses attached to the carriage at the request of one of the daughters is acting within the scope of his employment, and his employer is liable to a person who in crossing a street in the exercise of due care is injured by reason of the negligence of such driver while thus driving by direction of the daughter.</p>

Bill in equity, inserted in a common law writ of the Superior Court dated August 9, 1910, for an accounting as to the business and affairs of a partnership between the principal defendant, Willis W. Darling, and the plaintiff under articles of copartnership dated March 2, 1903. The case was referred to Burton Payne Gray, Esquire, as master. Later the case was heard by Pierce, J., upon the defendants’ exceptions to the master’s report and supplemental report.

<p>Tort for personal injuries sustained by the plaintiff on October 18, 1907, when working as a freight handler, on Pier 2 of the defendant in that part of Boston called South Boston, the declaration containing three counts, the first alleging a failure of the defendant to provide the plaintiff with a safe and suitable place in which to work, the second count alleging negligence of a superintendent, and the third count alleging a defect in the ways, works or machinery of the defendant. Writ dated January 17, 1908.</p> <p>In the Superior Court the case was tried before Jenney, J. At the close of the plaintiff’s evidence, which is described in the opinion, the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Conversion. Estoppel. Pledge. Words, “Conversion.”</p> <p>If one to whom bonds have been entrusted by their owner for safe keeping wrongfully pledges them as security for his own debt to a pledgee who has had notice of the rights of the owner, the taking of the bonds as such pledgee after such notice is an exercise of dominion over them which constitutes a conversion of the bonds as against their owner.</p> <p>Where a woman entrusted to her son-in-law for safe keeping certain non-negotiable registered bonds and certain negotiable bonds, and the son-in-law, after forging indorsements upon the registered bonds, wrongfully pledged them and the negotiable bonds to secure his own debt, in an action against the pledgee by such owner of the bonds for their alleged conversion, it was held, that, even if the plaintiff had been careless in entrusting her bonds to the pledgor for safe keeping, which it did not appear that she was, this would not have helped the defendant, as the plaintiff owed him no duty to keep her securities carefully. Where one to whom bonds have been entrusted by their owner for safe keeping wrongfully pledges them to a pledgee who has had no notice of the rights of the owner, if the pledgee on payment of his claim in good faith returns the bonds to the wrongful pledgor, he has committed no conversion; but if the pledgee by direction of the wrongful pledgor in good faith delivers the bonds to a third person as a new pledgee and takes from the new pledgee the amount of his claim which the bonds were pledged to him to secure, he has taken part in an act of dominion over the bonds for his own benefit, and the exercise of such dominion is a conversion for which he is liable to the owner of the bonds. Explanation by Loeing, J., of the use of the term “conversion” in actions of tort in the nature of trover.</p>

Contract for money had and received amounting to $5,072.39 according to an account annexed. Writ dated February 13, 1907. In the Superior Court the case was .tried before McLaughlin, J., without a jury.

<p> Bills and Notes. Waiver. </p> <p>A waiver by the indorser of a promissory note of demand upon the maker is not a waiver of notice of the maker’s default.</p>

<p>Tort for personal injuries, received while using an escalator in the State Street station of the Washington Street tunnel in Boston and alleged to have been caused because the escalator was “an unsafe and dangerous appliance or contrivance.” Writ dated July 8, 1909.</p> <p>In the Superior Court the case was tried before Fessenden, J. It appeared that the escalator in question was of a type called the “Reno.” After having offered evidence tending to show that it was by nature unsafe and dangerous, the plaintiff offered to show that there was another type of moving stairway in use which was free from the objectionable features which, she contended, the “Reno” had. The evidence was excluded subject to an exception by the plaintiff. Other facts are stated in the opinion. The Carson there referred to was Howard A. Carson, chief engineer of the Boston Transit Commission. At the close of the evidence, the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Bills and Notes, Non-negotiable, Attested. Assignment. Practice, Civil, Parties. Limitations, Statute of.</p> <p>A promissory note, secured by a mortgage, is not negotiable if it is payable in three years from its date “ with the privilege of anticipating payment upon said sum in whole or in part at any time.”</p> <p>One who receives from the holder an attested overdue non-negotiable promissory note, bearing an indorsement making it payable to the order of such recipient, takes it as an assignee and may bring an action against its maker for his own benefit in the name of the payee, although the payee forbids him to do so; and such an action, under the provisions of R. L. c. 202, § 1, cl. 3, is not barred if it is brought within twenty years from the date when the note became due.</p>

<p>Tort for the conscious suffering and death of one Joseph H. Francis while in the defendant’s employ. Wr.it dated August 31, 1910.</p> <p>In the Superior Court, Hardy, J., at the close of the opening statement of the plaintiff, ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The material facts are stated in the opinion.</p> <p>The case was submitted on briefs.</p>

<p> Marriage and Divorce. Superior Court. </p> <p>Where a statute of another State provides that “ any marriage contracted by a person below the age of consent . . . may in the discretion of” a certain court of that State “ be annulled at the suit of the party who at the time of contracting such marriage was below the age of consent,” a marriage contracted in that State between parties, one of whom was below the age of consent, if it is not in violation of R. L. c. 151, §§ 1-5, is valid here until it has been annulled by the State where it was solemnized, and the Superior Court of this Commonwealth has no jurisdiction of a petition for annulment of such a marriage.</p>

<p>Bills and Notes, Accommodation.</p> <p>Where, at the solicitation of the cashier of a bank and for the purpose of making good an overdraft by a customer of the bank, a third person without receiving any consideration delivers to the cashier, who knows of such lack of consideration, his check drawn upon a second bank, payable to his own order and indorsed by him to be deposited to the credit of the overdrawn account, the first bank is not a party accommodated and can recover from the drawer of the check under R. L. c. 73, § 46.</p>

<p>Bailroad, Duties of freight brakeman. Agency, Scope of authority.</p> <p>It is not within the scope of the employment of a brakeman on a freight train, which is in charge of a conductor, to eject from the train a trespasser who is stealing a ride.</p>

<p>Tort for personal injuries sustained by the plaintiff on December 31, 1909, by reason of snow and ice falling upon him from a building owned and controlled by the defendants when the plaintiff was walking upon the sidewalk of Rock Street in Boston at or near the corner of Regent Street. Writ dated April 29, 1910.</p> <p>In the Superior Court the case was tried before Morton, J., who ruled that the plaintiff was not entitled to maintain his action because he had failed to show that he had complied with the requirements of St. 1908, c. 305. The facts bearing upon this question as shown by the evidence are stated in the opinion. The judge ordered a verdict for the defendants; and the plaintiff alleged exceptions.</p>

<p>Damages, In contract. Practice, Civil, Ordering verdict. Attorney at Law.</p> <p>In an action of contract for the alleged wrongful termination by the defendant of a contract to employ the plaintiff for one year, the presiding judge properly may refuse to rule, that, admitting that the plaintiff had been dismissed wrongfully from his employment, a verdict must be ordered for the defendant unless the plaintiff proves his actual loss by showing what he has done with his unemployed time and how much he has earned elsewhere; because, even if such a rule of damages should be applied, the plaintiff still would be entitled to nominal damages.</p> <p>An attorney at law, who is employed by a co-operative bank as its attorney for a year to perform the duty of examining the titles to land offered to the bank as security for loans to be made to applicants, by whom the attorney is to be paid for his services, such earnings amounting to about SI,300 a year, is not bound to account to the bank for his time, and, if he is discharged wrongfully by the bank shortly after the beginning of the year for which he was employed, in an action by him against the bank for its breach of contract the damages to which he is entitled are not to be diminished by reason of his earnings from additional work undertaken by him after his wrongful discharge by the defendant.</p>

<p>Pauper. Municipal Corporations, Action against pauper under R. L. c. 81, § 9.</p> <p>In an action by a town under R. L. c. 81, § 9, for expenses alleged to have been incurred for the support of the defendant as a pauper, it appeared that the defendant was a married woman and during the period in question was a pauper, that she had owned a small house in which she lived with her family, consisting of a feeble-minded and sick husband, a somewhat feeble-minded son, and, during a part of the time, a grandson, who was a schoolboy, that during the period in question she did all the household work, and that, when her husband died and her grandson had left home, she ceased to be a pauper. The action was brought to recover one fourth of the cost of the supplies furnished for the family on the ground that the defendant was supposed to have used one fourth of them. All of the supplies thus furnished had been charged by the overseers of the poor to the defendant’s husband. Held, that the overseers of the poor well might have considered that the shelter and services contributed by the defendant toward the support of the family were equal to her share of the supplies and on this ground have determined to charge the supplies to the defendant’s husband and not to her, and that under the circumstances this determination must be taken to be final.</p>

<p>Contract upon an alleged contract in writing for the sale by the defendant to the plaintiff of cotton yarn, claiming damages for the defendant’s failure to deliver the amount of such yarn alleged to have been required by the contract. - Writ dated January 5, 1910.</p> <p>Material portions of the sale note, alleged in the declaration to be a contract, were as follows:</p> <p>In the Superior Court the case was heard by Dana, J., without a jury. There was evidence tending to show that J. M. Prendergast and Company were cotton goods and yarn brokers who had done business with the defendant for seven or eight years, acting as agents or brokers for it, and during that period had sold a considerable amount of yarn for it to various purchasers including several sales to the plaintiff; that they acted as brokers in this transaction; that before the sale note was prepared a representative of the brokers talked over the telephone in regard to it with the sales manager of the defendant; that in the course of dealings with the defendant J. M. Prendergast and Company had no authority to sign sale notes so as to bind the defendant and that it was necessary that sale notes should be submitted to the defendant for confirmation. There also was evidence that no notice of any special limitation upon the general authority of J. M. Prendergast and Company to act for the defendant ever was given to the plaintiff.</p> <p>It appeared that the sale note, which was set out as a contract in the declaration, was prepared by, J. M. Prendergast and Company after negotiations with both parties, the original being sent in a letter to the plaintiff and a duplicate original being sent in a letter to the defendant. The letter to the plaintiff stated, among other things, the following: “We trust you will find the sale note correct and satisfactory in every particular. The N. E. Cotton Yarn Company requested us to ask you to be sure and make an arrangement so as to give them at least one (1) month’s notice for each set of deliveries you will require. They would prefer to have 6 weeks’ notice if you can see your way clear to give it to them. They are very busy on this grade of work and they say it would be for your interest to give them as long a time notice as you can so there will be no chance of any slip up in their furnishing the deliveries just as you want them. It will be satisfactory for you to return the beams freight collect as on previous order. We thank you very much for the order and hope everything is entirely satisfactory.”</p> <p>The defendant, immediately upon receiving the letter enclosing the duplicate original of the sale note, made by telephone to J. M. Prendergast and Company the statements which are set forth in a letter written by J. M. Prendergast and Company to the plaintiff on November 12, 1908, which was as follows: “Referring to our previous letter of today enclosing sale note for the No. 8-1 warp purchased from the N. E. Cotton Yarn Company we delivered the duplicate sale note of this transaction to the seller. They stated that they will agree to accept this as written with the understanding that you do not call for over 15,000 pounds per month at any time during the term of contract. Also if you wanted us to make the time of expiration changed from November 1st to say December 1st or January 1st they will be glad to do this for you. We would be pleased to hear from you on these points by return mail.</p> <p>"Of course it is improbable that you would ask for over 15,000 pounds per month but the N. E. Cotton Yarn Company made the request of us to bring this to your attention and see that it was agreeable to you as they would not want to promise to ship over 15,000 lbs. a month at any time.”</p> <p>On November 13, the plaintiff wrote a letter to J. M. Prendergast and Company reading as follows: “We have your various communications of the 9th and 12th, and they are all right with the exception that your seller states we are not to insist on more than 15,000 lbs. per month. We do not like to bind ourselves not to take more than the 15,000 lbs.; there is very little likelihood that we shall take over 15,000 lbs. but we want to reserve the right to have occasionally, if necessary, more than the 15,000 lbs. per month. The chances are very much against it, you can write your people, but if we do need more than 15,000 lbs. we will give ample notice so they can furnish it. We trust that this will be agreeable to your seller. Please advise us.”</p> <p>On November 14, 1908, J. M. Prendergast and Company wrote a letter to the defendant setting forth in full the plaintiff’s letter of November 13, and on November 16 the defendant replied as follows: “Answering yours of November 14th in reference to Stroock Plush Co’s, letter of the 13th in regard to deliveries on their order for 150,000 pounds. Note customer feels that he may use more than 15,000 pounds in one month. This is agreeable to us if he will himself specify maximum quantity he expects to use. We are willing and anxious to accommodate him in every way, but feel that possible ground for misunderstanding in the future will be removed if he will so state. It is a matter of indifference to us whether he specifies as his maximum delivery 10,000 or 25,000 pounds, but we do feel that this is a point which should not be left open for future possible dispute.”</p> <p>The foregoing letter was transmitted to the plaintiff, and on November 18 the plaintiff wrote to J. M. Prendergast and Company as follows: “In reference to your letter in which you say that your seller insists on knowing the maximum amount in any one month, we do not see how we can tie ourselves down. We are not sure just what amount we shall require. My letter of recent date thoroughly explains the situation. It will be very little in excess of 15,000 lbs. in any one month, possibly it may not be nearly as much as 15,000 lbs., but we want and we expect the New England Cotton Yarn Co. to furnish us if necessary, on being given ample notice, to exceed the limit by one, two, three or four thousand pounds. There need be no misunderstanding. The writer simply wants the right during some period in 1909, to anticipate a further supply of yarn more than 15,000 lbs. and up to 20,000 lbs. Twenty, I am quite sure, will be the maximum. I hope this letter will settle the matter as far as your seller and ourselves are concerned.”</p> <p>This letter was transmitted to the defendant, who, on November 19, wrote to J. M. Prendergast and Company as follows: “In reference to delivery . . . note customer states he will not usp more than 20,000 pounds in any one month. This maximum is satisfactory to us, and we are maiding notation on the order accordingly.” J. M. Prendergast and Company transmitted this last letter to the plaintiff on November 20 in a letter closing with the sentence, “Will you please advise us if this is satisfactory.” The plaintiff made no reply to that letter.</p> <p>From November 24, 1908, until September 17, 1909, the defendant from time to time made deliveries of yarn to the plaintiff under the contract amounting in all to 96,270 pounds. Such deliveries constituted a full compliance with all requests for deliveries received by the defendant from the plaintiff to September 17, 1909.</p> <p>On September 17, 1909, the plaintiff wrote to J. M. Prendergast and Company to give instructions to the defendant, “to have them ship all the yarn ... we have on contract with them.” This request was renewed from time to time in letters and the plaintiff suggested, on October 6, 1909, that the defendant might have a reasonable time after November 1 in which to complete the deliveries, but still insisted on having the entire amount of yarn mentioned in the contract. The defendant refused to comply either with the original request to deliver the whole balance before November 1 or with the subsequent request to deliver the whole balance within a reasonable time thereafter. The defendant delivered after September 17, 1909, 16,078 pounds of yarn, making the amount delivered under the contract 112,348 pounds, and then ceased deliveries.</p> <p>At the close of the evidence, the defendant asked, among other rulings, for the following: “(7) Upon all the evidence in the case the plaintiff cannot recover, in any event, more than the fair market value on November 1, 1909, of 8,403 pounds of yarn of the kind and quality called for by the contract less the contract price for the same number of pounds.” This ruling was refused, and the judge found and ruled that the plaintiff was entitled to recover the difference between the market value on November 1, 1909, of 37,652 pounds of yarn of the sort described in the contract and the contract price therefor, and that such difference in value was five cents a pound. The judge found for the plaintiff in the sum of $1,882.60; and the defendant alleged exceptions.</p>

