Volume 215 — Massachusetts Reports

<p>Four petitions to the Superior Court under St. 1909, c. 490, Part I, § 76, by the trustees of the Boston Personal Property Trust, in the first three cases appealing from refusals of the assessors respectively of the town of Milton, the city of Waltham and the town of Brookline to abate taxes assessed on April 1, 1911, on personal property held by the petitioners as such trustees alleged to be apportionable under St. 1909, c. 490, Part I, § 23, cl. 5, to beneficiaries or trustees whose places of residence were respectively in Milton, Waltham and Brookline, and in the fourth case appealing from a refusal of the assessors of. the city of Boston to abate taxes upon the full amount of the personal property held by the petitioners as such trustees which were assessed to the petitioners on the same date under St. 1909, c. 490, Part I, § 27, on the ground that such property was. the personal property of a partnership carried on in Boston.</p> <p>The petitions were heard together by Quinn, J., upon an agreed statement of facts. In the cases against the town of Milton, the city of Waltham and the town of Brookline the judge found that the petitioners were entitled to the abatements respectively claimed in those cases and ordered that judgments should be entered accordingly, and in the case against the city of Boston he found that the petitioners were entitled to no abatement and ordered that judgment should be entered for the respondent. At the request of the parties he reported the cases for determination by this court.</p> <p>The indenture of trust creating the Boston Personal Property ’ Trust was dated January 10, 1893. Among other provisions bearing upon the character of the trust were the following:</p> <p>“Second. That the said Trustees shall hold all the funds and property (hereinafter called the Trust Fund), now or hereafter held by or paid to, or transferred or conveyed to them or their successors as Trustees hereunder in trust for the purposes, with the powers and subject to the limitations hereinafter declared, for the benefit of the cestuis que trustent, and it is hereby expressly declared that a trust, and not a partnership, is hereby created; that neither the Trustees nor the cestuis que trustent shall ever be personally liable hereunder as partners or otherwise, but that for all debts the Trustees shall be liable as such to the extent of the Trust Fund only. In all contracts or instruments creating liability, it shall be expressly stipulated that the cestuis que trustent shall not be liable.”</p> <p>“Fourth, (a) The Trustees shall have as full power and discretion, as if absolute owners, to invest and reinvest the Trust Fund (including any surplus and also income) in personal property, including bonds and notes or obligations secured upon real estate, and the decision of the Trustees as to what is personal property shall be final. They shall have the like power of investment in the purchase and improvement of real estate in the cities of the United States of America, for the purpose of leasing the same upon long terms, or ground rents so-called; and all real estate so purchased shall be conveyed to them in joint tenancy as Trustees hereunder.”</p> <p>“ (e) The Trustees shall also have power at any time to borrow money, and to pledge, as collateral security for such loan, any personal property belonging to the Trust Fund, provided, however, that no loan shall be contracted for, so that the aggregate amount of such loans outstanding shall at such time exceed, in the judgment of the Trustees, twenty-five per cent, of the total amount of the personal property of the Trust Fund.”</p> <p>“Seventh. The Trustees shall declare dividends from the net income of the Trust Fund among the cestuis que trustent quarterly, or oftener, if convenient to the Trustees, and their decision as to amount of dividends, and as to using therefor any portion of the Surplus Fund, shall be final. They may set aside from time to time such portion of the net income as shall not be required for dividends for a Surplus Fund.”</p> <p>“Ninth. The Trustees shall render an account annually or ofténer, if convenient to them, and shall, upon request, deliver or mail a copy to each cestui que trust.”</p> <p>“Tenth. Any Trustee may resign his trust by a written instrument signed and sealed by him, and acknowledged in the manner prescribed for the acknowledgment of deeds, and such instrument may be recorded in the Registry of Deeds for the County of Suffolk, or deposited with such Depositary as the Trustees shall from time to time select.</p> <p>“Any vacancy occurring from any cause at any time in the number of said Trustees shall be filled by the remaining Trustees. ...”</p> <p>“Fourteenth. The Trustees shall issue a certificate, in such form as they shall deem best, to each person who shall pay them the sum of one thousand dollars or multiple thereof, for an interest in the Trust Fund. But no certificate shall be issued for any less sum than one thousand dollars, at par value. . . .”</p> <p>“Fifteenth. The interests represented by the certificates may be transferred on the books of the Trustees by the person named therein, or his legal representative, upon the surrender of the certificate, and a new certificate shall be issued to the transferee, who shall thereupon become a cestui que trust. But no such interest shall be sold until the holder thereof (including assignees in insolvency or bankruptcy, or for benefit of creditors, and holders by process of law or otherwise, except as hereinafter stated) shall have first in writing offered it for sale to the Trustees, who shall, as such Trustees, have the option for ten days after the receipt of such offer of buying the same at not more than the last preceding appraisal made by them, such appraisal to be made annually or oftener as they shall deem best. Interests so purchased by the Trustees may be held as part of the Trust Fund, or sold by them at their discretion.</p> <p>“Devises by will, distribution of the estates of deceased persons according to law, and distribution of trust funds among those entitled thereto upon the termination of trusts, shall not be deemed sales for the purposes hereof.”</p> <p>“Twentieth. The Trustees may, with the consent of three-fourths in interest of the cestuis que trustent, alter or add to this Declaration, or terminate this Trust, and if it seems to them judicious so to do, they may, with like consent, convey the Trust Fund to new or other Trustees, or to a corporation, being first duly indemnified for any outstanding obligation or liability. ...”</p>

<p>Bankruptcy. Mortgage, Of personal property. BUI of Sale.</p> <p>If a mortagee of personal property under an unrecorded instrument of transfer absolute in form, which was executed and delivered in good faith more than four months before the filing by the mortgagor of a voluntary petition in bankruptcy, takes possession of the mortgaged property less than one month before the filing of such a petition when he has reasonable cause to believe that the mortgagor is insolvent, such mortgagee, where no intervening liens or rights have been obtained, acquires a title which is good under the law of this Commonwealth and consequently is good under the bankruptcy act of 1898, as amended by U. S. St. 1903, c. 487, § 13, against the trustee in bankruptcy of the mortgagor, unless the instrument of transfer was one that was required by law to be recorded or registered.</p> <p>Before the enactment of St. 1913, c. 656, a mortgage of personal property made by a bill of sale absolute in form but intended as security for the payment of money was not required by R. L. c. 198, § 1, to be recorded, and consequently was not included in the provision of the bankruptcy act as amended by U. S. St. 1903, c. 487, § 13, that the period within which a transfer may constitute a preference “shall not expire until four months after the date of the recording or registering of the transfer, if by law such recording or registering is required.”</p>

<p>Bills and Notes, Certificate of deposit. Bank. Limitations, Statute of.</p> <p>The time within which a certificate of deposit (using that term in its proper sense) should be returned to the bank which issued it and a demand for its payment should be made is the time limited for the bringing of an action upon it against the bank.</p> <p>Whether the time within which an action upon a certificate of deposit (using that term in its proper sense) shoulá be brought against the bank which issued it is twenty years, as prescribed by B,. L. c. 202, § 1, cl. 2, with regard to "actions upon bills, notes and other evidences of indebtedness issued by a bank,” or six years, as prescribed by § 2 with regard to actions of contract other than those upon judgments and those described in § 1, was not decided in this suit in equity to collect the amount of such a certificate, where no demand for payment of the certificate was made until thirty-six years after its date.</p>

<p>Trust, Enforcement against succeeding holder of real estate. Notice. Equity Jurisdiction, To enforce trust, Laches.</p> <p>One, who held real estate subject to a trust created by a contract in writing between him and an investor who had advanced the money for its purchase, the terms of the trust among other things providing for the repayment to the investor of the money advanced by him, conveyed it without consideration through a conduit to himself and two others as trustees under a recorded declaration of trust providing for the issue of certificates of shares to those who should invest in the enterprise and for the selection and qualification of trustees to fill vacancies caused by death or resignation. The recorded declaration contained nothing with regard to the original investor’s rights and the original trustee did not inform his new associates of them. Shortly after the conveyance the original trustee wrote to the investor stating that the conveyance did not affect his rights. All of the trustees later resigned and successors were appointed under the terms of the trust instrument. About a year and seven months after the conveyance by the original trustee, the investor by a suit in equity against the new trustees sought to enforce in his favor a trust as to the land which they still held. Held, that, because the original trustee knew of the trust in favor of the plaintiff, his first associates in the real estate trust and their successors, the defendants, none of whom had paid any consideration for the real estate, also received it subject to the same trust. Held, also, that the holders of shares in the real estate trust stood in no better position than the trustees. Held, also, that the plaintiff was not guilty of loches.</p>

<p> Estoppel. Partition. </p> <p>Where, after the death intestate of the owner of several parcels of real estate, a son of the intestate files and prosecutes in the Probate Court a petition for the partition of the real estate among the heirs, and in the course of the proceedings before commissioners appointed to make the partition makes no claim to a barn upon one of the parcels of land which he has a right to remove as personal property, and, by reason of his making no such claim, the commissioners make a decree, to which he assents, setting off the parcel upon which the bam stands and the bam and other buildings thereon to another of the heirs and assigning a separate value to the land and to the buildings as real estate, such son thereafter is estopped, as against the heir to whom such parcel was set off, to deny that the barn is a part of the real estate and passed under the decree of partition.</p>

<p>Equity Jurisdiction, To follow trust fund. Trust. Equity Pleading and Practice, Appeal.</p> <p>The treasurer of a subordinate lodge of a fraternal beneficiary corporation deposited funds which he received by virtue of his office in a bank account in his own name in which also were mingled moneys received by him from various other sources. His successor as treasurer being elected, he admitted to the secretary of the corporation as well as to his successor that the funds of the lodge were in the bank account and stated that he stood ready to deliver them to his successor, but he died before he could do so. At the hearing of a suit in equity by the corporation against the executrix of his will to impress the fund with a trust in its favor and to compel its transfer, it appeared that, by a mistake of the treasurer his account at the bank had been overdrawn about three months before the election of his successor, but that “as soon as it was discovered that he had made the mistake the amount was paid by him to the” bank, and that thereafter he had on deposit at the bank a sum of money in excess of the fund claimed by the plaintiff. A final decree was entered for the plaintiff. Held, that the overdraft did not act as a dissipation of the fund, and that the decree was justified.</p> <p>"Where, in a suit in equity the final decree awards to the plaintiff a certain sum claimed by him but awards him no interest, on an appeal by the defendant alone, the question, whether the plaintiff should have been awarded interest, is not before this court.</p>

<p>Bill in equity, filed in the Superior Court on January 7, 1910, for an accounting by the defendant as the agent in charge of certain real estate of the plaintiffs.</p> <p>The case was referred to Oscar A. Harden, Esquire, as master. The material facts are stated in the opinion. After a hearing by Fessenden, J., a decree was made for the plaintiffs; and the defendant appealed.</p> <p>■ The case was submitted on briefs.</p>

<p>Tax, Assessment. Trust. Partnership.</p> <p>Upon petitions for the abatement of taxes brought by the trustees under a deed of trust called the “General Investment Trust,” by the terms of which the powers and duties of the trustees were essentially the same as those of the petitioners in Williams v. Milton, ante, 1, it was held, following that decision, that the beneficiaries were cestuis que trust and were not partners, and that the trust property was to be assessed for taxation accordingly.</p>

<p>Insurance, Accident. Evidence, Presumptions and burden of proof. Words, “Accidental.”</p> <p>In an action against an insurance company to recover for the alleged accidental death of the insured, it appeared that the policy sued upon insured “against bodily injuries, effected directly or independently of all other causes, through external, violent and accidental means (suicide whether sane or insane is not covered),” that the insured, when delirious by reason of severe typhoid fever, was left alone momentarily by his attendant in a room with a single window which was covered by a screen, that a little below the window was a balcony five feet wide with a protecting railing, that thirty feet beneath the balcony was rough and stony ground, that the screen was found torn from the window and the insured was found on the ground unconscious with severe injuries from which he died and which, as experts testified, probably would have caused his death even if he had not been suffering from typhoid fever. Held, that the immediate cause of the injuries was the fall, which was external and violent within the meaning of the policy, and which also could have been found to have been accidental. Held, also, that it could not be ruled as matter of law that the injuries were not “effected directly and independently of all other causes” through accidental means, as the typhoid fever from which the insured was suffering could have been found to have been simply a condition and not a moving cause of his injuries.</p> <p>In a policy insuring against bodily injuries effected “ through external, violent and accidental means,” not covering suicide “ whether sane or insane,” the phrase “ accidental means ” was held to have been used in its ordinary sense to denote a casualty happening unexpectedly without intention or design.</p> <p>In the absence of clear proof there is a presumption of fact that a person found dead did not commit suicide.</p> <p>In an action on a policy of accident insurance to recover for the death of the insured from accidental bodily injuries, where the policy contains a provision that “suicide whether sane or insane is not covered,” and it appears that at the time of the accident, which was seen by no one, the insured was delirious by reason of severe typhoid fever, although the burden may be upon the plaintiff to prove that the death of the insured was not due to suicide, yet in the absence of evidence of suicide this burden may be found to have been sustained by the presumption of fact against self destruction.</p>

<p>Practice, Civil, Findings of trial judge. Bill of Lading. Evidence, Presumptions and burden of proof. Carrier, Freight charges, Interstate commerce rates. Contract, Implied in fact. Interstate Commerce. Estoppel. Damages, Recoupment.</p> <p>In an action at law a general finding by a judge sitting without a jury, like the verdict of a jury, cannot be revised upon questions of fact if it was warranted by the evidence.</p> <p>In an action by a railroad corporation for freight charges against a dealer who also was a commission merchant, where it appears that the goods were shipped to the defendant as a commission merchant but that this fact was not brought to the knowledge of the plaintiff, if it also appears that the defendant was named as the consignee in the bill of lading and that no other person was named as owner therein, this warrants a finding of fact that the plaintiff was justified in treating the defendant as the owner of the goods.</p> <p>Where the consignee of goods sent by rail receives them under a bill of lading, one of the terms of which is that the consignee shall pay the freight at the rate stated, and no special rate is stated, but the bill of lading contains a printed provision that the “ property will be carried at tariff rates,” receipt and acceptance of the goods under the bill of lading is evidence of an implied promise by the consignee to pay the freight charges established under the interstate commerce act.</p> <p>In an action by a railroad corporation against the consignee of goods, who received them from the plaintiff under a bill of lading by which he agreed to pay the freight rates established under the interstate commerce act, to recover a balance of the freight charges, which had not been claimed at the time of the delivery of the goods by reason of an erroneous classification that was not discovered until several months later, the defense of estoppel is not open, because the rate of the charges which the plaintiff seeks to recover is fixed by law and could not be reduced even by showing an express contract to that effect, and consequently cannot be reduced by an estoppel to deny the existence of such a contract; and for the same reason the defendant cannot be allowed to reduce the damages by showing in recoupment the effect of the payment of and the receipt given for the wrong rate.</p>

<p>Boston. Boston Elevated Railway Company. Washington Street Tunnel. Words, “ Construction.”</p> <p>Sections 7, 10, of St. 1902, c. 534, which authorized the construction of the Washington Street tunnel in Boston, provided that from the beginning of the use of the tunnel the Boston Elevated Railway Company should pay to the city of Boston an annual rental equal to four and one half per cent of the net cost of the tunnel and subway, and that the value of property taken but no longer needed for the purposes of the tunnel should "be deducted from the cost of the tunnel ... for the purpose of ascertaining the rental thereof.” Section 16 provided that all rents received by the city for the use of any lands or rights taken should be used by the treasurer of the city, with the rents received for the use of the tunnel and subway, for meeting the sinking fund requirements and the interest of the bonds issued by the city under the act, and that any surplus should be used as a part of the general revenue of the city. Certain portions of land taken under the act and paid for by bonds issued by the city under the act became unnecessary for the purposes of the tunnel. During a period of time before the beginning of the use of the tunnel the city paid interest on the bonds issued to pay for the land and received rents from the land. Held, that the net cost of the tunnel was to be ascertained as of the time when its use began and that the deduction of the value of property taken and not needed should be made as of that time.</p>

<p>«Conversion, Evidence of right of possession. Bill of Lading. Evidence, Presumptions and burden of proof. Practice, Civil, Ordering verdict. Sale, Stoppage in transitu. Carrier. Damages, In contract. Contract, Validity.</p> <p>In an action against a carrier for an alleged conversion of goods, if it appears that the plaintiff was named as consignee in the bill of lading of the goods and that he had possession of the bill of lading, this is evidence of the plaintiff’s right to the immediate possession of the goods.</p> <p>In an action of contract, where a substantial part of the evidence is oral or consists of inferences to be drawn from the circumstances shown, it seldom can be ruled that the party on whom the burden of proof rests is entitled to a verdict. The present case gave no occasion for such an exceptional ruling.</p> <p>In an action by the consignee of goods against a carrier for their alleged conversion, where it appears that the carrier returned the goods to the consignor, who claimed the right of stoppage in transitu, if there is evidence that after the arrival of the goods at their destination the plaintiff on two occasions examined them in the hands of the defendant an4 took samples from them, that upon demand from the defendant he paid the freight and storage charges on the goods up to the date of such payment but left the goods in the hands of the defendant and failed to pay the consignor for them or to pay the defendant further storage charges, the question whether the transit had been terminated by a constructive delivery of the goods to the consignee, so that the right of stoppage in transitu, if it existed, had been lost, is a question of fact for the jury.</p> <p>The insolvency of a consignee of goods which is necessary to give the consignor the right of stoppage in transitu need not be shown by proof of adjudication, but consists simply of inability to pay debts in the usual course of business, and may be proved as a rational inference from convincing facts and circumstances. In the present case evidence that, after several failures on the part of the consignee to pay for the goods upon demands by the consignor, a draft on the consignee by the consignor for the price of the goods, through a bank at the residence of the consignee, was returned to the consignor with notice that the consignee was out of the city, was held to be evidence for the jury of the insolvency of the consignee.</p> <p>A provision in a bill of lading of goods sent by rail, that “the amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to the consignee . . .)” is not contrary to public policy, and, in an action against a carrier for the breach of a contract to deliver the goods shipped under such a bill of lading, where the contract of carriage is not repudiated by the carrier, this limitation of the damages that can be recovered is valid and enforceable.</p>

<p>Negligence, Street railway. Carrier. Practice, Civil, Exceptions, Conduct of trial: judge’s charge; rulings and instructions; argument before jury. Evidence, Of state of mind, Absent witness. Witness. Words, “Negligence,” "Highest degree of care.”</p> <p>■The word “negligence,” as used in St. 1907, c. 392, § 1, giving a right of action where “a corporation which operates a railroad or a street railway, by reason of . . . the . . . negligence of its servants or agents . . . causes the death of a passenger,” means the want of care which the law requires under the circumstances disclosed in each case.</p> <p>The phrase, “highest degree of care,” which has come to be used commonly as expressing the duty of a common carrier toward its passengers, when accurately analyzed, means only that degree of caution which is reasonable in view of the relation of the parties and the fatal consequences which may ensue from a breach of that duty. By Rugg, C. J.</p> <p>At the trial of an action for causing personal injuries to and the death of one who was alleged to have been thrown to the ground by the starting of an open street car as he was boarding it, the defendant’s evidence tended to show that the deceased ran and attempted to board the car while it was in motion. The judge in his charge gave certain instructions to the jury relating to the duty of the conductor before starting the car to wait for persons desiring to board it. At the close of the charge the defendant objected to that portion of the charge, and the plaintiff’s counsel, in the hearing of the jury, stated that he was willing that the jury should be instructed “that a man running and jumping on a moving car cannot recover.” The judge then so charged the jury, stating that he did so “with the consent of the plaintiff,” and the defendant excepted. Held, that any error in the charge on the subject referred to was cured by the additional instructions given; and that, although it is not good practice for the counsel to suggest in the hearing of the jury instructions that he is willing should be given, no harmful error was shown in this case.</p> <p>At the trial of an action for the conscious suffering and death of one alleged to have lost his life by reason of negligence of an employee of a street railway company, evidence is admissible, for the purpose of proving the state of mind of the injured person after the injury and, by inference, his mental suffering, which tends to show that he said, after the accident and before the bringing of the action, that his back was broken and he knew that he was not going to get better.</p> <p>At the trial of an action against a street railway company for causing personal injuries to and the death of a passenger, the plaintiff’s counsel, after questioning the conductor of the car in cross-examination in regard to the number of witnesses whose names he had taken and eliciting the fact that the witness could not answer accurately without reference to a report in writing made by him to the defendant, asked the defendant’s counsel, “May I see the report for the purpose of refreshing his recollection?” The defendant’s counsel offered to produce the report if the plaintiff wanted it to put it in evidence, but not otherwise. The plaintiff did not accept the condition. The witness did not ask for the report. The plaintiff’s counsel in his closing argument stated that the defendant did not dare to produce the report because it would disclose that it contained the names of witnesses whom the defendant did not call because, if called, they would have corroborated the plaintiff’s evidence. The defendant objected to the argument but the trial judge refused to stop it or to rule it out as improper and in his charge to the jury instructed them that “any argument that was made upon the situation . . . was a proper argument to make.” The defendant excepted. Held, that the exception should be sustained, because the argument was unfair and unwarranted by the evidence, and the charge did not correct the error.</p>

<p>Governor, Veto. Veto. Statute, Validity. Evidence, Best evidence. Practice, Civil, Agreed statement of facts. Words, “Returned.”</p> <p>Whether at the hearing upon an agreed statement of facts of a case involving the question, whether the Governor had exercised his veto power within the time prescribed in c. 1, § 1, art. 2 of the Constitution, the facts agreed upon would be competent evidence to controvert a statement of facts with regard to the veto appended by the Secretary of State as a note to the official printed copy of the statute, it here was not necessary to decide, because the facts set forth in the agreed statement were included in the secretary’s note properly interpreted.</p> <p>The Governor has not returned a bill of which he does not approve to the branch of the Legislature in which it originated with his objections thereto in writing within five days as required by c. 1, § 1, art. 2 of the Constitution in order to make his veto effectual, if on the fifth day his veto message is placed upon the desk of the clerk of that branch of the Legislature after the end of the legislative session for that day and after the office of the clerk has been closed in the ordinary and reasonable course of business and the clerk and his assistants have departed.</p>

<p>Devise and Legacy, Residuary clause. Words, “Remainder.”</p> <p>A widow without children wrote her will in nine clauses upon a printed form and, after a clause providing for the payment of her debts, in four clauses made pecuniary bequests disposing of $800 and three pieces of furniture, and in a sixth clause disposed of her wearing apparel. The seventh clause read as follows: “I bequeath and devise my Silver, and Jewelry as follows; Tó . . . [four women by name] . . . )They to divide it up between Themselves) And also the remainder if any.” The eighth clause related to her funeral and the disposition of her remains, and the last clause appointed an executor. Of the four persons named, two were her nieces and with the other two her relations had been affectionate. Her feelings toward a brother were not so friendly. At the time the will was made the testatrix’s only prospective heir was her father, an aged man whose support had' been assumed by others. The value of the silver and jewelry mentioned in the seventh clause was $5. Held, that by the words “And also the remainder if any,” the testatrix disposed of the residue of her property, including the real estate.</p>

<p>Petition for partition, filed in the Superior Court on March 17, 1911, the petitioner alleging that he and the respondents Job H. Cressey, Anna E. Emerson and Charles A. Newhall were tenants in common of certain premises on Park Street in Lynn, their undivided shares being as follows: petitioner, eight twenty-eighths, Job H. Cressey, seven twenty-eighths, Anna E. Emerson, seven twenty-eighths, and Dorman, trustee for Charles A. New-hall, six twenty-eighths; and that Arthur I. Newhall, Sarah Effie Newhall, Anna E. Emerson and Charles A. Newhall claimed to own undivided interests other than as alleged.</p> <p>The case was heard by McLaughlin, J., without a jury. The material facts found by him are stated in the opinion. He ruled that the partition should be made in the proportions set out in the petition,_made an interlocutory judgment accordingly, and reported the case for determination by this court.</p>

