Volume 216 — Massachusetts Reports

<p>Equity Jurisdiction, Constructive trust, Enforcement of agreement between husband and wife, Following trust fund, To reach and apply assets fraudulently conveyed. Husband and Wife. Trust, Constructive, Following trust fund.</p> <p>Where a sale is made of real and personal property belonging to a husband and wife, in which they have equal beneficial interests, and the net proceeds of the sale are received in a check payable to the husband, subject to an agreement between the husband and wife that the check shall be collected for the benefit of both of them and that the wife shall receive the portion belonging to her, this agreement, which is void at law, can be enforced in equity.</p> <p>In a suit in equity by a married woman against her husband and others, to obtain the proceeds of property belonging to the plaintiff and sold by her husband and for which he agreed to account to her, if it appears that the defendant husband wrongfully appropriated the plaintiff’s share of the proceeds from a sale of property belonging equally to both of them, and in order to place it beyond her reach purchased with the proceeds of the sale a parcel of land in the name of a granddaughter, without the consent or knowledge of the grantee, such voluntary transfer is voidable by the plaintiff, who is entitled to have the land applied in satisfaction of her equitable demand.</p>

<p>Negligence, Railroad, At grade crossing.</p> <p>In an action by an administrator against a railroad corporation for causing the death of the plaintiff’s intestate by a collision of a train of the defendant with a wagon in which the intestate was driving on a highway at an open grade crossing of the defendant’s railroad, if there is evidence that the intestate’s view was so obstructed by cars and trains on other tracks of the defendant that the train which struck him could not be seen until he was almost upon the crossing; that there was so much noise there that neither the coming train nor its signals could be heard; and that the defendant’s flagman whose duty it was to guard this crossing had his attention engaged elsewhere and gave no warning to the intestate until the intestate was close upon the track and could not avoid being struck, the question whether the intestate was in the exercise of due care is for the jury.</p> <p>A traveller on a highway approaching an open grade crossing of a railroad, where he knows that a flagman is stationed, has a right to rely to some extent upon the absence of any warning from the flagman, although this does not excuse him from the duty of exercising diligence for his own protection.</p>

<p>Tort, for a series of trespasses from April 1,1911, to September 1, 1912, upon a tract of woodland in the town of Wendell alleged to belong to the plaintiff. Writ dated September 30, 1912.</p> <p>In the Superior Court the case was tried before Quinn, J., without a jury. The plaintiff was the son of Edwin Stone of Orange. Edwin Stone bought the lot and paid for it. The deed named the plaintiff as grantee and was delivered to Edwin Stone, who retained it among his papers until his death. The plaintiff did not know of its existence until he found it among his father’s effects after his father’s death, which occurred on February 8, 1894. The plaintiff testified that previous to 1883 he had asked his father to buy for him not to exceed ten sprout lots, but that the one in question and another one described in the same deed were the only ones purchased by Edwin Stone in which his name was inserted as grantee. The plaintiff was more than twenty-one years of age at the time of this purchase in 1883, and lived in Orange where he had been a resident ever since.</p> <p>The defendant claimed to be the owner of the land under a tax deed from the collector of taxes of the town of Wendell, given under a sale on March 12, 1886, for non-payment of taxes for the year 1884 assessed to Edwin Stone as "owner” of the land.</p> <p>Other material evidence is described in the opinion.</p> <p>At the close of the evidence, the defendant asked the judge to make the following rulings, besides others which were made by the judge or became immaterial:</p> <p>“3. That Edwin Stone was the person liable for the taxes upon this property in the year 1884.</p> <p>“4. That at the time of this assessment of taxes upon him in 1884, Edwin Stone was the owner of the property in question under the meaning of Pub. Sts. c. 11, § 13.”</p> <p>“7. That the tax sale to the inhabitants of Wendell in the year 1886 bars the plaintiff from maintaining this action.</p> <p>"8. That at the time of the alleged trespass the plaintiff had no right, title, or interest in the property in question upon which he could maintain trespass.”</p> <p>The judge refused to make any of these rulings. He found that Abbie B. Clark and Rufus L. Chase, executors, who were the grantors in the deed dated November 15, 1883, under which the plaintiff claimed, parted with all control of that deed; “that there was a delivery of said deed to the plaintiff’s father for the benefit of the plaintiff and that the plaintiff has accepted the same.” The judge found for the plaintiff in the sum of $1,300; and the defendant alleged exceptions.</p>

<p>Practice, Civil, Conduct of trial: order of evidence, rulings and instructions. Evidence, In rebuttal, Part of document, Opinion: experts. Negligence, Railroad. Words, “Railroad crossings at grade.”</p> <p>Whether at the trial of an action of tort the plaintiff shall be allowed to introduce evidence in rebuttal which plainly would have been admissible as a part of his affirmative case, is within the discretion of the presiding judge.</p> <p>The phrase “railroad crossings at grade” in a paragraph of a rule of a railroad corporation, relating to the proper position of freight trainmen on the top of a train at points where a train is required to stop, was held to mean the crossing of two lines of railroad at grade and not the crossing by a railroad of a highway at grade.</p> <p>In an action against a railroad corporation for personal injuries from a collision of a train of the defendant with a buggy in which the plaintiff was being transported on a highway, if the plaintiff offers in evidence a rule of the defendant relating to the proper position of freight trainmen when a train is in certain places, but only the last sentence of the rule refers to a condition similar to that disclosed by the evidence, it is within the discretion of the presiding judge to admit the last sentence of the rule and exclude the rest of it.</p> <p>In an action against a railroad corporation for personal injuries from a collision of a train of the defendant with a buggy in which the plaintiff was being transported on a highway, where the defendant contended that certain evidence introduced by it showed that the horse attached to the buggy was driven against the train, the plaintiff offered to show in rebuttal, by the testimony of a brother of the man who was driving the horse, that the witness had driven the horse and had “known it for a number of years; ” that he was “familiar with its driving qualities; that it was a high-lifed horse, a good driver, and from his experience with the horse it could not be driven into a moving train.” The presiding judge excluded the evidence as consisting of the opinion of the witness. Held, that the offer was in effect an offer of evidence to show the belief or opinion of the witness, and that, assuming that the matter was one on which expert testimony was admissible, the presiding judge might have found that the witness was not sufficiently qualified as an expert to make his opinion admissible, a question on which the determination of the judge was final.</p> <p>No exception lies to the refusal of a presiding judge to give a correct and applicable instruction to the jury in the exact language requested, if he gives it in substance and effect.</p> <p>No exception lies to the refusal of a presiding judge to single out for comment in his charge one phase of the case and thus give it a disproportionate emphasis as compared with other matters that are necessarily involved in a proper consideration of the case.</p> <p>Tn an action against a railroad corporation for personal injuries from a collision of a train of the defendant with a buggy in which the plaintiff was being transported on a highway, there was evidence for the plaintiff that the portion of the defendant’s train that struck the horse and buggy had broken apart from the rest of the train, and that the train broke apart near the crossing where the accident happened; but the evidence was conflicting as to where on the line of the railroad and where in the train the breaking apart occurred. The plaintiff asked the presiding judge to rule “that if the jury find that the train broke apart and detached cars proceeded over the crossing without lights or warning signal, and came in collision with the team in which the plaintiff was riding, this would be direct evidence of negligence on the part of the defendant. ” Held, that all that the plaintiff was entitled to on this subject was an instruction that the jury could find evidence of negligence in the breaking apart of the train if unexplained.</p> <p>In an action of tort for negligence it is right for the presiding judge to refuse requests of the plaintiff to rule that on the proof of certain facts, which are merely evidence of negligence on the part of the defendant and of due care on the part of the plaintiff, the plaintiff is entitled to recover and that the defendant is negligent as matter of law. On proof of such facts, the question of negligence still is for the jury.</p> <p>In an action against a railroad corporation for personal injuries from a collision of a freight train of the defendant with a buggy in which the plaintiff was being transported on a highway, it is right for the presiding judge, in giving an instruction requested by the plaintiff to the effect that if the trainmen on the freight train were absent from their posts of duty at the time of crossing the highway this would be direct evidence of negligence, to modify the instruction by adding that the jury may consider the position of the trainmen if they find that it had anything to do with the accident, but that, if the presence of the trainmen at their posts would not have helped the plaintiff or have prevented the accident, it is of no consequence whether they were at their posts or not.</p>