<p>Tort against the owner and lessee of a tenement house for personal injuries suffered by the plaintiff by reason of some plaster falling upon her in a passageway used, by all the tenants. Writ in the Municipal Court of the City of Boston dated November 9,1910.</p> <p>On appeal to the Superior Court the case was tried before Hitciwocic, J. The plaintiff contended that the defendant Pearl-stein was the real landlord of the premises, notwithstanding the lease to the defendant Geller, described in the opinion, and introduced evidence tending to show that, while the lease “ recited that Geller had to pay water rates,” the receipts for their payment were “in the name of Mr. and Mrs. Pearlstein,” and that the defendant Pearlstein’s husband, when spoken to by the plaintiff’s physician as to the plaintiff’s injuries, asked the physician “not to be too hard on him as to the accident.”</p> <p>There was evidence tending to show that there was no noticeable defect in the ceiling in question when the plaintiff’s husband hired a tenement from Geller. In cross-examination the plaintiff’s husband stated that the ceiling was “all the time” in as bad condition as it was when the plaintiff was injured. He was asked, “Was the condition of the ceiling from where the plaster came any different on November 1 from the condition it was in when you first came there?” and answered, “Well, it was in the same condition it was the whole month.”</p> <p>The plaintiff testified that the day on which she and her husband moved into the tenement was dry, and that she then noticed that the ceiling, at the point from which later a piece fell upon her, was cracked and that “little pieces” were hanging down. She and others described in detail the leaking of water at that point during rain storms, and a change then in the appearance of the ceiling, and there was evidence that Geller had been asked to repair the ceiling and had refused to do so.</p> <p>Other facts are stated in the opinion.</p> <p>At the close of the evidence the judge ordered verdicts for both defendants; and the plaintiff alleged exceptions.</p> <p>In this court the defendant Geller did not appear.</p>

<p>Practice, Civil, Exceptions. Evidence, Relevancy and materiality.</p> <p>At the trial of an action of contract upon a judgment the only question at issue was, whether the plaintiff had actual notice of bankruptcy proceedings of the defendant, and the defendant introduced evidence tending to show that, in the course of proceedings in the poor debtor court to enforce the judgment sued on, his attorney in March of a certain year had told the plaintiff’s attorney of such proceedings and that consequently there had been a continuance of the case in the poor debtor court to March 15. The defendant offered a record of the poor debtor proceedings which showed that they were instituted before the bankruptcy proceedings, that there had been a large number of short continuances until the March 15 referred to, when there was a continuance until May 14, on which day the proceedings were dropped. Subject to an exception by the defendant, the judge excluded the record but permitted the defendant to introduce other evidence as to everything that took place in the poor debtor proceedings including the details of the continuances. Held, that, even'if the exclusion of the record was erroneous, the exception should be overruled, as the defendant was not shown to have been harmed.</p>

<p>Contract, What constitutes, Validity, Construction. Release. Words, “Make it right.”</p> <p>Where a building contractor, in consideration of the signing and delivering by a laborer to him of a release discharging him from all demands arising from certain personal injuries which the laborer had sustained because of negligence of such contractor, agrees to pay to the laborer $300 and, if the laborer is not able to resume work at the end of six weeks, to “make it right with” him, and the laborer signs and delivers the release and receives the $300, a contract is made which is not void for indefiniteness, and the words, “make it right,” may be found to mean that in the contingency named the laborer shall have fair compensation for his injuries paid to him in money exceeding the $300 already paid to him.</p>

Two actions OF tort. The declarations alleged the same facts, namely, that on February 11, 1897, the plaintiff’s intestate, Thomas J. Rochford, and “Martha M. Atkins by Edward Atkins” signed an agreement whereby, in consideration of a note for $3,000 secured by a mortgage upon certain real estate in Newton, Martha M. Atkins advanced to the plaintiff’s intestate $1,200 and agreed to advance further sums as a building on the premises progressed; that at that time there was a…

<p>Tort, by a boy seventeen years of age when injured, for personal injuries sustained on the evening of December 23, 1907, when the plaintiff was driving a horse attached to an express wagon on Elm Street in Everett, from a collision with a street car of the defendant at a point between Woodlawn Street and Birch Street. Writ dated January 20, 1908.</p> <p>In the Superior Court the case was tried before White, J., who at the close of the plaintiff's evidence ordered a verdict for the defendant. The plaintiff alleged exceptions, containing a stipulation of the parties that, if the verdict was ordered for the defendant erroneously, judgment should be entered for the plaintiff in the sum of $500; and that, if the verdict was ordered rightly, judgment should be entered for the defendant.</p>

Contract to recover $97.50 for work done for the defendant from March 1 to April 15, 1909, according to an account annexed, the Holt-Fairchild Company, a corporation, being summoned as trustee. Writ in the Municipal Court of the City of Boston dated May 24, 1909. The trustee filed an answer admitting that it had in its hands at the time of the service of the writ goods, effects and credits of the defendant to the amount of $83.97.

<p>Negligence. Agency. Practice, Civil, Conduct of trial. Evidence, Opinion: experts.</p> <p>In an action for personal injuries from being hit by the head of a hammer that came off the handle, when the plaintiff, in accordance with a general instruction of his employer and at the request of an electrical engineer of the defendant, was assisting such engineer in tightening bolts by holding a wrench on one of the bolts while the engineer struck the handle of the wrench with the hammer in order to set the bolt more tightly, there was nothing to show that the heads of such hammers came off frequently or that their coming off involved great danger. The plaintiff testified that he never had tightened bolts in that way before, and there was evidence that it was forbidden in the works of the plaintiff's employer, but there also was evidence that this method of tightening bolts was used by a great many electrical engineers. Held, that it was a question for the jury, whether the plaintiff was negligent in thus assisting in tightening the bolt, or whether in doing so he assumed the risk of an injury from the head of the hammer coming off.</p> <p>In an action for personal injuries from being hit by the head of a hammer that came off the handle when the hammer was being used by a servant of the defendant, there was evidence that the head of the hammer came off either because it was not wedged properly or because it was not wedged at all. The plaintiff testified that immediately after the accident the defendant’s servant showed the handle and the head to him and that there were no wedges in the handle. Another witness testified that the head was likely to come off if it was wedged on improperly. Held, that the questions whether the hammer was defective and whether in the exercise of due care the defendant’s servant should have discovered the defect were for the jury, and that, if the defendant’s servant was negligent in using the hammer, the defendant was liable for the injury caused by such negligence whether the hammer was furnished by the servant himself or by the defendant.</p> <p>In an action for personal injuries from being hit by the head of a hammer that came off the handle, when used by a servant of the defendant whom the plaintiff was assisting, there was evidence that the defendant was engaged in installing an engine in a power house of the plaintiff’s employer and that the plaintiff and his fellow employees had been told by their employer to assist the defendant’s men all they could when they had a few minutes to spare, that the plaintiff, acting in pursuance of this general order, responded to a request of the defendant’s servant to assist him in tightening a bolt by holding a wrench on the bolt while the defendant's servant struck the handle of the wrench with the hammer and that at the fourth blow thus struck by the defendant’s servant the head of the hammer came off and hit the plaintiff, that the defendant’s servant whom the plaintiff was assisting had been sent by the defendant for the purpose of completing the installation of the engine and that he was the person in charge of the work and the only one there representing the defendant in connection with it. Held, that the question, whether the plaintiff when assisting in tightening the bolt became a servant of the defendant so that his injury was caused by the act of a fellow servant, was one to be submitted to the jury with proper instructions. Held, also, that, under the circumstances shown, the authority of the defendant’s servant to ask the plaintiff for temporary assistance fairly could be presumed, and that, in rendering such assistance for the purpose of facilitating the work of his employer, the plaintiff did not cease to be the servant of such employer or lose his right to be protected from the carelessness of the defendant’s servants.</p> <p>Where the servant of one employer is assisting the servant of another in doing certain work, in order to make such assistant the servant of the person whose work he is doing it is necessary either that he should assent, expressly to a change of employers or that he should have had such notice and knowledge of the circumstances that his assent to the changed relations is to be presumed as matter of law from his conduct.</p> <p>On an exception to the refusal of a presiding judge to strike out certain questions and answers that were not heard by the counsel for the excepting party, which was treated as waived because it was not argued, it was said that the matter clearly was one within the discretion of the presiding judge.</p> <p>In an action for personal injuries from being hit by the head of a hammer that came off the handle, a witness, who is qualified as an expert, ¿nay be asked the question, “What causes a hammer to fly off the handle when the same is being used in the usual and proper way?” and may answer, “It would be improperly wedged. The continual striking would jar it off,” it being within the discretion of the presiding judge to admit the question and answer if he thinks that they will or may be of assistance to the jury.</p>

<p>Bill in equity, filed in the Superior Court on December 19, 1911, by the owners of certain lots of land on Bassett Street in Lynn severally conveyed to them by deeds of the defendant Kimball, which imposed upon such lots certain equitable restrictions, to enjoin the defendant Kimball from conveying to the defendant Grossman the remaining portion of one of such lots without imposing thereon a similar restriction.</p> <p>The answer, among other things, alleged that the bill was brought to enforce an alleged oral agreement relating to an interest in land and that there was no memorandum of such agreement signed by the party to be charged as required by R. L. c. 74, § 1, cl. 4.</p> <p>In the Superior Court the case was heard by Brown, J. The terms of the restrictions and other material facts are stated in the opinion.</p> <p>The judge found that the defendant Kimball, before any of the sales from the tract of land in question, established a general building scheme, applicable to the entire tract, for the development and improvement thereof; that a part of the scheme was the establishing of a restriction that no building should be erected within twenty-three feet of Bassett Street on any of the lots shown on the plan mentioned in the opinion; and that the restrictions were imposed for the benefit of all the lots shown on the plan. He also found that the defendant Kimball, either personally or through her agent, who was authorized to make such representations, represented and agreed in effect that lot 5 should not be sold except with the same restrictions as those imposed upon the lots sold to the plaintiffs and that the plaintiffs, in consideration thereof, purchased their lots and expended much money in the improvement thereof and the establishment of their homes thereon.</p> <p>The judge made a decree for the plaintiffs granting an injunction as prayed for; and the defendants appealed.</p>

<p>Scibe facias on a judgment by which the defendant was charged as trustee. Writ dated December 7, 1911.</p> <p>In the Superior Court the case was submitted to Hall, J., upon an agreement of the parties that the allegations of fact contained in the plaintiff’s writ and the defendant’s answer were true, and that the court might draw all reasonable and proper inferences therefrom. Such facts are stated briefly in the opinion.</p> <p>The defendant asked the judge to make the following rulings:</p> <p>“1. That no judgment in this action can be rendered against the Merrimac Hat Company until the liability of the Merrimac Hat Company in the cases of Edward Perkins Lumber Company vs. Merrimac Hat Company, True vs. Merrimac Hat Company, and Inhabitants of Amesbury vs. Merrimac Hat Company has been finally determined.</p> <p>“2. That upon all the evidence the plaintiff is not entitled to recover against the defendant in this case.”</p> <p>The judge ordered that judgment be entered for the defendant; and the plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Practice, Civil, Dismissal for lack of prosecution. Superior Court. Rules of Court.</p> <p>If, under Rule 60 of the Superior Court, which provides for a calling of the civil docket after notice to parties and that “ all suits which have remained without action for two years may be dismissed,” such a suit is called and by order of the presiding judge the docket entry is made, "April sitting or dismissed,” there is no absolute dismissal of the suit, and, if no further order of dismissal is made and the parties by mutual consent with the approval of the court postpone the trial of the case beyond the April sitting, the case remains pending during such postponements.</p>