<p>Practice, Civil, Proceedings as to report to appellate division of Municipal Court of the City of Boston, and appeal therefrom to this court, Conduct of trial: requests and rulings, Exceptions. Municipal Court of the City of Boston. Supreme Judicial Court.</p> <p>Under St. 1912, c. 649, § 8, and Rule E of the Municipal Court of the City of Boston, no appeal lies to this court from a decision of the appellate division of the Municipal Court of the City of Boston upon a petition for the establishing of exceptions taken to rulings of the judge presiding at a trial in that court.</p> <p>A memorandum of the grounds of decision, filed by the judges of the appellate division of the Municipal Court of the City of Boston in dealing with a report under St. 1912, c. 649, § 8, presenting exceptions taken at a trial before a single judge of that court, is no part of the record upon an appeal to this court from the decision of the appellate division.</p> <p>The record in this court on an appeal from a decision of the appellate division of the Municipal Court of the City of Boston under St. 1912, c. 649, § 8, should show the dates of the filing of all papers material to the record.</p> <p>If the appellate division of the Municipal Court of the City of Boston, in dealing under St. 1912, c. 649, § 8, with a report of exceptions taken at a trial before a single judge of that court, decides that there was no prejudicial error in the rulings complained of, the order should be, "report dismissed.” In this case an order made in the form,“Judgment for the defendant upon the finding ordered,” while informal, was held to be in substance a dismissal of the report.</p> <p>In an action of tort for an alleged conversion, tried in the Municipal Court of the City of Boston, certain requests for rulings involving findings of facts upon conflicting evidence were held properly to have been refused.</p>

<p>Audita Querela. Bankruptcy. Practice, Civil, Appeal.</p> <p>If the defendant in an action of contract in the Superior Court, after the service of the writ upon him, files a petition to be adjudicated a bankrupt under the national bankruptcy act and is so adjudicated, but does not set up the pendency of the bankruptcy proceedings in the action in the Superior Court or seek a postponement of those proceedings pending the determination of the question of his discharge in bankruptcy, and if a judgment is rendered against him in the Superior Court and thereafter he obtains his discharge in bankruptcy, it is doubtful whether he can maintain a writ of audita querela to prevent the enforcement of an execution issuing on such judgment.</p> <p>Audita querela is a common law writ, and, by R. L. c. 192, § 1, the rules of practice applicable to it are those prevailing in actions at law. Thus the findings of fact made by a judge of the Superior Court at the trial of such a writ are not to be revised, if there is any evidence to warrant them.</p> <p>Where the plaintiff in an audita querela contends that he is entitled to have proceedings on an execution in an action at law against him enjoined because of a discharge in bankruptcy obtained on a petition filed by him after the bringing of the action at law, and it appears that he gave no notice of the bankruptcy in the action at law, and that the name of the plaintiff in the action at law is given in the schedule which he filed with his petition in bankruptcy as of a “residence unknown,” the burden is upon him to prove that the plaintiff in the action at law received notice of the pendency of the bankruptcy proceedings in season to prove his claim there and object to a discharge. On the foregoing facts, with other evidence, a finding of a judge that such burden had not been sustained was held to be warranted.</p>

<p>Writ of entry in the Superior Court dated October 23, 1909. On December 13, 1909, the tenant appeared and claimed a trial by jury. On December 31 she filed an answer.</p> <p>On November 9, 1911, the demandant filed a petition in the Superior Court under St. 1911, c. 433, for a removal of the case to the Land Court. The petition was allowed; and the tenant appealed. On November 15, 1911, on motion of the demandant in the Superior Court, the appeal was dismissed; and the tenant appealed.</p> <p>On January 18,1912, in the Land Court a motion by the tenant for specifications was denied; and the tenant appealed.</p> <p>On January 18, 1912, a motion of the tenant in the Land Court for jury issues was denied by Davis, J., who on the following day filed a memorandum calling attention to the fact that the procedure in the case must be under St. 1904, c. 448. The closing sentence of the memorandum, referred to in the opinion, was as follows: “The case must be assigned for trial. If after a decision here either party is aggrieved an appeal can be taken for a jury trial on the facts in the Superior Court upon issues to be framed therefor in accordance with the provisions of St. 1904, c. 448, § 8. ” The tenant appealed.</p> <p>A motion of the demandant for an assignment of the hearing then was allowed; and the tenant appealed.</p> <p>A plea to the jurisdiction by the tenant was overruled; and the tenant appealed and excepted.</p> <p>In the Land Court, Davis, J., filed a decision for the demandant on July 29,1912,from which the tenant appealed “to the Supreme Judicial Court” on August 15, 1912, and on the same day filed in the Land Court a bill of exceptions thereto and a motion for “issues to be framed for a jury trial on the facts in the Superior Court.”</p> <p>The motion for jury issues was presented to the court on November 5, 1912, and was denied; and the tenant appealed.</p> <p>On December 30, 1912, a motion of the tenant in arrest of judgment was denied; and the tenant appealed.</p>

<p>Bills and Notes, Liability of indorsers. Contract, In writing. Evidence, Extrinsic affecting writings.</p> <p>In an action brought on behalf of one indorser of a note against one of two other indorsers, the defendant may be allowed to show that the indorsements were for accommodation and that by an oral agreement among the indorsers his liability in no event was to exceed one third of the amount at any time due on the note; and if such an agreement is proved, his liability is governed thereby irrespective of the order in which the indorsers signed the note.</p> <p>If a promissory note is payable to the order of the maker and is indorsed in blank by the maker and by several accommodation indorsers, who orally have agreed among themselves as to the proportions for which they shall be liable in case of a default by the maker, and one of the accommodation indorsers, after a default by the maker, pays the entire amount due on the note to the holder and then writes above the indorsements on the note the words, “Pay to the order of” an agent of such indorser, it seems, that an action in the name of the agent against another of the indorsers cannot be maintained upon the note, the remedy of the indorser who paid being by an action upon the oral agreement of the indorsers for contribution.</p>

<p>Tort, the original declaration containing four counts, the first two counts being for conversion of money, the third count for false arrest and the fourth for malicious use of civil process. Writ of trustee process dated March 19, 1908.</p> <p>In the Superior Court the case was tried before Fessenden, J. After the trial had begun, the presiding judge, subject to exceptions by the defendant, allowed a motion by the plaintiff to amend his writ from a writ of trustee process into a writ of summons and attachment, and thereafter allowed another motion of the plaintiff to add to his declaration a fifth count for malicious prosecution.</p> <p>The jury found for the plaintiff in the sum of $47.48 on the first count, for the defendant on the second, third and fourth counts, and for the plaintiff in the sum of $900 on the fifth count.</p> <p>The defendant alleged exceptions.</p>

<p>Practice, Civil, Appeal, Removal from State court to United States court.</p> <p>An order of the Superior Court granting a petition for the removal of an action entered therein to a district court of the United States is a final judgment which disposes of the whole case in the Superior Court, and an appeal lies therefrom which brings before this court the question, whether, as a matter of law on the face of the record, the case is a proper one for removal.</p> <p>An action brought in a State court is not one “arising under the Constitution or laws of the United States,” so that the defendant would be entitled as a matter of law to have it removed to a United States court, unless it appears to be such from the plaintiff’s statement of his cause of action in his writ, declaration, petition or other pleading; and if the plaintiff’s pleadings at the time when the petition for removal is filed fail to disclose such an action, the defendant cannot prove it to be such upon averments in his petition for removal. In the present case averments in such a petition by the defendant failed to show that the plaintiff’s cause of action arose under the Constitution or laws of the United States.</p>

<p>Contract on a covenant to pay rent contained in a lease in writing under seal dated September 1, 1911, to recover the amount of $90, being two months’ rent at the rate of $45 a month. Writ in the Municipal Court of the City of Boston dated September 5, 1912.</p> <p>The answer alleged that, if the defendant signed the lease, he signed it in consideration of the plaintiff’s oral agreement to build a covered veranda connecting with the leased apartment and to further adapt the apartment for the special use of the defendant’s wife, who was an invalid, that the plaintiff failed to perform this agreement and that in consequence the defendant was obliged to remove from the premises.</p> <p>In the municipal court the case was tried before Bolster, C. J. The judge, excluded the evidence offered by the defendant in support of this part of the answer, as stated in the opinion, and found for the plaintiff. At the request of the defendant he reported the case under St. 1912, c. 649, § 8, for determination by the Appellate Division. The following statement without signature or certificate was printed in the record of appeal presented to this court:</p> <p>"(Memo.) Within two days after notice of the ruling complained of, the defendant filed his request that the case be reported to the Appellate Division for determination.</p> <p>“Subsequently on December 12,1912, the report as hereinbefore set forth was filed, and allowed by the presiding justice.</p> <p>“Subsequently the case was argued before the Appellate Division, and later an order dismissing the report was filed by the justices comprising said Appellate Division.”</p> <p>The defendant appealed “from the opinion and order of the Appellate Division of said court in the above entitled matter.”</p>

<p>Petition, filed on November 25, 1912, for a writ of mandamus directed to the mayor of the city of Lowell, commanding him to execute and deliver to the city treasurer a warrant for the amount of pension alleged to be due to the petitioner as a member of the police department retired from active service and placed on the pension roll under the provisions of St. 1903, c. 428, as amended by St. 1909, c. 188.</p> <p>The case was heard by Morton, J. The material facts are stated in the opinion. The justice ruled that the petitioner did not cease to be a member of the police department when he became superintendent of police; that the statute does not provide that the pension should be dependent in whole or in part on the petitioner’s remaining in Lowell or in this Commonwealth, so as to be subject to the call of the mayor or of the board of police for such temporary service as he might be fitted to perform; and that the petitioner was entitled to a writ of mandamus as prayed for. He ordered that a peremptory writ should issue, and, at the defendant’s request and with consent of the plaintiff, reported the case for determination by the full court.</p>

<p>Appeal to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from A decision of the Industrial Accident Board.</p> <p>The case was heard by Pierce, J. The facts are stated in the opinion. The judge made a decree that the findings of fact of the Industrial Accident Board be approved and that in accordance therewith the employee, Barney Gillen, should receive a weekly payment of $6.50 each week during his. total incapacity for work. The insurer, the Ocean Accident and Guarantee Corporation, Limited, appealed.</p> <p>St. 1911, c. 751, Part II, § 9, provides as follows: “While the incapacity for work resulting from the injury is total, the association shall pay the injured employee a weeldy compensation equal to one half his average weekly wages, but not more than ten dollars nor less than four dollars a week; . . .”</p> <p>Other material portions of the statute are quoted or described in the opinion.</p>

<p>Unfair Competition. Trademark. Trade Name. Equity Jurisdiction, To restrain unfair competition, Accounting for profits. Equity Pleading and Practice, Master’s report, Decree, Costs. Res Judicata. Words, “Boston,” “Wafers.”</p> <p>It here was assumed as practically conceded, that the words “Boston Wafers,” used to designate an article of manufacture and trade, were merely descriptive and could not be made a valid trademark.</p> <p>A merely descriptive epithet, which is incapable of becoming a valid trademark, by long and exclusive use in trade may become so associated with a particular class of goods or with the specific product of a particular manufacturer, that the attaching of the epithet to a similar product by a competing manufacturer or seller will have all the effect of a falsehood, unless accompanied by sufficient explanations or precautions to prevent confusion with the goods of the original manufacturer, and, when likely to deceive purchasers, such use of the name may be restrained in equity as unfair competition.</p> <p>A manufacturer, who by long and exclusive use of a trade name, consisting of words incapable of becoming a valid trademark, has created for that name within a certain territory a secondary meaning which entitles him to protection against unfair competition in its use, is not entitled to restrain the use of such trade name outside the territory within which he has established the meaning on which his rights depend.</p> <p>Although a master’s report in a suit in equity may be modified or reversed or recommitted to the master if any error appears to have been made or if any good reason for such action is shown, yet, unless one of these things is done by the trial judge, the report has the effect that a verdict or the special findings of a jury have in an action at law, and it will be presumed, where the contrary does not appear by the record, that the facts have been found correctly, that proper principles of law have been followed and that all matters have been dealt with rightly.</p> <p>In a suit in equity the confirmation of a master’s report by a final decree makes all findings of fact contained in that report conclusive between the parties to the suit, and these matters are none the less res judicata if such final decree was entered by the consent of the parties.</p> <p>In a suit in equity to restrain unfair competition in the use of a trade name to which the plaintiff is alleged to have established an exclusive right, if the plaintiff seeks an accounting for profits derived from the unlawful use of the trade name, but otherwise demands no damages, and if the plaintiff shows that the defendant received substantial sums of money from sales of goods wrongfully bearing the plaintiff’s label or an imitation of it, but it appears that the defendant’s general expenses were incurred at least proportionally for such unlawful dealings and that after deducting the proportionate share of such expenses the unlawful dealings showed no profit, the plaintiff is entitled to nothing by way of profits.</p> <p>In a suit in equity in which the plaintiff sought an injunction and an accounting for profits alleged to have been obtained by the wrongful acts of the defendant, and the plaintiff established his right to an injunction only as to a part of the acts of the defendant alleged to have been wrongful, and the defendant was shown to have derived no profits from such wrongful acts, costs were awarded to the plaintiff, although he had shown himself to be entitled only to a part of the relief prayed for in his bill, because a part of the defendant’s conduct, which the defendant attempted to justify, had been that of a wrongdoer.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on November 8, 1912, by the ancillary executors, appointed in this Commonwealth, of the will of Almon D. Hodges, junior, whose domicil at the time of his death was at San Francisco in the State of California, and whose will, with the plaintiffs as executors, was proved in that State, for instructions as to what part of the personal property described in the bill of the various classes mentioned in the opinion was found in this Commonwealth within the meaning of B. L. c. 143, § 1.</p> <p>The case came on to be heard before De Courcy, J., who at the request of the parties reserved it 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 November 29, 1902, by individual stockholders of the Goddu Sons Metal Fastening Company, a Maine corporation, against the United Shoe Machinery Company and certain stockholders, officers and directors of the Goddu Sons Metal Fastening Company to compel an accounting as to certain alleged wrongdoings in the management and conduct of the business and property of the Goddu Company.</p> <p>Demurrers to the original bill were sustained on April 6, 1903. On April 18, 1905, the plaintiffs were allowed to file a substitute bill, to which the defendants demurred. The questions raised by the demurrers were reserved by Fessenden, J., for determination by this court, and on September 5, 1911, in accordance with a decision reported in 209 Mass. 539, a rescript was issued ordering that the demurrers be sustained and the bill dismissed. On September 13, 1911, the defendants filed a motion for a final decree in accordance with the rescript.</p> <p>On December 23, 1912, Charles A. Strout, trustee of the Goddu Sons Metal Fastening Company, filed a motion to be substituted as the plaintiff and for leave to file a substitute bill. The substitute bill contained the following paragraph with regard to Strout:</p> <p>“5. In pursuance of said scheme and conspiracy in June, 1904, the defendant Shoe Company using the majority of stock acquired as aforesaid, caused to be filed a bill in equity under the laws of the State of Maine to dissolve said Goddu Company, according to law, and thereafterwards the Supreme Judicial Court of the State of Maine in February, 1905, dissolved said Goddu Company, and appointed a trustee to wind up its affairs; said trustee remained dormant and inactive, and in 1911 said court accepted the resignation of said trustee and appointed the plaintiff, Charles A. Strout successor trustee, and thereby all the assets of said Goddu Company, and all the rights of action of said corporation became vested in said Strout, trustee, for the purposes of liquidation and winding up, as provided in the statutes of the State of Maine and in said decree of said Supreme Judicial Court, and the plaintiff avers that by the illegal conspiracy aforesaid and the illegal acts of the defendants in execution thereof, the property, assets and business of said Goddu Sons Metal Fastening Company have been greatly damaged and impaired. ”</p> <p>The motion was heard by Fessenden, J., on arguments and statements by counsel for the several parties. No evidence was offered. The motion was allowed and the case was reported by the judge, with the following stipulations:</p> <p>“If I was right in allowing the motion of said Strout under the circumstances and against the objections of the defendants, my order allowing the motion is to stand and the case is to be remanded to the Superior Court for such further proceedings as justice and equity may require. If, however, I erred in allowing the motion of said Strout under the circumstances and against the objections of the defendants, then the order allowing the amendment is to be reversed and the defendants’ motion for a final decree is to be granted and a final decree is to be entered in the Superior Court dismissing the bill.”</p> <p>Other facts are stated in the opinion.</p>

<p>Equity Jurisdiction, For an accounting, Suit by bondholders of corporation for preservation of security. Corporation, Rights of bondholders, Liability of directors. Mortgage. Trust. Mine.</p> <p>A bill in equity by holders of bonds of a corporation against the directors of the corporation, the corporation and two trustees to whom the corporation has conveyed its property to secure the payment of bonds issued by it cannot be maintained for an accounting as to funds which the plaintiffs allege should be paid to the trustees because of waste and strip committed by persons to whom the corporation had leased its property, unless the plaintiffs prove that a demand was made upon the trustees to act and that they refused or neglected to do so, or unless facts appear which make it plain that such a demand would have been useless. The mere facts that one óf the trustees did nothing more than to approve of the contracts made by the corporation with the lessees, such approval not appearing to have been wrongful or unwise, and to consult occasionally concerning the payment of interest on the bonds or a possible sale of the property with the treasurer, in whom he had complete confidence and to whom he left the management of the mortgaged property, and that the trustees “were negligent in performing their duty as trustees in that they took no steps to enforce such an accounting,” are not sufficient to show that it would be useless to demand of the trustees that they take the action which the plaintiff contends they should have taken.</p> <p>In a suit in equity by holders of bonds of a mining corporation against the directors of the corporation, the corporation and trustees to whom the corporation conveyed its mining property to secure the payment of the bonds for an accounting as to funds which the plaintiff alleges should be paid to the trustees because of waste and strip committed by persons to whom the corporation had leased its mines, the directors cannot be held liable personally where it does not appear that they personally received any money by reason of the leases, and where a master who heard the case reports that he is unable to determine whether the operation of the property by the lessees was reasonable or not and it appears that both the corporation and1 the lessees had a right under the mortgage agreement to work the mine reasonably and properly.</p>

<p>Equity Jurisdiction, Res judicata, To regain possession of real estate. Landlord and Tenant. Summary Process for Possession of Land. Judgment.</p> <p>The owner of certain premises made a lease of them for a term of more than seven years. For six years the lessee did not record the lease as required to do by R. L. c. 127, § 4, and, before it was recorded, the premises had been conveyed by mesne conveyances to one who threatened to oust the lessee of possession, and the lessee by a suit in equity sought to enjoin such action, alleging that the defendant and all his predecessors in title had had actual notice of the lease. While the suit was pending, the defendant brought an action of summary process for possession of the land against the plaintiff under R. L. c. 181 and, after a full trial of the question, whether the defendant and his predecessors in title had notice of the plaintiff’s lease, obtained a judgment therein. The plaintiff did not appeal therefrom, but surrendered possession to the defendant and amended his bill in equity, setting up the facts as to the judgment in the action of summary process for possession, of the land and his surrender of possession, and praying for a restoration of possession. Held, that the judgment in the action for summary process was res judicata barring the maintenance of the suit in equity. Held, also, that the bill in equity as amended was not an “action . . . brought ... to recover the lands or tenements in question,” to which by R. L. c. 181, § 9, the judgment in the action of summary process would not be a bar, because the plaintiff did not therein seek to settle the title to the land, but only the right to present possession.</p> <p>After the filing of the master’s report, the suit was further heard by Sheldon, J., by whose order a final decree was entered directing the defendant to deliver possession to the plaintiffs on terms not now material. The defendant appealed.</p>

<p>Tax, On successions. Words, “Within the jurisdiction of the Commonwealth.”</p> <p>Shares of an unincorporated real estate trust'which includes both real and personal property are subject to the succession tax imposed by St. 1907, c. 563, § 1, as “ property within the jurisdiction of the Commonwealth,” although the holder of the shares at the time of his death had his domicil in another State and the certificates representing his shares were in a third State, and although the instrument creating the trust states that the shares are to be personal property as to title and are to be held, bequeathed, assigned and distributed as personal estate, if all the property of the trust, its place of business, all its books and the domicil of all the trustees are in this Commonwealth, where only shares can be transferred, and if the instrument creating the trust places the legal title to the property in the trustees with control over it, subject to a limited direction on the part of the shareholders, and with power in the trustees to hold and manage both real estate and personal property and to distribute net earnings among the shareholders, but no power to bind the shareholders personally.</p>

<p>Charity. Devise and Legacy, Charity. Trust, Charitable.</p> <p>Where by a provision in a will a legacy of $5,000 is given to a certain private charitable corporation, which, although in existence at the time of the testator’s death, refuses the gift and waives its claim thereto, the legacy does not vest in such corporation, nor does it lapse; but it is a valid charitable gift, and, if there is another private charitable corporation which is established and carried on for substantially the same purpose and which apparently is the only such private institution in existence in the Commonwealth, a decree may be made, in a bill in equity by the executor for instructions, directing that the legacy be paid to the second corporation to be held by it in trust for the same purpose for which it would have been used if the first corporation had accepted it.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on June 20, 1910, by a corporation organized under the laws of the State of Maine against a corporation organized under the laws of this Commonwealth, to restrain the defendant from selling or offering for sale any toothpicks, not manufactured by the plaintiff, in packages like those of the plaintiff or so similar thereto as to cause the defendant’s goods to be mistaken for the plaintiff’s goods, praying also for the assessment of damages sustained by the plaintiff by reason of the defendant’s wrongful acts, and for an accounting by the defendant for the profits which had accrued to it from its alleged unlawful acts.</p> <p>The case was referred to Edward S. Goulston, Esquire, as master, and thereafter was heard upon the master’s report by Morton, J., who with the consent of the parties reserved it for determination by the full court, with a stipulation that if the full ' court should determine that the plaintiff was entitled to the relief prayed for, the case was to stand for further hearing upon the question of damages and profits. In a decision reported in 211 Mass. 219, this court decided that the plaintiff was entitled to the relief prayed for and ordered that the case should stand for further hearing upon the question of damages and profits.</p> <p>After the rescript an interlocutory decree was made by Hammond, J., by which, among other things, it was ordered “that the plaintiff do recover from the defendant all profits which have accrued to or have been realized by said defendant from the sale of toothpicks in packages like or similar to certain packages used by the plaintiff and also all damages which the plaintiff has sustained by the wrongful acts of the defendant as alleged in the bill of complaint.”</p> <p>The case then was referred again to the master, and later was heard by He Courcy, J., upon the defendant’s exceptions to the master’s report.</p> <p>The justice made a memorandum of decision as follows:</p> <p>“1. The first exception to the master’s report is disposed of by the agreement of counsel that interest on the profits should be allowed from the date of the filing of the master’s report.</p> <p>“2. Exceptions 2, 3, 4 and 5 are waived by the defendant.</p> <p>“3. Exceptions 6 and 7 are to the failure of the master to rule that the plaintiff is not entitled to both profits and damages; and that it is entitled to nominal damages only, because of a failure to elect between profits and damages. The master rightly acted in accordance with the interlocutory decree issued upon the rescript in this case.</p> <p>“4. The eighth exception is to the failure of the master to find that the plaintiff had suffered only nominal damages. In the absence of the evidence this exception cannot be sustained.</p> <p>“5. The remaining exceptions relate to the competency of the testimony of the witness Woodsum. It appears from the report that he was allowed to testify as to his own knowledge of the plaintiff’s cost of production and selling price, and not as to the contents of the books of account, nor a summary or calculation from them. And in taking as a basis for computing damages the average cost of the goods during the infringing period the master acted upon reasonable and practical data. ”</p> <p>The witness Woodsum named above was the plaintiff’s secretary and general manager and was called as a witness by the plaintiff.</p> <p>The justice made an order overruling the defendant’s exceptions, and later by his order a final decree was entered, that the defendant’s exceptions to the master’s report be overruled, that the report be confirmed, and “that the plaintiff do recover from the defendant the sum of $1,400, damages, and the sum of $195.93, profits realized by the defendant on sales of the infringing package, by which the plaintiff suffered no damage, and the sum of $311.59, profits realized by the defendant on sales of the infringing package, by which the plaintiff also suffered damage, with interest at six per cent on each of said sums from the date of the filing of the master’s report, to wit, December 19, 1912, and its costs of suit taxed by the clerk in the sum of $103.92.”</p> <p>The defendant appealed.</p>