<p> School and School Committee. </p> <p>The duty of care and management of public schools, which is vested in a school committee, includes the right to establish and maintain standards for the promotion of pupils from one grade to another and for their continuance in any particular grade; and, so long as the committee act in good faith in the performance of such duty, their conduct is not subject to review by any other tribunal.</p> <p>Where a child has been excluded by a school committee in good faith from a certain school or grade because of his failure to satisfy the standard of scholarship set by the school committee for that school or grade, and he is given an opportunity to attend another school or grade adapted to his ability and accomplishments, there has been no “unlawful exclusion” of the child from the public schools within the meaning of R. L.' c. 44, § 7.</p> <p>Where the ground of exclusion of a child from a public school is failure in his studies and not misconduct, the school committee are not required by R. L. c. 44, § 8, to give the pupil an opportunity for a hearing.</p>

<p>Deed, Construction. Adverse Possession.</p> <p>At the hearing of a petition for the registration of the title to a farm containing a soapstone ledge, the following facts appeared: The owner of the farm conveyed a right to mine for soapstone and other minerals on the farm for life to one who did not record the deed for eight years, and, three years after such conveyance, conveyed the farm, by metes and bounds and without reference to the mining grant previously made, to another person, who three years later conveyed the farm to still another person by a warranty deed containing the following words: “The said premises subject to a mortgage . . . which together with the Soap Stone Ledge is excepted from sale.” There was no evidence that either of the grantees of the farm knew of the previous conveyance of a right to mine. Held, that the quoted words were not a mere reference to the incumbrance consisting of the life estate in the ledge, but were an exception of the ledge from the conveyance.</p> <p>A soapstone ledge one hundred and sixty feet long and seventy-five feet wide, which could be definitely located on a certain farm, was excepted from a conveyance of the farm. For fifty-nine years after the conveyance neither the grantor of the farm nor his successors in title quarried the ledge, and there was no way from it to a public road. The grantee of the farm and his successors in title built and maintained a fence around the entire farm during that whole period. Held, that such facts did not show a title to the ledge by adverse possession in a successor of the grantee of the farm.</p>

<p>Agency, Existence of relation. Negligence, Employer’s liability.</p> <p>At the trial of an action for personal injuries, an issue was, whether the plaintiff when injured was in the employ of the defendant, and there was evidence tending to show that the plaintiff was in the general employ of a contractor and builder, who had been doing some work on a building of the defendant, that, just previous to the time of his injury, the plaintiff had been at work for the contractor elsewhere than on the defendant’s building, that in consequence of a conversation of the defendant with the contractor, the defendant procured the plaintiff to come to his building to assist in unloading some plate glass which he had purchased, that the contractor had nothing to do with the purchasing and setting of the glass, and that the defendant took charge of and directed the work. It appeared that the plaintiff was paid by the contractor. Held, that there was evidence for the jury from which a finding was warranted that the plaintiff while performing the work in question was subject to the direction and control of the defendant, and therefore was employed by him.</p> <p>At the trial of an action for personal injuries caused by the falling upon the plaintiff of a large box containing plate glass which the defendant had bought and which, under the defendant’s direction, the plaintiff and others were assisting to unload from an express wagon, there was evidence tending to show that the plaintiff was a carpenter in the general employ of a contractor and builder, and that while assisting the defendant he was in the defendant’s employ, that he was not accustomed to unload glass and objected to having anything to do with the work when asked by the defendant to help him; that the defendant had ordered from an express company from whose wagon the glass was being unloaded sufficient men and appliances for the work, but that, when the wagon arrived, there were not sufficient men or appliances, and that the defendant, although previously told what was necessary, went ahead with the work, personally directing and assisting, without waiting for needed men and appliances. Held, that there was evidence warranting findings that the plaintiff was in the exercise of due care and that the defendant was negligent; and also that the plaintiff had not as a matter of law assumed the risk of the injury.</p>

<p>Bill in equity, filed in the Superior Court on March 31, 1909, and afterwards amended, against George D. Nelson and the William Fox Amusement Company, a corporation.</p> <p>The plaintiff alleged in substance as follows: On July 24, 1906, the defendant Nelson and one Emma G. Vinton leased the Nelson Theatre in Springfield to the Shubert Theatrical Company for five years, the lease containing a covenant by the lessee that it would not assign the lease nor underlet the premises without the consent in writing of the lessors, and a provision that, should any material condition of the lease be violated, the lease should become null and void at the election of the lessors. There were several successive assignments of the lease, the plaintiff being the last assignee. The lessors did not assent in writing to any of these assignments, but, with full knowledge of each assignment, accepted from the assignee rent and, during the period of the last two assignments, permitted extensive improvements to be made on the premises. The assignment to the plaintiff was dated March 17, 1908. On January 24, 1908, Emma G. Vinton died, and the defendant Nelson became sole owner of the premises. On March 16, 1909, he delivered to the defendant William Fox Amhsement Company a lease of the premises, and on March 22, acting either for himself or as agent for that company, expelled the plaintiff from the premises, and, at the time the suit was brought, continued to keep the plaintiff from the use of them. The William Fox Amusement Company was occupying the theatre to the exclusion of the plaintiff and intended to continue to do so. The plaintiff, when expelled, was conducting upon the premises a profitable business in giving public theatrical performances and moving picture exhibitions. The bill also alleged that the damages suffered by the plaintiff by reason of its being excluded from the leased premises were of such a nature that the plaintiff could not 'be compensated therefor fully and fairly in an action at law, and that the plaintiff would suffer irreparable injury if its exclusion from the premises further continued and possession thereof was not restored to it forthwith.</p> <p>The prayers of the bill were in substance that the defendants be enjoined from continuing in possession of the premises to the exclusion of the plaintiff, that the premises be surrendered to the plaintiff, that the defendant Nelson be enjoined from asserting that there had been a forfeiture of the lease by reason of any of the assignments, “that an accounting be had to determine what damages the plaintiff” had suffered from the alleged wrongful acts of the defendants, and that the defendants be ordered to pay the damages so ascertained to the plaintiff.</p> <p>The defendants demurred to the amended bill. The demurrers were overruled, as stated in the opinion.</p> <p>The case was heard by Pierce, J., who on April 26, 1909, made findings of fact and rulings of law favorable to the plaintiff, and a “decretal order” granting the injunctions asked for in the bill and appointing Nathan P. Avery, Esquire, as master “to hear the parties and their witnesses upon the question of damages, to assess the damages, if any, and to report the facts upon which the assessment” was based. The defendants appealed from such order.</p> <p>George D. Nelson died on February 8,1910, and George N. Dunn, the executor of his will, was admitted as a defendant in his stead.</p> <p>Exceptions of the defendants to the master’s report were heard by Crosby, J., who filed a memorandum overruling the exceptions to the report and directing a decree confirming the report. No such decree appears to have been made.</p> <p>A final decree was made granting the prayers of the bill, directing that “the defendants jointly and severally” pay to the plaintiff $3,535.02 with interest, “being the amount of damages suffered by the plaintiff by reason of the wrongful acts of the defendants in interfering with the plaintiff’s possession of” the premises in question; that the defendant William Fox Amusement Company pay to the plaintiff the further sum of $213.58 with interest, “being the amount of damages caused to the plaintiff by the wrongful acts of the William Fox Amusement Company alone in interfering with the property of the plaintiff upon the ” premises; and that the defendant Dunn as executor pay to the plaintiff the further sum of $1,023.05 with interest, “being that part of the rent of the Nelson Theatre paid in advance by the plaintiff proportionate to the time during which the plaintiff was out of possession of said theatre by reason of having been evicted by the defendants.” The defendants appealed.</p>