<p>Insurance, Fire, Of automobile. Contract, Implied in law.</p> <p>The provision of St. 1907, c. 576, § 21, to the effect that no misrepresentation or warranty made in the negotiation of a policy of insurance by the assured shall be deemed material or avoid the policy unless it is made with actual intent to deceive or unless the matter misrepresented increases the risk of loss, has no application to a warranty contained in the body of a policy.</p> <p>If the owner of an automobile insured for a year against loss or damage by fire by a policy, which contained a provision warranting that the automobile would not be used for carrying passengers for hire or be leased and that, if the warranty were violated, the policy would “ immediately become null and void,” six months after the policy was issued permits his son to use the automobile to carry passengers for hire, the policy at once ceases to be in force, and the owner cannot recover upon it for damage to the automobile by a fire occurring eleven and a half months after it was issued; nor is he entitled to a return of any premium paid upon the policy, as the policy had attached and only by his own act was he deprived of its full benefit.</p>

<p> Negligence, Res ipso loquitur. </p> <p>It is not necessary for a presiding judge to state to the jury the established rule, that the unexplained automatic starting of a machine when it ought to be at rest is evidence of a defect or want of repair, where evidence relating to a simple device that has been brought into the court room and inspected affords an explanation of the starting of the machine, where definite causes of starting have been discussed before the jury and where the judge in his charge assumes that the plaintiff relies on such a definite cause and the plaintiff does not except to this assumption.</p>

<p>Contract, upon four promissory notes, made by John Shea and payable to the Chandler Grain and Milling Company. Writ dated December 14, 1908; also</p> <p>Contract by Shea against the Chandler Grain and Milling Company upon the agreement described in the opinion, for the sale to Shea of “damaged meal.” Writ dated August 3, 1907.</p> <p>In the Superior Court the cases were tried together before Bell, J. The facts are stated in the opinion. Upon answers of the jury to special questions submitted to them the judge ordered a verdict for the plaintiff in the first case in the sum of $4,888.71, and for the plaintiff in the second case in the sum of $5,929.69, and reported the cases for determination by this court.</p>

<p>Trust, Executor acting as trustee. Executor arid Administrator. Probate Court. Equity Jurisdiction, To reform deed.</p> <p>The fact that one, who was named and has been appointed executor of a will and to whom as a trustee property was given by the will, having given a bond as executor, fails to procure his formal appointment or to give a bond as such trustee, does not show conclusively that he has declined to act in that capacity; and therefore a sale by him of trust property is not necessarily void solely for that reason.</p> <p>By the residuary clause of a will two sisters were given certain real estate with other property in trust to pay the income thereof to themselves for life with remainders to their respective children and with a power, if by reason of misfortune either of them needed more than her share of the income, to sell the real estate. One of the sisters became needy and sold her interest in the real estate to her sister and signed an instrument which both sisters intended to be a formal conveyance in pursuance of such sale, but which was not so. The sister who sold her interest died, leaving children. The surviving sister paid to such children none of the income from any of the property which she held under the will as trustee. After her death a trustee under her will by a bill in equity sought to compel the children of the sister who had sold her interest to make formally the conveyance of the property which such sister ineffectually had attempted to convey. Held, that after the sale the purchasing sister held the interest of the first sister in the real estate absolutely and was not required to pay any income from that to the children of her sister; and that for any failure on her part to distribute properly the income of the remaining trust property, there was ample remedy in the Probate Court so that such failure furnished no equitable reason for depriving the plaintiff of the proper conveyance of the real estate.</p>

<p>Summary process under R. L. c. 181, for the possession of certain premises, consisting of two large rooms on the first floor and the basement of No. 195 Hampden Street in Boston. Writ in the Municipal Court of the Roxbury District of the City of Boston dated December 2, 1911.</p> <p>The answer set up as a bar the pendency of the former action which is mentioned in the opinion, such former action having been brought under the same statute in the same municipal court on May 9,1911, the plaintiff having obtained a judgment for possession and the defendant having appealed to the Superior Court and having given a bond under R. L. c. 181, § 6.</p> <p>On appeal of the present case to the Superior Court it was tried before Dana, J. At the close of the evidence the defendant asked for sixteen rulings, which the judge refused to make on the ground that they were incorrect or immaterial. He found for the plaintiff for possession and costs. The defendant alleged exceptions to the refusal of the rulings requested and to the admission of certain evidence which is referred to in the opinion as not having harmed the defendant.</p>

<p>Contract by the city of Boston against the Boston Elevated Railway Company to recover $44,450 expended by the plaintiff through the Boston Transit Commission for the construction of elevators and machinery to be used and operated in the elevator shafts or wells built by that commission at the station under State Street at its intersection with Atlantic Avenue in connection with the tunnel to East Boston constructed under authority of St. 1897, c. 500, § 17. Writ dated October 9, 1907.</p> <p>In the Superior Court the case was heard by Fessenden, J., without a jury. The judge took a view of the premises. The material facts are stated in the opinion.</p> <p>At the close of the evidence the defendant asked the judge to make, among others, the following rulings:</p> <p>“4. The question stated in request 1 [as to the obligation of the defendant to repay to the plaintiff the cost of installing the elevators and machinery] is a question to be determined by the court, as such, not by the presiding justice in his capacity as a tribunal to find facts.</p> <p>“ 5. The question stated in request 2 [whether the defendant or the Boston Transit Commission was bound to provide the elevators and machinery] is a question of law.</p> <p>“ 6. The question stated in request 2 is a question to be determined by the court, as such, not by the presiding justice in his capacity as a tribunal to find facts.</p> <p>"7. The defendant was under no obligation to furnish or install the elevators or machinery in question.</p> <p>"8. It was the duty of the Boston Transit Commission to provide the elevators and machinery in question.</p> <p>“9. According to the true construction of St. 1897, c. 500, if the elevators in question were reasonably necessary for the ac.commodation of the public in the use of the station as built, it was the duty of the Boston Transit Commission to provide them.</p> <p>“11. According to the true construction of St. 1897, c. 500, the elevators are a part of the tunnel, its approaches, entrances and stations, constructed as these were.</p> <p>“12. According to the true construction of St. 1897, c. 500, these elevators are a part of the station.</p> <p>“13. These elevators constitute a part of the tunnel and the 'stations and connections therefor’ within the meaning of St. 1987, c. 500, § 17.</p> <p>“ 14. There is no evidence to warrant a finding for the plaintiff. “ 15. Upon all the evidence the plaintiff cannot recover.</p> <p>"16. If the elevators referred to in the agreement annexed, to the declaration were so essential to the convenient use by passengers of the station as built that some party was bound to furnish them, then, according to the true interpretation of St. 1897, c. 500, it was the duty of the Boston Transit Commission to provide them.”</p> <p>The judge refused to make any of these rulings. He made other rulings to the effect, that the question whether the defendant was under an obligation to repay to the plaintiff the cost of installing the elevators and machinery was a question of interpretation of St. 1897, c. 500, and that this was a question of law; that the question whether the defendant or the Boston Transit Commission was bound to provide the elevators and machinery was a question of the interpretation, or construction, of St. 1897, c. 500, combined with the view and agreed facts; and that the agreement upon which the plaintiff sued expressly assumed that the elevators were so essential to the convenient use by passengers of the station that some party was bound to furnish them.</p> <p>The judge made the following findings of fact:</p> <p>“1. These elevators were reasonably necessary for the accommodation of the public in the use of the station as built.</p> <p>“2. The elevators and machinery when operated were, under all the circumstances, reasonably necessary to enable the travelling public using the station to reach the surface of the ground from the platform or race versa, or the elevated station in Atlantic Avenue or vice versa.</p> <p>“3. That the bill sued on is for the elevators and the machinery to run them.</p> <p>“4. That unless the machinery is actually in operation raising and lowering the elevators they would be of no use.</p> <p>“5. That on my view I found that the elevators were used almost entirely as a means of communicatioil between the tunnel station and the elevated railway station and very little by passengers going to the station from the street or from the station to the street, but the use of the stairway by either class of passengers was extremely rare.</p> <p>“ 6. That the elevators and machinery were not tunnel, station or approaches but equipment, — a means of conveying passengers from the station to the street and the elevated railway station, and from the elevated railway station and street to the station platform.”</p> <p>The judge found for the plaintiff in the sum of $51,612.52; and the defendant alleged exceptions.</p>

<p>Contract, upon eight promissory notes, each declared upon in a separate count, all signed “Little Eastman Co.,” which was alleged to be the firm name in which the defendant Little and the defendant Eastman did business as copartners. Writ dated July 2, 1909.</p> <p>In the Superior Court the case was tried before Dana, J. The defendant Eastman was defaulted, and the trial proceeded against the defendant Little. The evidence is described sufficiently in the opinion. At the close of the evidence, the defendant Little asked the judge to make twenty-three rulings, of which the first two were as follows:</p> <p>“1. On all the evidence the plaintiff cannot recover.</p> <p>“2. On all the evidence the defendant Little never held out the defendant Eastman to the plaintiff as a partner.”</p> <p>The judge refused to make these rulings and also refused to make the other rulings requested by the defendant except so far as they were embodied in his charge. The jury returned a verdict for the plaintiff against the defendant Little on each of the eight counts; and the defendant Little alleged exceptions, raising the questions which are stated in the opinion.</p>

<p>Petition, filed in the Probate Court for the County of Norfolk on April 21, 1910, by the widow of Ernest L. Walden, who died intestate and without issue on March 6, 1909, praying for the partition of certain real estate in Plainville, which had belonged to James H. Walden, who died on April 20, 1885.</p> <p>In the Probate Court Flint, J., made a decree that, it appearing that the title to the real estate in question was in dispute, the case was removed to the Superior Court.</p> <p>In the Superior Court the case was submitted upon an agreed statement of facts to Lawton, J., who made an interlocutory order that partition should be made, but, being of opinion that such order ought to be determined by this court before further proceedings were had in the Superior Court, reported the case for such determination. The material facts are stated in the opinion.</p>

<p>Practice, Civil, Conduct of trial: requests, rulings and instructions, judge’s charge; Exceptions. Negligence, Street railway.</p> <p>At the trial of an action against a street railway company to recover for personal injuries caused by the plaintiff being thrown down as he was attempting to board a car of the defendant, there was evidence introduced by the defendant tending to show that the plaintiff attempted to board the car while it was moving, and the defendant asked for a ruling that, “ if the plaintiff attempted to board a moving car, he cannot recover.” The judge assumed that the ruling asked for was intended to call his attention only to the question of the plaintiff’s due care. Held, that the judge was justified in making such an assumption, and that, if the defendant wished to have the ruling made with reference to the question of the defendant’s negligence, he should have so requested in unmistakable language.</p> <p>To attempt to board an electric street car while it is in motion is not negligence as a matter of law.</p> <p>Where, at the trial of an action against a street railway company for personal injuries, the defendant’s counsel asked for a ruling which, so far as appeared from its wording, he might have intended to have applied either to the question of the due care of the plaintiff or to the question of the negligence of the defendant, and he did not make clear to which branch of the case he wished to have it applied, an exception by the defendant to a failure of the judge to give the ruling with regard to the question of the defendant’s negligence cannot be sustained. If an electric street car is stopped to receive passengers, it is the duty of the conductor, before giving a signal to start the car, to ascertain, if he can do so by the exercise of due care, caution and diligence, that all who desire to board the car have had an opportunity to do so and that no person is attempting to get on the car under such circumstances as would make it dangerous to signal for the starting of the car.</p> <p>Unless substantive error or injustice plainly appears, a general exception to specific portions of the charge of a judge to a jury will not be sustained, if no specific requests were made by the excepting party, pointing out his objections.</p>

<p>Practice, Civil, Conduct of trial: setting aside verdict, ordering verdict; Exceptions, Report. Superior Court. Rules of Court. Negligence, Street railway.</p> <p>A judge of the Superior Court has no power, after a verdict has been returned and recorded, to grant a motion of one party, without notice to the adverse party and in his absence, that the verdict be set aside and the case be reported to this court for determination.</p> <p>So much of Rule 45 of the Superior Court as provides that, “When further instructions are given in the absence of counsel after the jury have retired, the presiding justice may permit exceptions thereto at any time within twenty-four hours next following,” has no application to the action of a judge in setting aside a verdict for a plaintiff after it has been returned and recorded and ordering the jury to return a verdict for the defendant.</p> <p>After a verdict has been returned and ordered recorded, the deliberations of the jury are ended and no further instructions as to the questions raised at the trial properly can be given to them.</p> <p>Where, after a verdict for a plaintiff has been returned and ordered recorded, the defendant moves that the verdict be set aside and that the case be reported to this court, and the presiding judge, without notice to the plaintiff and without the plaintiff being given an opportunity to be heard, sets the verdict aside, orders a verdict for the defendant and reports the case to this court, filing a memorandum stating that he agreed to report the case to this court and that, if his ordering of a verdict for the defendant was right, judgment is to be entered upon such verdict and “ otherwise, judgment ” is “ to be entered for the plaintiff in the sum fixed by the jury,” the rights of the plaintiff with regard to the propriety of the action of the judge are fully saved.</p> <p>At the trial of an action by a woman against a street railway company for personal injuries, there was evidence tending to show that the plaintiff, while she was the only person other than the motorman and the conductor upon a car of the defendant, informed the conductor that she wished and intended to alight at a certain regular stopping-place, that the car stopped at that place, and that, while the conductor stood upon the front platform of the car, the plaintiff passed to the rear platform through the rear door, shut the door, and lifted one foot, when she heard two bells and the car started suddenly forward, and that she then "knew no more.” There also was evidence that the plaintiff afterwards was found lying injured beside the street railway track. The foregoing evidence was contradicted. There was a verdict for the plaintiff. Held, that the verdict was warranted.</p>