<p>Negligence, In use of “green horse.” Animal. Evidence, Matters of common knowledge, Presumptions and burden of proof. Words, “Green horse.”</p> <p>If an express company permits a “green horse,” which it has owned only for three days and about whose disposition and training it knows nothing, to be driven through one of the busiest parts of a large city where upon meeting an electric car it shies across a sidewalk and breaks a shop window, these facts are evidence of negligence on the part of the express company, on which it can be found to be liable to the proprietor of the shop for the damage caused by the breaking of the window.</p> <p>In an action for damages caused by the shying of a horse, which the defendant had bought three days before the accident as a "green horse,” the jury may assume as a matter of common knowledge that a “green horse” is one understood to be fresh from the country and entirely unwonted to the distracting conditions of the business streets of a great city.</p>

<p>Damages, In tort. Evidence, Res inter alios, Opinion, Res gestae, Public record, Presumptions and burden of proof. Insurance, Accident. Negligence, Street railway. Practice, Civil, New trial. Jury and Jurors.</p> <p>In an action of tort for personal injuries sustained by a professor of economics and political science of a State university, the plaintiff properly may be allowed upon the question of damages to show the extent of his studies and Ms special equipment in his department of learning, his skill and experience having some bearing upon the value of Ms time, and he also may be allowed to show that five months before his mjury he had entered into a profitable contract for the preparation of a series of articles on “Economics of Advertising” wMch he had planned to write during his summer vacation and that he was prevented by his injury from doing tMs; the plaintiff, if he prevails, being entitled to recover damages not only for the pain and suffering that he endured but also for the loss of time, of the valuable use of which he was deprived.</p> <p>In an action of tort for personal injuries the defendant should not be allowed to show in reduction of damages that the plaintiff received money under a policy of accident insurance by reason of Ms injuries, the transactions between an insurance company and the plaintiff having no bearing on the extent of his injuries nor upon the defendant’s liability for them.</p> <p>In an action against a corporation operating a street railway for personal injuries caused by the plaintiff falling or being tMown from a car of the defendant, it is proper for the presiding judge to exclude testimony, offered by the defendant, of a witness who did not see the accident, that while the plaintiff was being picked up after Ms injury the witness heard some noise and heard somebody say, “It was Ms own fault,” this being merely hearsay evidence of the expression of an opinion by an unknown person, and not a part of the res gestae.</p> <p>In an action for personal injuries against a corporation operating a street railway in a city, the defendant contended that the street where the accident occurred was slippery, and a foreman of the street department of the city, being called as a witness by the defendant, testified that the street had been oiled recently and gave the date of the oiling after refreshing his recollection from a record which the witness filed every morning after the oiling. TMs record then was offered in evidence and was excluded by the judge. Held, that the exclusion was right, as it did not appear that the writmg was anything more than a memorandum made by the witness for the information of his superiors.</p> <p>In an action of tort for personal injuries, it is proper for the presiding judge to instruct the jury upon the question of damages, that if "the plaintiff m an honest effort to lessen the injurious effects of the accident used due care in applying for treatment of the wound on Ms knee to a reputable physician, the defendant is responsible in damages for the injuries that resulted to the plaintiff from the defendant’s negligence, even though such injuries were aggravated by an accidental or mistaken, but honest, treatment on the part of said physician.”</p> <p>In an action of tort for personal injuries, sustained by a professor of economics and political science of a State university, where the plaintiff seeks to recover damages for his loss of valuable time as well as for his sufferings, it is proper for the presiding judge to instruct the jury to the effect that in determining the amount of damages the jury may consider the amount of the plaintiff’s “average earnings, his professional reputation and his special attainments in his profession.”</p> <p>It is proper for a judge presiding at a trial to refuse a request for an instruction to the jury, that where “witnesses of equal candor, fairness and intelligence testify with equal opportunity of knowledge and memory, and their testimony is in all respects of equal weight and credibility and there is a conflict as to facts which cannot be reconciled, the number of witnesses then constitutes a preponderance and the verdict should be in harmony with the greater number of witnesses,” if such a ruling is inapplicable to the facts because the witnesses did not have an equal opportunity of observation.</p> <p>If a street railway car, after stopping at a regular stopping place to enable a passenger to alight, starts suddenly when the passenger is in the act of alighting and the passenger is injured, these facts, unexplained, are evidence of negligence on the part of either the conductor or the motorman of the car.</p> <p>In an action against a corporation operating a street railway for personal injuries sustained when alighting as a passenger from a car of the defendant, after a verdict for the plaintiff, the defendant made a motion for a new trial on the ground of the alleged disqualification of a juror. It appeared that one of the jury, more than six years before the trial, was injured in a collision with a car of the defendant and presented a claim for damages to the defendant; that no settlement of the claim was made and no action was brought; that before the jury were impanelled the clerk of court asked, among other things, whether any of the jurors had a claim against the defendant, and no one responded; and that no motion was made under R. L. c. 176, § 28, or otherwise, for the examination under oath of any juror; that at the time of the trial all the facts in regard to the juror’s claim against the defendant were known to the defendant through its accident records, although not known to its attorney who tried the case. The trial judge found that there was no bias or prejudice on the part of the juror and denied the motion for a new trial. Held, that there' was no disqualification of the juror as matter of law and no ground for disturbing the action of the trial judge in denying the motion for a new trial.</p>

<p>Way, Public: damages from alteration of highway. Damages, For property taken or injured under statutory authority. Practice, Civil, Conduct of trial: rebuttal.</p> <p>Under R. L. c. 48, § 15, which provides that in estimating the damages to property of a person by the alteration of a highway “regard shall be had to all the damages done to him, whether by taking his property or by injuring it in any manner and there shall be deducted the benefit accruing to such property thereby,” a petitioner for damages is required to show that the damages to his property ■ exceed the benefits; and at the trial of such a petition, where the respondent in defense has introduced evidence of benefits to the petitioner’s property, it is within the discretionary power of the presiding judge to refuse to allow the petitioner to introduce evidence in rebuttal bearing upon such benefits and tending to diminish their value.</p>

<p>Tort for alleged libels published on certain days from June 3, 1909, to March 20,1910, in the Lowell Sunday Telegram, a weekly newspaper published in Lowell of which the defendant was the proprietor and publisher, of and concerning the plaintiff, who was chairman of the board of police or licensing board of the city of Lowell appointed by the mayor under R. L. c. 100, the general character of the alleged libels being to charge the plaintiff with a violation of his duty in failing to enforce the statutes relating to sales of intoxicating liquors. Writ dated December 13, 1910.</p> <p>In the Superior Court the case was tried before Stevens, J. It appeared that on March 17, 1909, the mayor of the city of Lowell filed numerous charges against the board of police for malfeasance, incapacity and neglect of duty; that the hearings were held before the mayor and occupied forty-two days; and that the mayor found all the commissioners guilty of all the charges and deposed them from office. The commissioners applied to the Superior Court under R. L. c. 100, § 4, for a review of the charges, of the evidence submitted thereunder, and the findings thereon by the mayor. The application for a review was heard by Dana, J., who after a full hearing found the commissioners not guilty on all the charges preferred and restored them to office. They returned to office in the month of October, 1909, after a suspension of about three months.</p> <p>The publication of the articles alleged by the plaintiff to be libellous was admitted.</p> <p>The defendant by his evidence sought to establish the truth of the charges and in proof of his defense offered to read to the court and jury certain written reports made to the board of police by police officers who had been specially appointed by the board to visit the hotels on Sundays and holidays and made minutes of the number of people present eating and drinking in the various hotels and the kind of food and drink that they ordered and of how many customers came in within a certain time and how many went out. The defendant offered this evidence as bearing on the question whether the hotels were run and conducted on Sundays and holidays according to the provisions of the statutes. It appeared that this was one of the issues which was tried at the hearing before the mayor of the charges against the commissioners, including the plaintiff, and that the evidence offered was the evidence which had been offered at the hearing before the mayor. On this point and evidence the mayor had found the plaintiffs guilty of the charges, but Dana, J., upon the review had reversed the finding and found them not guilty upon the same point and upon the same evidence. The plaintiff objected to the introduction of this evidence only on the ground that the Superior Court, the court of last resort in the matter, had found the plaintiff not guilty of any violation of the law on this point and on this evidence, and that the question could not be retried in this case. The evidence was admitted, and the plaintiff excepted.</p> <p>The exception to the question asked the witness Craig is explained sufficiently in the opinion.</p> <p>The judge excluded the evidence offered by the plaintiff as to his character and reputation, which is mentioned in the opinion, and the plaintiff excepted. The plaintiff contended that some of the alleged libels, of which copies were annexed to the declaration, embraced charges against the plaintiff of crime or misdemeanor and that this made the evidence of his ¡character and reputation admissible.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Mortgage, Of personal property: recording. Street Railway. Words, “Date written in the mortgage.”</p> <p>The requirement of R. L. c. 198, § 1, that a mortgage of personal property must be recorded within fifteen days “from the date written in the mortgage” in order to be enforceable against a person other than the parties thereto unless-the mortgaged property is delivered to and retained by the mortgagee, is satisfied as to an indenture between a street railway company and a trust company whereby the street railway company conveyed all its property, both real and personal, to the trust company to be held by it in mortgage to secure an issue of coupon bonds, if such indenture is recorded within fifteen days after the date stated in the attesting clause as that of its execution and acknowledgment by the street railway company, although in the caption of the instrument it is referred to as dated twenty-five days previous thereto, if other provisions of the instrument show that the date recited in the caption merely designated the date to be placed upon the bonds when issued.</p> <p>A street railway company conveyed all of its property to a trust company in mortgage to secure an issue of bonds. Thereafter it hired all of the electric power used in the operation of its street railway from another street railway company under a contract in writing from which it appeared that there was no intention to charge the property with a lien. After the payments of interest on the bonds were three years in arrears, and the payments for power to the second street railway company were two years in arrears, the trustees sought by a suit in equity to foreclose the mortgage and a receiver was appointed. The second company proved its claim for the agreed compensation for power before the receiver, who allowed the claim but gave priority to the bondholders. It did not appear that the delay in instituting the foreclosure proceedings was for the purpose of benefiting the mortgagee by the claimant’s expenditures. Held, that the bondholders were entitled to priority.</p>

<p>Appeal by Henry A. Aldrich from a decree of the Probate Court allowing the will of Charles T. Aldrich, late of Winthrop.</p> <p>The will was dated June 17, 1902. By its provisions seven twelfths of the estate were given to the testator’s widow, Susan H. Aldrich, five twelfths to Alice M. Aldrich, his daughter by a former marriage, and $5 to each of three sons by the former marriage, Henry A., Charles and Louis, and to an adopted daughter and to each of his grandchildren. The widow was appointed executrix.</p> <p>The following issues were framed for the jury:</p> <p>“1. Was the will purported to be executed by Charles T. Aid-rich made through the fraud or undue influence of Susan H. Aldrich?</p> <p>“2. Was the instrument now offered for probate revoked or cancelled by the testator? ”</p> <p>• The issues were tried before Rugg, C. J. It appeared that the testator had married Susan H. Freeman in November, 1890, about a year after the death of his first wife, and that there were no children by the second marriage. . The testator died on April 6,1907.</p> <p>The bill of exceptions states that there was evidence introduced by the appellant, which was controverted by the appellee, tending to show the exercise of undue influence by Susan H. Aldrich over the testator, and tending to show an especial hostility on her part against the appellant, beginning previous to the date of her marriage to the testator and continuing up to the date of the execution of the will of June 17,1902, and from that time down to the date of the death of the testator.</p> <p>The appellant further offered to prove, for the purpose of showing that such hostility was not caused by any wrongful or improper conduct on his part, that, previous to the marriage of his father and the appellee and during the lifetime of his mother, there had been illicit relations between the testator and the appellee, and that upon one occasion he had gone home and found his father and mother and the appellee in the front hall; that his mother was crying, and that, upon his asking her what was the matter, she “stated that she had just caught his father and Sue Freeman having connections; that neither of them had denied it, and that he then ordered said Susan H. Freeman out of the house, and further ordered her to keep away in the future. ” The evidence was excluded and the appellant excepted.</p> <p>Upon the second issue, Peter J. McLaughlin, one of the witnesses to the instrument offered for probate, testified, upon cross-examination, that upon several occasions subsequent to the date of the will here in question he had been called in to witness other wills of the testator; that he was unable to fix the date of the execution of any of such subsequent wills with the exception of the last one, which was in the late spring or early summer of 1906; that he was able to fix this date by reason of the fact that the testator had a good deal to say about the San Francisco earthquake, he having been in California at the time and having just returned from there. In redirect examination he testified that he was not sure that all the instruments witnessed by him were wills; that some of them might possibly have been codicils, though he did not think so.</p> <p>There was no codicil to the will of June 17, 1902.</p> <p>John A. Thayer, Esquire, who drew and was a witness to the will offered for probate, testified that he had drawn other wills for the testator than the one of June 17, 1902, but that he was unable to remember when these other wills had been drawn: that some of them might have been drawn subsequent to June 17, 1902. He further testified that in February, 1907, at the request of the testator, he had gone to the testator’s safe deposit box in the Worcester Safe Deposit Company to get his will and that he found there only the will of June 17, 1902, in an unsealed envelope and that he delivered the will to Mr. Perry, his partner, to take to the testator.</p> <p>Mr. Perry was allowed, against the objection of the appellant, to testify as to an alleged declaration of the testator at the time he took the will of June 17. 1902, to the testator in February, 1907, in substance as follows: “I stated to Mr. Aldrich that I understood that the will had been sent for, and I had the will, and . . . said . . ., ‘Mr. Thayer is under the impression that there is another or later will.’ And Mr. Aldrich took the will and read it, . . . consuming considerable time in reading it, . . . opening the sheets . . . and my impression is he was at least as long about it to have read it twice, and he said, ‘No, this is the one, this is the one I want,’ and then laid the will down on the bed by his side. Then we talked about general matters.” Mr. Perry further testified that he left this will with the testator.</p> <p>The appellant asked that the jury be instructed as follows:</p> <p>1. “In weighing the evidence upon the issue of undue influence, it is proper for you to consider the fact that Susan H. Aldrich,, the person charged with the exercise of such undue influence, has not taken the stand to deny that she exercised such undue influence nor to deny the existence of a long standing hostility on her part against this respondent as testified to by said respondent, whose testimony stands uncontradicted.”</p> <p>2. “Under the statute of this Commonwealth no will shall be revoked except by burning, tearing, cancelling, or obliterating it with the intention of revoking it by the testator himself or by a person in his presence and by his direction; or by some other writing signed, attested, and subscribed in the same manner as a will; or by subsequent changes in the conditions and circumstances of the testator from which a revocation is implied by law.”</p> <p>3. “There is evidence in this case which is undisputed that a will later in date than the will here offered for probate was executed by the testator, and there is no evidence of any revocation of said later will in any of the methods prescribed by the statute governing the revocation of wills; and if you find that such a later will was executed, then your answer to the second issue here presented must be in the affirmative.”</p> <p>The requests were denied.</p> <p>The jury answered the issues in the negative. The appellant alleged exceptions.</p>

<p>Tort for personal injuries alleged to have been received on November 23,1903, at about ten o’clock in the evening, and to have been caused by the plaintiff being thrown to the ground by the sudden moving forward of a street car of the defendant as he was, in the act of alighting therefrom .at Lauriat Avenue in that part of Boston called Dorchester. Writ dated July 20, 1907.</p> <p>In the Superior Court the case was tried before Bond, J.</p> <p>The facts which the plaintiff’s evidence tended to prove are stated in the opinion. The plaintiff contended that he was thrown from the car by its suddenly starting ahead after it had slackened its speed and had nearly come to a stop. The plaintiff had testified at a former trial that the car had slowed up, and that he was thrown off on the in-town side of Lauriat Avenue. A witness for the defendant testified that the car had slowed up on the in-town side of Lauriat Avenue. The defendant, to show a reason for this slowing up of the car on the in-town side of Lauriat Avenue when the stop was on the out-of-town side, was allowed, subject to exceptions by the plaintiff, to introduce in evidence the following ordinance and regulation which required the speed of cars to be reduced when approaching an intersecting street and forbade the stopping of cars in front of such a street, and which the judge admitted in evidence after the plaintiff had refused to refrain from arguing that there was no reason.for .such slowing up of the speed of the car:</p> <p>Revised Ordinances of the City of Boston of 1898, c. 6, § 24:</p> <p>“No person having the control of the speed of a street railway-car shall stop any such car on a cross-walk or in front of an intersecting street, except to avoid collisions or danger to persons, or as directed by a police officer. ”</p> <p>Regulations of the Aldermen of Boston, 1903, c. 1, as revised and approved by the Railroad Commissioners, September 9, 1903 : “... In approaching any public or private way intersecting that in which the railway is located the speed of the car must be reduced to such a rate as will make it possible to stop it immediately. ”</p> <p>The witness Carney, referred to in the opinion, was a claim investigator and assistant to the trial attorney of the defendant. He had testified in cross-examination that he had not caused a number of persons, whose names appeared upon a report by the conductor of the car, to be summoned. On redirect examination, he testified, subject to exceptions by the plaintiff, that he had not summoned such persons because he had received from them communications in writing stating that they did not know anything about the accident.</p> <p>Other material facts are stated in the opinion.</p> <p>There was a verdict for the defendant; and the plaintiff filed a bill of exceptions. That bill stated that the statement by the judge in the colloquy at the bench at the close of the charge, referred to in the opinion, was “in the presence but not in the hearing of the jury. ” After the death of Bond, J., an amendment to the bill was allowed by Wait, J., striking out the above words and substituting the words, “at the judge’s bench,” and a substitute bill embodying that amendment afterwards was allowed by him.</p> <p>The case was argued at the bar in March, 1913, before Rugg, C. J., Hammond, Loring, Sheldon, & De Courcy, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on April 11, 1902, by the owner of property on Beaver Brook in the town of Dracut, to enjoin the defendant, an upper riparian owner, from polluting that stream, and for damages.</p> <p>The case was referred to Charles P. Greenough, Esquire, as master. An interlocutory decree was made by Morton, J., overruling exceptions to the master’s report and confirming the report. On an appeal by the defendant, a decree for the plaintiff was ordered by this court, in a decision reported in 195 Mass. 591, and the plaintiff was given leave to move, if he so desired, that the case be recommitted to the master for the assessment of damages. Such a motion was made by the plaintiff and was allowed, and the report was recommitted. o</p> <p>Material portions of the master’s second report were as follows:</p> <p>“I find that from evidence introduced at the later hearings before me which tended to show that the water since 1902 above the defendant’s mill had been contaminated by sewage discharged into the brook, — principally at the town of Derry some fifteen miles above the mill, — that the water just above the defendant’s mill was not fit for drinking or domestic purposes; and if material, I find that after the year 1902 and until November, 1907, the water at the defendant’s mill and after it had reached the plaintiff’s mill, was not, in either locality, fit for drinking or domestic use. As no claim, however, has been made by the plaintiff, nor any evidence introduced by him as tending to show damages for the pollution of the water as drinking water or for domestic use, I have not considered that element of damage in my assessment of damages, nor this evidence material to the issues.</p> <p>“I further find that the defendant purchased its mill in April, 1899, and operated it continually until the injunction was granted, November 1,1907; and that from the date of the filing of the master’s first report, namely, January 16, 1905, until November 1, 1907, the defendant still continued to discharge into Beaver Brook largely increased amounts of polluting substances, similar to those heretofore described, which rendered the water of the brook at the plaintiff’s mill unfit for any form of manufacturing which required good clean water.</p> <p>“I rule as a matter of law that the difference in rental value of the paper mill property, with and without the pollution of the water by the defendant, is the proper measure of damages.</p> <p>“The plaintiff claims damages for injury to his premises from April, 1899, to November 1, 1907; and, in particular, for the loss of rent or injury to its rental value during that time, except for the time from February 26, 1900, to September, 1900, when the paper mill was closed on account of a freshet in the brook, which materially injured and necessitated repairs to his paper mill plant. ”</p> <p>After detailed findings of fact which formed the basis of the findings as to diminution of the rental value of the premises, as summarized below, the report continued as follows:</p> <p>“I find further that there was an accumulation of deposits in the mill pond of the paper mill, and in the brook for some distance above the mill caused by the discharge of the various deleterious substances heretofore set forth into the brook from the defendant’s mill, and that the cost of cleaning out the mill pond and brook would be the sum of $2,000; and I find that the defendant should pay the plaintiff that sum with interest thereon as further damages, at six per cent from November, 1907, to June 24, 1911, amounting to the sum of $440.</p> <p>“I further find that no deduction from these sums should be made for the cost of filtration of the water issuing from the paper mill into the stream below; and I further find that if the evidence introduced on this subject is considered material, that the plaintiff has acquired the right by prescription to pollute the stream by unopposed use of over twenty-one years by himself and his predecessors in title.</p> <p>“I also find that the piggery on Beaver Brook did not at any time substantially or materially contribute to the pollution of the brook during the period considered, and that the rendering plant above the mill ceased to do business in 1902, and did not contribute substantially or materially to the pollution of the brook before 1902.</p> <p>“I find also that the plaintiff did not use proper care and good judgment in dismantling the paper mill and disposing of the machinery in 1902; and therefore find no damages due him from the defendant on this account; and that if he had not dismantled the mill he would, in my opinion, have been entitled to claim damages for the cost of the necessary care and upkeep of the machinery while the mill was unoccupied, until the date of the injunction; and that the cost of such5 care and upkeep of the premises would be $1,500 per year.</p> <p>“I find also that the plaintiff is entitled to damages for the depreciation in the market value of this property, caused by the continued pollution of the water of' the brook by the defendant from 1899 to 1907; and I find this amount to be the sum of $2,000.</p> <p>“I find, therefore, that the plaintiff is entitled to recover as damages from the defendant the following amounts, viz.:</p> <p>“(1) Diminution in rental value from 1899-1900, $1,200.00</p> <p>Interest on same to June 24,1911, 762.00</p> <p>(2) Diminution in rental value from 1900-1902, 3,850.00</p> <p>Interest on same to June 24,1911, 2,040.00</p> <p>(3) Diminution in rental value from 1902-1907, 8,540.00</p> <p>Interest on same to June 24,1911, 1,770.00</p> <p>(4) Cost of clearing out mill pond, 2,000.00</p> <p>Interest on same to June 24,1911, 440.00</p> <p>(5) Depreciation in value of property, 2,000.00</p> <p>Total, $22,602.00”</p> <p>The sixth and seventh rulings, which the defendant asked the master to make and which are mentioned in the opinion, were as follows:</p> <p>“6. That if suit is brought against one defendant for damage caused by the pollution of a stream when several persons acting independently have contributed to the pollution of the stream, the damage for which the defendant is responsible must be distinguished from that caused by others by the best proof the nature of the case affords and his liability determined accordingly.</p> <p>“7. That it is competent for the defendant to show, in mitigation of damages, that others were contributing to the pollution of Beaver Brook during the period of time for which the plaintiff claims damages in this suit. ”</p> <p>Exceptions to the report were overruled and the report was confirmed by a decree made by Morton, J., who filed a memorandum of his decision containing the following, among other rulings:</p> <p>“The former findings of the master and the rulings of the single justice and the opinion of the full court in 195 Mass. 591, must be taken, it seems to me, to have settled that the stream has been polluted so as to be unfit at the plaintiff’s dam for any of the manufacturing purposes which require clean water, and that that pollution has been caused by the defendant. This renders, I think, incompetent and immaterial evidence that was introduced de bene and otherwise in respect to the pollution of the stream above the defendant’s dam and as to the extent to which the defendant had contributed to its pollution at the plaintiff’s dam. . . .</p> <p>“If I am in error in this, then I think that the fact, if it is a fact, that others may have contributed to the pollution cannot, under the circumstances of this case, avail the defendant. If the amount of pollution caused by the defendant and the damage resulting to the plaintiff therefrom could be separated from that caused by others, then justice would require that the defendant should be held liable only for the damage caused by it. But no attempt has been made to separate the damage done by the defendant from that caused by others and manifestly it would be impossible to do so. Under such circumstances the defendant is liable for all of the damage which the plaintiff has sustained and will sustain by reason of the pollution by the defendant of the stream. . . . On one or the other of these two grounds it seems plain to me that evidence of pollution by others was and is incompetent and immaterial. . . .</p> <p>“The defendant is liable for all damages sustained by the plaintiff which are the direct and proximate result of its pollution of the stream. In estimating those damages the nature of the property and the uses to which it has been and is adapted are to be considered. The property is a manufacturing property and the damages are to be estimated according to the injury done to it as such by the pollution of the stream. The plaintiff is entitled to have the damages measured by the most profitable use to which the property could be put for manufacturing purposes if the water in the stream had not been polluted by the defendant and was, in the words of the master, “good clean water.” If as a result of the pollution the plaintiff has suffered a loss, as the master finds that he has, in the rental value of the property the defendant is, I think, liable therefor. I think further, that if the property has depreciated in market value in consequence of the pollution of the stream, as the-master finds that it has, the defendant is liable for that also. ... I do not myself see why the plaintiff may not recover not only for loss of rents, but also for depreciation in the market value of the property. I also think that if the defendant has discharged foreign substances into the stream which have caused accumulations in the pond at the plaintiff’s mill and in the brook immediately above it, the defendant should pay the cost of cleaning out the pond and brook. I do not understand the defendant to contend that the allowance by the master of interest by way of further damages is Wrong. These are the elements which the master has taken into account in the assessment of damages and it seems to me that they are all proper elements of damage.”</p> <p>A final decree was entered enjoining the acts complained of in the bill and awarding damages to the plaintiff in the sum of $23,995.79, and costs.</p> <p>Both parties appealed, the plaintiff complaining only of the failure of the master to include in the damages the cost of the care and upkeep of the mill while unoccupied and before dismantled, which the master found was at the rate of $1,500 a year.</p>