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

<p>Contract to recover a reward of $300 offered by the defendant on May 21, 1909, “to any person furnishing evidence that will convict the person or persons who have set the recent fires in said town,” and alleged to have been earned by the arrest on May 28, 1909, of one Brooks, who afterwards was convicted, by the plaintiff who was a constable of the defendant elected at the annual town meeting held in March, 1909, to serve during that year. Writ dated February 25, 1911.</p> <p>In the Superior Court the case was tried before Keating, J., without a jury. At the close of the evidence, which is described in the opinion, the defendant asked the judge to rule that “upon all the law and evidence” the plaintiff could not recover. The judge refused to make this ruling, and made the following memorandum of decision:</p> <p>“The plaintiff furnished evidence which resulted in the conviction of George F. Brooks, the person who set the fires in the town of Granville, as alleged in the plaintiff’s declaration. Such services were outside the line of the plaintiff’s duty as constable and were rendered by him upon learning that the town of Gran-ville had offered a reward for the purpose of gaining the reward. The court therefore ruled that the fact that the plaintiff was a constable did not preclude him from recovering the reward for performing such services.”</p> <p>The judge found for the plaintiff in the sum claimed; and the defendant alleged, exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Petition, filed in the Superior Court on March 5, 1910, and afterwards amended, under R. L. c. 197, § 10, to enforce a mechanic’s lien for labor on a certain lot of land and a three story building thereon in Chicopee belonging to the respondent Butler.</p> <p>The case was referred to Luther White, Esquire, as auditor, and afterwards was heard by Jenney, J., without a jury, upon the auditor’s report and oral testimony. The material facts are stated in the opinion. The petitioner asked the judge to make the following rulings:</p> <p>“1. That there is no inaccuracy in the statement describing the property to which the lien attaches.</p> <p>“2. That the petitioner is entitled to recover the amount found by the auditor in his report.</p> <p>“3. That the property can be reasonably recognized from the description set forth in the certificate and petition.</p> <p>“4. That on all the evidence thepetitioner is entitled to recover.”</p> <p>The judge refused to make the first, second and fourth rulings requested, and refused to make the third ruling except as follows: “ I find that the part of the respondent Butler’s property described in the certificate and in the petition, as amended, can be reasonably recognized from the description.”</p> <p>The judge found for the respondents; and the petitioner alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Sale, Passing of title. Conflict of Laws. Intoxicating Liquors. Payment.</p> <p>A liquor dealer, doing business in the State of New York and having no license to sell intoxicating liquors in Massachusetts, agreed in Massachusetts to sell to a buyer here at a certain price per gallon two barrels of whisky and a keg of gin from the seller’s stock in New York. Afterwards the seller in New York took from his stock there two barrels of whisky and a keg of gin, ascertained their contents and shipped them by a common carrier to the buyer in Massachusetts, and the buyer paid the freight as he had agreed to do. IIeld, that only an ex-ecutory contract was made in Massachusetts and that the sale was completed in New York; so that there was no violation of the liquor laws of this Commonwealth, and the seller could recover the price of the goods.</p> <p>If a liquor dealer, doing business in the State of New York and having no license to sell intoxicating liquors in Massachusetts, agrees in this Commonwealth to sell to a buyer here a specific barrel of whisky at a certain price, whether such barrel of whisky is at the time in New York or is elsewhere in this Commonwealth, this is a completed sale made in Massachusetts which is unlawful under R. L. c. 100, § 1, and no action can be maintained for the price.</p> <p>A payment made “on account generally” to a creditor who has lawful demands and also an unlawful demand against the debtor cannot be applied by the creditor to his unlawful demand without the assent of the debtor.</p>

<p>Equity Jurisdiction, To enforce trust. Trust, Validity. Husband and Wife. Marriage and Divorce.</p> <p>A wife, who voluntarily has discontinued a libel for divorce, cannot maintain a suit in equity to compel the enforcement for her benefit of a trust created by her husband by a deposit of money to be paid to her on her obtaining a divorce from him; because, if the transaction can be regarded as a valid provision for alimony upon the plaintiff obtaining a divorce to which she is entitled, the condition of payment has not been performed, and, if the transaction is an attempt by the husband and wife to dissolve their marital relation by means of a collusive divorce, it is void as against public policy, and no right can arise from it that the courts will enforce.</p>

<p>Workmen’s Compensation Act. Agency. Evidence, Declarations of deceased persons. Words, “Court,” “Action.”</p> <p>A finding of the Industrial Accident Board under the workmen’s compensation act, that an employee came to his death through an injury arising out of and in the course of his employment, stands upon the same footing as the verdict of a jury or the finding of a judge sitting without a jury and is not to be set aside if there was any evidence upon which it could have been made.</p> <p>If the driver of a dump cart, whose employer is a general teamster and furnishes teams for the use of a city in transporting street sweepings but retains control of the care of his horses, at least to the extent of seeing that they are watered, takes his cart and horse at the noon hour, saying that he will go home to dinner and on the way will water the horse, and, driving toward his home, which is in the direction of the nearest watering trough although at a considerable distance beyond it, is injured fatally by the running away of the horse before the watering trough is reached, it can be found that the driver received the injury that caused his death while in the service of the general teamster and that such injury arose out of and in the course of his employment within the meaning of St. 1911, c. 751, Part II, § 1.</p> <p>In a case brought before this court by an appeal from a decree of the Superior Court under the workmen’s compensation act, questions as to the correctness of rulings of the Industrial Accident Board upon the admission and exclusion of evidence, which appear by the record to have been presented seasonably, will be considered, but the decree will not be reversed for error in this respect unless the substantial rights of the parties appear to have been affected; following the general equity rule, which is broader than the rule that existed in the equity practice of this Commonwealth before St. 1913, c. 716, § 4.</p> <p>The provision of B. L. c. 175, § 66, that “a declaration of a deceased person shall not be inadmissible in evidence as hearsay if the court finds that it was made in good faith before the commencement of the action and upon the personal knowledge of the declarant,” applies to a claim for compensation under the workmen’s compensation act, the words “court” and “action” being used in the statute in a comprehensive sense referring to the pursuit of a right in any tribunal of justice.</p>

<p>Bill in equity, filed in the Superior Court on March 18,1912, to enforce the specific performance of a contract alleged to have been made on February 27, 1912, to sell and convey to the plaintiff a certain farm in the town of Agawam.</p> <p>In the Superior Court the case was tried before Morton, J. At the close of the evidence the plaintiff asked the judge to make the following rulings, besides two others which were made by the judge:</p> <p>"1. Upon the law and the facts there must be a decree of specific performance.”</p> <p>“3. Any evidence of conversation tending-to show'an attempt to close some sort of bargain or contract after the twenty-sixth day of February, 1912, cannot be considered as a waiver of any contract entered into on or prior to February 26, 1912.”</p> <p>“5. Keeping the check dated February 26, 1912, payable to the defendant, in the sum of $1,000, and the memorandum therein contained, constitute an acceptance of the contract as a matter of law.</p> <p>“6. The fact that the defendant consciously retained in her possession a check for $1,000, and the memorandum therein contained, constitutes an acceptance of the contract as a matter of law.”</p> <p>The judge refused to make these rulings. He made the following findings of fact and rulings:</p> <p>“The plaintiff on February 16, 1912, wrote the defendant a letter asking for her lowest cash price for the property. On February 20, 1912, the defendant wrote the plaintiff that ‘I would take just now, $5,000 for the place, cash, as I should like to use that amount. Let me know very soon if you think you want it. Remember I am giving you my lowest cash price for ten days consideration.’</p> <p>“The plaintiff met the defendant at her home in New Jersey on February 27, and had some conversation with her about the price, offering some small amount to bind the bargain, which she refused. Later he offered her a certified check for $1,000 on which the plaintiff had written ‘as part payment for farm bought for $5,000.’</p> <p>“The check was put by the plaintiff on the defendant’s desk with her knowledge, and remained in her possession in the drawer of the desk until she took it out to carry it to Springfield, when she gave it to her counsel. She refused to accept the check, when it was put on the desk, as a part of the purchase price; she never deposited it or intended to deposit it, and later gave it to her counsel.</p> <p>“In March, after the expiration of the ten days which the defendant gave the plaintiff to pay in cash for the property, the parties met in Springfield and had some further conversation about a sale of the property, reserving a portion thereof for the defendant’s son, but no agreement was reached and the negotiations fell through.</p> <p>“The plaintiff then tendered a certified check for $4,000, which was refused. /</p> <p>“The property was the only piece owned by the defendant in Agawam.</p> <p>“I ruled that the two letters taken together in connection with the evidence that this was the only property owned by the defendant in Agawam, was a sufficient memorandum to satisfy the statute of frauds.</p> <p>“The contract called for a payment of cash within ten days. The cash was not paid within ten days, nor did the evidence satisfy me that the defendant waived such payment by the acceptance of the check for $1,000, or otherwise.</p> <p>“I ruled that the retention of the check for $1,000 under the circumstances stated did not constitute an acceptance of the contract as a matter of law.</p> <p>“I find, therefore, for the defendant and dismiss the bill with costs.”</p> <p>The plaintiff alleged exceptions.</p> <p>After the allowance of the bill of exceptions there was entered an order, called a final decree, ordering that the plaintiff’s bill be dismissed with costs to the defendant taxed as in an action at law.</p> <p>The case was submitted on briefs.</p>