<p>Damages, In contract. Evidence, Competency. Mechanic’s Lien.</p> <p>Where, at the trial of an issue, submitted to a jury in a petition for the establishment of a mechanic’s lien for work done and materials furnished in the construction of a building under a contract in writing, as to what sums were due to the petitioner after the giving to the respondent of such credits as he was entitled to, the respondent introduces evidence tending to show that there were omissions and defects in the performance of the contract of such a nature that they could not reasonably be remedied so as to make the work correspond exactly to the contract requirements, the petitioner is entitled to have the jury instructed that there should be deducted from the contract price the amount by which the value of the building as left by him fell short of what that value would have been if the contract had been exactly performed.</p> <p>At the trial of an issue submitted to a jury in a petition for the establishment of a mechanic’s lien for work done and materials furnished in the construction of a building under a contract in writing, where the respondent contends that there were omissions and defects in the performance of the contract of such a nature that it might be found that they could not reasonably be remedied so as to make the work correspond exactly to the contract requirements, the respondent may ask an expert witness what in his opinion would be the fair cost of remedying such conditions so that they would comply with the specifications, such evidence being competent upon the issue, whether there had been a substantial performance of the contract.</p>

<p>Bills and Notes. Evidence, Presumptions and burden of proof, Competency. Practice, Civil, Exceptions.</p> <p>In an action on a promissory note, where the answer denies that the plaintiff is a holder in due course and alleges that the note was procured from the defendant by fraud of the payee and without consideration, under R. L. c. 73, §§ 69, 72, 76, the burden is on the defendant to prove the fraud on which he relies, and, if he does so, the burden is upon the plaintiff to prove that he acquired the note in due course, including proof not only that he took the note in good faith and lor value but also that he had no notice of any defect in the title of the person negotiating it.</p> <p>In an action on a promissory note, where the defense relied upon is that the plaintiff is not a holder in due course and that the note was procured from the defendant through fraud on the part of an agent of the payee, the defendant may show the dealings between him and the agent of the payee, in which he contends that the fraud was committed, and for this purpose may introduce in evidence a letter received by him from such agent which constitutes a part of the transaction alleged to be fraudulent, without showing that the plaintiff when he took the note had any notice of the contents of such letter.</p> <p>Upon an exception to the admission in evidence of a certain letter which was offered for the purpose of showing that a promissory note was procured by fraud, if it appears that the letter had no tendency to prove such fraud but contained nothing harmful to the excepting party, its admission will be treated as merely an immaterial error which will not justify this court in sustaining the exception and granting a new trial.</p> <p>On an exception to the admission in evidence of a certain letter offered for the purpose of showing that a promissory note was procured by fraud, if on the face of the letter its materiality is not apparent, but the other evidence is not reported and it cannot be said that in connection with such other evidence the letter would not have afforded material evidence of fraud, the exception must be overruled, because it is for the excepting party to show that he was aggrieved by the admission of the letter.</p>

<p>Tort for personal injuries sustained on February 21, 1908, when the plaintiff was employed as an oiler in a grain elevator of the defendant at or near the Hoosac Tunnel Docks in that part of Boston called Charlestown, the declaration containing three counts, the first under the employers’ liability act alleging negligence of a superintendent, the second under the same statute alleging a defect in the ways, works or machinery of the defendant, and the third at common law alleging that the plaintiff was put at work in an unsafe place and without sufficient warning. Writ dated April 13, 1908.</p> <p>In the Superior Court the case was tried before Wait, J. The material facts shown by the evidence are stated in the opinion. At the close of the evidence the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Contract, against five defendants, on a bond in the penal sum of $6,000 given by the defendants to the plaintiff to secure the performance by the Hatch Storage Battery Company of two agreements made by that company with the plaintiff. Writ dated August 15, 1901.</p> <p>In the Superior Court the case first was tried before Sherman, J. The defendant Clare had been defaulted for non-appearance, and the case was defended by the other four defendants. The jury returned a verdict for the plaintiff in the penal sum of the bond with interest; and the four contesting defendants alleged exceptions, which were overruled by this court in a decision reported in 185 Mass. 349.</p> <p>The four contesting defendants filed a motion that the amount for which execution should issue might be found by a jury. Later the four defendants filed a waiver of this claim for a jury, the defendant Clare was allowed to appear, and all five defendants then objected to having the amount for which execution should issue assessed by a jury and made a motion before Hardy, J., to have the case sent to an assessor. The plaintiff contended that he had a right to have the damages assessed by a jury, because a jury previously had been claimed by some of the defendants, and filed a claim in writing for a jury trial on this ground. The judge ruled that the plaintiff was not entitled to an assessment by a jury and made an order that the case should be sent to an assessor. To such ruling and order the plaintiff alleged exceptions.</p> <p>Thomas E. Grover, Esquire, was appointed assessor and filed a report.</p> <p>The assessor found that on January 26, 1898, the plaintiff and the Hatch Storage Battery Company entered into a contract, by the terms of which the company was to set up in the car house of the Braintree Street Railway Company at South Braintree a storage battery for which the plaintiff was to pay $6,000. A first payment of $2,000 was to be made in cash upon the signing of the agreement and the balance of $4,000 was to be paid as required by the company for the manufacture of the battery. The contract also contained the following clause; "Provided, however, that if any temporary or permanent injunction shall be issued preventing said Graham or any person or corporation to whom he may transfer his rights under this agreement, or to whom he may transfer such storage battery, or preventing said Storage Battery Company from proceeding either with the manufacture or with the use of such battery, said Graham shall, unless such injunction is removed within sixty days, have the right upon giving written notice thereof to said Company to withdraw from this contract, and thereupon he shall be released from any further obligation whatever under the same, and said Company shall in such case repay to said Graham any sums which may have been paid to it by him at the date of such withdrawal.”</p> <p>On the same date the parties also entered into another contract, which provided that the company should furnish counsel, at its expense, to defend the plaintiff, or his transferee, in the event of proceedings being brought against either because of their use of the storage battery.</p> <p>On the same day the five defendants, who all were directors of the Hatch Storage Battery Company, executed a bond to the plaintiff in the sum of $6,000, with the following condition: "The condition of this obligation is such that if the Hatch Storage Battery Company shall in all respects perform and carry out its agreement with said Graham, contained in the contracts to which this bond is annexed, then this obligation shall be void; otherwise, it shall be and remain in full force and virtue.” Thé Hatch Storage Battery Company was not a party to this bond.</p> <p>The whole $6,000 was paid to the Hatch Storage Battery Company on or about May 31, 1898, which was before the acceptance of the battery. Before that time the plaintiff had assigned and transferred all his rights under the contracts to the Quincy and Boston Street Railway Company, and that street railway company repaid the $6,000 to the plaintiff. That street railway company began to use the battery on or about May 1, 1898, and continued such use until August 5, 1899, when it was restrained from further use of the battery by an injunction of the United States District Court for the Distript of Massachusetts, on the ground that the battery was an infringement of certain letters patent granted to one Charles F. Brush, dated March 2, 1886. This injunction was not dissolved within sixty days from its date, and had not been dissolved at the date of the filing of the assessor’s report on August 18, 1910.</p> <p>On August 5, 1901, two years from the day the injunction went into effect, the plaintiff, on behalf of himself and his assignee, the street railway company, gave due notice in writing to the Hatch Storage Battery Company of his own and his assignee’s withdrawal from the contract, and demanded the return of the sums paid to the Hatch Storage Battery Company under the terms of the contract. The money was not repaid, and this action was brought on the bond.</p> <p>The assessor found that the plaintiff, or his assignee the street railway company, failed to care properly for the battery after the injunction went into effect, and up to the time of the giving of the notice in August, 1901, and that the battery was thereby rendered valueless as a battery. He also found that the battery could have been preserved during the time between the injunction and the giving of the notice, either by taking the elements out of the electrolyte or by running a current regularly through the battery, and that the Hatch Storage Battery Company instructed the plaintiff as to the latter method but that the plaintiff failed to use either method.</p> <p>The assessor further found that neither the plaintiff nor his assignee ever returned or offered to return the battery.</p> <p>On all his findings of fact, the assessor ruled that the defendants could not recoup for more than the contract price of the battery, but that it was the duty of the plaintiff, or his assignee, to use reasonable efforts to preserve the battery, and that for the plaintiff’s failure to do so, there being no evidence that the battery had any present value, the defendants were entitled to recoup the full amount of the contract price, so that the plaintiff could recover nothing.</p> <p>The assessor also made a finding that, if he was in error in ruling that it was the duty of the plaintiff or his assignee to preserve the battery during the period of non-use, the plaintiff should recover $6,000 with interest from the date of the writ.</p> <p>The plaintiff filed exceptions to the assessor’s report, of which the first was as follows: “First: Because the assessor should have found and reported that the plaintiff should have execution in the cause against each and every the defendants, for the amount of the verdict heretofore rendered, together with interest thereon from the day of the date of the rendition thereof at the rate of six per centum per annum; and did not so find and report.”</p> <p>The defendants filed an exception to the exclusion by the assessor of evidence that the market value of the battery at the time of the sale was greater than $6,000 and to the ruling of the assessor that the defendants could not recoup for more than the contract price.</p> <p>The case then was heard by Pierce, J., who made an order overruling all the exceptions to the assessor’s report, confirming that report, and ordering that upon consideration of the evidence and the assessor’s report execution should issue against the defendants in the sum of $1. The plaintiff appealed from the order. The defendants also appealed.</p> <p>The case was submitted on briefs.</p>

<p>Tort under.R. L. c. 51, § 18, for injuries to an automobile of the plaintiff sustained on August 15, 1907, at about 7.30 p. m., when the plaintiff was driving the automobile over the Granite Avenue Bridge, which crosses the Neponset River between that part of Boston called Dorchester and the town of Milton, by reason of a trap door on the Milton half of the bridge having been left open, standing at an angle of about forty-five degrees with the surface of the bridge with its higher end about one and a half feet' above such surface. Writ dated July 13, 1908.</p> <p>In the Superior Court the case was tried before Lawton, J. The draw itself was closed at the time of the accident. The trap door which was left open on the Milton side was from two to three feet wide and had to be opened when the draw was opened in order to allow the part of the draw on the Milton side to be raised. There was a similar trap door on the Dorchester side, which was closed at the time of the accident.</p> <p>St. 1865, c. 192, authorized the county commissioners for the county of Norfolk to construct the bridge in question. Section 3 of that statute is as follows:</p> <p>“Section 3. Upon due notice given by said [county] commissioners to the clerk of the towns in which said bridge lies, that said bridge has been reconstructed and is in substantial repair so that the same is safe and convenient for travel, such towns shall each thenceforth be responsible for the care, maintenance and repair of the portion of said bridge lying on its pwn side of the same and extending to the centre of the draw, and they shall at their joint expense provide draw-tenders for said draw, and other necessary agents; and said towns shall be jointly liable to raise the draw and afford all necessary and proper accommodation to vessels having occasion to pass the same by day or by night, and shall keep a sufficient light for vessels at said draw; and if any vessels shall be unreasonably delayed or hindered in passing said draw by the negligence of said towns or their agents in discharging the duties enjoined by this act, the owners or masters of such vessels may receive reasonable damages therefor of said towns in an action of tort before any court proper to try the same.”</p> <p>The facts in regard to the happening of the accident are stated in the opinion.</p> <p>At the close of the evidence the judge ruled that upon all the evidence the plaintiff could not recover, and ordered a verdict for the defendant. The plaintiff excepted to this ruling, and the judge reported the case, with the stipulation that, if the ruling and order of the court were wrong, judgment should be entered for the plaintiff in the sum of $500; otherwise, that judgment should be entered for the defendant.</p>

Contract, by a corporation, having a usual place of business in Boston, doing business as a miller and having its mills at Hills-dale in the State of Michigan, against a wholesale flour dealer engaged in business at Fall River. Writ dated May 12, 1911. The amended declaration was in three counts, which were as follows: “ Count 1.