<p>Fraternal Beneficiary Corporation. Contract, Performance and breach.</p> <p>A foreign fraternal beneficiary corporation, engaged in this Commonwealth in the business of insurance conducted on the lodge system, issued to a member of a lodge a death benefit certificate by which it promised to pay to a certain beneficiary on the death of the member a certain sum to be collected by assessments made upon the other members, or such part of that sum as would be produced by one full assessment. On an information filed by the Attorney General under R. L. e. 119, § 19, the corporation was enjoined “from prosecuting any business of such corporation within this Commonwealth.” The member thereafter died while in good standing, and the beneficiary named in the certificate duly presented a claim thereunder. Subsequently the injunction was modified to permit the corporation to defend actions brought against it and “to pay such claims as are now pending against it.” The corporation refused to levy an assessment or to pay anything under the certificate, and the beneficiary brought an action thereon. Held, that the injunction as modified did not permit the corporation to levy an assessment for the payment of the plaintiff’s claim, and that a further modification to that effect should not be created by implication; and therefore, no assessment having been levied and the defendant not being in default for not having made the levy, it had committed no breach of the contract of insurance by not paying the plaintiff’s claim, although the contract of insurance remained in force.</p>

<p>Contract, In writing. Evidence, Extrinsic affecting writings.</p> <p>The parties to a contract in writing for the construction of a building, which provided that the final payment should be made only when the architect certified that the work was completed, made a subsequent contract in writing, which recited that a controversy had arisen between the parties as to • the amount due upon the contract and provided that the contractor should accept and the owner should pay $35,000 in full settlement of all claims, whereof $25,000 should be paid forthwith and the balance should be paid as provided by the terms of the first contract. The $25,000 was paid and the contractor brought.an action against the owner for the balance of $10,000. The defendant offered to prove that when the second contract in writing was made a portion of the building had not been completed and “that it was the purpose of the parties to provide that the $10,000 should be paid only when the waterproofing of the sub-basement was completed in accordance with the terms of the contract.” This evidence was excluded by the judge, who ordered a verdict for the plaintiff. Held, that the words of the contract were not plain and that the evidence should have been admitted to show their true meaning as relating to a contract that had not been completed.</p>

<p>Release. Contract, In writing. Receiver. Practice, Civil, Parties, Waiver at argument. Waiver.</p> <p>In an action of contract for a sum of money alleged to be due to the plaintiff, where the sole defense relied upon is a release in writing given by the plaintiff to the defendant and alleged by the defendant to include the plaintiff’s present claim, if there is no ambiguity in the terms of the instrument, evidence of what was said in the negotiations that resulted in the execution and delivery of the release, although admitted without objection, cannot be considered in interpreting its meaning, and whether the defendant asked for a “full release” and the plaintiff agreed to give such a release is of no consequence.</p> <p>A release, executed and delivered by the receiver of the property of certain corporations to a person who owes the price of goods sold to him by such corporations and also owes the price of other goods sold to him by the receiver after his appointment, by which instrument the receiver agrees to discharge the debtor “from any further obligations or accounts due to the above named companies,” does not discharge the debtor from his obligation to pay for the goods purchased by him from the receiver. ></p> <p>The receiver of the property of a corporation in suing for the price of goods sold by him as receiver must sue in his own name as such receiver; and, if he brings an action for the price of such goods in the name of the corporation by him as receiver, he is not entitled to recover, unless the defense that the action is brought by the wrong party is waived, as it was in the present case. ></p> <p>At the argument of exceptions in an action for the price of goods sold by the receivers of the property of a corporation, which was brought improperly in the name, of the corporation by them as receivers, when it should have been brought by the receivers in their own names, if the defendant states in his brief that “there is no dispute as to the prices charged or as to the receipt of the goods by the defendant” and that “the sole defense was that the plaintiffs’ claim had been discharged by an instrument in writing,” this is a waiver of any objection to the form of the writ and of the defense that the action was brought by the wrong party.</p>

<p>Tort by the administrator of the estate of Donato Polvere against the employer of the plaintiff’s intestate, with two counts, the first at common law for personal injuries sustained by the intestate on December 1, 1908, and the second under the employers’ liability act for causing his death by the injuries. The allegations added to the second count by the amendment mentioned in the opinion were, that the death of the intestate was not instantaneous and was preceded by conscious suffering, and that at the time of his death he had next of kin, a father and mother named, who were dependent on his wages for support and were living when the action was brought. Writ dated July 14, 1909.</p> <p>In the Superior Court the case was tried before Pratt, J. The facts which could have been found upon the evidence are stated in the opinion. At the close of the evidence the defendant asked the judge to make the following rulings:</p> <p>“1. Upon all the evidence and the pleadings in the case, the plaintiff is not entitled to recover.</p> <p>“2. Upon all the evidence, the plaintiff is not entitled to recover under the first count of his declaration.</p> <p>“3. Upon all the evidence, the plaintiff is not entitled to recover under the second count of hig declaration. ”</p> <p>“7. Under the second count of the plaintiff’s declaration, the plaintiff is not entitled to recover damages for the death of the plaintiff’s intestate.”</p> <p>The judge refused to make any of these rulings, and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $4,500, of which they apportioned $1,500 on the first count for conscious suffering, and $3,000 on the second count for causing death. The defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Indictment, found and returned in the Superior Court on January 5, 1912, charging that the defendant, in violation of the provisions of R. L. c. 119, § 16, amended by St. 1907, c. 472, and St. 1910, c. 296, on June 11, 1911, solicited and assisted in procuring membership in and aided in the transaction of business for the Order of Owls, an unincorporated organization transacting the business of providing for the payment of benefits in the case of death or disability and not authorized to do such business in this Commonwealth.</p> <p>The defendant was tried before McLaughlin, J. The jury returned a verdict of guilty; and the defendant alleged exceptions, including an exception to the admission in evidence of a document purporting to be a copy of the constitution of the Order of Owls, as well as other exceptions which have become immaterial.</p> <p>The case was argued at the bar in January, 1913, before Rugg, C. J., Morton, Loring, Braley, & Sheldgn, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Attempt to commit Crime. Attempt to commit Larceny from the Person. Practice, Criminal, Sentence.</p> <p>One who was indicted in the Superior Court for an attempt to commit larceny from the person, if he is convicted, can be sentenced under R. L. c. 215, § 6, cl. 2, to confinement at hard labor in a house of correction for a term of thirty months, although, if his prosecution had been begun by a complaint in a police, district or municipal court he must have been sentenced under cl. 3, which restricts the punishment to imprisonment in jail for not more than one year or a fine of not more than $300.</p> <p>The statutes of this Commonwealth providing for the punishment of the crime of attempting to commit a crime give no undue discretionary power to the courts in regard to fixing the penalty.</p>

<p>Contract for a balance of $1,756.50 alleged to be due under a contract in writing dated May 8, 1906, by which the partners of a firm of contractors, doing business under the name of A. Hathaway’s Sons, agreed to make certain alterations of and additions to a house of the defendant numbered 365 on Marlborough Street in Boston. Writ dated December 1,1908.</p> <p>In the Superior Court the case was heard by Irwin, J., without a jury. A change in the parties, made improperly upon the death of one of the plaintiffs, is explained in the opinion. The case had been referred to W. H. H. Emmons, Esquire, as auditor, and the auditor’s report was the only evidence introduced at the hearing. The material provisions of the contract are stated in the opinion.</p> <p>The defendant asked the judge to make certain rulings, among which was the following: “5. The court rules that the final certificate [of the architect], so-called, is not, as a matter of law, conclusive upon the defendant as to the performance of the specifications by the plaintiffs, and did not as a matter of law bind the defendant to the acceptance of either work or materials not in accordance with the contract, and did not as a matter of law preclude him from the recoupment of damages.”</p> <p>The judge refused to make this and other rulings requested by the defendant.</p> <p>The judge, after stating that the auditor made no finding of fraud or bad faith on the part of the architect or of the parties to the contract, and that the counsel for both parties disclaimed any contention of fraud or bad faith on the part of the architect, made the following ruling: “That the certificate issued by the architect under date of November 30, 1906, being his final certificate under the provisions of the contract, wherein he states that there is due to the plaintiffs the sum of $1,756.50, is conclusive upon the question of the rights and liabilities of the parties to the contract; and the plaintiffs are entitled to recover in this action the sum stated in said certificate, with interest from the date of the writ.”</p> <p>The judge found for the plaintiffs in the sum named; and the defendant alleged exceptions.</p>

<p> Landlord and Tenant. Executor and Administrator. </p> <p>In an action against an administrator on a covenant to pay rent contained in a lease from the plaintiff to the defendant’s intestate, it is no defense that before the rent accrued the defendant obtained a responsible person ready to accept an ássignment of the lease whom the plaintiff refused to accept as a tenant, the obligation to pay rent being terminable only by a surrender of the lease accepted by the lessor.</p>

<p> Equitable Restrictions. </p> <p>A purchaser of a tract of land facing on a street in a city divided it into six lots. Three of these lots he conveyed with a restriction in each deed that all buildings thereafter erected thereon should be set back on a line with the building then thereon. Two other of the lots he conveyed with the restriction that all buildings erected thereon should be set back at least ten feet, excepting that a circular front might project two feet and six inches farther. The sixth lot he conveyed last, subject to no restriction. None of the deeds referred to any plan showing that the lots were subject to restrictions and none of them expressed any intent to benefit the other lots by the restriction. Held, that no general scheme was established by the common grantor, on which to found a right in the owner of one of the lots to enforce in equity the restriction imposed on the holder of another of the lots by his deed or the deed of a predecessor in title.</p>

Tort for personal injuries sustained by a boy seven years and eight months of age from being struck by a street railway car operated by the defendant on Cambridge Street in that part of Boston called Charlestown on July 27, 1909. Writ dated August 30, 1909. In the Superior Court the case was tried before Pratt, J. The facts which could have been found upon the evidence are stated in the opinion.

<p>Compromise, Of controversy as to will. Equity Jurisdiction,, To enforce compromise agreement.</p> <p>It seems, that a bill in equity cannot be maintained to compel one who is named as executor and trustee in an alleged will, the proof of which is pending in the Probate Court, to administer the property of the estate of the alleged testator in accordance with an agreement of compromise, because unless the will is allowed there can be no compromise concerning it.</p> <p>In a proceeding under R. L. c. 148, §§ 14,15, asking the Supreme Judicial Court to authorize a compromise of a controversy as to the estate of a testator, where a certain person is named in the will as executor and trustee and by the terms of the proposed compromise is not to be made trustee, such person is a necessary party to the agreement of compromise.</p> <p>Although, apart from the provisions of R. L. c. 148, §§ 14r-18, this court has jurisdiction in equity to enforce a compromise agreement in regard to property acquired under a will between parties who are sui juris and where no contingent interests are affected, this jurisdiction does not extend to the enforcement of an alleged compromise agreement affecting future contingent interests.</p>

<p>Equity Jurisdiction, Coming into court with clean hands, Accounting between partners, Constructive trust. Partnership.</p> <p>In a suit by a member of a partnership, consisting of the plaintiff, the defendant and a third person, for an accounting by the defendant for an option taken by the defendantin his own name for an extension of a lease held by the partnership, which option the defendant sold, appropriating the proceeds to his own use, where it appears that the option was acquired by the defendant as partnership property and thus was impressed with a trust in favor of the plaintiff and the third partner and also that the plaintiff furnished a part of the consideration for the purchase of the option, it is no defense to the plaintiff’s right to an accounting, that before the defendant purchased the option for the renewal of the lease, the plaintiff attempted without success to get a lease of the premises for himself without the knowledge of his copartners, because the plaintiff’s attempt to circumvent his copartners was not a part of the transaction for which the defendant is called to account and does not prevent the plaintiff, as to that transaction, from coming into court with clean hands.</p>

<p>Municipal Corporations, Officers and agents. Bills and Notes. Bank. Conversion.</p> <p>The treasurer of a town has no authority to indorse for circulation a check payable to the order of the town.</p> <p>If a check payable to the order of a town is indorsed in blank in the name of the town by the treasurer of the town and is deposited in a bank by one of the bank’s customers not connected with the town, this is notice to the bank of a defect in the title of the depositor, and, if the bank pays out the proceeds of the check upon drafts of the depositor and the town receives no part of such proceeds, this is a conversion for which the bank is liable to the drawer of the check.</p>

<p>Tax, Abatement. Practice, Civil, Costs, Counsel fees. Words, “Expenses.”</p> <p>Review by Hammond, J., of statutory provisions for the payment of costs and expenses in proceedings for the abatement of taxes.</p> <p>Review by Hammond, J., of the leading cases in which this court has had occasion to consider whether the word “expenses” as used in a statute was or was not intended to include counsel fees.</p> <p>A proceeding upon a petition in the Superior Court under R. L. c. 12, § 78, appealing from the refusal of the assessors of a city or town to abate a tax, is in the nature of an action at law.</p> <p>It is provided by R. L. c. 12, § 81, (now St. 1909, c. 490, Part I, § 80,) that, in a proceeding upon a petition in the Superior Court appealing from the refusal of the assessors of a city or town to abate a tax, “if no abatement is granted, judgment shall be rendered for the city or town for its expenses and costs, which shall be taxed by the court.” Held, that this provision does not authorize the taxation of counsel fees paid by a town in favor of which a judgment is rendered on a refusal to grant an abatement.</p>

<p>Bond, Of trustee. Trust, Action on bond of trustee. Surety. Subrogation. Equity Jurisdiction, Avoiding circuity of action, Subrogation. Power. Interest.</p> <p>Under Pub. Sts. c. 143, §§ 18, 20, cl. 3 (now R. L. c. 149, §§ 29, 31), where a judgment is obtained in an action against the surety on the probate bond of a trustee, execution must issue, without expressing that it is for the use of any person, for the full amount of all the estate of the testator which came to the hands of the trustee for which he did not satisfactorily account either in the Probate Court or by payments made directly to or for the benefit of the parties entitled thereto.</p> <p>The surety on a probate bond is liable jointly with his principal; and, if in an action on the bond no service has been made on the principal and he has not appeared, this does not affect the liability of the surety, who is liable for the default of the principal to the full extent of that default not exceeding the amount of the judgment for the penal sum of the bond.</p> <p>In action on a probate bond, given by one of two trustees, in which judgment had been obtained against the defendant surety, it appeared that the two persons who were the trustees were entitled to the whole income of the trust during their lives, that the defendant trustee misappropriated a part of the principal of the fund and that this misappropriation was at least in part made possible by the negligence of his cotrustee, that at the time the bond and a similar bond of the cotrustee were given the trustees also executed an agreement with the surety by which they jointly covenanted to indemnify the surety for all liabilities incurred upon the bonds and that the surety at its option should be subrogated to all the rights of the principals. When the action was brought the defendant trustee had disappeared and his cotrustee had died. Held, that the surety was subrogated to the rights of the two principals to receive the income from the entire trust fund for the period between the time of the misappropriation and the time of the death of the cotrustee, and that, therefore, to avoid circuity of action, the income of the part of the trust fund that had been misappropriated would be regarded as fully accounted for by the trustees, and was not to be included in the amount for which execution was to issue.</p> <p>fh an action on a probate bond given by one of two trustees, in which judgment had been obtained against the defendant surety, it appeared that the two persons who were the trustees were to receive in equal shares the income of the trust fund during their lives, and that on the death of either of them the half of the fund of which he received the income was to be paid to his issue, if any, and in default of issue, to whomsoever he might by will appoint, or in default of appointment to the heirs of the testator, that the defendant trustee misappropriated a part of the principal of the fund and that this misappropriation was made possible by the negligence of the other trustee, that the defendant trustee was living, and that his cotrustee had died, leaving no issue, and by will had appointed one half of the trust fund to a certain person, who was one of his creditors. It was contended by the defendant surety that it was subrogated to the rights of the deceased trustee and that such subrogation included the property received by the appointee under the exercise of the power of appointment by such deceased trustee. Held, that the deceased trustee, who was the donee of the power, had himself no interest in any part of the principal of the fund, the property having come to the appointee from the donor through the exercise of the power, so that subrogation to the rights of the deceased trustee could not include any part of the principal of the fund, and that it was not necessary to consider what questions would have arisen if the deceased trustee had failed to exercise the power of appointment.</p> <p>Where, in an action on a probate bond, judgment is entered for the penal sum of the bond with interest thereon, if the amount for which execution properly should issue exceeds such penal sum, the allowance of interest is correct as compensation for the wrongful detention of the money; and, even if the amount for which execution is to issue does not exceed such penal sum, it cannot be said that the defendant is harmed by the allowance of interest in the entry of judgment, for he can be held only for the amount for which execution is to issue.</p> <p>A suit in equity by the surety on a probate bond, given by a trustee who was entitled to share as beneficiary in the income of the trust fund and who misappropriated a part of such trust fund, for the appointment of a receiver to hold the interest of such defaulting trustee, to which the plaintiff claims to be subrogated so far as the amount of such interest has been made good by the plaintiff as the surety on his bond, with directions to account to the plaintiff for the income during the lifetime of such defaulting trustee and on his death to pay to the plaintiff any part of the principal of the trust fund to which such defaulting trustee may be entitled, cannot be maintained, where such defaulting trustee has no interest in the principal of such trust fund but ’only a contingent power of testamentary appointment over a share of the fund in case he dies without issue and it cannot be determined until after his death who will become entitled to the share.</p>

<p>Carrier, Of Goods. Bill of Lading. Damages, In contract.</p> <p>In an action against a carrier for the loss of certain bags of periodicals in the hands of the defendant, the defendant’s liability was admitted and the only question was in regard to the measure of damages. There was a stipulation in the bill of lading that any loss or damage for which the carrier was liable should “be computed on the basis of the value of the property (being the bona fide invoice price, if any, to the consignee . . .).” It appeared that the plaintiff purchased periodicals from a news company, which was one of the two consignees, and paid for them weekly, with the privilege of returning those unsold to the news company or by its direction to the publisher, who was the other consignee, that thereupon the plaintiff was given credit for the prices originally paid by him for the periodicals returned, no credit being given for those not actually received, and that the periodicals in question were being returned under this agreement, the charge paid to the defendant as carrier being that fixed for the original carriage of new magazines and not the much lower charge made for waste or paper stock. It further appeared that when the plaintiff delivered the goods to the defendant he sent to each consignee an invoice containing a list of the periodicals sent and of the prices charged in accordance with the agreement with the news company. Held, that in effect the periodicals lost in the hands of the defendant were being resold by the plaintiff to the news company at an agreed price, that there was ample evidence that the invoice price was a bona fide one, and that the defendant was bound by its agreement contained in the bill of lading to pay damages computed on the basis of that price.</p> <p>In the above described action, it appeared also, that when unsold periodicals were returned by the plaintiff to the news company, that company was accustomed to make the plaintiff an allowance for its expenses in handling the goods returned and that this allowance was fixed at a certain rate per pound. It did not appear that the defendant had had any knowledge or notice of this agreement or method of doing business. Held, that the allowance for handling the returned goods was not included in the “invoice price” for which the defendant agreed to be liable, and that the plaintiff could not recover it as a part of his damages.</p>

Petition, filed in the Superior Court on November 4, 1909, by a cemetery corporation for the assessment by a jury of damages for the taking by the town of Brookline of an easement in a strip of land twenty-five feet wide, extending across the petitioner’s cemetery and containing twenty-two thousand three hundred square feet, for the purpose of constructing and maintaining a sewer in the land.