Petition, filed in the Probate Court on October 23, 1911, under R. L. c. 184, §§ 34-45, for the partition and sale of certain real estate in Springfield to be apportioned and distributed among the heirs at law of Diodate L. Swan, late of Springfield, one of whom was Leila W. Tapley, the wife of George K. Tapley. The Probate Court made a decree confirming a report of commissioners and ordering a partition, a sale and a distribution in accordancet herewith.

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

<p>Wafer Supply. Eminent Domain. Limitations, Statute of. Damages, For property taken or injured under statutory authority. Gardner. Words, “Taking. ”</p> <p>Under St. 1902, c. 287, which authorizes the town of Gardner for the purpose of supplying itself and its inhabitants with water to take the waters of any brook within the limits of that town, and in § 3 provides that any person injured by any talcing who is unable to agree with the town as to the amount of his damages may have them assessed and determined "on making application at any time within the period of two years after the taking of such land or property or the doing of other injury under authority of this act,” a petition for damages arising from the taking and diversion of the waters of a brook cannot be maintained, if it was filed more than two years after the filing in the registry of deeds by the water commissioners of a description of the taking of the waters of the brook, although it was filed less than two years after the first physical diversion of the waters of the brook.</p>

<p>Workmen’s Compensation Act. Words, "Parent.”</p> <p>Under the provisions of the workmen’s compensation act contained in St. 1911, c. 751, Part II, § 7, if a workman, whose death was the result of personal injuries that arose out of and in the course of his employment, is survived by a wife who was living with him at the time of his death and by children of such wife and also by a child by a former wife, who is under the age of eighteen years and likewise was living with him at the time of his death, such child of the workman by his former wife, having no surviving dependent parent, is conclusively presumed to be wholly dependent, as is the widow, and shares equally with the widow the compensation to which the dependents of the deceased workman are entitled under the statute.</p>

Tort for personal injuries sustained by the plaintiff on May 25, 1910, when employed as a workman in the defendant’s foundry at Warren, from the breaking of an emery wheel while the plaintiff and one Harness, a fellow workman, were engaged in grinding down a heavy casting which was to be fitted as a rib on a tumbler, a machine used in the defendant’s business; the declaration containing three counts, the first alleging a defect in the ways, works or machinery of the…

<p> Review. Pauper. Judgment. </p> <p>Upon a petition for a writ of review it ordinarily is a question of fact whether, under the law, justice to the parties requires a review, and in such a case the granting of the writ is a matter of judicial discretion.</p> <p>Where for three years after a verdict against him an excepting party fails to have his exceptions passed upon, and then the trial judge dies, and after the expiration of three years more the exceptions are dismissed and judgment is entered on the verdict, the granting of a writ of review to review such judgment is purely a matter of discretion.</p> <p>In regard to an action brought by one town against another for expenses incurred in the support of a pauper alleged to have had a settlement in the defendant town, it was said, that, had the question been before this court, which it was not, it was clear that a judgment for the defendant in an action brought against it by a third town for expenses incurred for the support of the same pauper was not a bar to the action, because the parties were not the same and there was no privity between the respective plaintiffs in the two actions.</p>

<p> Mechanic’s Lien. Husband and Wife. </p> <p>A, mechanic’s lien cannot be established upon real estate owned by a husband and wife as tenants in common for materials bought from the petitioner by a contractor, who was engaged in the construction of the building under a contract made by him with the husband and wife as tenants in common, if the “notice in writing to the owner of the property to be affected by the lien” of an intention to claim the hen, which by R. L. c. 197, § 3, is required to be given before the lien can attach, was directed to and served upon the husband alone.</p>

<p>Watercourse, Riparian rights. Practice, Civil, Exceptions.</p> <p>It seems, that a riparian owner on a small stream may make reasonable use of the water of the stream by diverting it to unconnected land belonging to him which does not border on the stream and is in another watershed if he causes no actual damage present or potential to the riparian proprietors below him.</p> <p>In an action by one riparian proprietor against another above him on the stream for diversion of the water to unconnected land belonging to the defendant in another watershed, where the presiding judge erroneously instructed the jury that for any use of the water outside the watershed the plaintiff could recover at least nominal damages even if he had sustained no actual loss, but the jury, on evidence warranting such a finding, returned a verdict for substantial damages, exceptions of the defendant were overruled on the ground that the defendant had not been harmed by the error in the judge’s instructions.</p> <p>The reasonableness of the use of the water of a stream by a riparian proprietor depends upon all the material circumstances attending such use, including the nature of the riparian property of an owner lower on the stream and his need of the use of the water.</p>

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

<p>Agency, Commission of agent. Contract, Performance and breach. Practice, Civil, Conduct of trial. Witness, Corroboration. Evidence, In corroboration of witness, Contents of document. Words, “Introduction,” “Introduce.”</p> <p>In an action to recover a commission on a sale by the defendant to a certain shoe machinery corporation of certain shoe machinery patents and shares in a shoe manufacturing corporation, where the jury are warranted in finding that the defendant offered to pay the plaintiff a five per cent commission for procuring interviews between the defendant and certain officers of the purchasing corporation in which it should be understood that the interviews were sought by such officers for the purpose of purchasing the defendant’s patents and shares of stock, in case such interviews conducted by the defendant in his own behalf should result in a sale of the property, evidence, that, after such interviews thus procured had taken place but before the sale was effected, the defendant wrote to the plaintiff that he might “ give the matter no further attention,” does not affect the plaintiff’s right to recover, because when the letter was written the services for which the plaintiff was to be paid already had been performed.</p> <p>It is proper for a presiding judge to instruct a jury as to the meaning of words in the pleadings, and, where the judge and the counsel concurred in assuming that a certain word explained by the judge was in the declaration when it was not, this erroneous assumption affords no ground for an exception, if the allegations in the declaration were in substance what the judge told the jury that they were.</p> <p>In an action to recover a commission on a sale by the defendant to a certain shoe machinery corporation of certain shoe machinery patents and shares in a shoe manufacturing corporation, where there was evidence that the service to be performed by the plaintiff was to procure interviews between the defendant and certain officers of the purchasing corporation in which it should be understood that the interviews were sought by such officers for the purpose of purchasing the defendant’s patents and shares of stock, the defendant excepted to the use of the word “introduced” in the judge’s charge. In using the word "introduced” in his charge the judge explained to the jury that he used it only as a “short cut” and left it to the jury to say what the plaintiff was to do and whether he did it. Held, that the defendant’s exception must be overruled.</p> <p>Except where moral duress or a concealment of facts has been shown, evidence of previous statements of a witness, whose credibility has been attacked, consistent with his present testimony is not admissible in this Commonwealth; and a fortiori is such corroborating testimony inadmissible where no contradictory statements of the witness have been put in evidence.</p> <p>Where a plaintiff cross-examines the defendant, in regard to a statement in writing made by the defendant narrating certain negotiations, by asking him to give the order in which certain events are recorded in that statement, for the purpose of laying the foundation of an argument that the events occurred in the order in which they are mentioned in the writing, this is more than asking the witness to refresh his recollection by the memorandum and amounts to asking for the contents of a document without putting in evidence the writing itself, and on objection such an inquiry should be excluded; but in the present case the admission of the oral evidence as to the contents of the paper was held to have done the defendant no harm, because an inspection of the statement in writing showed that the order of the events inquired about as noted therein accorded with the secondary evidence of the contents of the paper given in the defendant’s testimony.</p> <p>Where a party to an action has cross-examined the adverse party as to a part of the contents of a statement in writing made by such adverse party, if the statement in writing is a long one relating to various matters, the adverse party, although entitled to put in evidence the part of the document to which the questions referred, is not entitled to put the whole statement in evidence.</p>