<p>Tort for personal injuries alleged to have been caused by the plaintiff being run into by a street car of the defendant as he was crossing Meridian Street at its intersection with Paris Street in that part of Boston called East Boston. Writ dated April 3, 1911.</p> <p>In the Superior Court the case was tried before Irwin, J. The only.witness for the plaintiff on the question of liability was the plaintiff. He testified in direct examination, on the subject of warning of the approach of the car, as follows: “Q. Whether or not you heard anything; whether or not you heard the car approaching, — the second car? A. No, sir. — Q. You did not? A. No, sir. — Q. Whether or not you heard the gong being sounded? A. No, sir. — Q. Whether or not you heard anybody shout to you? A. No, sir.” A motorman in the employ of the defendant, not the motorman operating the car, testified that he was in the front vestibule of the car at the time of the accident, and that he had applied the emergency brakes, and “that the motorman had been ringing the gong.” > He also testified that the motorman who had operated the car had gone to Oklahoma shortly after the accident to the plaintiff.</p> <p>The other material facts are stated in the opinion.</p> <p>At the close of the evidence the judge refused to rule that upon all the evidence the plaintiff could not recover, or that there was no evidence that the plaintiff was in the exercise of due care, or that there was no evidence that the defendant was negligent. The jury found for the plaintiff in the sum of $500; and the defendant alleged exceptions.</p>

<p> Mechanic’s Lien. </p> <p>A dealer in lumber made with the owner of certain land a contract to furnish the lumber for the construction of a dwelling house on the land. More than thirty days after the house practically was finished, at the request of the owner and in substitution for lumber called for by the contract which he had not delivered, the dealer furnished lumber which was used to erect endosur.es for receptacles for garbage and ashes placed twenty-five feet from the house and in no way attached to the realty or to any other structure, and within the next thirty days filed under It. L. c. 197, § 6, a statement to preserve his lien for his entire claim against the owner. A petition to establish the lien, afterwards filed, was referred to an auditor, who found that the statement was seasonably filed. A single issue, whether the lumber last delivered was furnished in good faith and under the contract, was submitted to a jury who answered it in the affirmative. A hearing then was had by a judge and conflicting evidence was offered as to whether the use, in connection with dwelling houses, of such enclosures as were built with the lumber last delivered, was general. The judge found that such use was not general, that the lumber last delivered was not used in the erection of a structure upon the land, and that therefore the statement was not filed in the time prescribed by R. L. c. 197, § 6; and dismissed the petition. Held, that the findings of the judge were warranted and that the petition was dismissed properly.</p> <p>In a petition for the establishment of a mechanic’s lien for lumber alleged to have been furnished under a contract and used for the construction of a dwelling house, if the determination of the question, whether a statement made under R.L. c. 197, § 6, to preserve the lien was filed seasonably, depends upon whether the lumber last delivered was used for the construction of a structure upon the land, and it appears that it was used for the construction of enclosures for receptacles for garbage and ashes which were set apart from the dwelling house and were not attached to the realty, the fact that a single issue, whether the lumber last delivered was furnished by the petitioner in good faith and under the contract, was submitted to a jury who answered it in the affirmative, does not preclude the respondent, at the hearing by a judge of an application for the establishment of the lien, from introducing evidence tending to show, nor the judge from finding upon conflicting evidence, that the enclosures for whose construction that lumber was used were not structures upon the land within the meaning of R. L. c. 197, § 1.</p>

<p>Negligence, Employer’s liability. Evidence, Presumptions and burden of proof.</p> <p>At the trial of an action at common law against a street railway company by an employee who was injured in a car bam by being run into by a shifting table which started unexpectedly as he was passing in front of it in the course of his duties, if the plaintiff has testified "that he could not say whether” on the occasion in question the operator of the table, a fellow servant, “started the table or whether it started up of its own accord,” and the remaining evidence leaves it a matter of conjecture whether the table started automatically because of a defect in it or whether the starting was due to negligence of the fellow servant, a verdict must be ordered for the defendant; and the exclusion of evidence, offered by the plaintiff to show what might cause the table to start automatically, and also of evidence offered to show that the fellow servant before the accident had said that there was a defect in the table, is immaterial.</p>

<p>Bond, Execution. Evidence, Presumptions and burden of proof.</p> <p>At the trial of an action against a married woman upon a bond to dissolve a mechanic’s lien, it appeared that the original of the bond was lost, and the defendant testified that she had no memory of signing the bond, that she would rather say that she did not sign it than that she did, that that would be truer, that at about the date of the execution of the bond she was ill, that, if her signature was obtained, it was obtained by force or coercion practised upon her by her husband, and that her relations with him at that time were strained. There was evidence tending to show that she had an interest in the premises upon which the lien was claimed, that she had been in court at different times in connection with the suit to establish the lien, that her attorney had prepared the bond and had given it to her husband, who took it away with him, and that the other signers of the bond were the husband and one to whom the defendant had conveyed the property by a foreclosure deed before the filing of the bond. Held, that the question, whether the defendant executed the bond, was for the jury.</p>

<p>Tort, for personal injuries alleged to have been caused by the plaintiff, a boy twenty months old, being run over on Prince Street in Boston by a wagon owned by the defendant and in which an employee of the defendant was driving. Writ in the Municipal Court of the City of Boston dated October 20, 1910.</p> <p>On appeal to the Superior Court the case was tried before Lawton, J. The material facts are stated in the opinion. At the close of the plaintiff’s evidence, the defendant rested, and the judge ordered a verdict for the defendant and reported the case to this court for determination, the parties stipulating that, if upon the evidence the plaintiff was entitled to recover, judgment should be entered in his favor in the sum of $240, and that otherwise judgment should be entered for the defendant.</p> <p>The case was submitted on briefs.</p>

<p>Petition, filed on May 7, 1912, by the owner and the mortgagee of a five-story stone apartment or tenement house on Hemenway Street in Boston, for a writ of certiorari addressed to the board of appeal of the building department of the city of Boston, created by St. 1907, c. 550, to quash the proceedings and decision of that board under § 8 of that statute granting an application of the trustees of the Fenway Trust, so called, for a permit for the erection of an apartment or tenement house at 60 Fenway on a lot of land adjoining the rear of the petitioners’ lot in a manner purporting to be equivalent to that required by § 55 of the statute, which provides that back of such a tenement house there shall be a yard of the depth there designated extending across the entire width of the lot.</p> <p>The ease was heard by Hammond, J., who reserved and reported it for determination by the full court. The facts material to the decision are stated in the opinion.</p>

<p>Tort, by the administratrix of the estate of Malcolm W. Buchanan, for causing the death and conscious suffering of the plaintiff’s intestate in a collision of trains on November 28, 1908, when he was employed as a rear end brakeman on a passenger train of the defendant, the declaration containing three counts, the first two counts under R. L. c. 106, § 72, and acts in amendment thereof, alleging that the injuries of the intestate resulting in his death were caused by the negligence of a person in the employ of the defendant who was in charge or control of a signal, switch, locomotive engine or train .upon a railroad, and the third count under St. 1907, c. 392, alleging that such injuries and death were caused by the negligence of the defendant, or by the negligence or unfitness of its agents or servants engaged in its business. Writ dated March 9, 1909.</p> <p>In the Superior Court the case was tried before Brown, J., who at the close of the plaintiff’s evidence, which is described in the opinion, ruled that the plaintiff was not entitled to recover and ordered a verdict for the defendant. The plaintiff alleged exceptians, containing a stipulation that, if the ruling and direction were right, judgment was to be entered for the defendant; and that, if the ruling and direction were wrong, judgment was to be entered for the plaintiff in the sum of $3,000. »</p>

<p> Arrest. False Imprisonment Officer. Police. </p> <p>When a police officer has arrested a person without a warrant upon probable cause to believe that such person has committed a felony, it is his duty to bring the prisoner before a court or magistrate as soon as reasonably is possible, and he has no right to detain the prisoner for the purpose of making a further investigation of the charge against him.</p> <p>Where an officer, after arresting a person without a warrant upon reasonable cause to believe that he had committed a felony, is satisfied that his suspicions were unfounded, he is not required to make a formal complaint under oath, but does his duty by bringing the prisoner before the proper magistrate and laying before that magistrate a full statement of the facts.</p> <p>In an action against a police officer for alleged false imprisonment in detaining the plaintiff in custody for an unreasonable time without bringing him before a magistrate after having arrested him upon probable cause to believe that he had committed a felony, where the facts in regard to the circumstances of the detention are not agreed, it cannot be ruled as matter of law that a delay of an hour and a quarter was reasonable.</p>

<p>Way, Public. Equity Jurisdiction, Remedy at law, To remove cloud from title.</p> <p>Where land is taken by a city under statutory authority for the widening of a highway, and the owner of such land has filed and prosecuted a petition for damages for the taking, such owner by the prosecution of his petition admits that the proceedings for the taking of his land were legal and regular, and the remedy provided by the statute for compensation is exclusive.</p> <p>A city taking land for the widening of a highway under statutory authority is not obliged to grade the way to the level of adjacent land or to construct approaches from such land. If the owner of such adjacent land is compelled to incur expense in order to provide access to the way from his land, such expense will be taken into account in assessing his damages for the taking.</p> <p>A city which has taken land under statutory authority for the widening of a highway has no authority also to take an easement of slope in adjoining land for the purpose of grading it to connect with the way, as the statutes which authorize the laying out and widening of public ways do not authorize the taking of land for any purpose less than a way.</p> <p>The owner of a strip of land, of which a city unlawfully has taken possession under an attempted taking for an unauthorized purpose, cannot maintain a suit in equity against the city to remove a cloud upon his title, because he is not in possession of the land and also because he has adequate remedies at law.</p>

<p>Bill in equity, filed in the Superior Court on February 6, 1912, by the holder of a second mortgage on certain land on Eastern Avenue in Malden with a building thereon numbered 268 and 270, against three insurance companies, the owner of a first mortgage and the owner of the equity of redemption, to recover for damage to the insured building by a fire which occurred on Novem-r ber 14, 1911; praying that an accounting might be made of the amounts due upon each of the mortgages, and that the court should determine the amount which each of the insurance companies should pay and to whom such payments should be made and the amounts due to each.</p> <p>The case was heard by Hardy, J., who made a decree and reported the case for determination by this court. The material facts thus reported are stated in the opinion. The decree made by the judge ordered, among other things, that the Continental Insurance Company and the Sun Insurance Office each should pay into a fund the sum of $1,838.50 with interest from January 22, 1912, and $10 as costs of suit, and that the Milwaukee Mechanics Insurance Company should pay into such fund the sum of $1,438 with interest from January 22, 1912, and $10 as costs of suit, all items of interest to be computed to the day of payment.</p> <p>The report stated that the sole question reserved was whether or not the decree was based upon a proper theory of the respective obligations of the three defendant companies to contribute to the fund, in view of the fact that the damage was divided unequally between the two halves of the building. If based upon the proper theory, the decree was to be affirmed; otherwise, a decree was to be entered reversing the decree so far as it related to the sums to be contributed to the fund by such three defendants, and fixing the sums at their proper amounts, but affirming the decree in all other respects, including the date from which interest was to run on the sums to be contributed and the costs to be paid.</p>

<p> Gift. Trust. Agency. </p> <p>One S, being the owner of certain shares of the capital stock of a corporation, caused such shares to be transferred to one who placed in his deposit box the new certificate for such shares together with the following memorandum signed by him: “The enclosed certificate ... is the property of S, and is placed in my hands by him for safe keeping. I am to deliver the same to him at any time he may ask for it, and am to pay over to him all dividends which I may receive on the stock. In case of his death I am to transfer this certificate entire toR . . . and when this is accomplished my responsibility is ended.” During S’s lifetime the holder of the shares paid the dividends to him. On the death of S, both the executor of his will and R claimed the shares of stock. Held, that the holder of the shares was not a trustee, but was merely an agent for S, that the attempted gift to R to take effect after the death of S was void, and that the executor of the will of S was entitled to the shares.</p>

<p>Constitutional Law, Separation of powers. Civil Service. Police, District and Municipal Courts.</p> <p>St. 1911, c. 624, providing that, upon a petition by a person holding one of certain offices classified under the civil service rules, who after the hearing provided for by St. 1904, c. 314, § 2, as amended by St. 1905, c. 243, has been removed therefrom, lowered in rank or compensation, suspended, or, without his consent, transferred from such office to any other, a police, district or municipal court shall review the action of the officers or board who so ordered and shall affirm it unless it shall appear that it was made without proper cause or in bad faith, in which case it shall be reversed and the petitioner shall be reinstated in his office, does not give executive powers to a court, and is constitutional.</p>

<p>Equity Jurisdiction, To reform deed, Mistake. Evidence, Presumptions and burden of proof. Frauds, Statute of.</p> <p>A suit in equity in which the plaintiff sought a reformation of a mortgage deed of . real estate which, he alleged, by a mutual mistake of his mother and himself she had given to him instead of a deed conveying a title in fee simple, was referred to a master, who made findings of fact favorable to the plaintiff and included in his report a transcript of the evidence heard by him. Exceptions to the master’s report were overruled and a decree was made for the plaintiff, from which the defendants appealed, contending that the master’s findings were not warranted by the evidence. It being manifest that the master’s findings were warranted by the evidence, the decree was affirmed with costs.</p> <p>The statute of frauds has no application to a suit in equity seeking the reformation of a deed of real estate by the striking out of a clause of defeasance inserted by a mutual mistake of the parties.</p>