<p>Tort for personal injuries, sustained by the plaintiff on August 4,1908, while the plaintiff was engaged in the performance of her duties as a professional nurse in attendance upon the defendant’s husband at the residence of the defendant and her husband in Arlington, and alleged to have been caused by the negligence of the defendant in failing to keep an electric light turned on in the night time so that the plaintiff could pass safely along an upper hallway, by reason of which the plaintiff in the darkness fell down a flight of stairs and suffered the injuries sued for. Writ dated February 1, 1912.</p> <p>In the Superior Court the case was tried before Wait, J. The facts which could have been found upon the evidence are stated in the opinion. At the close of the evidence the judge at'first submitted the case to the jury who returned a verdict for the plaintiff in the sum of $3,000. The judge then ruled that the action could not be maintained and ordered a verdict for the defendant. At the request of the plaintiff he reported the case for determination by this court, with a stipulation of the parties, that, if the ruling was right, judgment should be entered for the defendant; and that, if the ruling was wrong, judgment should be entered for the plaintiff in the sum of $3,000.</p>

<p>Negligence, Of child.</p> <p>If a boy, five years and eleven months old, who has been playing in a park with three or four other boys somewhat older than himself, starts with the other boys to run across a reserved space in the middle of the street in front of a street railway car which is approaching rapidly, and, following the other boys, gets only half way across the track when he is struck by the car, he is negligent as matter of law.</p>

<p>Negligence, Of child.</p> <p>If a girl seven years of age, whether following playmates or not, starts to run • across a street railway track in front of a plainly visible and rapidly approaching car, which is so near that she barely has got upon the track when the car strikes her, she is negligent as matter of law, there being nothing to show that she was in the exercise of any care at all.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action by a teamster against his employer for personal injuries caused by the tipping over upon the plaintiff of a loaded lumber wagon when it was being driven into a field to unload the lumber, there was evidence that the plaintiff was an experienced teamster, that it was the first time that he had been in charge of the wagon, and that, although the wagon was defective, so far as the plaintiff knew or could see it was all right, that the wagon was loaded a little further forward than a wagon ordinarily would be loaded, that the plaintiff was driving a horse in the shafts while another horse in the lead was being driven by another driver, and that the plaintiff was walking ¿t the left hand side of the wagon, which was the downhill side when the wagon tipped over. Held, that the plaintiff was not negligent as matter of law in being where he was at the time of the accident and that the question, whether he was in the exercise of due care, was for the jury.</p> <p>In an action by an experienced teamster, against a lumber company by which he was employed, for personal injuries caused by the tipping over upon the plaintiff of a loaded lumber wagon when it was being driven into a field to unload the lumber, there was evidence that the perch of the wagon connecting the axles was shorter than that of any other wagon owned by the defendant and that this made the wagon less stable, that the front springs were old and the rear ones new and that the body of the wagon tipped forward while all the other wagons of the defendant were level, that the king bolt was worn and the holes for the king bolt in the rocker plates also were worn, that the upper rocker plate instead of being flush with the lower one, as it should have been, was half an inch back, that these defects made the king bolt loose and caused the wagon to tip or rock from side to side, which it did more than other wagons of the defendant, and that, when the wagon tipped over, the king bolt broke in the place where it was worn. It also appeared that the wagon was loaded a little farther forward than was common, and that immediately before the accident two other wagons of the defendant had gone safely over the place where this one was upset. Meld, that there was evidence for the jury that the accident was due to a defective wagon provided by the defendant.</p>

<p>Tort for the alleged conversion of a diamond ring. Writ in the Municipal Court of the City of Boston dated November 16,1910.</p> <p>On appeal to the Superior Court the case was tried before Keating, J. The material facts are stated in the opinion. The judge refused to rule at the request of .the defendant that upon all the evidence the plaintiff was not entitled to recover. He also refused to make other rulings requested by the defendant, except as embodied in his charge, and gave the instructions which are described in the opinion.</p> <p>During the trial the defendant offered to return to the plaintiff a diamond ring, which it asserted was the one pledged to the defendant by Capone, mentioned in the opinion. The ring was alleged to be in the same condition as when received by the defendant in pledge. The defendant offered to show in mitigation of damages that it had offered at the trial to return the property alleged to have been converted. The plaintiff objected and contended that the offer should not be considered, as it came too late, and that an unaccepted offer to return the ring could not be considered in mitigation of damages. The judge ruled that the offer thus made could not be considered in mitigation of damages, and refused to require the plaintiff to receive the ring, and excluded all evidence offered by the defendant to show that such an offer had been made during the trial. ■ The defendant excepted.</p> <p>The jury returned a verdict for the plaintiff in the sum of $127.94; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Damages, In contract: liquidated. Contract, Construction. Words, “Liquidated damages."</p> <p>Where there is an express stipulation that a sum of money deposited to secure the performance of a contract in writing shall be forfeited, in case of a breach of the contract by the depositing party, as “fixed, liquidated and ascertained damages,” the parties are to be taken at their word, unless it is apparent from the terms of the entire contract and an examination of the subject matter that the forfeiture is to be treated as a penalty.</p> <p>The owner of a patent for a lamp shade for road vehicles made a contract in writing, by which he licensed a certain person to manufacture the shade for one year and the licensee agreed to manufacture at least one thousand shades, each having the name and number of the patent, and to pay the patentee $1 for each shade so manufactured. It further was provided that the licensee should deposit $500 “ as security for the faithful performance of this agreement,” which at the termination of the contract was to be applied to the last five hundred shades manufactured, and that, if the licensee should fail to comply with the terms of the contract, the $500 deposited should be forfeited “as fixed, liquidated and ascertained damages.” The licensee committed a breach of the agreement by manufacturing within the year only twenty-five shades instead of one thousand, and paid accordingly $25 instead of $1,000. The assignee of the rights of the owner of the patent brought an action against the licensee for an alleged balance of $475, computed by deducting the deposit of $500 and the payment of $25 from the $1,000 which he would have received if the contract had been performed. ■ The defendant contended that under the terms of the contract the $500 deposited by the defendant must be accepted as liquidated damages. Held, that the plaintiff by retaining as his property the $500 deposited had received all that he was entitled to under the agreement.</p>

<p>Petition, filed on November 12, '1912, for a writ of mandamus addressed to the superintendent of public buildings in Cambridge ordering him to issue to the petitioner a permit to erect a garage at number 41 on West Street in Cambridge.</p> <p>The facts which appeared by the petition, the answer of the respondent and the annexed exhibits are stated in the opinion. The case came on to be heard before Morton, J., who reserved it for determination by the full court.</p>

<p> Devise and Legacy. Trust. </p> <p>A testator by his will left the residue of his estate to trustees to hold and keep it safely invested and to pay over the income as it should be received to the testator’s wife “for the support and maintenance of herself, and the care, maintenance, and education of our children, during her life, or until she shall marry again.” The will then directed that, if the income of the estate should at any time prove inadequate for such support, maintenance and education, the trustees should devote so much of the principal sum as might "be found necessary for that purpose,” that the testator’s wife “be allowed to be the sole judge in that respect, and that for the purposes aforesaid she use said principal as freely and unrestrictedly as if the same had been absolutely given to her.” The will contained minute and complete directions for the disposition of the principal of the trust fund upon the various possible contingencies in the future, and provided what disposition should be made of the - principal and income in case of the widow’s marriage, but contained no further provision as to the disposition of the income received by the widow. Held, that the income was received by the testator’s widow subject to a trust for the reasonable support of herself and her children until her death or marriage, and that so much of the income received by the widow as was not needed for the reasonable support of herself and her children was held by her as her own property free from trust.</p>

<p>Evidence, Ancient plans.</p> <p>Upon the trial of a question as to a boundary of real estate, an ancient plan, produced from proper custody, purporting to be a plan or an office copy of a plan made by a well known surveyor of the day, which is proved to have been used in some transaction with a third person by a predecessor in title of the party offering it in evidence to show the land then claimed by him, properly may be admitted in evidence, although such plan is without the signature of any maker and there is no evidence to indicate whether it is an original or a copy.</p>

<p>Tort, with two counts. The first count alleged that the defendant Willis falsely and fraudulently represented that he was the owner of a certain parcel of land in the town of Brookline, that Willis made a contract in writing with certain building contractors, doing business under the name of McFarlan and Company, for the erection of a house on such land, that the plaintiff as a subcontractor, believing that Willis was the owner of the land, furnished certain materials for such house, for which the plaintiff failed to establish a lien by reason of such belief, which caused bim to give notice to Willis of his claim of lien instead of giving notice to the true owner, and that the plaintiff, not being paid for the materials by the contractors, who were irresponsible, suffered damage. The second count alleged that the defendant Cunningham was the true owner of the land mentioned in the first count and falsely and fraudulently held out the defendant Willis as the ostensible owner of the house and land, whereby the plaintiff was deprived of his right to establish a lien for the materials furnished by him, because, owing to the deceit of the defendant Cunningham, he had not given notice in writing to him as the true owner of the house and land of the plaintiff’s claim of lien as required by law, whereby the plaintiff had suffered loss. There was a further allegation that the two counts were for one and the same cause of action. Writ dated September 19, 1912.</p> <p>The defendants demurred, assigning, among other grounds of demurrer, that the defendants were joined improperly as joint tortfeasors.</p> <p>In the Superior Court Hardy, J., overruled the demurrer as to the first count and sustained it as to the second count. Both parties appealed, and at the request of both parties the judge reported the case for determination by this court. If the ruling sustaining the demurrer to the second count was right and a similar ruling should have been made as to the first count, judgment was to be entered finally for both defendants. The other stipulations have become immaterial.</p>

<p>Negligence, Railroad, In freight yard.</p> <p>In an action by the administrator of a freight brakeman against a railroad corporation for causing the death of the plaintiff’s intestate, it appeared that the intestate and a fellow brakeman were charged with the duty of uncoupling two box freight cars from a switching engine and placing each on a different track in the freight yard, that this required one of the brakemen to get on the top of each car when it was switched, that one of the cars was uncoupled and switched successfully, and that the intestate’s fellow brakeman was on the top of the remaining car, prepared to brake it when shunted by the engine, a duty which was called “riding the car,” that to uncouple the car it was necessary to turn a lever, which could be reached either by standing on the footboard of the engine, a place of safety, or by standing on the lowest round of a ladder attached to the side of the car, that the intestate chose to stand on the ladder of the car, which would have been the proper place for him to stand if it had been necessary for him to “ride” the car, and it did not appear that the intestate knew that his fellow brakeman was on the top of the car, that the intestate while on the ladder was caught between the car he was on and a coal car, which negligently had been left standing on a converging track so near that there was not room for the body of a man between the two cars, and was killed. It did not appear that the intestate had or ought to have had any knowledge of the proximity of the coal car to the track except such as he might have gained from his observation at the time if his attention had not been diverted by the work in hand. Held, that the question whether the intestate was in the exercise of due care was for the jury.</p> <p>It is evidence of negligence on the part of the servants of a railroad corporation, that they left a coal car standing on a track in a freight yard so near a converging track that a brakeman standing on a ladder attached to the side of a car passing on such converging track would be crushed between the cars.</p>

<p>Pleading, Civil, Declaration. Corporation, Rights of stockholders. Conspiracy, Res Judicata,</p> <p>In an action of tort for a wrongful act alleged to have been committed by joint defendants, an allegation of conspiracy does not change the nature of the wrong alleged, but is simply a way of alleging joint action by the defendants.</p> <p>An individual stockholder in a corporation cannot maintain an action of tort against other stockholders for illegally voting to issue a large number of new shares of stock in the corporation and transferring such shares without consideration to another defendant, thereby diminishing the value of the plaintiff’s shares. The remedy for an illegal issue of stock must be enforced by the corporation or by a suit in equity for the benefit of stockholders to compel such enforcement by the corporation.</p> <p>An action of tort against three persons for an alleged wrongful removal of the plaintiff from the offices of director and treasurer of a certain corporation was barred as to two of the defendants by a decree of the Supreme Judicial Court dismissing a bill in equity by the plaintiff against those defendants and was barred as to the third defendant by a final decree of the Supreme Court of Nova Scotia.</p>

<p>Devise and Legacy. Words, “Heirs at law.”</p> <p>A testator by his will created a trust fund, of which the income was to be paid to his children or their issue until the death of an unmarried daughter of the testator, whereupon the following provision was to take effect: “Upon the death of the said [unmarried daughter] whenever it shall take place, this trust shall cease; and my said trustees, and the survivors and survivor of them shall then pay from the said trust-estate, or the proceeds thereof, all debts and demands, if any, which shall exist upon or against the same, and distribute all the remainder thereof among my heirs at law, according to the statutes which shall then be in force in said Commonwealth regulating the distribution of intestate estates.” Held, that by the words “heirs at law” the testator designated those persons, not expressly excluded, who would have been his heirs at law if he had died at the time of the death of his unmarried daughter.</p> <p>A testator by his will left a trust fund to be distributed upon the death of an unmarried daughter among those persons who would have been his heirs at law had he died at the time of the death of such daughter. By a codicil he directed that neither the wife nor issue of a certain son should have any part of his property or estate and that the distribution of the trust fund should be made among his “heirs at law, other than the wife and issue of” the son designated. At the time of the .making of the codicil the designated son had been divorced from a wife by whom he had children, and after the death of the testator this son married a second wife by whom he had children. At the time of the death of the unmarried daughter of the testator, the designated son of the testator had died and his second wife and all his children were living. Held, that by the terms of the codicil the later wife and children of the designated son as well as the children of his first wife were excluded from the distribution.</p>

<p>Contract, Construction. Equity Pleading and Practice, Findings of trial judge. Damages, In contract. Automobile. Equity Jurisdiction, Waiver, Laches, Damages. Words, “Automobiles.”</p> <p>In a suit in equity by an automobile dealer against an automobile manufacturer, founded on the alleged breach of a contract in writing, by which the defendant gave the plaintiff the exclusive right to sell the defendant’s automobiles in certain counties of the Commonwealth and the defendant agreed not to sell automobiles within that territory except to the plaintiff, the breach of contract relied upon by the plaintiff was the sale by the defendant to a third person of certain taxicabs in the designated territory within the period of the contract, and the defendant contended that these sales were not in violation of the contract because it was not intended by the parties that the word “automobiles” as used in the contract should include taxicabs. It appeared that before the contract was made the defendant never had manufactured taxicabs commercially, but that about the time of the making of the contract the defendant was considering plans and making experiments with a view to the manufacture and sale of taxicabs, and that while the contract was in force the defendant by a special arrangement sold six taxicabs on which it paid the plaintiff a commission. On all the evidence presented, the trial judge, after stating that the question was a close one, found as a fact that the word “automobiles” as used in the contract included taxicabs and was so understood and intended by the parties. Held, that this finding of the judge, who saw and heard the witnesses, was nor plainly wrong and must stand.</p> <p>In the same suit in equity the trial judge found, in regard to the defenses of waiver and loches, that, although it was contemplated by the parties that taxicabs were included in the word “automobiles,” the defendant’s manager did not expect to be called upon to pay commissions on sales of taxicabs, believing that, on account of the cordial and friendly relations that existed between himself and the manager of the plaintiff, the plaintiff’s manager would be induced to waive the plaintiff’s right to commissions on such sales, and, on conflicting evidence, found that, although the plaintiff had made no attempt to collect commissions on sales of taxicabs by the defendant before the bringing of the suit, yet neither the plaintiff nor its officers or agents ever had waived its right to such commissions. He also found, in view of the friendly relations of the parties and all the evidence in the case, that the plaintiff was not guilty of loches in the enforcement of its claim against the defendant. Held, that it could not be said that these findings were plainly wrong.</p> <p>In a suit in equity by an automobile dealer against an automobile manufacturer founded on the breach of a contract in writing, whereby the defendant made the plaintiff the exclusive agent for the sale of its automobiles within a certain territory and agreed not to sell its automobiles within that territory except to the plaintiff, it appeared that the defendant committed breaches of the contract by selling to outside persons a certain number of taxicabs within the designated territory while the contract was in force, and that the plaintiff was entitled to recover from the defendant a commission on such sales. The list price of these taxicabs as fixed by the contract between the plaintiff and the defendant was $3,350 each, and the plaintiff was entitled to receive a commission of twenty per cent on the list price on all sales made by it. The defendant had sold the taxicabs in question for $2,600 each. The customers to whom they were sold were introduced by the plaintiff. Held, that the defendant was precluded from raising the question whether the plaintiff could have made the sales of the taxicabs if the defendant had not made them, that the defendant had no right as against the plaintiff to sell its automobiles in the designated territory below the list price to which the plaintiff was bound, and that the plaintiff was entitled to recover its usual commission of twenty per cent upon the list price of the taxicabs sold by the defendant, diminished by the amount of the expense which the plaintiff would have incurred if it had made the sales.</p>

<p>Equity Pleading and Practice, Appeal. Deed. Devise and Legacy. Way, Private.</p> <p>On an appeal from a final decree in a suit in equity, where the only question before this court is whether the decree is within the scope of the bill and is supported by the facts found by the master, a statement of facts agreed upon by the counsel in the case can be considered only so far as it appears to embody the evidence that was before the judge who made the decree appealed from.</p> <p>In a suit in equity to establish a certain private way as designated upon a certain plan recorded in the registry of deeds, it appeared that the previous owner of the land of both the plaintiff and the defendant died, leaving a will by which he devised to the defendant the defendant’s lot of land, bounding it upon the private way as shown on the plan in question, which was referred to by name and date and by the volume and page of its recording in the registry of deeds, and that the executor of the will of such common owner of the land under a license from the Probate Court conveyed to the plaintiff the plaintiff’s lot of land, bounding it on the same private way as shown on the same plan referred to in the same manner. The private way as designated on the plan passed over land occupied in part by bams of the defendant. Held, that the plan referred to in the devise to the defendant and in the deed to the plaintiff was incorporated in each as a part of the devise and conveyance so far as applicable thereto, and that the defendant as against the plaintiff was bound by the location of the way thus defined.</p> <p>One who has a right of way over a private street adjoining his land has a right to the use of the surface for the usual purposes of such a way and a right to enter upon it and prepare it for that use.</p>

<p>Limitations, Statute of. Executor and Administrator. Corporation, Foreign, Liability of stockholder.</p> <p>In a suit in equity by a foreign corporation under R. L. c. 141, §§ 26, 27, against the devisees and legatees under the will of a .deceased subscriber for shares of stock of the plaintiff, for the collection of a call of £1 a share, it appeared that the call upon the subscribers had not been made by the plaintiff’s directors until after the settlement of the estate of the deceased subscriber and after the expiration of the two years period of limitation, but that, before the expiration of such period of limitation and before the estate was fully administered, the public subscription for the stock of the plaintiff had failed and the necessity for and probability of a call upon the actual subscribers must have been apparent to the plaintiff’s directors, and that at that time the maximum remaining liability of the deceased subscriber was £4 a share. Held, that under R. L. c. 141, § 13, the plaintiff’s claim could legally have been presented to the Probate Court before the estate was fully administered as one that might become justly due from the estate, for the satisfaction of which the executor might have been ordered to retain in his hands sufficient assets, and that therefore the defendants could not be made liable for the claim under §§ 26, 27.</p>

<p>Practice, Civil, Preliminary inquiry by presiding judge. Evidence, Declarations of deceased persons. Negligence, Street railway.</p> <p>Where a declaration of a deceased person is offered in evidence under R. L. c. 175, § 66, the presiding judge, while conducting a preliminary examination for the purpose of determining whether the declaration offered was made by the declorant under the conditions required by the statute, may direct that the jury be retired out of hearing.</p> <p>In an action for the suffering and death of the plaintiff’s intestate caused by a fall from a street railway car operated by the defendant’s servants, where it appears that the intestate by reason of his injuries suffered concussion and contusions of the brain and died within forty-eight hours after the accident, if the plaintiff offers in evidence declarations of the intestate as to the way in which the accident occurred, the presiding judge, in determining the preliminary question whether the statements offered in evidence were made by the declarant in good faith, properly may consider whether the intestate after his injuries was in such a mental state as to be capable of making the alleged statements, and if the judge declines to find that the statements were made at all, on the ground that he does not believe that a man whose brain had received such a concussion could or did make such statements, such preliminary decision is final and the alleged declarations must be excluded.</p> <p>In an action by an administrator against a corporation operating a street railway for causing the suffering and death of the plaintiff’s intestate, if the defendant’s evidence is to the effect that the plaintiff’s intestate was standing on the rear platform of an open car of the defendant, which was moving at the rate of eight or ten miles an hour on a straight track, when the intestate in some way fell off the car to the left, and that there was no chain in position, and if there is no evidence that the car was equipped with chains or that there was any requirement to use chains, the presiding judge properly may instruct the jury that, if they find upon the weight of the testimony that the plaintiff’s intestate fell off the platform while the car was in motion, substantially as testified by the defendant’s witnesses, there is no ground for recovery.</p>

<p>Watercourse. Agency, Existence of relation, Independent contractor.</p> <p>In an action for obstructing a natural watercourse and thus turning back the water on the plaintiff’s land to his damage, there was evidence that the watercourse after crossing the plaintiff’s land in a covered pipe emerged near land of the defendant, that the defendant in grading his land raised the surface of the earth about three and a half feet near the opening of the pipe, that a contractor had agreed to do the grading work for the defendant "as directed” and had caused it to be done by a subcontractor as the defendant directed, that the principal contractor, when on the land with the defendant, pointed out to the defendant the opening of the pipe and said that he had put some sticks and stones there, and that the defendant thereupon told him to leave it as it was. Held, that the evidence warranted a finding that the defendant had retained a directory control over the manner in which the grading was done, and that, if the watercourse was obstructed by such work, the defendant could be found to be liable for the damage caused by the obstruction.</p>

<p>Land Court, Appeal, Amendment of issues in Superior Court. Superior Court, Trial of issues from Land Court. Supreme Judicial Court. Writ of Entry, Rents and profits: set-off of improvements. Words, “ Judgment."</p> <p>Where, after a trial by jury in the Superior Court of issues framed in the Land Court, the proceeding» in the Superior Court have come to an end and a certificate has been sent from the clerk of the Superior Court to the Land Court under R. L. c. 128, § 14, an appeal to this court will lie under St. 1904, c. 448, § 8, (St. 1910, c. 560, § 6,) from an order of the Superior Court allowing a motion to amend one of the issues framed in the Land Court.</p> <p>Where in' a writ of entry brought in the Land Court, one of the issues framed for . trial in the Superior Court is to determine the amount of rents and profits for which the tenant is liable, and, although the tenant seasonably has made a claim for improvements, the form of the issue does not make it plain that the tenant is entitled to a set-off for improvements against rents and profits, as provided in R. L. c. 179, §§ 17-27, the judge of the Superior Court before whom the issues are tried properly may allow an amendment of the issue to make plain the right of the tenant to a set-off for improvements.</p>

<p>Tax, Excise. Corporation, Taxation. Statute, Construction.</p> <p>St. 1912, c. 491, provides that the tax commissioner in assessing the valuation of corporate franchises of domestic corporations for taxation shall deduct nothing for the value of shares of stock of such a corporation held by it for its own benefit, whereas under the statutes previously in force it was his duty to deduct the value of such shares as securities which if owned by a natural person resident in this Commonwealth would not be liable to taxation. St. 1912, c. 491, was approved on April 16, 1912, and provided that it should take effect upon its passage. The tax commissioner undertook to apply it in making the assessment for the corporate franchise tax on a domestic corporation for the year 1912. Held, that the general rule established by St. 1909, c. 440, that all taxes shall be assessed as of April 1, applies to excises on corporate franchises as well as to direct taxes and that the deductions should be made as of the same date, so that St. 1912, c. 491, could not be applied lawfully to the assessment for the excise tax on domestic corporations for the year 1912.</p> <p>Statutes imposing taxes are to be construed strictly and the right to tax is not to be extended by implication. By Rtjgg, C. J.</p>

<p>Tax, Assessment. Executor and Administrator.</p> <p>Where a person who is the executor of a will is also the trustee thereunder, the personal property held by him as executor is to be assessed for taxation to him as executor until under St. 1909, c. 490, Part I, § 23, cl. 7, he has made a distribution to himself as trustee which has been allowed by the Probate Court; and his giving notice to the assessors, in accordance with the requirement of that clause, of a distribution by him as executor does not constitute such a distribution. Following Welch v. Boston, 211 Mass. 178.</p> <p>Under the provision of St. 1909, c. 490, Part I, § 43, that where a person bringing in a list of taxable property to the assessors of a town “is absent from the place in which the tax is to be assessed during the whole period when such oath may be made, it may be administered by a notary public,” such oath may be made lawfully before a notary public by a person who is not a resident of such town but resides elsewhere in the Commonwealth, although during the period in question he has been “in the town casually.”</p> <p>The provision of St. 1909, c. 490, Part I, § 49, that, “after personal property has been legally assessed in any city or town to an executor, administrator or trustee, an amount not less than that last assessed by the assessors of such city or town in respect of such property shall be deemed to be the sum assessable, until a true list of such property is brought in to the assessors in accordance with the provisions of section forty-one,” is a mandatory requirement, which the assessors must obey absolutely.</p> <p>Under the provisions of St. 1909, c. 490, Part I, § 85, that, “if the real or personal estate of a person, to an amount not less than one hundred dollars and liable to taxation, has been omitted from the annual assessment of taxes in a city or town, the assessors shall between the fifteenth and twentieth days of December next ensuing assess such person for such estate,” the assessors of a town lawfully may make in December such an assessment upon property in regard to which they have at that time no knowledge that they did not have on the first day of April, if the property was omitted by the assessors from assessment at the usual time in good faith through a mistake of law as to their duty.</p> <p>Failure of the assessors of a town to assess for taxation to an executor on April 1 certain property known to the assessors, which such executor insisted was not taxable to him as executor because, as asserted by him, he had distributed it within the meaning of St. 1909, c. 490, Part I, § 23, cl. 7, in no way estops the assessors from performing their duty by assessing the property to the executor on December 19 under § 85 of the same statute as property that “ has been omitted from the annual assessment of taxes.”</p> <p>Under the provision of St. 1909, c. 490, Part I, § 49, that, “after personal property has been legally assessed in any city or town to an executor, administrator or trustee, an amount not less than that last assessed by the assessors of such city or town in respect of such property shall be deemed to be the sum assessable, until a true list of such property is brought in to the assessors in accordance with the provisions of section forty-one,” whatever the precise meaning of the term “true list” may be, it is plain that a list filed by an executor, which omits taxable personal property of the value of hundreds of thousands of dollars for which he is liable as executor because no account has been allowed by the Probate Court showing its transfer to the same person as trustee, even though such list was filed under an honest mistake as to the law, is not a true list within the meaning of the statute.</p>