<p> Executor and Administrator. Judgment. Name. </p> <p>The granting by the Probate Court of papers of administration upon a petition alleging the name of the intestate to have been Robert Eranen does not' make the person named as administrator the administrator of the estate of one whose name was Tyko Robert Eronen and who also was commonly known as Tyko Eronen but who was not commonly known as Robert Eronen and is not shown to have been known as Robert Eranen; and it is immaterial that the person who filed the petition intended by the name Robert Eranen to designate a certain intestate whose name was Tyko Robert Eronen.</p> <p>A decree of the Probate Court appointing an administrator of the estate of Robert Eranen is not attacked collaterally by showing that this decree had no effect as to granting administration upon the estate of Tyko Robert Eronen who never was known as Robert Eranen or Robert Eronen.</p>

<p>Practice, Civil, Jurisdiction of person, Motion to dismiss. Pleading, Civil, Answer to merits. Waiver.</p> <p>The objection of a want of jurisdiction oí the person of the defendant in an action at law cannot be raised by a motion to dismiss after the defendant has submitted himself to the jurisdiction of the court by filing a general answer to the merits.</p>

<p>Practice, Civil, Appeal. Police, District and Municipal Courts, Appeal, Petition to affirm judgment. Rules of Court. Waiver.</p> <p>Under R. L. c. 157, §§ 22, 23, a petition to affirm a judgment of a district court on the ground that an appeal from it has not been entered is filed seasonably if it is filed within one year from the time when the appeal should have been entered, although it is not filed within one year from the time when the appeal Was claimed.</p> <p>One, who has filed a motion to dismiss a petition to affirm a judgment of a district court on the ground that such petition was not filed seasonably, has waived the right to ask to have the petition dismissed on the ground that no notice of it was served on him as required by Standing Order 1 of the Superior Court; and such second ground for dismissal, if inserted in the same motion which asserts the first, must be refused consideration as waived in the making of the motion.</p>

<p>Practice, Civil, Verdict, Exceptions, New trial, Amendment after verdict. Negligence, Street railway.</p> <p>In an action of tort for personal injuries, where the declaration contains three counts each alleging a different form of negligence on the part of the defendant, if the presiding judge refuses to rule that the plaintiff cannot recover on any of the counts and submits the case on all the counts to the jury, who return a general verdict for the plaintiff, an exception to the judge’s ruling must be sustained unless the plaintiff was entitled to go to the jury on each of the three counts, or unless, as in the present case, the plaintiff may be permitted to amend his declaration after the verdict.</p> <p>In an action against a corporation operating a street railway for personal injuries, where the declaration contains a count for alleged negligence of the defendant in permitting the use of a defective, unsafe and dangerous mechanism, if there is evidence tending to show that, when the plaintiff’s intestate was seated on the front seat of an open car of the defendant, the door of the controller box in front of the motorman flew open and a shower of sparks came out and fell upon the plaintiff’s intestate, the plaintiff is entitled to go to the jury upon this count of his declaration.</p> <p>In an action against a corporation operating a street railway for personal injuries, where the declaration contains a count for alleged' negligence in failing to inspect properly the car on which the plaintiff was a passenger, if there is evidence that the accident was caused by a defect in the controller of the car in front of the motorman, that the car was an old one, although “just out of the shop,” and that the inspector whose duty it was to inspect it had one hundred and forty cars to inspect weekly, and if it appears that the motorman adjusted the controller immediately after the accident and this motorman is not called as a witness and his absence is not accounted for, the plaintiff is entitled to go to the jury upon this count of his declaration.</p> <p>In an action against a corporation operating a street railway for personal injuries, where the declaration contained three counts, the first alleging negligence in operation, the second alleging negligence in permitting the use of a defective mechanism and the third alleging negligence in failing to inspect the car properly, and there was evidence warranting a verdict for the plaintiff on the second and third counts but no evidence of negligence in the operation of the car, whereupon the presiding judge, against the defendant’s exception, refused to rule that the plaintiff could not recover on any of the counts and submitted the case on all the counts to the jury, who returned a general verdict for the plaintiff, this court, although of the opinion that the ruling of the judge was wrong in relation to the first count, found from an inspection of the record that the case had been tried fully upon its merits and that the question of the defendant’s general negligence had been submitted to the jury under appropriate instructions so that the ends of justice did not require another jury trial, and, therefore, ordered that, if within a time named the Superior Court should allow the plaintiff to amend his declaration by adding a count for general negligence, the exceptions should be overruled; otherwise, that they should be sustained.</p>

<p>Equity Jurisdiction, To reach and apply equitable assets. Words, “Debt.”</p> <p>Review by Rugg, C. J., of the successive statutes of this Commonwealth giving jurisdiction in equity to reach and apply equitable assets in payment of a “debt,” .in relation to the meaning of that word.</p> <p>A claim for unascertained damages, not ascertainable by computation, for the breach of an executory contract is not a “debt” within the meaning of R. L. c. 159, § 3, cl. 7, as amended by St. 1902, c. 544, § 23, and St. 1910, c. 531, § 2, giving jurisdiction in equity to reach and apply equitable assets in payment of a debt.</p>

<p>Practice, Civil, Appeal from municipal court, Trial by jury, Appeal from Superior Court, Order of judge. Rules of Court. Abatement.</p> <p>A defendant who has filed in a municipal court a special plea in abatement to the jurisdiction of the court on the ground that no valid service has been made upon him, alleging that he is a resident of another State and has no last and usual place of abode in this Commonwealth, and who has appealed to the Superior Court from the decision of the municipal court upon this plea, has a right to a trial by jury in the Superior Court upon the issues of fact raised by his plea.</p> <p>An order of the Superior Court, that a plea in abatement to the jurisdiction of that court on the ground that no valid service has been made upon the defendant, who, it is alleged, is a resident of another State and has no last and usual place of abode in this Commonwealth, be “overruled for want of prosecution,” is a judgment within the meaning of R. L. c. 173, § 96, as amended, from which an appeal to this court may be taken.</p> <p>An order made by a judge of the Superior Court will be presumed to have been made in accordance with the rules of that court, which have the force of law in proceedings therein.</p> <p>Upon a plea in abatement to the jurisdiction of the court in which an action was brought on the ground that no valid service had been made upon the defendant, who was alleged to be a resident of another State and to have had no last and usual place of abode in this Commonwealth, on which the defendant had claimed a trial by jury, a judge of the Superior Court made the order “Plea overruled for want of prosecution,” and the defendant appealed from the order. It appeared that under Rule 17 of the Superior Court the case could not have been put upon the trial list until the month succeeding that in which the order was made. There was nothing in the record to indicate that the defendant had not insisted at all times upon his right to a trial by jury. Held, that, there being nothing to show that at the time the order was entered there was any authority in the Superior Court to "require the defendant to do anything that he had not done, error of law was apparent on the face of the record, and the order must be reversed.</p>