<p>Equity Jurisdiction, Mistake, Negligence barring suit. Sale, Rescission. Negligence.</p> <p>In a suit in equity against a savings bank for a rescission of a sale and an assignment to the plaintiff of an overdue mortgage of real estate held by the defendant and for a return to the plaintiff of the purchase money, the evidence warranted the finding of the following facts: The plaintiff, in negotiations with the defendant preceding the purchase of the mortgage, inquired by telephone as to the size of the lot of land covered by it, and the defendant’s president stated its bounds on certain streets, and gave its area as twelve thousand feet. The plaintiff visited the lot and verified the measurements given to him by the defendant’s president. There was no mark upon the face of the earth to indicate any actual or contemplated division of the lot. The plaintiff and the defendant’s president then had a conference at the bank, when the measurements given to the plaintiff by telephone were again stated to him and the plaintiff was told that the defendant’s examiner, an attorney at law and a specialist in the searching of titles, had approved of the title. Thereupon the plaintiff purchased the mortgage, and the defendant’s examiner caused an assignment of it to be made to him. The plaintiff foreclosed the mortgage by sale and purchased at the foreclosure sale, and then for the first time discovered that, after the mortgage had been given, the defendant had given a partial release therefrom of a large part of the mortgaged premises, so that by his purchase and the assignment the plaintiff had paid §11,000 for a mortgage worth only $6,000. This release had been given to make the mortgage conform to the application which the mortgagor had made, in which he had made an arbitrary division of the lot. The defendant’s president, when he made to the plaintiff the statements regarding the amount of land covered by the mortgage, and the attorney, when he made the assignment, “although well knowing, forgot and overlooked the fact of the [partial] release.” The plaintiff offered to return the assignment and the mortgage note and whatever he had received as rent from the real estate. Held, that the evidence warranted findings that there had been a mutual mistake as to the property covered by the mortgage, that the plaintiff had not been guilty of negligence in relying upon the representations of the defendant’s president, and that the defendant could be put in statu quo, so that the plaintiff was entitled to relief.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on May 22, 1911, by the trustee under the will of Sarah Elizabeth Cazenove, late of Boston, for instructions as to what disposition he should make of a fund of about $90,000 which remained in his hands subject to the following provision in the will:</p> <p>“Fourteenth, all the rest and residue of this Trust Fund, be the same more or less, I direct my Trustee to pay over as follows: one third part to the ‘Church Home,’ so called, in the City of Boston, for the general uses and purposes of the Society, and the other two thirds part to the Massachusetts Hospital Life Insurance Company, to be used only, so far as the same will go, to provide free treatment for the insane in the Asylum of the Corporation.”</p> <p>The Massachusetts Hospital Life Insurance Company had no power under its charter to accept or administer the trust, and declined it.</p> <p>The case was heard by Hammond, J., upon an agreed statement of facts, from which it appeared that the testatrix made her will on May 18,1869, and died on December 6,1870, at the age of sixty-four, having lived for the greater part of her life in Boston. Her husband had died in 1834. The Massachusetts General Hospital was incorporated by St. 1810, c. 94. In 1818 it constructed a hospital building in Boston, and at or about that time a building in Somerville for treatment of the insane. This department of the hospital at first was called the McLean Asylum, in memory of one of the principal benefactors of the hospital, and in 1895 it was removed to Waverley, and is now located there, being known as the McLean Hospital. At all times it has been maintained and conducted as an asylum for the insane, solely by the Massachusetts General Hospital, and it is a part of the Massachusetts General Hospital, and has never been a separate organization. .The Massachusetts General Hospital at the time the will was drawn was in fact the only charitable corporation in Massachusetts for treatment of the insane. Funds specially set apart for the endowment of the McLean Hospital are held by the Massachusetts General Hospital, but the income from this endowment meets only a part of the expenses. Income from such endowments is used partly to maintain free beds and partly to pay the expense of patients who are not able to pay the whole cost of service to them. Pauper insane are, and always have been, removed to some State institution. The Massachusetts General Hospital at the time this will was made was sometimes known as and called the “Massachusetts Hospital.”</p> <p>Charles J. Cazenove, husband of the testatrix, was a merchant in Boston. At the time of his decease, in 1834, he was insane, his malady being due to an accident. He was never an inmate of the McLean Asylum, or, so far as known, of any asylum, but was cared for in his own home in Boston during his last illness. During his last sickness he was treated by Dr. John C. Warren and Dr. Rufus Wyman. Both of these physicians were then affiliated with the Massachusetts General Hospital. Dr. Wyman was the first physician to occupy the position of physician and superintendent of the McLean Asylum, and Dr. John C. Warren was one of the founders of the hospital, a circular letter from Dr. Warren and Dr. James Jackson to wealthy citizens of Boston being the first step in a campaign to raise funds to establish - the hospital.</p> <p>The single justice in his report of the case stated: “I was unable to find as a matter of fact that by the words ‘Massachusetts Hospital Life Insurance Company’ the testatrix meant ‘Massachusetts General Hospital,’ but I ruled that the dominant purpose of the testatrix was to make the gift charitable, and that it is a charitable gift. I further ruled that, since the Massachusetts Hospital Life Insurance Company declines to act to carry out this charitable purpose, the doctrine of cy fres may be applied, and I found as a fact that the Massachusetts General Hospital is preeminently fitted to take the fund and carry out the charitable purpose of the testatrix. I accordingly' ordered that there be a decree, (1) That one third part of the residue in question be paid to the defendant Church Home for Orphan and Destitute Children; (2) That two thirds of the residue in question be paid to the defendant Massachusetts General Hospital.”</p> <p>At the request of certain of the next of kin of the testatrix, the single justice reported the case for determination by the full court.</p>

<p>Negligence, Street railway.</p> <p>If the conductor of a crowded electric street car, after his car has stopped to take on passengers, gives the signal to start the car when he is inside the forward part of it, without making any effort to ascertain what or how many passengers are attempting to get upon the car and whether they actually have got upon it, thereby throwing to the ground a woman passenger who is in the act of boarding the car, in an action by such passenger for her injuries thus caused these facts are evidence of the conductor’s negligence.</p> <p>In an action by a woman against a corporation operating a street railway, for personal injuries sustained by reason of the starting of a car of the defendant when the plaintiff was in the act of boarding it, where it appears that the car was extremely crowded and had stopped to take on passengers at a place where many passengers ordinarily boarded the defendant’s cars and that the conductor was inside the forward part of the car, evidence, that the conductor called out to the passengers on the rear platform, “Is it all right?” and received the reply, “All right, go ahead,” and that relying on this assurance he gave the signal to start the car, does not, if believed, show as matter of law that the conductor was in the exercise of due care, it being a question for the jury whether under the circumstances shown the conductor was justified in relying on such assurance.</p>

<p>Tort, by the administrator of the estate of Thomas Burns against a corporation engaged in a general teaming business, for causing the death of the plaintiff’s intestate, a boy seven years, five months and ten days old, on August 19, 1910, at or near the corner of Webber Street and Douglas Avenue in that part of Boston called Roxbury. Writ dated September 7, 1910.</p> <p>In the Superior Court the case was tried before Dubuque, J. On the day of the accident the defendant was employed by an iron company, having a place of business on Webber Street, to move some heavy iron beams from Jamaica Plain to such place of business. Adjacent to the iron company’s yard was an open lot over which was a roadway called Douglas Avenue running from Webber Street, which was a public way, to another street parallel to Webber Street. The defendant’s driver, one Kellough, brought a load consisting of six or seven of the beams, on a four horse dray, to the iron company’s yard. As he turned in from Webber Street upon Douglas Avenue his rear wheels sank into the mud and he was unable to proceed. He thereupon threw off three or four of the beams and proceeded with the rest of the load across the open lot over which Douglas Avenue ran to the yard of the iron company, which had an entrance on this open lot. He then unhitched the two “ lead horses ” and proceeded to draw the remaining beams over the surface of the ground on rollers by means of a chain attached to the rear end of the beams and passing along them to where the chain was hitched to the horses at the front end. These beams as they lay on the ground extended along Douglas Avenue, across the sidewalk on Webber Street to about the middle of that street. Two or three of the beams had been drawn into the iron company’s yard without incident. While the third or fourth was being drawn across the sidewalk of Webber Street in this manner, the plaintiff’s intestate was caught under the rear roller, while on the sidewalk, and received injuries from which he died within a few minutes.</p> <p>The plaintiff, who was the father of his intestate, testified that he lived at 29 Webber Street, two houses from the junction of that street and Douglas Avenue; that on the day of the accident the family had supper at about a quarter past six o’clock, and that the intestate and the witness’s little girl, about five years old, went out together after supper at about half past six; that the boy told him where he was going; and that almost immediately there was a commotion in the street and he went out and found that his boy had been hurt and sent to the hospital. He further testified that the intestate was a bright and intelligent little boy.</p> <p>One Coughlin, a witness called by the plaintiff, testified, among other things, as follows: “I saw the driver start his horses on the girder which hurt the Burns boy. I saw the Burns boy and the girl on the sidewalk on Webber Street, that is on the sidewalk on the Douglas Avenue side of Webber Street. When I first saw them they were coming from their house and I should judge they were about to go down the street toward Harrison Avenue. They were going in the direction of Harrison Avenue. These columns having the sidewalk blockaded, it was impossible for them to cross. Meanwhile the horses had started without any signal whatsoever, and caught this young chap’s foot and knocked him. At the time the boy was knocked down they were right in the centre of the sidewalk. They were walking along and just at the time they came so near to the iron the horses had started arid caught his foot and knocked him and rolled up on him. It was the roller that hit his foot; it knocked him and the roller went right up on his body. It seemed that the roller was in the gutter, and the end of the column had cut the street and it dug the street until it got on to this roller and then it rolled. . . . When it struck the roller, the roller started rolling and rolled until it caught the boy. It stopped then. Mr. Reiser, another man who was there, hollered to the teamster. Until Mr. Reiser hollered the horses kept on going, and then the driver stopped and I helped release the boy. When I went over to help release the boy, the roller was about up to his neck and shoulders. At the time of the accident the driver was at the front end of the column with the reins.”</p> <p>Reiser, referred to in the foregoing testimony, also was called as a witness by the plaintiff and gave a similar description of the accident. He testified that, when the driver stopped his horses and the roller stopped rolling, the boy who had been run over was about in the centre of the sidewalk, and that the roller was about five feet long and six or seven inches in diameter.</p> <p>At the close of the evidence the defendant asked the judge to make the following ridings:</p> <p>“1. On all the evidence the plaintiff is not entitled to recover.” “3. On all the evidence the plaintiff’s intestate was not in the exercise of due care, and therefore the plaintiff cannot recover.” “5. It is not due care on the part of an ordinary bright child of seven years and five months of age, who sees men with horses moving a heavy iron girder along the ground, to stand within the natural forward course of a roller above which the girder is laid.</p> <p>“6. It is not due care on the part of an ordinarily bright child of seven years and five months of age, who sees men with horses moving a heavy iron girder along the ground, to stand within the natural forward course of a roller above which the girder is laid, even though as a matter of fact the girder may not be resting on the roller and the roller may at the time be stationary.</p> <p>“ 7. It is not due care on the part of an ordinarily bright child of seven years and five months of age to stand within a foot or a foot and a half of a heavy iron girder that is being drawn over unprepared ground by a pair of horses hitched to a chain attached to the girder.”</p> <p>The judge refused to make any of these rulings. He made the fourth ruling requested by the defendant with a qualification. That ruling was as follows, the qualification added by the judge being enclosed in brackets:</p> <p>"4. If the plaintiff’s intestate knew, or if an ordinarily prudent child of his age ought to have known, that the girder was being drawn over rollers by horses attached to the front end, he was not -in the exercise of due care if he placed himself in front of one of the rollers, [if he appreciated the danger that there was in putting himself in the place where he was].”</p> <p>The defendant, besides excepting to the refusals of rulings stated above, excepted to certain portions of the judge’s charge, stating his exception in part as follows: “ I desire to except to that portion of your honor’s charge in which you suggested to the jury the question of whether it was the time of night when Kellough was in a hurry to get home and feed his horses; and again, where you said was he anxious and in a hurry to get the girders into the yard, there being as I recollect it no testimony upon which such a suggestion can properly be made by the court.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $7,500; and the defendant alleged exceptions.</p>

<p>Tort, for personal injuries sustained by the plaintiff on January 10, 1910, when he was in the employ of the defendants and was working as an oiler upon the machinery used as part of a complicated device for transferring coal from a coal tower to cars running upon a cable railway. Writ dated April 20, 1910.</p> <p>In the Superior Court the case was tried before Lawton, J., on May 25, 1911. The plaintiff testified that at the time of the trial he was nineteen years old; that at the time of the accident he had been in the employ of the defendants for about a year and a half, successively as a water boy, a guy man and an oiler; and that he had been an oiler for eight months before the accident happened.</p> <p>At the close of the plaintiff’s evidence the defendants rested, and asked the judge to order a verdict for them. The judge, after conferring with the counsel, submitted the case to the jury under the following stipulation of the parties:</p> <p>“If the jury shall return a verdict for the plaintiff, the court will at once order the verdict for the plaintiff set aside and will direct the jury to return a verdict for the defendants, and will report the case upon this stipulation between the parties; that if the order directing the jury to find for the defendants is right, the verdict for the defendants shall stand; otherwise judgment shall be entered for the plaintiff for the amount found by the jury. But with this exception: that the defendants do not waive any of their exceptions, and if evidence prejudicial to the defendants has been admitted, or evidence beneficial to the defendants has been excluded and exceptions saved, and if the Supreme Judicial Court shall rule that the case was properly submitted to the jury, then there shall be a new trial.</p> <p>“The defendants further reserve their right to move to have the verdict for the plaintiff set aside on the ground that the damages are excessive.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $9,000. Thereupon, in accordance with the foregoing stipulation, the judge set aside the verdict, ordered a verdict for the defendants, and reported the case for determination by this court. The facts necessary for an understanding of the decision of the questions raised by the report are indicated sufficiently in the opinion.</p>