<p>Tort for personal injuries, sustained when the plaintiff was alighting as a passenger from an eight wheeled open street railway car operated by the defendant on Neponset Avenue in that part of Boston called Dorchester, and alleged to have been caused by a dangerous and defective condition of the car. Writ dated July 21,1911.</p> <p>In the Superior Court the case was tried before Hall, J. At the close of the plaintiff’s evidence, which showed the facts stated in the opinion, the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Negligence, Employer’s liability.</p> <p>An employee in a lumber mill does not assume as a part of his contract of employment the risk of injury from the giving way of a board nailed to two posts at the side of a passageway in the mill adjoining an open cellar, if the open cellar was constructed and the board was nailed to the posts after his employment had begun; and if, in an action by such employee against his employer for injuries caused by his falling into the cellar when the board gave way, there is conflicting evidence as to whether the plaintiff understood the nature and extent of the danger, and there is evidence on which it can be found that the only other way by which the plaintiff could have passed was equally obstructed and unsafe, the questions, whether the plaintiff assumed the risk of the injury and whether he was in the exercise of due care, are questions of fact for the jury.</p> <p>In an action by a sawyer in a lumber mill against his employer for personal injuries sustained from the giving way of a board nailed to two posts by the side of a passageway in the mill adjoining an open cellar, into which the plaintiff fell, it appeared, that, if the board was merely a warning to indicate the place where the floor ended and the cellar began, the defendant was not negligent, but that, if the board was a railing intended to afford some degree of support, it might have been found that it was insecure and insufficient for that purpose, and that, if the passageway was found to be one where the employees were expected to pass and repass constantly, it might have been inferred that the board was a guard rail and not a mere notice. Held, that the question of the defendant’s negligence was for the jury.</p>

<p>Two actions of tort against a corporation organized under the laws of the State of Missouri, the first by the plaintiff individually and the second by her as the administratrix of the estate of John Joseph Roberts, for injuries to the plaintiff and for suffering and death of the plaintiff’s intestate alleged to have been caused by taking a substance called “ Malt Nutrine” manufactured by the defendant and advertised by it as being extremely healthful and nutritious for children requiring nourishment and strength. Writs dated April 1 and 2, 1909.</p> <p>The special precepts issued as supplementary process, which are mentioned in the opinion, were dated June 8,1911.</p> <p>On May 15, 1912, the defendant appeared specially for the purpose of objecting to the jurisdiction of the court and filed motions that the actions be dismissed.</p> <p>In the Superior Court the motions were heard by Pierce, J. The material facts which appeared by the record are stated in the opinion. The judge ordered that the actions be dismissed; and the plaintiff individually and as administratrix alleged exceptions.</p>

<p>Bill in equity, filed in the Probate Court for the county of Middlesex on May 23, 1912, by the executor of the will of Frances F. Tabor for instructions.</p> <p>On appeal, the case came on to be heard before De Courcy, J., who reserved it upon the pleadings and an agreed statement of facts for determination by the full court.</p> <p>Frances F. Tabor was a widow. She died on December 26,1909, leaving as her only heirs atlaw and next of kin thirteen first cousins. Her will was dated May 1, 1902. A codicil, in which she ratified the will except as to the appointment of executors, was dated December 19, 1909.</p> <p>The first provisions of the will were the following:</p> <p>“I give my present residence, 4Lewis Ave. Arlington, Mass, for an Old Folks Home, both male and female, of Evangelical Creed, most of the furnishings of the said House to go with the House and Land of said Estate for the, use of the Old Folks.</p> <p>“I give the house and Land 14 Prospect, St. Malden, Mass, for to be sold for funds to carry on the Old Folks Home. If it should be sold previous, then the funds received, to be used for the carrying on of the Old Folks Home. ”</p> <p>Among the bequests in her will were the following:</p> <p>“What is in the Five Cent S. Bk. School St. Boston, and also in the Union. S. Bk. 216 Tremont St. Boston and the Wildey S. Bk. 52 Boylston St. Boston, Mass. I give for the carrying on of the Old Folks Home, to be called The Tabor Home, 4 Lewis Ave. Arlington Mass. ... I give what is in the Arlington. S. Bk. and National, Bk. in Arlington, for the Tabor Old Folks Home.</p> <p>. . . What is in the Malden, Trust Co. after all debts are paid, I give for to carry on the Old Folks Home, as Maud Smith the child I mostly brought up will lose her home by my death, I wish for to have a home whenever she wishes, at the Tabor Old Folks Home.”</p> <p>The other material facts are stated in the opinion.</p>

<p>Bill usr equity, filed in the Superior Court on October 2, 1909, and amended on December 27, 1910, the plaintiffs by the amendment being alleged to be members of a fraternal beneficiary society composed of French-speaking people in the town of Northampton, called the Conseil Rochambeau No. 128 de L’Union Saint Jean Baptiste d’Amérique, a subordinate council of a corporation organized under the laws of the State of Rhode Island, bringing the bill for themselves and other members against, two individual defendants, two savings banks and a co-operative bank, praying that the defendants might be ordered to turn over to the plaintiffs certain moneys deposited in the defendant banks.</p> <p>By an order of court L’Union Saint Joseph, a corporation organized under the laws of this Commonwealth, was made a defendant.</p> <p>The case was referred to John W. Mason, Esquire, as master, who at different stages of the case made a first and a second report.</p> <p>The case was heard upon the two reports of the master by Raymond, J., who made a final decree, ordering the individual defendants to transfer to the plaintiffs the deposits in the defendant Northampton Institution for Savings and the defendant Northampton Co-operative Bank standing in the name of L’Union Saint Joseph Society of Northampton, and ordering the defendant Northampton Co-operative Bank also to transfer to the plaintiffs ten shares of “the capital to be accumulated” standing in the name of L’Union Saint Joseph Society of Northampton. The defendants appealed from the decree.</p> <p>The case was submitted on briefs.</p>

Complaint in the Municipal Court of the City of Boston under St. 1907, c. 394, as amended by St. 1911, c. 163, charging that the defendant on August 26, 1912, sold as a barrel of sweet potatoes a package containing sweet potatoes weighing only one hundred and twenty-nine pounds in violation of R. L. c. 62, § 3, as amended by St. 1902, c. 115, and St. 1911, c. 397.

<p> Attorney at Law. Rules of Court. </p> <p>Rule 3 of the Superior Court, which prescribes that the right of an attorney to appear shall not be questioned by the opposite party unless the objection be taken in writing within ten days after his appearance, has the force of law in proceedings in that court.</p>

<p> Mandamus. Municipal Corporations. Boston. </p> <p>The granting of a writ of mandamus is not a matter of right but of sound judicial discretion.</p> <p>The commissioner of public works of the city of Boston is not required by the charter of that city to expend a large sum of money for the purchase of gas lamps and other apparatus for street illumination merely because the money has been appropriated for that purpose by the city council, and a writ of mandamus to compel such commissioner to spend the money for the purpose designated properly may be refused if it appears that the commissioner believes on apparently substantial grounds that such an expenditure would be unwise for the city.</p>

<p>Trust, Restriction of income. Equity Jurisdiction, To reach and apply equitable assets.</p> <p>A trust created for the benefit of a spendthrift provided that the income from the fund in question should be paid to the spendthrift during his lifetime, but without power of alienation and not subject to interference or control by creditors. This trust was created upon the withdrawal by the spendthrift of his opposition to the allowance of a certain will, but his opposition thus withdrawn had not been made in good faith and was merely an attempt to extort a settlement for his benefit. Held, that the abandonment by the spendthrift of his dishonest opposition to the allowance of the will gave him no rights whatever and could furnish no valid consideration for any promise or payment to him or for his benefit; that he took merely the qualified interest that the donor chose to give him, with no power over the income of the trust until it came into his possession, and that neither his creditors nor his assignees could have any greater rights than he had himself.</p>

<p>Bill in equity, filed in the Superior Court on October 31,1911, by the owner of a parcel of land at the corner of West Neptune Street and a private way called Pitkin Street in Lynn, to establish a right of way in an alleged part of Pitkin Street extending southerly beyond the plaintiff’s land as well as in the part of Pit-kin Street adjoining the plaintiff’s land.</p> <p>The case was heard by Pierce, J. He filed a memorandum of findings, containing the facts which are stated in the opinion. The deed there mentioned of Gustavus A. Fairchild to George E. Curtis and Frank Curtis, the plaintiff’s predecessors in title, was dated July 27, 1881, and conveyed “that certain parcel of land with the buildings thereon standing situate in said Lynn and bounded and described as follows viz: northerly by West Neptune Street ninety-five feet, easterly by land of George P. Goss one hundred and fifty-eight feet southerly by land of the grantor ninety-five feet and westerly on a proposed street to be laid out fifty feet wide one hundred and eighty feet be all of said measurements more or less, with a right of way over said proposed street. ”</p> <p>The findings of the judge contained, among other matters which are mentioned in the opinion, the following: “I draw the inference and therefore find that at the date .of the conveyance to the Curtises there did not exist in the contemplation of the grantor or grantees any other or different proposed street than such as lay adjacent to the granted premises.”</p> <p>The land on which the plaintiff claimed the right of way was owned by the defendant, which had constructed a building and a railroad track over portions of the alleged Pitkin Street and proposed, unless restrained by the court, to erect a large structure covering the alleged Pitkin Street to a point farther north than that already occupied but south of and not adjacent to the plaintiff’s land.</p> <p>The judge made a final decree that the bill be dismissed with costs to the defendant; and the plaintiff appealed.</p> <p>The case first was argued on January 6,1913, before Pugg, C. J., Morton, Braley, & Sheldon, JJ. The case was argued again at a special sitting of the court on May 22, 1913, before Pugg, C. J., Hammond, Loving, Sheldon, & Le Courcy, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Contract, Construction.</p> <p>If the general lessee of an entire building makes an "option agreement” in writing with a sublessee of one floor of the building, that if the general lessee decides to sell his leasehold interest he will notify such sublessee and will give to the sublessee "an opportunity to purchase said leasehold estate, and upon the terms and conditions as fixed by ” the general lessee, such general lessee fulfils his obligation to the sublessee by offering in good faith to sell his leasehold interest to the sublessee on specified terms and conditions without having fixed the terms and conditions in any actual or pending bargain with a third person.</p>

<p>Commonwealth. Lien, Under R. L. c. 6, § 77. Equity Jurisdiction, To enforce liens under R. L. c. 6, § 77.</p> <p>Liens against funds retained by the Commonwealth under a contract for the construction of a State highway cannot be established as for labor or materials “used in such construction” within the meaning of R. L. c. 6, § 77, upon claims for boards used for concrete forms and for conduits, upon claims for netting, cotton line, or for use of rules, road scraper or scales, for buggies used in transporting help, for money paid for freight, or for coal for the steam roller; nor can such a lien be established upon a claim for hauling stone from various stone walls in the vicinity of the highway to the crusher and for hauling cracked stone from the crusher to the road.</p>

<p>Petition, filed in the Land Court on January 12, 1911, by the Salisbury Land and Improvement Company, and amended by leave of court on July 13, 1912, by the¡ substitution as petitioners of the trustees of the Salisbury Beach Associates and other persons who after the filing of the petition had acquired the title of the original petitioner, for the registration of title to certain land at Salisbury Beach in Salisbury notwithstanding an attempted taking of such land by the Salisbury Beach Reservation Commission under St. 1912, c. 715, which' was alleged by the substituted petitioners to be unconstitutional.</p> <p>The case was heard by Davis, J., who found the facts which are stated in the opinion, and ruled pro forma that the statute in question was constitutional and the taking valid. He ordered that a decree be entered dismissing the petition for registration of title as to all land covered by such alleged taking, and at the request of the parties reported the case for determination by this court. If the order of the judge was right, the decree was to be entered as ordered; otherwise, the case was to be remanded to the Land Court for such further proceedings as this court might direct.</p>

<p>Petition, filed on March 19,1906, by a Rhode Island corporation for damages caused in the course of the abolition under a decree of the Superior Court dated July 2, 1904, of a grade crossing of a private way in Attleborough called Maple Street and the respondent’s railroad.</p> <p>The case previously had been before this court twice, the former decisions being reported in 202 Mass. 585 and 209 Mass. 298.</p> <p>The case again was tried in the Superior Court before Ratigan, J.</p> <p>The petitioner occupied for manufacturing purposes, under a lease from one Clarence L. Watson, a portion of a large tract of land belonging to Watson, the terms of the lease giving it a private right of way running northerly and southerly between the leased premises and another private way, Maple Street, which ran easterly and westerly through the remainder of Watson’s land, and, beyond Watson’s land, on the east crossed the defendant’s railroad and ran to South Main Street and on the west crossed Ten Mile River and ran to County Street. In the abolition of the crossing, Olive Street Extension was constructed at an elevation across the private way granted in the petitioner’s lease. The petitioner contended that thereby it effectually was cut off from all use of Maple Street and the streets beyond.</p> <p>The extent of the petitioner’s right to use Maple Street was in issue. The respondent contended and asked rulings substantially to the effect that the petitioner had suffered no damage with respect to any right to cross the railroad tracks, and that Watson had no right to use Maple Street beyond his land toward County Street for other than farming purposes. The petitioner contended that it had a right to use the way in both directions for all purposes. The judge at first ruled that the petitioner’s right to cross the railroad was for farming purposes only. Later he refused to give all of the rulings asked for by the respondent as to any limitation of the petitioner’s rights to the use of Maple Street, and, as stated in the opinion, read a portion of the opinion of this court reported in 202 Mass, at pages 595, 596, 597. The respondent excepted to the failure to give the rulings it requested.</p> <p>It appeared in evidence at the trial that at the time of the delivery of the lease by Watson to the petitioner, April 2, 1900, the petitioner had not complied with the provisions of the statutes as to foreign corporations doing business within this Commonwealth. It did so comply, however, on April 1, 1901. On this question the respondent, in requests numbered nine and ten, asked for rulings to the effect that the “failure on the part of the petitioner to comply with the laws of this Commonwealth relating to foreign corporations, the laws of 1884, c. 330, and acts amendatory thereof, and with the laws of 1895, c. 157, and acts amendatory thereof, prevented it from acquiring an interest in the property as a tenant for ten years;” and that thereby “ the petitioner was prevented from acquiring, at the time the building was erected and the machinery affixed as trade fixtures and at any later time, the right to remove the building and the said machincry.” The judge refused to give such rulings, but ruled, in accordanee with a request by the petitioner, that it was “not material in this case whether the petitioner did or did not file the appointment of agent to accept service with the commissioner of corporations before it began putting up the buildings.”</p> <p>The witness Hartwell, referred to in the opinion, testified that the petitioner’s buildings were worth $7,800 in 1900, when he built them, and $9,300 in 1904, the date of the decree abolishing the crossing.</p> <p>The witness Andrews, referred to in the opinion, was one Frank H. Andrews, who was secretary of the petitioner from the time of its organization until June, 1906. The books of the petitioner which, as stated in the opinion, at the request of the respondent were produced by the petitioner for examination by an expert employed by the respondent, included only books in use by the petitioner during the time that Andrews was its secretary.</p> <p>In admitting the first expert testimony offered “about the existence or non-existence of other factories in New England engaged in rolling, smelting and refining,” referred to in the opinion, the judge stated: “I suppose [the petitioner’s counsel] is laying the foundation for something he may want further on. I should permit him to go into it. Whether or not the other questian would be admissible is a matter I don’t rule on at the present.” Similar questions afterwards were asked of another expert witness, and the judge, subject to an exception by the respondent, permitted them to be answered, making no comment when he stated his ruling. No motion to strike out such evidence was made by the respondent at any time.</p> <p>A witness, who qualified as an expert in insurance matters and as familiar with the petitioner’s property, testified, subject to an exception by the respondent, that, while, before the changes incident to the abolition of the grade crossing were made, the property of the petitioner was insurable, after those changes it was not insurable even at a high rate.</p> <p>The twenty-second ruling requested by the respondent and referred to in the opinion, was as follows: “If the jury find that the only damages suffered by the petitioner were due to the loss of access, and that a way practicable for all reasonable and necessary purposes of transportation or of travel .for the remainder of.the term of the lease could have been had to the street, then the cost of obtaining such a way would be the measure of damages or the difference in the fair market value of the leasehold.”</p> <p>Other material facts are stated in the opinion.</p> <p>The jury assessed the damages resulting from the changes incident to the abolition of the grade crossing in the sum of $50,196.57, and apportioned to the petitioner $49,654.57, and to an assignee of the lessor Watson $542. In answer to special questions, the jury found that the petitioner suffered no special damage during construction, and that the damage in the matter of access amounted to $300. The respondent and the assignee of the lessor Watson alleged exceptions.</p> <p>The respondent and the intervening petitioner filed motions for a new trial, the first three grounds of which were that the verdict was against the law, that it was against the law and the evidence, and that it was against the evidence and the weight of the evidence. The fourth ground stated in the motion of the respondent was that the damages awarded were excessive. The fourth ground stated in the motion of the intervening petitioner was that the damages awarded to him were “disproportionate, insufficient and inadequate on any and all possible views of the evidence.”</p> <p>The judge ruled upon the motions as follows:</p> <p>“The motion of the assignee of Clarence L. Watson* is overruled.</p> <p>"The motion of the respondent is to be allowed unless the Cornell-Andrews Smelting Company, one of the petitioners, consents in writing within thirty days from the date of the filing of this order to remit all damages in excess of $35,000, and provided further that said respondent files in this Court within said time a written waiver of its exceptions or of its rights to file exceptions in case the exceptions have not already been filed.</p> <p>“If the respondent does not so file waiver of its exceptions as aforesaid the motion is denied.”</p> <p>To these rulings upon their motions for a new trial, the respondent and the intervening petitioner alleged further exceptions.</p>

<p>Information in equity, filed in the Supreme Judicial Court on July 8, 1912, under St. 1906, c. 372, by the Attorney General at the relation of the commissioner of corporations, to restrain the Haverhill Gas Light Company, a corporation created by St. 1853, c. 8, amended by St. 1853, c. 163, from selling and transferring its franchise and property to the Haverhill Gas Company, a corporation recently organized under the general laws of this Commonwealth.</p> <p>The case came on to be heard before Morton, J., who reserved it for determination by the full court.</p>

<p>Equity Pleading and Practice, Bill, Issues for jury, Master’s report. Bills and Notes. Evidence, Admissible for a limited purpose. Equity Jurisdiction, Acquired for one purpose retained for all, Equitable set-off against judgment in action at law.</p> <p>The objection that a bill in equity is multifarious can be raised only by assigning this cause of demurrer, and is waived by a demurrer which does not contain such an assignment.</p> <p>In a suit in equity, where a defendant, who was made a party after the presentation by a master of the draft of his report, after the filing of the master’s report makes a motion for the framing of issues for a jury, if it appears that this defendant before he became a party had appeared before the master, both as counsel and as an important witness in support of his alleged rights, and that the ease was tried fully on its merits before the master, the denial by the trial justice of such defendant’s motion to have issues framed for a jury is a proper exercise of judicial discretion.</p> <p>In a suit in equity, exceptions to a master’s report, relating to questions of fact on which the evidence, amply reported, was conflicting and irreconcilable, here were overruled, because the master’s findings to which the exceptions related were not shown plainly to have been erroneous.</p> <p>In this Commonwealth the holder of a promissory note indorsed in blank by the payee may sue upon it in his own name, although as between himself and the indorser he may be bound to account wholly or in part for the proceeds.</p> <p>In a suit in equity founded on a promissory note signed by the defendant as maker, which was indorsed in blank by the payee and was delivered by him to the plaintiff after its maturity, it appeared that the maker of the note signed it in blank and placed it in the hands of an agent with authority to fill in the amount and the date and deliver the completed instrument to the payee in renewal of a former note, and there was evidence that this authority was exercised by the agent within a reasonable time and in good faith, and was not exceeded. It appeared that the note was governed by the law of Canada, and that by the law of that Dominion, as proved, the note under these circumstances was binding on the maker. An exception to a finding by a master that the note was binding on the defendant was overruled.</p> <p>A self-serving statement, which in itself would be inadmissible but which is material for the purpose of showing the date at which the assertion contained in it was made, properly may be admitted in evidence if its consideration is limited strictly to the single purpose for which it is material.</p> <p>If a master in a suit in equity makes a ruling of law upon a question which he properly might have declined to pass upon and have left for the trial justice, yet, if his ruling is right, an exception to it will not be sustained.</p> <p>The well-established principle here was applied, that where a court of equity has jurisdiction of a suit for one purpose it will, if justice so requires, exercise it for any purpose within the scope of the bill.</p> <p>The doctrine of set-off, applied by statute to actions at law, had its origin in courts of equity, where the power to compel a set-off of cross demands or of judgments has been exercised whenever necessary for .the proper administration of justice.</p> <p>In a suit in equity by the holder of a promissory note made by the defendant, who was not an inhabitant of this Commonwealth, seeking to have the amount due on the note set off against any judgment that the defendant might recover against the plaintiff in a pending action at law, where the defendant did not set up by demurrer or answer the defense that the plaintiff had an adequate remedy ■ at law, it appeared that the defendant was a non-resident and was insolvent and it was not shown that the defendant was possessed of or entitled to any interest in real or personal property which could be seized on execution at law or reached in equity. Held, that the plaintiff was entitled to have the decree in the present suit set off against any judgment that might be obtained against him in the action at law, subject to the rights of a third person who had brought an action at law against the defendant by trustee process and had summoned the plaintiff as trustee.</p>

<p>Equity Jurisdiction, To reach and apply equitable assets. Constitutional Law, Right to trial by jury. Equity Pleading and Practice, Claim of jury. Rules of Court. Jury.</p> <p>A suit in equity under R. L. c. 159, § 3, cl. 7, to reach and apply equitable assets to the payment of a debt alleged to be due to the plaintiff, which has not been reduced to a judgment, combines in substance a proceeding at law to establish the debt with a separate proceeding in equity for the collection of the debt when established, and upon the issue of the existence of the debt the defendant has a constitutional right to a trial by jury.</p> <p>In a suit in equity under R. L. c. 159, § 3, cl. 7, to reach and apply equitable assets to the payment of a debt alleged to be due to the plaintiff, which has not been reduced to a judgment, the time for claiming a trial by jury upon the issue of the existence of the debt is governed by Superior Court Equity Rule 36, which requires that “the application shall be filed within ten days after the parties are at issue” unless otherwise ordered by the court; and, where the plaintiff files a replication, the parties are not at issue within the meaning of the rule until such replication is filed.</p>

<p>Equity Pleading and Practice, Decree. Equity Jurisdiction, Control of trusts. Superior Court. Trust, Created by decree of court.</p> <p>In a suit in equity by an aged widow, seeking to set aside a deed of property-made by her to the defendant conditioned upon her comfortable support by the defendant during her lifetime, and containing a general prayer for further relief, the Superior Court may make an interlocutory decree ordering the defendant to convey to a certain person as trustee all the property conveyed to him by the plaintiff, to be held by such trustee for the benefit of the plaintiff upon trusts stated in the decree, and, upon the plaintiff’s death, to apply any balance of the trust fund in his hands as therein directed in satisfaction of any just debts or expenses incurred under the trust, and to pay the balance then remaining to the plaintiff’s executor or administrator; and, where the defendant has made a deed to the trustee in accordance with the terms of such decree, which is accepted by the plaintiff who enjoys the benefit of the trust until her death more than two years later, the executor of the plaintiff’s will, if the circumstances under which the interlocutory decree was made do not appear, cannot be heard to assert that the decree or the trust created by it was invalid.</p> <p>In such a case the duties of the trustee appointed by the interlocutory decree do not terminate upon the death of the original plaintiff in the suit, and it is his duty, before paying over the balance of the fund to the executor of the will of the deceased plaintiff, to pay the expenses incurred under the trust, comprising all disbursements and obligations for the comfortable support and maintenance of the deceased plaintiff, for his own charges and compensation, and for proper services rendered to him by counsel, including necessary services rendered in litigation incidental to the settlement of his accounts.</p> <p>Where a trust is created by an interlocutory decree made by the Superior Court in a suit in equity and a trustee is appointed under the general equity jurisdiction of the court with duties analogous to those of a receiver, such trustee is not required to give a bond to the judge of probate under R. L. c. 150, § 1, and his accounts as trustee can be settled in the original suit.</p>