<p>Sealers of Weights and Measures. Municipal Corporations, Officers. Bribery. Coal. False Weight or Measure. Words, “Municipal officer,” “Sealers.”</p> <p>Under R. L. c. 57, §§ 83-90, and acts in amendment thereof, in regard to the sale of coal, and the provision contained in St. 1902, c. 453, § 4, amending- R. L. c. 57, § 91, that “sealers of weights and measures shall cause the provisions of the seven preceding sections to be enforced in their respective cities and towns,” it is within the scope of the powers and duties of sealers of weights and measures .to institute complaints for violations of the statute in selling coal short in weight; and therefore an offer of money to a sealer of weights and measures to induce him not to institute such a prosecution is bribery of an officer within the meaning of R. L. c. 210, § 6.</p> <p>Although St. 1907, c. 394, as amended by St. 1911, c. 163, making it a crime to give or to attempt to give false or insufficient weight or measure, is not by its terms an amendment or extension of R. L. c. 57, §§ 83-93, regulating the sale of coal and providing punishments for giving false weight or measure, it is in effect such an amendment and thus is a part of the law relating to the sale of coal.</p> <p>A deputy sealer of weights and measures, appointed under R. L. c. 62, § 18, by the mayor and aldermen of a city or the selectmen of a town, is a “municipal officer” within the meaning of R. L. c. 210, § 6, providing punishments for bribing or attempting to bribe certain officers.,</p> <p>A deputy sealer of weights and measures is included by the word “sealers” as used in St. 1902, c. 453, amending R. L. c. 57, § 91, and therefore such a deputy is authorized to make complaints for violations of R. L. c. 57, §§ 83-90, relating to sales of coal; and an offer of money to induce him not to institute a prosecution for such a violation is bribery under R. L. c. 210, § 6.</p>

<p>Tort by the father and mother of John N. Pierce, late of Worcester, as his dependent next of kin, under St. 1909, c. 514, § 129, to recover for the instantaneous death of their son on January 5, 1911, when he was-in the employ of the defendant and was engaged in coupling cars in the defendant’s freight yard at Worcester. The eighth count of the declaration, on which alone the case went to the jury after the plaintiffs had waived all their other counts, alleged that the decedent was in the employ of the defendant as-a brakeman and that his death was caused by the negligence of some person or persons in the service of the defendant who at the time had charge and control of a certain train of the defendant in. the defendant’s freight yard at Worcester, by reason of which the. decedent was caught between a moving freight car and a freight, car standing on another track. Writ dated December 19, 1911.</p> <p>In the Superior Court the case was tried before Hall, J. It appeared that the place where the decedent was killed was between two intersecting repair tracks in the freight yard numbered respectively two and three. The manner of the accident is described in the opinion. The accident happened at 2.30 a. m. on January 5, 1909. It was agreed by the counsel for the defendant that the-Pennsylvania Railroad car standing on repair track number 3 was put there in the daytime on the morning of January 4 and that the Delaware and Hudson Railroad car which was on repair-track number 2 had been put there during the night of January 4. The defendant offered no evidence.</p> <p>The judge ruled that the plaintiffs were not entitled to recover and ordered a verdict for the defendant. The plaintiffs alleged exceptions.</p>

<p>Equity Jurisdiction, Rescission of exchange because of misunderstanding of parties as to identity of property. Contract, What constitutes.' Negligence. Sale, Rescission. Equity Pleading and Practice, Master’s report. Agency.</p> <p>In a suit in equity to set aside an exchange of land by the plaintiff and the defendant on the ground that the land which the defendant conveyed to the plaintiff was not the land that the plaintiff had thought it was, a master, after maldng findings of specific facts as to the transaction and a finding that the plaintiff was mistaken as to what land he was buying, stated that it was “a fair question whether this mistake was not due to the fact that the plaintiff did not exercise reasonable caution in examining the property.” Held, that this statement of the master was neutral, and left the question, whether the plaintiff was negligent, to be determined from the other facts reported by the master.</p> <p>A suit in equity may be maintained to rescind an exchange of real estate on the ground that there was no meeting of the minds of the parties as to the identity of the property which the plaintiff was to receive from the defendant, although there was no fraud or duress exercised by the defendant, if the misunderstanding did not arise by reason of voluntary negligence of the plaintiff or of a failure on his part to obtain reasonably accessible knowledge.</p> <p>In a suit in equity to rescind an exchange of a farm of the plaintiff for a city block of the defendant on the ground that there was no meeting of the minds of the . parties as to the identity of the city block, it appeared that the plaintiff was of foreign birth, unable to write anything in English excepting his name or to read English to any extent, that he had employed in the transaction with the defendant agents who, without his knowledge, also were employed by the defendant, that the agents were unduly solicitous to bring about the exchange, and that two material but unintentional misstatements of fact were made by them to the plaintiff, one of which led him to think that a neighboring and much superior block was the one which he was to receive; that he had an opportunity to rectify his misunderstanding by personal investigation before the exchange was consummated, but that he relied for guidance wholly upon the agents. Held, that the mistake of the plaintiff as to the identity of the block which he was to receive did not arise from negligence on his part, and that he was entitled tó have the exchange rescinded.</p> <p>In a suit in equity for the rescission of an exchange of a farm for a city block, upon which there was a first mortgage, on the ground that, without fault or negligence of the plaintiff and because of unintentional misrepresentations and over-solicitude of agents who the plaintiff thought were employed by him alone, but who also were employed by the defendant, the minds of the parties never met as to the identity of the block, relief will not be refused to the plaintiff merely because, as a part of the transaction, he delivered to the defendant a second mortgage upon the block which the defendant assigned to a third party, who purchased it without notice of the facts upon which the plaintiff seeks rescission.</p>

<p>Negligence, Street railway, Of driver of wagon, Res ipso loquitur.</p> <p>In an action against a street railway company for damage to a wagon resulting from its being run into by an electric street car of the defendant on a dark night, there was evidence that the street railway track was at the side of a country road, that there was a strong headlight in use on the car at the time of the accident, and that the front part of the wagon was damaged the most. The only evidence from which an inference could be drawn as to what the driver of the wagon was doing was that the track of the wagon on the road, observed after the accident, went to the street railway track “right straight across the road, almost.” Held, that there was no evidence that the driver was in the exercise of due care.</p> <p>In an action against a street railway company by a passenger for personal injuries resulting from a collision of the car and a wagon on a dark night, there was evidence tending to show that the street railway track was at the side and outside of the travelled way of a country road running through an open district, that the track was straight in that vicinity, that there were very few houses and no cross streets, and that there was in use on the car a very strong headlight. There was no direct estimate in the evidence of the speed of the car. A witness testified to the effect that it was going “awful fast,” “rolling, jumping, . . . running one way and the other . . . jumping around and down, shaking.” There also was evidence that, after the accident, the track of the wagon appeared to be straight across the road to the street railway track, and there was no evidence tending to explain the action of the driver of the wagon. Held, that there was no evidence of negligence of the motorman, and that the circumstances did not call for an application of the doctrine of res ipso loquitur.</p>

<p>Negligence, Of one controlling real estate, In building operations. Agency, Scope of authority. Evidence, Of agency.</p> <p>If the owner of a building in process of construction assumes the duty of furnishing suitable appliances for the use of employees of an independent contractor who is constructing the building for him, he is liable to one of such employees for personal injuries resulting from an appliance so furnished not being reasonably safe.</p> <p>A contract in writing between the owner of a building under construction and a firm of carpenters, which provided that the firm were “to perform and furnish all the carpenter work, except smoothing the floors,” does not of itself preclude an employee of the firm, who was injured because a bracket supporting a staging upon which he was working was not reasonably safe, from showing, in an action against the owner, that the owner had undertaken the duty of furnishing the brackets for stagings for the use of the firm’s employees.</p> <p>At the trial of an action for personal injuries against the owner of a building in process of construction, brought by an employee of a firm of carpenters, who were under an independent contract with the defendant “to perform and furnish all the carpenter work, except smoothing the floors,” it appeared that the injuries were caused by the breaking of a defective bracket supporting a staging upon which the plaintiff was working. There was evidence tending to show that the defendant was engaged in the business of developing land, of which the land being built on was a part, that he had caused plans for the building to be prepared and that he had entrusted the building operations to a manager, to whom he gave full authority to order lumber and materials and to superintend the work. The plaintiff offered to show that the brackets and materials for the staging which broke were not owned or hired by the plaintiff’s employers, but were brought to the premises by the defendant’s manager. He did not offer to show express authority from the defendant to his manager to furnish the staging material. The evidence offered was excluded. Held, that, on the evidence offered and on that which was admitted, the jury would have been warranted in finding that it was within the scope of the authority of the defendant’s manager to undertake the furnishing of the appliances in question, and that the evidence offered and excluded should have been admitted.</p>