<p>Petition, filed on February 12, 1908, for a writ of review of a judgment for the defendants in an action of tort, which was brought by the petitioner as plaintiff and was tried before Hardy, J., who ordered a verdict for the defendants. The judge denied a motion of the plaintiff for a new trial and also denied a motion of the plaintiff to be allowed to file exceptions after the expiration of an extension by agreement of the time allowed for filing such exceptions.</p> <p>There was a hearing on the petition before Pierce, J. The petitioner asked the judge to make the following rulings:</p> <p>“ 1. Relief ought to be granted if judgment was rendered against the petitioner by reason of his failure to file his bill of exceptions within the time prescribed by law and his failure was due to a mis-' apprehension of law, and it also appears that his application is otherwise reasonable and just.</p> <p>“2. The petitioner would not be guilty of loches by reason merely of delay in the filing of his bill of exceptions if his application for a writ of review is founded on sufficient reason, good faith and conscience.</p> <p>“3. Delay in the filing of the bill of exceptions and the entry of judgment against him would not constitute loches on the petitioner’s part if the respondents fail to show' in consequence thereof any serious wrong or injury resulting necessarily to themselves therefrom.</p> <p>“4. On a petition for a writ of review relief ought to be granted if it appear that the rights of the petitioner on the trial of the merits were not properly protected or safeguarded and an error of law by the court appears, or if to dismiss the petition would result in a miscarriage of justice.”</p> <p>The judge refused to make any of the rulings requested, and ordered that the petition be dismissed. The petitioner alleged exceptions.</p> <p>Later the petitioner filed a petition for a new trial upon his petition for a writ of review, alleging that he should have been granted a writ of review because errors of law were disclosed by the record in the action of tort brought by the petitioner and also alleging the existence of newly discovered evidence to be presented in such action of tort. Pierce, J., denied the motion for a new trial upon the petition for a writ of review; and the petitioner alleged exceptions.</p>

<p>Tort for personal injuries sustained on February 25, 1907, at about 11 o’clock a. m., when the plaintiff was a passenger on an electric street car of the defendant Boston Elevated Railway Company, alleged to have been caused by a collision of such car with an ice wagon of the defendant Boston Ice Company. Writ in the Municipal Court of the Roxbury District of the city of Boston dated June 14, 1907.</p> <p>On appeal to the Superior Court the case was prosecuted against the Boston Elevated Railway Company alone. It first was tried before Pierce, J., who at the close of the plaintiff’s evidence ordered a verdict for the defendant. The plaintiff alleged exceptions, which were sustained by this court in a decision reported in 208 Mass. 476.</p> <p>There was a new trial of the case before Quinn, J. After the plaintiff’s evidence the defendant called as a witness one Clark, who was the driver of the ice wagon at the time of the accident. The facts most favorable to the plaintiff which could have been found upon the evidence are stated in the opinion. At the close of all the evidence the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Negligence, Employer’s liability.</p> <p>An employee, who, having been told by one acting as a superintendent for his employer to go to work on a certain machine, objects to doing so because he does not know how to run it, but, under a threat of dismissal, goes to work at the machine, does not assume the risk of injury from defects in the machine which are not obvious and of which he does not know and is not warned.</p> <p>If an employee is put at work upon a machine without his employer or any one with authority from the employer giving him any warning as to the nature of the machine or any instruction as to the way to run it, and is injured by reason of a defective or dangerous condition of the machine and of the method he is using while he is engaged in performing his work in a manner in which he had been told to do it by his fellow employees, the employer cannot escape liability on the ground that, in doing the work in the manner which caused his injury, the employee was acting without authority from him.</p> <p>If oiling or cleaning a certain machine is necessarily incident to its operation and an employee is set at work upon the machine without any instruction as to the method of running it and is injured by reason of its automatically starting while he is oiling it, the employer cannot escape liability for the injury on the ground that the employee was not directed to oil the machine by him or by any one acting in his behalf.</p>

<p>Trust, Construction. Devise and Legacy. Words, “Unmarried.”</p> <p>A testator, having living a wife and four daughters, one of whom was married, made a will creating a trust with provisions that the income should be paid to his wife during her life and that after her death §500 should be given to the married daughter and §500 each to such of the other three daughters as then should have become married or thereafter should marry, and that the income of the estate then "remaining” should be paid to such of the daughters “as shall be unmarried so long as they or she shall remain unmarried.” Provision was made for the termination of the trust, first, "in case all my surviving daughters shall marry,” or second, “ upon the death of the last survivor of my daughters who may remain unmarried.” Held, that no income was intended to be paid to a daughter after she became married, although she should become a widow, because the word “unmarried” was not intended to mean “having no husband living although once married.”</p> <p>Where a word is used in one sense in one part of a will, and there is nothing to indicate a different meaning when the same word is used in another part, it may be presumed that the same meaning is intended.</p>

<p>Bills and Notes, Indorsement, Rights of holder of equitable title. Husband and Wife. Contract, Implied in law. Practice, Civil, Interpleader.</p> <p>Where the payee of a negotiable promissory note, given for a valuable consideration moving from a third person, indorses the note to the payee’s wife and delivers it to the third person, the legal title to the note remains in the payee because the indorsement by the payee to his wife is void, but the third person becomes equitably entitled to the proceeds of the note and can enforce that right by an action in the name of the payee, even without his consent.</p> <p>Where the payee of a promissory note delivers it to a third person for a valuable consideration but, by agreement with such third person, indorses it to the payee’s wife, and thereafter the payee has no further interest in it and the third person holds it in good faith, such third person can maintain an action for money had and received against one to whom the maker of the note made a common law assignment for the benefit of his creditors and who admits that there is a dividend due to the person entitled to the proceeds of the note.</p> <p>Where, in an action for money had and received, the defendant, acknowledging that he owes the money in question to the person entitled to the proceeds of a certain note, and averring that a person other than the plaintiff claims it, pays the money into court and under R. L. c. 173, § 37, causes such claimant to be made a party, the plaintiff, although he has no legal title to the proceeds of the note, can prevail if he is equitably entitled to such proceeds.</p>

<p>Two actions of contract for amounts alleged to be due as salary under a contract in writing set out in substance below. Writs dated respectively July 8 and August 20, 1910.</p> <p>The contract was dated February 3, 1910, and was in substance as follows:</p> <p>"That whereas the said Benjamin Williams is the inventor of a Mop Wringer on which he has filed application for United States letters-patent on or about the 24th day of May, 1909, Serial No. 497,997 and has this day executed an assignment of an undivided one-half interest therein to the said John W. ICnibbs, now, therefore, the parties have agreed and do hereby agree together as follows:</p> <p>“1. That neither party shall, without notice to and approval and consent of the other, sell, assign, transfer or in any manner encumber the invention, interest in or the joint title to the said invention, or the applications or letters-patent applied for or to be obtained thereon in this or any foreign country, or manufacture or sell the invention as an article of merchandise, or grant any licenses or privileges under the patent or patents thereon in this or foreign countries when issued on this invention, or any other invention that may be made in wringers by said Benjamin Williams.</p> <p>“2. It is further agreed that all profits derived from the invention or the sale of the Mop Wringers aforesaid, shall be divided equally between the respective parties hereto.</p> <p>“3. It is hereby further agreed that said John W. ICnibbs shall pay said Benjamin Williams a salary of twelve dollars per week and shall pay all expenses required for the prosecution and procuring of patents thereon in this and foreign countries, the said payments made being charged up against the profits of the concern before said profits are divided, in accordance with section 2.”</p> <p>In the Superior Court the case was tried before Lawton, J. At the close of the evidence the defendant requested that the jury be instructed as follows:</p> <p>“1. There being no time expressly stated in the contract during which the twelve dollars per week were to be paid by the plaintiff, the law implies an obligation only to pay that sum for a reasonable length of time, which time is to be determined by the jury taking into consideration all the facts presented.”</p> <p>The request was denied. The jury found for the plaintiff in the first action in the sum of $266.20, and in the second action in the smn of $78.84. The defendant moved for a new trial, “ alleging, among other things, that the verdicts were against the law and specifying that the agreement sued on is a partnership agreement and that no action of law can be maintained thereon, and further, that the agreement, constituted the parties partners at will and the defendant had a right to terminate the same at will.” The judge "ruled otherwise,” denied the motion, and reported the case for determination by this court, stating that, if no error was made in the rulings at the trial or on the motion for a new trial the verdicts were to stand; otherwise, either judgment was to be entered for the defendant or a new trial was to be ordered as justice might require.</p> <p>The cases were submitted on briefs.</p>

<p>Attorney at Law. Evidence, Presumptions and burden of proof. Equity Pleading and Practice, Appeal.</p> <p>On an appeal by the plaintiff from a decree dismissing with costs a bill in equity against an attorney at law seeking that an absolute assignment to the defendant of a policy of insurance upon the plaintiff’s life be declared to have been an assignment for the purpose of securing a loan by the defendant to the plaintiff, and praying for an accounting and a redemption of the policy, the report of the evidence showed that the testimony at the hearing was voluminous and that the defendant was a witness. The judge found that the defendant had sustained the burden of proving that the assignment of the policy not only was absolute, but that it had been fairly and honestly consummated. Held, that, when modified by the omission of costs, the decree dismissing the bill should be affirmed, because the record, while revealing circumstances which had a strong tendency to warrant different conclusions from those reached by the judge, did not show that his findings were plainly wrong.</p>

<p>■ Bill in equity, filed in the Superior Court on March 21,1910, alleging that in June, 1908, the husband of the plaintiff was the owner of a certain parcel of land with a dwelling house thereon on Elmwood Avenue in Lynn, then of the value of $2,000 and subject to a mortgage for $1,100; that, the plaintiff’s husband having deserted her, the assignee of the mortgage instituted foreclosure proceedings and the plaintiff retained the defendant, who was an attorney at law, to attend the foreclosure sale and to purchase the property in her name, which he agreed to do; that in June, 1908, the defendant attended the sale and informed the plaintiff that he had bought the property for her; and that the plaintiff at the defendant’s request allowed him to collect the rents from the property and pay for certain repairs thereon and to pay interest, taxes and other charges against the property; that thereafter from time to time the plaintiff demanded an accounting and that at each such request the defendant assured her that he was protecting her interests and that in proper season he would account to her fully; that in February, 1910, the plaintiff demanded an accounting, and that the defendant then for the first time informed her that the property did not stand in her name and declared that she had no interest in it and refused to account to the plaintiff for the rents and profits; that the plaintiff was informed and believed that the defendant, instead of having the title to the property taken in the name of the plaintiff, had it taken in the name of one Jordan, a clerk or employee of the defendant, who held it solely for the benefit of the defendant, and that on January 18,1910, the defendant had caused the property to be conveyed by Jordan to one Ryback, from whom the defendant received in payment certain cash and a second mortgage, which the plaintiff averred on information and belief to amount together to $2,000. The plaintiff further averred her willingness to pay to the defendant any sum which might be due to him to entitle her to obtain the relief sought, and prayed that the defendant should be enjoined from assigning or disposing of the mortgage from Ryback and that he should be ordered to assign such mortgage to the plaintiff; that the defendant should be ordered to account to the plaintiff for all rents, income and profits received by the defendant or his agent from the property in question and to pay to the plaintiff all moneys due upon such accounting; and for further relief.</p> <p>The case was referred to Charles Neal Barney, Esquire, as master. The master’s report contained the following summary of his findings:</p> <p>“In view of the foregoing facts, I find on the whole case that the purchase at the foreclosure, by the defendant Lovett for himself, of the property which is the subject matter of this action was a violation of his fiduciary relation to the plaintiff and results in equity in such a constructive trust as entitles the plaintiff to an accounting for the profit that may have accrued to the defendant in the transaction.</p> <p>“I find on such accounting that the defendant should be charged with $1,173.61 (being the amount received by him from the increase in the mortgage, from the gross rent receipts, and from the sale of the equity in January, 1910); and should be allowed $773.39 (being the purchase price of the equity and the disbursements on the property between June 1908 and February 1910 as herein-before set forth), together with $122 (being the amount found due him for his services in connection with the management thereof during said period). That is to say, I find upon the whole accounting that the defendant should pay to the plaintiff the sum of two hundred seventy-eight dollars and twenty-two cents ($278.22).”</p> <p>The case was heard by Dana, J., upon the defendant’s exceptions to the master’s report. At the hearing the defendant asked the judge to make certain rulings. The judge overruled the exceptions to the master’s report, and refused to make the rulings requested by the defendant. The defendant alleged exceptions, raising the questions which are stated in the opinion.</p> <p>The case was submitted on briefs.</p>

<p> Attorney at Law. Disbarment Proceedings. Constitutional Law. </p> <p>The decision of this court in Boston Bar Association v. Casey, 211 Mass. 187, in regard to the nature of a proceeding for disbarment, the relation to such a petition of an incorporated bar association as the petitioner, and the qualification of the judges of the Superior Court to sit in the case as affected by their membership in such association, here was affirmed.</p> <p>The decisions of this court in Boston Bar Association v. Casey at previous stages of that case as reported in 196 Mass. 100 and 204 Mass. 331, relating to the nature of the charges against the respondent and the questions whether upon the allegations of the petition and upon the evidence the order of disbarment was made legally and properly here were affirmed, and it also was decided that certain arguments urged by the respondent were disposed of by such previous decisions and were not open to him.</p> <p>R. L. c. 165, § 44, authorizing the removal of an attorney at law for deceit, malpractice or other gross misconduct is constitutional.</p> <p>In overruling exceptions of a respondent in a disbarment proceeding and affirming orders appealed from by him, where the order of disbarment had been made more than six and a half years previously upon a simple charge that the respondent wrongfully had kept for himself money belonging to his client, and the respondent, after appealing, had filed successively numerous motions, many of them of the most technical character, and where in disposing of the questions raised by him three previous decisions of this court had been made, it was said that the court were forced to the conclusion that the motions of the respondent then before them were made for the purpose of delay in a proceeding of a kind in which it was especially important that the truth should be ascertained and declared speedily.</p>