<p>Insurance, Fire. Reference and Referee. Contract, Construction. Words, “ Reference.”</p> <p>In an action on a policy of insurance against fire in the Massachusetts standard form, where the defendant relied on the defense that the award of the referees as to the amount of loss was invalid, because the referees had refused to hear the evidence offered by the defendant, it did not appear what the evidence was that the defendant offered to introduce before the referees, and it was said by this court, that, had they not preferred to base their decision on a broader ground, they might have disposed of the case on the ground that the burden was on the defendant to show that the evidence excluded was material and that the defendant had been harmed by the exclusion, and that such burden had not been sustained.</p> <p>Discussion by Losing, J., of the cases in other jurisdictions upon the question whether referees to determine the amount of a loss by fire under a clause in a policy of insurance similar to that contained in the Massachusetts standard form of policy should sit as a quasi court and make their determination on evidence presented by the respective parties or whether they should ascertain the facts in any fair way satisfactory to themselves.</p> <p>Discussion by Lobing, J., of the history and purpose of the statutes, which resulted in St. 1887, c. 214, § 60, now St. 1907, c. 576, § 60, establishing the present Massachusetts standard form of fire insurance policy, especially in relation to the clause providing for the determination of the amount of the loss by referees.</p> <p>Referees appointed to determine the amount of a loss by fire under the Massachusetts standard form of fire insurance policy, set forth in St. 1907, c. 576, § 60, may determine the amount of such loss in any way that in the exercise of an honest discretion they may think wise, and their award will not be made invalid by a refusal in good faith to hear evidence offered by the insurance company as to the amount of the loss.</p> <p>In deciding that the referees, appointed to determine the amount of a loss by fire under the Massachusetts standard form of fire insurance policy, may determine the amount of such loss in any way that in the exercise of an honest discretion they think wise, it was said, that, where a building insured is wholly destroyed, it ordinarily would be a wise exercise of discretion for the referees to determine the amount of the loss after a hearing conducted in the usual way in which civil cases are tried.</p> <p>In an action on a policy of fire insurance in the Massachusetts standard form, where the defense relied upon was that the award of the referees determining the amount of loss was invalid, and where the trial took place more than two years after the fire so that, if the present action could not be maintained, no new action could be brought within the limit of time fixed by the policy, it was said, in deciding that the award was valid, that, if the award had been invalid, it would not follow necessarily that judgment should be entered for the defendant. The court expressed no opinion on the question, whether the provision in the standard form of policy that “such reference unless waived by the parties shall be a condition precedent to any right of action” makes the condition precedent the reference only or whether an award completing the reference is also a part of the condition.</p>

<p>Negligence, In use of highway, Street railway. Constitutional Law. Practice, Civil, Report.</p> <p>A boy six years and eight months of age, who is playing tag with two other boys ' a city street with parallel street railway tracks, on which he knows that cars are passing frequently at all times of day, and, being absorbed wholly in his play, runs in front of an approaching street railway car which is so near that it strikes him with hardly an appreciable interval of time as soon as he reaches the track, is not in the exercise of any care at all, and consequently cannot recover for his injuries thus caused, assuming that the motorman was negligent.</p> <p>St. 1912, c. 317, providing that “if the justice who presides at a trial has reserved a case for report to the Supreme Judicial Court, or to the full court, and fails, by reason of physical or mental disability, death or resignation, to make such report, any other justice of the same court may examine and report the same,” is constitutional.</p>

<p>Tort by a teamster, who had been sent by his employers to unload wool from a sealed car in a freight yard of the defendant, for injuries sustained on August 22, 1910, when the plaintiff was attempting to open a door of the car as stated in the opinion. Writ dated November 7, 1910.</p> <p>In the Superior Court the case was tried before Dubuque, J. The evidence is described in the opinion.</p> <p>At the close of the evidence the defendant asked the judge to make the following rulings:</p> <p>“1. Upon the whole evidence the plaintiff is not entitled to recover.</p> <p>“2. The evidence is not sufficient to warrant a recovery upon the plaintiff’s declaration.</p> <p>"3. The evidence does not sustain the case set forth in the declaration.</p> <p>. . "4. If the jury find that the plaintiff attempted to.pry open the car door with an iron bar, the plaintiff is not entitled to recover.</p> <p>“5. If the jury find that the plaintiff tried the car door and finding that he could not push it open with his hands, attempted to pry it open with an iron bar, and in so doing caused it to fall, the plaintiff is not entitled to recover.</p> <p>"6. If the plaintiff tried the car door and found that it would ' not open in the usual way, and that it was necessary to use an iron . bar to move it, he should have reported the matter to the defendant and given the defendant an opportunity to remedy the difficulty, rather than attempt to force the door open himself.</p> <p>“7. Upon the evidence the plaintiff had no right to work on the side of the car he was on when the door fell.</p> <p>“8. If the plaintiff chose to go to the side of the car upon which he was when the door fell, he did so at his own risk; in doing this he was not acting upon any invitation of the defendant.</p> <p>“9. The doctrine of res ipso loquitur does not apply to this case.”</p> <p>The judge refused to make any of these rulings, and gave to the jury other instructions, some of which are stated in the opinion.</p> <p>The defendant, besides excepting to the refusal of the rulings^ also excepted to certain portions of the charge as follows:</p> <p>“To that portion of the charge in which the court instructed the jury that it was for them to say whether it was reasonable for the plaintiff to try to open the door in the way he did for the purpose of ventilation;</p> <p>“To that portion of the charge wherein the court also instructed the jury that if the plaintiff used a bar and so caused the door to fall upon him it was for the jury to say whether the plaintiff was negligent in so using the bar;</p> <p>“To that portion of the charge in which the court instructed the jury that it was a question of fact for them to determine whether the car had been at this place long enough to make it the defendant’s duty to have inspected it; x</p> <p>“To that portion of the charge in which the court instructed the jury that it was a question of fact for them to determine whether the plaintiff acted reasonably in using a crowbar under the circumstances, if he did use one.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $250; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Railroad. Carrier, Of passengers. Damages, In tort. Husband and Wife. Practice, Civil, Findings of trial judge.</p> <p>Money, not intended for travelling expenses, in a handbag carried by a passenger in a railroad train is not baggage for the loss of which the corporation operating the railroad is liable.</p> <p>In an action of tort for personal injuries, which is tried before a judge without a jury and in which the defendant’s liability is admitted, where no ruling of law is asked for or made in regard to the amount of damages to be allowed for medical attendance, the amount of such damages is a matter of fact to be determined by the decision of the trial judge. In the present case it was said, that, if the findings of the judge upon this matter were reviewable, this court saw no error in them.</p> <p>Where a married woman has recovered judgment against a railroad corporation in an action for personal injuries caused by a collision of trains, her husband, in a subsequent action against the railroad corporation for consequential damages caused to him by her injuries, can recover nothing for loss of consortium. Following Bolger v. Boston Elevated Railway, 205 Mass. 420.</p> <p>In an action of tort by a husband against a railroad corporation for consequential damages caused by personal injuries sustained by the plaintiff's wife in a collision of trains on the defendant’s railroad, for which the plaintiff’s wife in a previous action has recovered damages from the defendant, where the case is tried before a judge without a jury and the evidence is conflicting as to whether certain medical attendance furnished for the plaintiff’s' wife was made necessary by the consequences of her injuries in the railroad accident or whether, if it was necessary at all, it was required for the treatment of an ailment from which the plaintiff’s wife suffered before the accident and which was not due to the accident directly or indirectly, it is for the trial judge to say in the first place what injuries resulted from the accident and what, if any, diseases were set in motion by it as the direct and efficient cause, and then to say what medical and other attendance and treatment were reasonably necessary, and what was the fair value of the services and treatment so rendered.</p>

<p>Bill in equity, filed in the Superior Court on March 18, 1912, by Norman H. Cook and Ellen M. Cook, his wife, against Charles J. Scheffreen and Dora Scheffreen, his wife, and Ezra F. Pratt, to rescind an exchange of property made between the plaintiffs and the defendants Scheffreen on October 16, 1911, as described in the opinion, which it was alleged that the plaintiffs had been induced to make by the false and fraudulent representations of all the defendants.</p> <p>The case was referred to Thomas L. Wiles, Esquire, as master, by an order of reference which is quoted in the opinion.</p> <p>A motion of the defendants to recommit the master’s report was denied by Pierce, J.</p> <p>Later the case was heard by Morton, J., upon the defendants’ exceptions to the master’s report, and upon a motion of the defendants “to review and set aside” certain parts of the master’s report. The judge made an interlocutory decree overruling the defendants’ exceptions to the master’s report and confirming the report. He also denied the defendants’ motion. Being of opinion that the interlocutory decree and the denial of the motion so affected the merits of the controversy that the matter before further proceedings ought to be determined by this court, he reported the case for such determination. It was stipulated by the parties that, if this court should sustain the rulings of the judge, the case should be referred-to a master for an accounting from and after October 16, 1911, and that the final decree should await such accounting; otherwise, such order was to be made as justice might require.</p>

<p>Libel and Slander, Privileged communications, Damages. Damages, In tort. Attorney at Law.</p> <p>In order that a report in a newspaper of an indictment found by a grand jury should constitute a privileged communication, for which the publisher cannot be held liable in an action of tort for libel, such report not only must be fair and impartial but also must be accurate.</p> <p>In an action of tort, by an attorney at law against the publisher of a newspaper, for an alleged libel in publishing an article purporting to give the names of six persons indicted by a grand jury and afterwards arrested for conspiracy to defraud persons unknown, naming the plaintiff as one of the persons indicted and arrested and further describing the plaintiff as to his age, residence and profession, it is no defense that the defendant by an honest mistake referred to and described the plaintiff instead of another person of a similar name, that the defendant exercised reasonable care and diligence in trying to ascertain the facts before publishing the report and that the mistake occurred in spite of such care and diligence. Whether evidence of such care and diligence would be admissible in mitigation of damages was not considered.</p> <p>In an action of tort, by an attorney at law against the publisher of a newspaper, for an alleged libel in publishing an article purporting to give the names of six persons indicted by a grand jury and afterwards arrested for conspiracy to defraud persons unknown, falsely naming the plaintiff as one of the persons indicted and arrested and identifying him by description, the plaintiff, if he prevails, may recover damages, under appropriate allegations in his declaration, for mental suffering and distress, for illness suffered by him in consequence of the libel, for loss of reputation in his profession and for loss of business.</p>

<p>Practice, Civil, Withdrawal of plea of statute of limitations, Exceptions. Limitations, Statute of.</p> <p>The defendant in an action of contract may withdraw a plea of the statute of limitations.</p> <p>Whether a party to an action by his testimony at a trial before a jury has withdrawn a plea of the statute of limitations is a question of law for the presiding judge and not a question of fact for the jury, because it is the duty of the court to determine what the pleadings are which present the issues of fact for the jury to pass upon.</p> <p>If the plaintiff in an action of contract, in which the defendant has pleaded the statute of limitations, thinks that the defendant by his testimony at the trial has withdrawn the plea of the statute and that in spite of such withdrawal the defendant’s counsel is insisting on that defense, the remedy of the plaintiff is to file a motion to strike out the plea, and the judge then can decide whether the plea has been withdrawn.</p> <p>In an action of contract against two defendants jointly, one of the defendants pleaded the statute of limitations. The plaintiff contended that this defendant by her testimony at the trial had waived that defense. The judge left it to the jury to say whether this defendant had waived the statute of limitations, and the jury by returning a general verdict for this defendant found that she had not waived the defense of the statute. The plaintiff excepted to the refusal of the presiding judge to give the jury certain instructions on that question. Held, that the finding of the jury upon the question whether the defendant had waived the defense of the statute of limitations was a nullity which could not affect the plaintiff’s rights, because this was not a question for the jury, and that for this reason all exceptions relating to that finding must be overruled.</p>

<p>Agency, Scope of authority. Insurance, Authority of agent. Waiver.</p> <p>Evidence, tending to show that a certain person was licensed by the insurance commissioner as the agent in this Commonwealth of an insurance company incorporated in another State, that he was the manager for eastern Massachusetts for that company and that, as to claims under policies of the company, he had no authority to pay a claim but had authority only to report to the home office of the company and receive instructions from there, will not warrant a finding that such agent had authority, without instructions from the home office, to waive a provision of a policy providing that no legal proceedings should be commenced under the policy until after three months from the filing of a proof of loss, especially where the policy also provided that no waiver should affect the conditions of the policy unless the company’s assent thereto was indorsed on the policy and was signed by one of several specified officers other than such agent.</p>

<p> Conversion. Personal Property. Landlord and Tenant. </p> <p>Where, at the trial before a judge without a jury of an action of tort against the owner of a building for the alleged conversion of a ventilator and pipe attached thereto, it appears that the ventilator was thirty-five feet long and had been attached to the outside of the building under a contract between the plaintiff and a tenant in the building, that, without the knowledge of the defendant, the plaintiff and the tenant had agreed that the plaintiff should retain title to the property until it was paid for, that the property was fastened to brick work of the building by a considerable number of bolts and rivets, and that it remained attached to the building after the termination of the tenancy, the judge cannot be required as a matter of law to find and rule that the ventilator and pipe were personal property, and a finding for the defendant is warranted.</p>

<p>Two actions of tort for personal injuries caused by the plaintiff in the first action being run into by a street railway car of the defendant as she was crossing Washington Street in Haverhill. The second action was by the father of the plaintiff in the first action for consequential damages. Writs dated October 4, 1910.</p> <p>In the Superior Court the cases were tried together before Keating, J. The material facts are stated in the opinion. At the close of the evidence, the defendant asked for the rulings described in the opinion.</p> <p>The third ruling asked for was as follows: “The burden of proof is upon the plaintiff, and the obligation of proving, by a preponderance of the evidence, all the essential elements of her case rests upon the plaintiff to the same extent as if she were an adult.” Commenting upon the request, the judge stated to the jury: “That is true, gentlemen, except that the care that this plaintiff is expected to exercise is not the same care that an adult would be expected to exercise, as I have explained to you I think. If the plaintiff was an adult, then she would be expected to exercise such care as an ordinarily prudent adult would be likely to exercise under similar circumstances, but in this case the degree of care to which this plaintiff is held is such care as an ordinarily prudent child of the age of eight years and three months, and of average intelligence, would be likely to exercise under circumstances like those in this case.”</p> <p>After the counsel for the defendant had called to the judge’s attention an alleged misstatement of the evidence in the charge, the judge instructed the jury as follows: “My purpose, gentlemen, in stating to you the evidence was simply to aid you in arriving at a just verdict, but you are the judges of the. evidence, it is for you to say what the evidence was, and if your recollection of it does not coincide with mine, then you may disregard what I have stated the evidence to be and rely upon your own recollection of it because, as I have said to you, you are the judges of the evidence.”</p> <p>The jury found for the plaintiff in the first case in the sum of $7,000 and for the plaintiff in the second case in the sum of $1,750. The defendant alleged exceptions.</p>

<p>Negligence, Due care of frightened person, Street railway, Causing death. Evidence, Presumptions and burden of proof, Contradictory statement by witness at preceding hearing. Practice, Civil, Ordering judgment under St. 1909, c. 236. Constitutional Law, Right to trial by jury. Jury and Jurors. Supreme Judicial Court. Words, “Due care.”</p> <p>Where, at a trial in the Superior Court, the defendant offers in evidence, for the sole purpose of contradicting a certain statement made by a witness for the plaintiff, a statement to the contrary previously made by the witness when testifying at an inquest, and at the demand of the plaintiff the entire testimony of the witness at the inquest is introduced in evidence, the plaintiff cannot rely on a sentence therein, which does not relate to the subject matter of the testimony in the Superior Court which the defendant is seeking to contradict, to prove affirmatively the facts that were testified to in such sentence.</p> <p>Evidence tending to show that, while a boy was engaged with others in annoying a Chinaman who was lawfully at work upon his own premises, he became frightened by the conduct of the Chinaman and ran into a street in front of a street railway car by which he was run over and killed, is not evidence of the due care which by St. 1907, c. 392, is made a prerequisite to a recovery against the street railway company for such a death.</p> <p>In order to recover, in an action under St. 1907, c. 392, against a street railway company for the death of a person, not a passenger, it is necessary for the plaintiff to prove that the decedent was giving reasonably intelligent and energetic attention to his own safety when he was injured, and it is not enough to show a negative and passive freedom from fault on his part.</p> <p>The provision of St. 1909, c. 236, § 1, that, in a case before this court on an exception by a defendant to a refusal of a presiding judge to order a verdict for such defendant, this court, if the defendant’s exception is sustained, may by rescript direct the entry in the trial court of judgment for the defendant, does not violate the right to a trial by jury which is guaranteed by art. 15 of the Declaration of Rights.</p>

<p>Mortgage, Real estate: foreclosure. Sale. Equity Jurisdiction, For an accounting.</p> <p>Where the published advertisement of a sale in foreclosure of a mortgage of real estate states that the terms and conditions of the sale will be announced at the time and place of the sale, and, at the sale and before the bidding, the auctioneer announces that the property will be “sold subject to interest,” and the sale is conducted fairly and a price is obtained which is the reasonable value of the property under all the circumstances, the purchaser must be taken to have bought the property with an agreement on his part to pay the interest then due on the mortgage, so that the mortgagee, in accounting with the mortgagor or his successor in title for the proceeds of the sale, is not entitled to be credited with the amount due as interest on the mortgage at the time of the sale, although the mortgage states that out of the sum received at the sale the mortgagee may retain all sums then secured by the mortgage, "whether then or thereafter payable.”</p>

<p>Workmen’s Compensation Act, Procedure, Not extraterritorial. Practice, Civil, Appeal, Exceptions. Words, "Suit,” "Judgment,” “Action.”</p> <p>Under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, which provides that any party in interest in a proceeding before the Industrial Accident Board, created by the workmen’s compensation act, “may present certified copies of an order or decision of the board . . . and all papers in connection therewith, to the Superior Court . . . whereupon said court shall render a decree in accordance therewith . . . [which] . . . shall have the same effect ... as though rendered in a suit duly heard and determined by said court, except that there shall be no appeal therefrom upon questions of fact,” it is not improper that with such certified copies a petition should be filed setting forth the nature of the questions to be decided.</p> <p>A proceeding under the workmen’s compensation act brought before the Superior Court under the provisions of St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, is to be treated, in the main, as equitable rather than legal in its nature.</p> <p>The remedy of a party aggrieved by a decree of the Superior Court in a proceeding brought before it under the provisions of the workmen’s compensation act contained in St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, is by an appeal to this court and not by a bill of exceptions.</p> <p>The workmen’s compensation act, contained in St. 1911, c. 751, St. 1912, cc. 571, 666, provides no compensation for injuries received outside this Commonwealth.</p>

<p>Equity Jurisdiction, Interpleader. Equity Pleading and Practice, Bill.</p> <p>In a bill of interpleader brought by a national bank against the widow of a deceased depositor of the plaintiff and the executor of the will of such deceased depositor, who also was the president of the plaintiff, it was alleged that the deceased depositor on the day before his death drew a check on the plaintiff for $10,000 payable to his wife and delivered it to her, having then a balance greater than that amount to his credit, that the day after his death his widow presented this check to the plaintiff and payment was refused, that before this presentation of the check the plaintiff had paid another check drawn by the depositor which reduced the balance to the credit of the estate of the depositor somewhat below $10,000, that later the executor deposited funds which made the balance of the testator’s account somewhat greater than $10,000 and thereupon transferred to the credit of the testator’s widow in the plaintiff bank the sum of $10,000, that thereafter the executor, being apprehensive that he had acted without authority in doing this, caused the transaction to be reversed by having the account of the widow charged with the sum of $10,000 and his account as executor credited with, a like amount, whereupon the widow drew her check on the plaintiff for $10,000, and, on payment being refused, brought an action at law against the plaintiff for that amount. Upon demurrer, it was held, that the bank could not maintain the bill to compel the widow and the executor to interplead for the purpose of determining the validity of their respective claims to the fund in the hands of the plaintiff, because the plaintiff might have made itself liable to the widow by crediting the sum of $10,000 to her account so as not to be in the position of a disinterested stakeholder.</p> <p>In a bill in equity to have two defendants ordered to interplead so that their respective rights to a fund in the hands of the plaintiff may be determined, if the specific allegations of the bill disclose a ground on which the plaintiff may be held liable to one of the defendants, which cannot be passed upon in a suit of interpleader, the bill cannot be maintained, although it contains a general allegation that the plaintiff holds the fund for the true owner and has incurred no independent liability to either of the defendants.</p>

<p>Tax, Excise. Corporation, Taxation. Words, “Merchandise,” “Securities.”</p> <p>“Cash in bank,” consisting of the amount standing to the credit of a domestic business corporation in a national bank or a trust company, is not included in the word “merchandise” nor the word “securities” in the provision of St. 1909, c. 490, Part III, § 43, relating to the excise imposed upon the franchises of such corporations, which provides that “the said tax upon the value of the corporate franchise of a domestic business corporation, after making the deductions provided for in section forty-one, shall not exceed a tax levied at the rate aforesaid upon an amount, less said deductions, twenty per cent in excess of the value, as found by the tax commissioner, of the works, structures, real estate, machinery, underground conduits, wires and pipes, and merchandise, and of securities which if owned by a natural person resident in this Commonwealth would be liable to taxation.”</p>

<p>Workmen’s Compensation Act, Injuries included, Dependent beneficiary, Procedure, Decree of Superior Court. Superior Court. Practice, Civil, Appeal, Exceptions, Decree.</p> <p>Under St. 1911, c. 751, Part II, § 1, which provides that payments of compensation under the workmen’s compensation act shall be made where an employee “receives a personal injury arising out of and in the course of his employment,” in order that a claim for such compensation should be sustained, it must appear that the injury had its origin in a risk connected with the employment and that it flowed from that source as a natural consequence.</p> <p>Injuries, resulting in death, received by a checker in the employ of a firm of importers, while doing his work at a dock, from blows or kicks given him by a fellow workman in " an intoxicated frenzy and passion,” where such fellow workman was known to the superintendent in charge of the work to have the habit of drinking to intoxication and when in that condition to be quarrelsome, dangerous and unsafe to work with, and knowingly was permitted by such superintendent to continue to work on the day of the injury while in such a condition of intoxication, are injuries arising out of and received in the course of the workman’s employment within the meaning of the workmen’s compensation act.</p> <p>Where compensation is to be made under the workmen’s compensation act for injuries which resulted in the death of a workman, and it appears that the workman left a widow, and a daughter of himself and such widow under the age of eighteen years, both living with him at the time of his death, the provisions of St. 1911, c. 751, Part II, § 7, that the widow shall be conclusively presumed . to have been wholly dependent upon her deceased husband, and that there shall be a like presumption in favor of such a minor child, "there being no surviving dependent parent,” make the dependency of the child conditional on the nonexistence of a surviving dependent parent, so that the whole of the payment is to be made to the widow.</p> <p>Cases arising under the workmen’s compensation act can be brought from the Superior Court before this court only by appeal and not by a bill of exceptions. Following Gould’s Case, ante, 480.</p> <p>St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, which provides that a party in interest may present certified copies of a decision of the Industrial Accident Board under the workmen’s compensation act to the Superior Court, "whereupon said court shall render a decree in accordance therewith,” does not make the action of the Superior Court a mere perfunctory registration of approval of the decision of the Industrial Accident Board, but means that the Superior Court shall exercise its judicial function by entering such a decree as will enforce the legal rights of the parties as disclosed by the facts appearing on the record.</p>

<p>Petition, filed on February 18, 1913, for a writ of mandamus directed to the members of the metropolitan park commission, commanding them to reinstate the petitioner in the rank and office of sergeant in the police department of that commission.</p> <p>The case was submitted upon the pleadings and an agreed statement of facts to Braley, J., who at the request of the parties reported it for determination by the full court. If the petitioner, as matter of law, was a veteran within the meaning of R. L. c. 19, § 20, and the respondents under § 23 of that chapter as amended by St. 1910, c. 500, or under St. 1911, c. 624, had no power to remove him, a writ of mandamus was to issue; otherwise, the petition was to be dismissed with costs.</p> <p>R. L. c. 19, § 20, is as follows: "The word ‘veteran’ in this chapter shall mean a person who served in the army or navy of the United States in the war of the rebellion and was honorably discharged therefrom, or a citizen of this Commonwealth who distinguished himself by gallant and heroic conduct while serving in the army or navy of the United States and has received a medal of honor from the President of the United States.”</p> <p>The case was submitted on briefs.</p>