<p>Negligence, In construction of a building, Independent contractor. Evidence, Presumptions and burden of proof.</p> <p>Where at a trial before a jury the defendant in his testimony admits certain facts which tend to establish his liability and afterwards in his testimony gives an explanation of the admission which tends to neutralize its effect, a question is raised for the jury, who may accept the admission as first made and reject the explanation.</p> <p>In an action against a general contractor engaged in the construction of a building, for personal injuries sustained by an employee of a subcontractor and caused by his falling through a hole in the roof, there was evidence tending to show that the hole had been made for a temporary purpose which had been fully accomplished, that it was the defendant’s duty to board it over and that he had not performed that duty, that employees of another subcontractor engaged in roofing the building had covered the hole with roofing paper so that it presented the same appearance as the rest of the roof, that the plaintiff did not know of the continued existence of the hole under the fragile covering, and that, while crossing the roof in the performance of his duty, he stepped upon the paper covering and fell into the hole. Held, that there was evidence of negligence of the defendant and of due care of the plaintiff.</p> <p>If, as the direct consequence of the negligence of a general contractor engaged in the erection of a building, an employee of a subcontractor is injured, the general contractor is liable therefor although negligence of a second subcontractor contributed to cause the injury.</p>

<p>Negligence, Employer’s liability.</p> <p>At the trial of an action at common law by a night watchman and fireman in a factory against his employer to recover for injuries received by an escape of steam from a valve of a boiler, there was evidence that there were two boilers side by side, only one of which was in use at a time, that they connected through valves with the same exhaust pipe; that on the day before the accident the defendant’s engineer, to repair the valve on the boiler not in use, had removed a portion of it and had left off the bonnet, leaving the valve open, without telling the plaintiff; that it was the plaintiff’s duty each night to exhaust the steam from the boiler which had been used during the day, and that, while he was performing that duty on the day in question, the steam escaped from the valve of the other boiler which the engineer had left open, injuring the plaintiff. Held, that there was evidence for the jury of due care of the plaintiff and of negligence of' the defendant.</p>

Complaint in equity, filed in the Superior Court on October 4„ 1911, under R.L. c. 81, §§ 10,11, to recover expenses incurred for the support of one Carlton F. Howland, a minor grandchild of the defendant.

<p>Negligence, Street railway.</p> <p>Although the motorman of a street railway car when turning a comer into an-, intersecting street is required to take every reasonable precaution to avoid injury to travellers, he is not required to anticipate and guard against the approach of pedestrians toward the side or rear of the car who if they come too-near may be struck by the overhang of the car as it sweeps around the comer.</p>

<p>Insurance, Fire: waiver of reference. Waiver.</p> <p>. The mere fact, that an insurance company after a loss by fire covered by a policy in the Massachusetts standard form issued by it, upon receiving a communication in writing from the insured stating that he was “ready to proceed under the provisions of the policy,” did not submit to the insured any nominees from whom to select a referee to determine the amount of the loss, is not as matter of law a waiver by the insurance company of its right to insist on such a reference as a condition precedent to recovery on the policy.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on July 1, 1911, by Patrick Coyle, a judgment creditor of the Taunton Safe Deposit and Trust Company, an insolvent corporation, in behalf of himself and all other creditors of that corporation against certain stockholders of that corporation to enforce the alleged liability of the defendants under R. L. c. 116, § 30, as amended by St. 1905, c. 228.</p> <p>On suggestion of the death of Patrick Coyle, Mary T. Coyle, the executrix of his will, was permitted to prosecute the suit as plaintiff. Later, on motion of Frederick S. Hall, the receiver of the property of the Taunton Safe Deposit and Trust Company, the suit was discontinued against such receiver as a party defendant, and he, as receiver, was given leave to appear as a party plaintiff, and .thereupon he so appeared.</p> <p>Among the defenses set up in the answers of the defendants, was the allegation that the decree of “Bill dismissed” in the suit of Nichols against the Taunton Safe Deposit and Trust Company, reported in 203 Mass. 551, which was brought in behalf of the creditors to enforce the same liability of the stockholders and in which the receiver also was made a plaintiff, was a bar to this suit. Other defenses set up were the statute of limitations and loches.</p> <p>The answer of the administrator de bonis non with the will annexed of the estate of Field set up the defense of the special statute of limitations as to suits against an executor or administrator, R. L. c. 141, § 9.</p> <p>The answer of the defendant White alleged, that, although he was a stockholder of record on the books of the corporation at the time the receiver was appointed, he was not the actual owner of any shares of stock at that time, having sold his shares a number of months before the filing of the petition for the appointment.</p> <p>The case was heard by Loving, J., who found among other facts those that are stated in the opinion. He 'found on the evidence before him "and ruled that the earlier bill brought by Nichols was dismissed on the ground of a defect in the preliminary proceedings and not upon its merits and that therefore the defense of yes judicata was not sustained. He ruled that the suit was not barred by the six year statute of limitations, R. L. c. 202, § 2, nor by the one year limitation under § 5 relating to actions for penalties or forfeitures under penal statutes. He found that neither the original plaintiff nor the receiver was guilty of loches.</p> <p>In regard to the defendant administrator with the will annexed of the estate of Field, the justice found that Field died on January 16, 1906, that his will was proved and an executor was appointed, who gave notice of his appointment but who rendered no final account, and that the estate remained unsettled, that at the time of Field’s death the receiver held $453.01 belonging to Field as a depositor, which he continued to hold, and that when the receiver was appointed Field owned ten shares of the trust company. The justice ruled that when the administrator of Field’s estate sued the receiver for the $453.01, the receiver could set off the amount due on the ten shares of stock that had belonged to Field, but that otherwise the suit against him was barred by R. L. c. 141, § 9.</p> <p>In regard to the defendant White, the justice found that he sold his stock before February 20, 1904, but that the trust company never was notified of the sale nor was any new certificate ever called for or issued to the purchaser, and that the books of the trust company at the time of the receivership and at the time of the hearing showed him to be the owner of twelve shares of stock. The justice ruled that upon these facts the sale of stock did not relieve this defendant from liability.</p> <p>The justice reported the case for determination by the full court. '</p> <p>The case was submitted on briefs.</p>

<p>Practice, Civil, Exceptions, New trial. '</p> <p>If in an action of contract there was evidence on which the plaintiff was entitled to go to the jury and the judge ordered a verdict for the defendant, the plaintiff is entitled to have an exception to the ruling sustained and to have another trial, even if he might have been entitled to recover only nominal damages.</p>

<p>Replevin for four carloads of hay contained in cars taken on the replevin writ from the possession of the defendant at its freight yard in New Bedford, the hay having been shipped to New Bedford from Saint Cyrille in the Province of Quebec in the Dominion of Canada. Writ in the Third District Court of Bristol dated August 24, 1911.</p> <p>On appeal to the Superior Court the case was tried before Dubuque, J. The evidence is described in the opinion. At the close of the evidence the defendant asked the judge to make the following five rulings, besides others that have become immaterial:</p> <p>"1. On all the law and the evidence, the plaintiff is not entitled to a verdict.</p> <p>“2. At the time the replevin writ was served on the defendant, the plaintiff was not entitled to the immediate possession of the goods.</p> <p>"3. The plaintiff was not entitled to the possession of the goods without surrendering to the defendant the bills of lading covering the shipments. '</p> <p>“4. The plaintiff had no right to repievy the goods.</p> <p>“5. The plaintiff had no right to secure possession of the goods by an action of replevin.”</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 $154. The defendant alleged exceptions.</p>