<p>Negligence, In use of highway, Violation of statute. Automobile. Way, Public.</p> <p>In an action against a city for personal injuries sustained when the plaintiff was driving an automobile on a highway of the defendant by reason of an alleged defect in such highway, if it appears that the plaintiff at the time of the accident had no license to operate an automobile as then required by St. 1903, c. 473, §§ 4, 5, amended by St. 1905, c. 311, § 4, this fact, although it is evidence of the plaintiff’s negligence, does not necessarily preclude his recovery.</p> <p>Under St. 1903, c. 473, §§ 1-3, and St. 1907, c. 580, § 2, onej who is driving on a public highway an automobile which is not registered or to be "regarded as registered” in accordance with the provisions of those statutes, is a trespasser, and cannot maintain an action under R. L. c. 51, § 18, for personal injuries caused by a defect in such highway.</p> <p>In an action against a city under R. L. c. 51, § 18, for personal injuries alleged to have been sustained by reason of a defect in a highway of the defendant when the plaintiff was driving an automobile, it appeared that the plaintiff was the owner of the automobile and that it was not registered, but that the plaintiff was in the employ of a dealer in automobiles, second hand and new, who was the agent for the kind of automobile that the plaintiff was driving, and the plaintiff testified that this automobile was used as a shop machine and was marked with the numbers of his employer, and that by agreement between the plaintiff and his employer the car was supposed to be used by anybody in the shop that wanted to use it. It could have been found that at the trial the defendant had acquiesced in án assumption of the plaintiff that the numbers on the automobile were distinguishing numbers or marks that had been assigned by the highway commission to the plaintiff’s employer. Held, that the question, whether the automobile was controlled by a dealer in automobiles and bore his general distinguishing number or mark so as to be “regarded as registered” under the provisions of St. 1907, c. 580, § 2, was a question of fact to' be submitted to the jury with the other issues in the case.</p>

<p>Indictment, found and returned on September 4,1911, under R. L. c. 212, § 15, charging that the defendant on August 4,1911, at Lowell, with intent to procure the miscarriage of a woman named, did unlawfully use a certain instrument upon the body of such woman, and that in consequence thereof she died.</p> <p>In the Superior Court the defendant was tried before McLaughlin, J., and in the course of the trial excepted to the admission of certain evidence as described in the opinion. The judge “gave ample instructions to the jury, to which no exceptions were taken by the defendant.” The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Grade Crossing Acts. Practice, Civil, Auditor. . Worcester. Words, "Actual Cost.”</p> <p>In proceedings under a special statute for the abolition of certain grade crossings, which incorporates by reference, except as otherwise provided, the provisions of St. 1900, c. 387, and acts in amendment thereof "the total actual cost" of the alterations which is to be apportioned among the contributing parties is the whole amount expended on the entire work with such allowances and deductions, if any, as should be made in order to arrive at a correct result, and an auditor appointed under the provisions of St. 1900, c. 387, § 7, is npt bound to allow as such actual cost expenditures of a railroad corporation, made in doing the work imposed upon it by a decree of the Superior Court, merely because such expenditures were made honestly and in good faith, unless the railroad corporation also exercised due care and diligence to protect the interests of the contributing parties.</p> <p>In proceedings under St. 1900, c. 387, as amended by St. 1902, c. 508, St. 1903, c. 115, and St. 1905, c. 422, providing for the abolition of grade crossings in the city of Worcester, an order of the Superior Court required the construction by the Boston and Albany Railroad Company of “suitable retaining walls and masonry” for the railroad and tracks of that company affected by the changes. That company asked to be allowed for the amount of money paid by it upon contracts for the construction of concrete masonry. It appeared that the company, in good faith and for the purpose of expediting the work, had permitted the use of unscreened gravel instead of screened gravel until a screening plant could be completed and placed in operation, that the use of the unscreened gravel reduced the cost of the concrete to the contractor but that the railroad company paid for this concrete the full contract price, for which it asked to be allowed as against the Commonwealth, the New York, New Haven and Hartford Railroad Company and the city of Worcester. It was found by the auditor, to whom the case was referred under the provisions of the statute, that the masonry thus furnished^ by the Boston and Albany Railroad Company was suitable for the purpose for which it was required and that the railroad company was entitled as matter of law to have the “actual cost” of the work done by it allowed, but he found as facts that at the time the railroad company permitted the substitution of the unscreened gravel no circumstances existed that made such substitution necessary, and that in giving such permission to the contractor the railroad company failed to exercise reasonable care and diligence to protect the contributing parties from paying the full contract price for an inferior and less costly material. The auditor found that the difference between the value of the concrete contracted for and that furnished was about $3,500 and that the part of this to be paid by the contributing parties would be about $2,000, and found that this amount should be disallowed. Held, that on the facts found by the auditor his rulings and decision were right.</p> <p>In proceedings under a special statute for the abolition of certain grade crossings, which incorporates by reference, except as otherwise provided, the provisions of St. 1890, c. 428, and acts in amendment thereof, the report of an auditor appointed under St. 1890, c. 428, § 7, has the force and effect of the report of a master in a suit in equity, and where the evidence is not reported the findings of such an auditor cannot be set aside unless they are plainly inconsistent with facts found by him and are clearly wrong.</p>

<p>Negligence, In use of elevator, Violation of statute. Elevator.</p> <p>At the trial of an action against a person controlling a building by an employee of one of the tenants therein for personal injuries sustained by a fall from a freight elevator which was furnished by the defendant for use by the tenants, it appeared that the defendant retained control of the elevator and kept it in repair, that the tenants and their employees operated it when they had occasion to use it, that between the back of it and the wall of the well was an opening two and one half feet wide, that the elevator was equipped with a bar which could be lowered across the back or could be kept up, that the plaintiff had been in the employ of the tenant about two and a half years, "had always been around” the elevator during that time and knew of the bar and of the hole between the elevator and the wall, that in helping to place a load on the elevator just before his injury he had backed upon the elevator, that the bar was not down when he started to enter the elevator and that he made no attempt to put it down, and that when two or three feet from the end of the elevator he “stubbed” his heel and fell backward between the elevator and the wall. There was evidence tending to show that the plaintiff might have been caused to fall by a slight depression in the floor of the elevator. Held, that as a matter of law the plaintiff was not in the exercise of due care.</p> <p>One who is in control of an elevator is not liable to a person who, while not in the exercise of due care, is injured by a fall from the elevator by reason of a failure to equip it with the safe-guards required by R. L. c. 104, § 43.</p>

<p>Agency, Scope of employment.</p> <p>At the trial of an action for personal injuries caused by the plaintiff being run into by an automobile of the defendant, it was admitted by the defendant that at the time of the accident the automobile was being operated by a driver who was in his employ, and there was evidence tending to show that the defendant had provided the automobile with the driver for the use of his family, that the driver had no fixed hours of employment but was subject at all times to the directions of the family, that he slept at the defendant’s house but got his meals at a house half a mile away and had his laundry done at another place about as far distant, the defendant paying for the meals and laundry as part of his wages, that he was allowed by the family without objection to use the automobile to go to his meals and to get his laundry as he found it convenient, and that, as he was going * in the automobile for his laundry after having been to his supper and before returning to the defendant’s house, he ran into the plaintiff. Held, that the question of the defendant’s liability was for the jury, who on the evidence would be warranted in finding that the use of the automobile by the driver at the time of the accident was incident to his employment or was permitted or assented to either expressly or impliedly by those having authority from the defendant.</p>

<p>Practice, Civil, Exceptions. Way, Private. Easement, By prescription. Evidence, Declarations of deceased persons.. Agency. Husband and, Wife.</p> <p>A motion in this- court to dismiss a bill of exceptions filed in the Superior Court, on the ground that the exceptions were allowed on August 15 and were not entered in this court until the following October, cannot be allowed when the circumstances attending the entry are not before the court.</p> <p>In an action for the obstruction of a right of way alleged to have been acquired by prescription, where the defendant contends that the use of the way by the plaintiff’s predecessor in title was permissive and not adverse, the de- " fendant after the death of bis predecessor in title may introduce evidence of a declaration by his predecessor in title that he had given to the husband of the plaintiff’s predecessor in title permission to put a gate in the fence between the two properties giving access to the strip of land over which the right of way is claimed, if there also is evidence that after the time when such permission was given the husband had a gate made in the fence which was used by him and his wife and other members of the family, and that the husband in this and other matters relating to the property acted as the agent of his wife with her knowledge.</p>

<p>Way, Public: defect. Negligence, In use of highway. Practice, Civil, Conduct of trial: requests and instructions, Exceptions. Evidence, Competency.</p> <p>At the trial of an action by a woman against a town for personal injuries alleged to have been caused by a defect in a public way, where, besides evidence as to the season of the year, precedent weather conditions, amount and character of travel and other attendant circumstances, there is evidence tending to show that as the plaintiff, an experienced driver, was driving a team on the way in question and was turning into an intersecting street, she looked at the street ahead and saw nothing on the surface to indicate a defect, and that the carriage was caused to tip and throw her out because it ran into two depressions, one of which was six or more inches deep, with a mound between them, the questions, whether the plaintiff was in the exercise of due care and whether the accident was caused by a defect in the way, are for the jury.</p> <p>At the close of the evidence at the trial of an action against a town for injuries alleged to have been caused by a defect in a public way, the defendant presented twenty-two requests for rulings, three of which were to the effect that the burden of proof was on the plaintiff on the issues of his due care and of notice to the defendant of the defect. The charge made no specific reference to the question of the burden of proof, but stated that the several issues in dispute must be established in favor of the plaintiff before a verdict for him could be returned. From the language of the charge it might be inferred that in other cases previously tried before the same jurors full instructions had been given to them respecting the burden of proof. At the close of the charge the defendant’s counsel asked that exceptions be noted as to requests that had been denied, several of which contained correct statements of the law relating to the burden of proof. The judge replied, "Yes. They are principally that there is no evidence,” and the defendant’s counsel replied, “Yes.” Held, that, although the defendant was entitled to full and accurate instructions touching the matter of the burden of proof, the exceptions to the failure to grant the requests in question must be overruled, because it was the duty of the defendant’s counsel, if such specific instructions were desired, to call them to the attention of the judge at the close of the charge, and not to permit the judge to think that the requests related only to whether there was any evidence which should be submitted to the jury.</p> <p>At the trial of an action against a town for personal injuries alleged to have been sustained by reason of depressions in a public way, which caused the carriage of the plaintiff to tip and throw him out, evidence that on previous days other wagons had been seen to go up and down and tip at the same place is inadmissible for the purpose of showing a defect in the way or to prove notice of the defect to the defendant.</p>

<p>Review. Equity Pleading and Practice, Petition for review, Appeal, Decree, Order for decree. Supreme Judicial Court, Rescript.</p> <p>if a judge of the Superior Court, after hearing a petition for a review of a final decree in a suit in equity, finds facts adverse to the allegations of the petition, such findings are not open to revision upon an appeal by the petitioner.</p> <p>In a suit in equity in the Superior Court for the redemption of certain land from a mortgage, a final decree was entered, directing the defendant to convey the land to the plaintiff discharged from the mortgage and to pay to him a certain amount found due on an accounting for use and occupation of the land, and awarding costs to neither party. The defendant appealed. A rescript was sent by this court directing that the final decree be modified by giving to the defendant costs, and that the decree as thus modified was to stand. A judge of the Superior Court, on a motion by the plaintiff, amended the final decree by adding to the sum to be paid to the plaintiff an additional sum for further use and occupation of the land by the defendant since the previous decree. Held, that the rescript of this court was not a decree, but was an order for a decree, and that the Superior Court, under R. L. c. 173, § 48, had power so to amend the former decree as to determine as of the date of the final disposition of the suit the obligations of the defendant to the plaintiff in the matter involved in the suit.</p>

Tort for personal injuries sustained by the plaintiff on November 12, 1909, from being struck by an automobile of the defendant on Cambria Street in Boston. Writ in the Municipal Court of the City of Boston dated December 2, 1909. On appeal to the Superior Court the case was tried before Fox, J. The material facts are stated in the opinion. At the close of the evidence the defendant asked the judge to make, among others, the following rulings: 1.

Tort for personal injuries sustained by the plaintiff from being pushed by a crowd from an open electric street car of the defendant on which the plaintiff was a passenger at Watertown Square in Watertown on the evening of August 17, 1904. Writ dated October 31, 1904. In the Superior Court the case was tried before Dana, J. The facts which could have been found upon the evidence are stated in the opinion.

Tort for deceit in the sale of the business and fixtures of a moving picture theatre at 147 and 149 Court Street in Boston, which the plaintiffs alleged that they on April 27, 1908, were induced to buy by false and fraudulent representations of the defendants. Amended from a bill in equity which was inserted in a common law writ dated May 20, 1908.. In the Superior Court the case was tried before Wait, J. The evidence is described in the opinion.

Scire facias, against an attorney at law, on an execution for costs issued in favor of the plaintiffs as the defendants in an action at law in which one Charles W. Morris was the plaintiff and in which the defendant in scire facias was alleged to be the indorser of the writ. Writ of scire facias dated May 4, 1911. In the Superior Court the case was submitted to Pratt, J., upon an agreed statement of facts, presenting the facts which are stated in the opinion.