<p>Pledge. Equity Pleading and Practice, Exceptions to master’s report, Recommitting master’s report, Decree. Equity Jurisdiction, Conspiracy, Coming into court with clean hands, Plaintiff seeking equity must do equity.</p> <p>In the absence of a special agreement to that effect; a pledgee of securities has no right to pledge the securities to a third person as collateral security for a loan to himself, and if a third person to whom such securities are pledged by the pledgee has notice that the person who pledged them to him held them as pledgee, he is put on inquiry to ascertain whether such pledgee had authority to repledge the securities.</p> <p>Where a person, to whom securities were pledged by one who held them as pledgee, knew of the previous pledge and thus was put upon inquiry as to the pledgee’s right to repledge the securities, and, if he had seen the note secured by the first pledge, would have discovered that such note bore interest at the rate of six per cent per annum while the note secured by the repledging to him bore interest at the rate of two or five per cent a month, and thus might have been charged with knowledge of bad faith on the part of the first pledgee in making the second pledge, it was held, that the second pledgee had a right to pursue the inquiry into the authority of the first pledgee to repledge by other means than the inspection of the note, and, if by such inquiry honestly conducted he learned that the right to repledge existed and gained no knowledge as to the bad faith of the first pledgee, he was not chargeable with such knowledge.</p> <p>Where a suit in equity is referred to a master to hear and determine the merits of all the issues raised by the pleadings and to report to the court his findings of fact, his rulings of law and so much of the testimony as in his opinion may be necessary to a proper understanding of his rulings of law, a party has no right, by requesting certain findings of fact, to compel the master to adopt such findings or to give a reason for not adopting them.</p> <p>"Where a note secured by a pledge of securities contains a clause giving the pledgee the right to repledge the securities pledged to him, although not the right to sell them except in case of default, the authority to pledge the securities is confined to the original pledgee.</p> <p>In a suit in equity against a number of defendants, where the bill alleges a conspiracy to defraud the plaintiff to which all of the defendants were parties, if the conspiracy alleged is proved to have existed among some of the defendants but not all of them, those against whom the conspiracy is proved may be held liable. "Where, in a suit in equity against a number of defendants, which was referred to a master under a rule requiring him to report his findings of fact and his rulings of law, it appears by the master’s report that he gave certain erroneous rulings to the effect that the bill could not be maintained against one of the defendants for taking part in a conspiracy to defraud the plaintiff unless all of the defendants joined in the conspiracy, if it also appears by the report that on the facts found by the master wholly apart from these rulings the bill cannot be maintained against any of the defendants, the plaintiff has not been prejudiced by the erroneous rulings and his exceptions to the master’s report based upon them must be overruled.</p> <p>The ordinary rule here was applied, that the denial in a suit in equity of a motion to recommit a master’s report is within the discretionary power of the trial judge, and in the present case no reason appeared for doubting that this discretion was exercised properly.</p> <p>"Where on an appeal from a decree in equity dismissing a bill against a number of defendants, in which the plaintiff’s principal claim against the defendants was not established, it appeared from the facts in the master’s report that the plaintiff had the right to redeem certain securities in the hands of sotoe of the defendants, but, although there was no express disclaimer on the plaintiff’s part as to this relief, there were indications in the master’s report that the plaintiff did not ask for such redemption, it was held that the decree dismissing the bill would not be reversed on this ground unless the plaintiff moved for the reversal.</p> <p>In a suit in equity by the pledgor of certain securities against the pledgee and other defendants, alleging that the securities were obtained from the plaintiff by a fraudulent conspiracy of all the defendants for the purpose of their unlawful use by the defendant pledgee in which the other defendants were alleged to have shared, if it appears that the plaintiff by causing apparent sales to be made had created a fictitious market value for the securities which he pledged to the defendant pledgee, and the greater part of which that defendant pledged to the other defendants, although these facts may give rise to a claim against the plaintiff for fraud and perhaps would have afforded ground for a rescission, they do not constitute such an unlawful inducement of the wrongful acts complained of that the court will refuse to entertain the plaintiff’s suit; nor do these facts prevent the plaintiff from maintaining his bill on the doctrine that he who seeks equity must do equity.</p>

<p>Practice, Criminal, Sentence, Imprisonment of women. Uttering Forged Order for Money. Reformatory Prison for Women.</p> <p>¡Since St. 1909, c. 442, took effect, a male person who commits the crime of uttering a forged order for money not exceeding $50 in value may be sentenced by a police, district or municipal court to imprisonment at hard labor in a house of correction.</p> <p>Under St. 1906, c. 282, § 1, which provides that “the sentence of a female who is convicted of a felony shall be executed in the reformatory prison for women only,” a sentence of a woman to imprisonment at hard labor in a house of correction for uttering a forged order for money not exceeding $50 in value is unauthorized, and, upon a writ of error, will be reversed.</p> <p>St. 1906, c. 282, § 1, which provides that “the sentence of a female who is convicted of a felony shall be executed in the reformatory prison for women only,” does not make the reformatory prison for women when used for the punishment of felony a branch of the State prison, and makes unlawful a sentence of a woman for a felony to a jail or a house of correction as well as a sentence to the State prison.</p>

<p>Contract, In writing. Agency, Broker.</p> <p>A merchandise broker, who has negotiated a sale between a seller and buyer of goods, is authorized by virtue of his employment to write out and sign bought and sold notes as memoranda of the agreement to make it binding under R. L. c. 74, § 5, but he has no authority as broker to make a contract in writing for the parties; and an action for the non-delivery of goods cannot be maintained against the alleged seller of the goods upon a sold note signed in his behalf by a broker, which is declared upon as a contract in writing. If the buyer has a remedy, it is by an action on the oral agreement, of which the sold note must be alleged to be a memorandum, and the plaintiff in order to recover must show that the defendant authorized the broker to make in his behalf the oral contract of sale which the plaintiff alleges was broken.</p>

<p>Tokt, with two counts, the first for an assault and battery-alleged to have been committed on the plaintiff on June 15,1910, and the second for the alleged conversion on the same day of a certificate for three hundred shares of a certain stock of the alleged value of $450. Writ in the Municipal Court of the City of Boston dated August 23, 1910.</p> <p>A supplementary answer of the defendant set up a release under seal of all claims and demands against the defendant.</p> <p>On appeal to the Superior Court the case was tried before Hitchcock, J. The release which was put in evidence is quoted in the opinion, where also certain extrinsic evidence is stated.</p> <p>At the close of the evidence the defendant asked the judge to make the following rulings:</p> <p>“1. That upon all the evidence the defendant is entitled to a verdict.</p> <p>“2. That, as to the release put in evidence by the defendant, the only question in issue is whether or not the plaintiff signed the same, and if the jury find that the plaintiff signed the same the verdict must be for the defendant.”</p> <p>The judge refused to make either of these rulings and gave the instruction which is quoted in the opinion, to which the defendant excepted. The jury returned a verdict for the plaintiff in the sum of $600 on the first count and in the sum of one cent on the second count. The defendant alleged exceptions.</p>

<p>Contract on a promissory note dated July 29, 1907, for $1,800 payable to the plaintiff on demand without interest, signed by the defendant when she was the wife of Reuben Crosier, who died in 1911 at the age of seventy-eight years. Writ dated May 21,1912.</p> <p>In the Superior Court the case was tried before Crosby, J. The facts which could have been found upon the evidence are stated in the opinion. At the close of the evidence the defendant asked the judge to make the following rulings:</p> <p>“1. The plaintiff is not entitled to recover in this case.</p> <p>“2. If the jury find that the note declared on in this case was executed and delivered by the defendant to her husband, Reuben Crosier, said note was a null and void note.</p> <p>“3. If the jury find that the present holder of said note when he took the same knew that said note had been executed and delivered by the maker to her husband, Reuben Crosier, then said note in his hands was null and void.</p> <p>“4. There was no consideration for said note in the hands of the original parties.</p> <p>“5. If the jury find that the note was executed and delivered by the defendant to her husband for money claimed by the husband to belong to him, said note was null and void in the hands of said husband, and if after two years the note was transferred by the husband to his son Watson said note still remained null and void and no action can be maintained thereon.”</p> <p>The judge refused to make the rulings requested and gave the jury other instructions on the subjects referred to in the requests.</p> <p>The judge’s charge included the following instructions:</p> <p>"If the defendant, Mrs. Crosier, executed and delivered the note, the proceeds to be paid to the children of Reuben Crosier at his death as their share of his estate, then there was a valid consideration for the note.”</p> <p>“If the jury find that it was agreed by the defendant and her husband that a note for $1,800 should be given by her to the plaintiff for the benefit of Reuben Crosier’s children at his death as their share of their father’s estate, and that when said agreement was made that Reuben Crosier was of sound mind, then the defendant is liable on said note if it was delivered to and held by Reuben Crosier for Charles Crosier, the payee, with his knowledge and consent.”</p> <p>“If you find that she didn’t have any property in her hands that belonged to him, and that this note was never given or intended by her to be a valid note, and you find that at the time it was given that her husband was of unsound mind, and you find that it was never delivered to Charles Crosier or to anybody representing him, and there was no consideration for it, then if you find that the plaintiff has failed to prove any of these things, either delivery to Charles Crosier or to anybody acting for him, or that the note was without consideration, then the plaintiff is not entitled to recover, unless you find that she agreed to give this note and allow $1,800 to the children of Reuben Crosier regardless of the question whether she had any funds of his in her possession or not.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $1,897.80; and the defendant alleged exceptions to the refusal of the rulings requested and to the portions of the judge’s charge which are quoted above.</p> <p>The case was submitted on briefs.</p>

<p>Negligence, In use of highway, Street railway. Bicycle. Evidence, Remoteness. Practice, Civil, Exceptions.</p> <p>It is not negligence as matter of law for a boy ten years of age to ride a bicycle, which has no brake, down a street with a sharp grade which is crossed at its foot by a street railway track.</p> <p>If a boy ten years of age is riding a bicycle, which has no brake, down a street with a sharp grade which is crossed at its foot by a street railway track, and, when he is about one hundred feet from the track, sees a street railway car coming from an intersecting street, and shouts to the motorman to stop the car, but the car instead of stopping goes faster than before, so that the boy has no chance to cross in front of it and turns to the right hoping to get around the rear end of the car, but fails to clear it and comes into collision with the car and is injured, in an action against the street railway company for his injuries there is evidence on which it could be found that, being placed in sudden peril, he took the course most likely to extricate him from it, and the question of his due care is for the jury. '</p> <p>In an action against a street railway company for injuries to a boy ten years of age, who was riding a bicycle down a street with a sharp grade crossed at its foot by a track of the defendant, when he came into collision with a car of the defendant which came from an intersecting street, if there is evidence on which it could be found that the motorman operating the car might have prevented the accident if he had run the car more slowly or had stopped it or if he had put the plaintiff on his guard by blowing a whistle or ringing a bell when approaching the comer, the question of the defendant’s negligence is for the jury.</p> <p>In an action against a street railway company for injuries to a boy ten years of age who was riding a bicycle down a street with a sharp grade crossed at its foot by a track of the defendant, where the defendant excepted to the. exclusion of evidence of what the plaintiff’s mother “quite a while before” had said to him about riding down the street, and where the fact that the plaintiff’s mother had told him not to ride down the street had appeared by other evidence, it was held that the presiding judge well might have excluded the evidence on the ground that it was too remote, and that, at all events, it did not appear that the defendant had been harmed by its exclusion.</p>

<p>Tort for personal injuries sustained by the plaintiff on October 30,1911, when employed by the defendant as a carpenter to make repairs in the Worcester Bleach and Dye Works on Fremont Street in Worcester, a building belonging to the defendant which had been injured by fire. Writ dated January 3, 1912.</p> <p>In the Superior Court the case was tried before Jenney, 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>Contract, In writing, Performance and breach, For support. Damages, In contract. Evidence, Relevancy and materiality. Practice, Civil, Exceptions.</p> <p>It seems, that in an action to recover damages for the alleged breach of a contract in writing in a foreign language, where there is a dispute between the parties as to the correct translation of the contract, the question which translation is the correct one is for the jury.</p> <p>In an action by a woman for an alleged breach of a contract in writing to furnish her with board and food during her life and also to pay her $10 monthly, testimony of the plaintiff, that she had been in need of food and that she had left the defendant’s house because she was afraid of him, is competent as tending to show that the defendant had not furnished the plaintiff with food as he agreed to and that the plaintiff was justified in leaving his house and in not going there for food; also, in such action, evidence of the fair market price per week of a woman’s board is admissible, upon the question of damages, as tending to show the fair value of the food that the defendant failed to furnish.</p> <p>In an action by a woman for an alleged breach of a contract in writing to furnish her with board and food during her life and also to pay her $10 monthly, the defendant is not harmed by the admission of the testimony of a deputy sheriff introduced by the plaintiff to show the service upon the defendant of a demand by the plaintiff’s attorney for the payment of all money due under the contract, even if as matter of law no such demand was necessary.</p> <p>In an action by a woman for an alleged breach of a contract in writing to furnish her with board and food during her life and also to pay her $10 monthly, where there is evidence that the plaintiff was under a reasonable apprehension of bodily injury in case she went to the defendant to demand food, it is proper for the presiding judge to instruct the jury that the plaintiff, to recover for a failure to furnish food, must show that she made a demand therefor upon the defendant unless she was under a reasonable apprehension of bodily injury and that such apprehension would excuse her from making the demand, and also to instruct them, that in making such a demand for food the plaintiff was not bound to specify the kind of food she needed, but only to ask to be supplied with food; and it is also correct for the presiding judge to refuse to rule that the plaintiff cannot recover unless she made a demand on the defendant, because, on proof of the alleged contract, the plaintiff would be entitled to receive $10 a month from the defendant without any demand.</p>

<p>Devise and Legacy, Vested remainder, Rule against perpetuities.</p> <p>Where, by the provisions of a will, real estate and personal property are given to the testator’s widow and an adopted daughter for their lives and, at the death of the survivor of them, to the children of the adopted daughter for their lives and the life of the survivor of them and, at the death of the survivor of the "wife, daughter and the children of” the daughter, to a church, the church receives a vested remainder at the death of the testator, and the gift therefore is not void as in violation of the rule against perpetuities, although the estate of children of the adopted daughter might postpone beyond a period twenty-one years after a life or lives in being the vesting of the estate in possession in the church.</p>

<p>Limitations, Statute of, In actions against executor or administrator. Executor and Administrator. Equity Jurisdiction, Mistake. Equity Pleading and Practice, Parties.</p> <p>In a suit in equity by a member of a partnership, which had been composed of three persons, against the widow of one of the three partners, personally and as the executrix of his will under which she was the sole legatee and devisee, alleging that upon an accounting, by reason of a mutual mistake of fact made by all the parties through their common agent, the defendant received much more than her share of the partnership assets, and seeking to recover such excess from her personally, R. L. c. 141, § 9, limiting actions against an executor or administrator, is no defense, because the relief is not sought against the defendant as executrix, although an incidental result of granting it will be to diminish the estate of the defendant’s testator. Upon the question, whether such a suit can be maintained without joining the third member of the partnership either as a plaintiff or a defendant, no opinion was expressed.</p>

<p> Res Judicata. Lease of Chattel. </p> <p>Under a lease of a chattel for a stipulated rent of a certain sum of money a month payable in advance, the lessor can bring an action for each unpaid monthly instalment of rent as it falls due, and if, after he has brought an action for the rent due up to the date of the writ and before such action has come to trial, he brings a suit of equitable replevin in which he claims rent that fell due after the previous action was brought and obtains a decree ordering the defendant to deliver the chattel to him and to pay him the rent claimed in that suit, the decree is no bar to the first action brought for the rent previously due.</p>

<p> Conflict of laws. Limitations, Statute of. Bills and Notes. </p> <p>The statute of limitations being a matter of remedy, the question whether an action is barred by it is to be determined by the law of the forum.</p> <p>A promissory note under seal, although the seal is unnecessary for its validity, is a contract under seal within the meaning of the provision of the statute of limitations contained in R. L. c. 202, $ 1, and an action can be brought on it at any time within twenty years after the cause of action accrues.</p> <p>A promissory note under seal, although it is a contract under seal within the meaning of the statute of limitations, is none the less a promissory note and properly is declared upon as such.</p>

Two actions of tort, the first action by the administrator of the estate of John Scanlon for causing the death of the plaintiff’s intestate by a collision of a street railway car, operated by servants of the defendant, with a cart in which the plaintiff’s intestate was driving a pair of horses from West Housatonic Street in Pittsfield into South Street in that city on December 11, 1911; and the second action by the owner of the horses and cart for injury to his property by…

Tort by the executors of the will of Rosella A. Rockwell for false representations alleged to have been made to the agent of the plaintiffs’ testatrix and on which the testatrix was alleged to have relied to her loss and damage as stated in the opinion. Writ dated September 20, 1910. The answer was a general denial.

Contract, by a farmer against a milk dealer, upon an alleged oral agreement made on or about November 1, 1911, whereby the defendant agreed to “purchase the plaintiff’s milk” for the period of one year at thirty-four cents per can, the plaintiff to furnish thirty of the cans necessary for the transportation of the milk.

Tort for injury to an automobile of the plaintiff from a collision with an automobile of the defendant in Guilford, Vermont, alleged to have been caused by negligence of the defendant. Writ dated April 11, 1912. In the Superior Court the case was tried before Bell, J. The material facts are stated in the opinion.

Tort for an alleged libel. Writ dated March 24, 1911. The plaintiff’s declaration, as amended, was as follows: And the plaintiff says that on March 22, 1911, and for many years prior thereto, he was a contractor and builder carrying on his business in the town of Clinton in said County of Worcester, and in the towns in the vicinity of said Clinton; that he depended upon the income and profit of said business for his livelihood and enjoyed a good name and reputation for…

<p>Equity Pleading and Practice, Master’s report: exceptions to report, motion to recommit, Decree,</p> <p>Exceptions to a master’s report based on the ground that certain findings of fact made by the master were not warranted by the evidence before him must be overruled if the evidence on which these findings were made is not reported.</p> <p>Where a suit in equity has been referred to a master under a rule requiring him to find the facts without reporting the evidence, if a party, who has taken part in a trial of the case before the master mainly on a simple question of fact without asking the court for any special order directing the master to report the whole or any part of the testimony, after the master has filed a draft report adverse to him moves to recommit the case to the master for a report of the evidence, the denial of the motion is a matter within the discretion of the trial judge. In the present case there was nothing in the record to indicate that this discretion had been exercised wrongly in denying such a motion.</p> <p>In a suit in equity to enjoin the defendant from cutting wood on fourteen acres of land alleged to belong to the plaintiff, where the defendant’s answer denies the plaintiff’s title to the whole fourteen acres and also sets up title in the defendant to four acres of the land, and where the plaintiff fails to prove that he was the owner of the land on which the wood was cut and the defendant is entitled on this ground to a decree dismissing the bill with costs, but the trial judge makes a decree which goes further than this and adjudges that the defendant is the owner of the lot from which the wood was cut including the four acres claimed in the defendant’s answer, thus virtually reforming a certain deed, the decree must be reversed on appeal, because such relief only can be granted upon a cross bill.</p>

<p>Negligence, Employer’s liability, In a laundry. Pleading, Civil, Answer. Evidence r Presumptions and burden of proof.</p> <p>In an action for personal injuries sustained by the plaintiff in the employ of the defendant, the defense that the plaintiff assumed the risk of the injury is not open to the defendant unless it is set up in the answer, and, when it is so set up, the burden is on the defendant to prove it.</p> <p>In an action for personal injuries sustained by the plaintiff in the employ of the defendant, where the defendant sets up and relies upon the defense that the plaintiff assumed the risk of the injury, if it appears that the danger came into existence after the contract of employment was made, the question of assumption of risk usually is one of fact for the jury.</p> <p>In an action against the proprietor of a laundry, for personal injuries sustained by the plaintiff, a girl seventeen years of age, from her hand being caught between the rollers of a steam mangle, where it appears that the plaintiff never before had worked on a mangle and was injured when she had been working on this machine only an hour and a half and that the machine was out of order, it is for the jury to say on the evidence whether the plaintiff fully comprehended the danger to which she was exposed and voluntarily assumed the risk of an injury due to the machine running irregularly.</p> <p>A girl seventeen years of age, who is set at work upon a steam mangle in a laundry when wholly without experience in working on such a machine, is not negligent as matter of law in continuing to work when she sees that the mangle is running somewhat irregularly, especially when she is working in the presence and under the direction of a person who has been entrusted with the duty of instructing her and is doing her work in the way she has been shown.</p>

Petition for a widow’s allowance, filed in the Probate Court on September 22, 1911, by the widow of Clarence F. Glover, late of Waltham, who died on November 20, 1909, and whose will was allowed on December 22, 1911. In the Probate Court the petition was heard by Mclntire, J., who made a decree allowing the petitioner $2,500.

Petition to enforce a mechanic’s lien, filed on May 26, 1911, by William Lays and Samuel T. Lays, copartners doing business under the firm name of Lays Brothers. In the Superior Court, after findings favorable to tne petitioners had been made by a jury upon issues submitted to them, the case was heard by Crosby, J. The material facts are stated in the opinion. A decree was entered for the petitioners. The respondents alleged exceptions.

Tort for malicious prosecution. Writ dated January 5, 1910. In 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 asked the judge to rule (1) “ that there was no evidence upon which the plaintiff might recover,” and (2) that upon the plaintiff’s evidence, the defendant was entitled to a verdict.” The rulings were refused.

<p>Nuisance. Negligence, Of one controlling real estate. Landlord and Tenant.</p> <p>The owner of a building in the city of Boston, to which St. 1892, c. 419, § 66, applies, is not liable to a person injured from slipping on ice on the adjoining sidewalk formed by water discharged from a spout attached to the building, if at the time of the accident the building was occupied by a tenant to whom it was leased by an unrecorded lease for twenty years, under which he had the right to make alterations and repairs or to remove the building and erect a new one in its place and who covenanted to save the owner harmless from damage occasioned by any nuisance made or suffered on the premises and from any damage arising from neglect in not removing snow and ice from the sidewalks bordering on the premises. Following Coman v. Alies, 198 Mass. 99.</p>

<p>Practice, Civil, Exceptions, Conduct of trial: judge’s charge, argument to jury. Witness, Disclosure of names.</p> <p>In refusing to sustain an exception to the refusal of a presiding judge to give an instruction to the jury in the language requested although he gave it in substance, it was said, that the degree of amplification with which an applicable principle of law shall be stated to a jury as well as its phraseology rests almost wholly in the discretion of the presiding judge.</p> <p>Where the defendant in an action of tort for personal injuries has waived a motion, which it had filed under St. 1911, c. 593, that the plaintiff should be compelled to disclose the names of his witnesses, upon an agreement of the plaintiff’s counsel to furnish their names, and the plaintiff’s counsel in furnishing the names has omitted one of them through an innocent inadvertence, it is proper for the presiding judge to rule that the defendant’s counsel in his argument to the jury cannot comment upon the omission.</p> <p>In. an action of tort against a street railway company for personal injuries, where there is no question in regard to a failure of either party to produce evidence within his or its exclusive knowledge or control and where the plaintiff’s counsel has not referred to the opportunity of the defendant to produce more witnesses than the plaintiff, it is proper for the presiding judge to refuse to allow the counsel for the defendant in his argument to the jury to refer to St. 1911, c. 593, which authorizes the court to compel either party upon terms to disclose the names and addresses of its witnesses.</p>

<p>Negligence, Of one in control of real estate. Nuisance. Landlord and Tenant.</p> <p>The owner of a building, which is constructed without any provision for artificial light, who has let it to a tenant under a lease giving the tenant control of the halls and stairways and providing that repairs shall be made by the tenant, is not liable to a subtenant, or to one coming by rightful invitation to a room hired by such subtenant, for personal injuries from falling down a staircase by reason of the darkness of a hallway in the building.</p>

<p>Petition under St. 1909, c. 490, Part I, § 77, filed in the Superior Court on May 6, 1912, by the executors of the will of Grace M. ICuhn, late of Lenox, who died on October 7, 1908, appealing from the refusal of the assessors of the respondent to abate a tax upon certain personal property assessed to the petitioners for the year 1910 on March 15, 1912, and which they had not paid, the said property on April 1, 1910, having been in the possession of Francis W. Rawle, the ancillary administrator of the estate of the testatrix in the State of Pennsylvania appointed by a court of that State.</p> <p>The case was submitted to Irwin, J., upon the pleadings and an agreed statement of facts. The judge ordered that the assessment made by the assessors of the respondent on March 15, 1912, and the interest and other charges thereon be abated, and at the request of the parties reported the case for determination by this court.</p> <p>The case was submitted on briefs.</p>