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

<p>Bill in equity, filed in the Superior Court on May 24,1913, by a corporation organized under the laws of the State of Rhode Island, against the owners of the real estate called the Bijou Theatre on North Main Street in Fall River, alleging that in August, 1912, the defendants gave the plaintiff a lease of the theatre and that the plaintiff deposited with the defendants the sum of $5,000, as provided in the lease, and entered into possession of the theatre, and performed all the covenants of the lease until May 1, 1913, and that on May 8, 1913, the defendants entered and expelled the plaintiff and took possession of the theatre, which contained much property of the plaintiff installed therein; and praying for an injunction, the appointment of a receiver and other relief.</p> <p>The material part of the answer is described in the opinion.</p> <p>The case was referred to Fernald L. Hanson, Esquire, as master. The master filed a report in which, among other things, he found that the plaintiff was a corporation organized under the laws of the State of Rhode Island and doing business in Fall River, but that it never had filed any papers with the commissioner of corporations of this Commonwealth. Later the case was heard by Dubuque, J., upon the plaintiff’s exceptions to the master’s report. On August 1, 1913, the judge made an interlocutory decree, ordering that the exceptions to the master’s report be overruled and the report confirmed, and that the plaintiff be relieved of the forfeiture of the lease mentioned in its bill upon the following terms and conditions, viz.: that within ten days from the date of the decree the plaintiff should comply with the laws of this Commonwealth with reference to filing the proper papers required for allowing foreign corporations to engage in business in Massachusetts, and should pay to the defendants the rent due them up to July 31,1913, namely the sum of $3,333.33 and should pay to the attorney for the defendants the further sum of $300 on account of his fees and costs and should pay to the receivers appointed by the court the sum of $1,330 on account of their services, expenses and losses. The decree further ordered that, if the plaintiff should fail to pay the sums aforesaid within said ten days the plaintiff’s bill was to be dismissed, and the defendants were to be allowed their costs.</p> <p>By a further interlocutory decree on August 12, 1913, the time within which the plaintiff might be relieved from the forfeiture was extended until August 18, 1913, at three o ’clock p. m.</p> <p>On August 18, 1913, a final decree was made, reciting that the time allowed the plaintiff within which it might redeem its leasehold estate as provided for by the interlocutory decrees had expired, and that the plaintiff had not complied with the terms of the decrees and was not ready and willing to redeem the premises upon payment of the sums decreed, and ordering that the bill be dismissed, and that the defendants be allowed their costs of suit.</p> <p>The plaintiff appealed from the final decree and from the interlocutory decrees.</p>

<p>Dower. Husband and Wife. Mortgage, Of real estate. Equity Jurisdiction, To redeem mortgage of real estate, Subrogation, To avoid circuity oí remedy.</p> <p>Notwithstanding the provision of St. 1900, c. 450, § 5, now R. L. c. 132, § 1, to the effect that a widow’s right of dower shall be deemed to have been waived unless she files within a limited time an election to claim it, a wife still may maintain a bill in equity to redeem from a mortgage real estate in which she has an inchoate right of dower.</p> <p>Where a wife releases her right of dower in certain real estate by joining in a mortgage of the real estate to secure a debt of her husband, she in relation to his debt is in a position analogous to that of a surety, and, if she pays her husband’s debt to redeem the real estate from the mortgage, she is subrogated to the rights of the mortgagee, and such rights against her husband will be enforced for her benefit in equity; and, to avoid circuity of remedy, instead of obliging the wife to pay off the mortgage and enforce her right of subrogation, the husband, in a suit in equity brought by his wife, will be ordered to pay to the mortgagee the full amount due upon the mortgage note with interest, and the mortgagee will be ordered upon receiving such payment to deliver the note to the husband and discharge the mortgage.</p>

<p>Practice, Civil, Ordering verdict on plaintiff’s opening. Negligence, Railroad. Carrier, Of passengers. Railroad.'</p> <p>Where a presiding judge upon the opening of the plaintiff’s counsel ordered a verdict for the defendant, and the plaintiff alleged exceptions, the question pre- , sented is, whether taking .all the statements made by the counsel as true the plaintiff was entitled to go to the jury.</p> <p>If a person on a train of a railroad corporation is so intoxicated that he is unable to tender his fare or a ticket that he has purchased, the servants of the railroad corporation lawfully may remove him from the train at the next station, using, if it is necessary, reasonable but not excessive force, and upon such removal he ceases to be a passenger.</p> <p>In an action against a railroad corporation for causing the death of the plaintiff’s intestate by the alleged negligence of the defendant’s servants, after they lawfully had removed the intestate from a train of the defendant, in placing the intestate in an alleged dangerous place without proper care or regard for his subsequent safety, if it appears that the servants of the defendant removed the intestate from a train when he was in an intoxicated condition and placed him in a railroad station, where, when last seen alive, he was in a position of security from the danger of passing trains, and that the intestate’s subsequent movements were not observed by any one until bis lifeless body was found on the railroad track, these circumstances do not furnish sufficient ground for even a conjecture of due care in the conduct of the intestate at the time of the accident that caused his death, and the plaintiff must fail for want of affirmative proof of due care, which, to create a liability for the death of a person who is not a passenger, is required by St. 1906, c. 463, Part I, § 63, as amended by St. 1907, c. 392.</p> <p>It is no evidence of wanton and reckless conduct on the part of the servants of a railroad corporation, that, after justifiably removing an intoxicated person from a train, they left him at a place in a railroad station, where, if he had remained, his personal safety would not have been endangered, without escorting him from the premises to a public way or taking further measures for his protection.</p>

<p>Tort for personal injuries sustained by the plaintiff on the afternoon of October 2, 1910, when he was being transported as a passenger on a street railway car of the defendant on Boston Street in Lynn at its intersection with Independence Square, from a collision of the car with a hose wagon drawn by a pair of horses that were being driven at a high rate of speed in response to a telephone alarm of fire. Writ dated November 11, 1910.</p> <p>In the Superior Court the case was tried before Pratt, J. The evidence is described in the opinion. At the close of the evidence the defendant asked the judge to make the following rulings:</p> <p>“1. On all the evidence the plaintiff is not entitled to recover.</p> <p>“2. There is no evidence of negligence on the part of the defendant, its agents, servants or employees.”</p> <p>The judge refused to make either of these rulings, and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $1,132. The defendant alleged exceptions.</p>

<p>Practice, Civil, Exceptions.</p> <p>Where a bill of exceptions in an action of contract set forth a question to a witness and his answer, relating to the amount of damages to be recovered as the loss of a percentage of the proceeds from a certain fishing voyage that the plaintiff was prevented from earning, andthen stated, “ This question and answer were admitted against the defendant’s objection, and the defendant’s exceptions thereto were noted,” and where the question clearly was competent but the answer was irresponsive and only could have been made competent by further evidence, it being doubtful on the record whether a separate exception was taken to the answer as distinguished from the question, and it appearing from the amount of damages awarded that the damages had not been increased by reason of the irresponsive answer, the exception was overruled on the ground that, even if the exception was taken properly, it did not appear that the defendant had been harmed by the evidence admitted.</p>

<p> Automobile. Name. </p> <p>Under St. 1909, c. 534, § 2, which provides that an application for the registration, of a motor vehicle may be made by the owner thereof and requires that the application shall contain a statement of the name, place of residence and address of the applicant, an application made by the owner of an automobile in a name implying a partnership that does not exist, under which he has been doing-business individually for many years and by which he is well known in the community, and a certificate of registration granted to him in such name, satisfy the requirements of the statute, and the registration is lawful; and it is immaterial that such registered owner never has complied with the requirement of St. 1907, c. 539, as amended by St. 1908, c. 316, for the protection of creditors, providing that individuals engaged in business under names other thán their own shall file with the city or town clerk a certificate stating the full name and residence of each person by whom the business is conducted.</p>

<p>Negligence, In use of highway. Automobile. Evidence, Relevancy and materiality. Practice, Civil, Exceptions, Judge’s charge.</p> <p>In an action against a street railway corporation for damage to an automobile of the plaintiff from being run into by a car of the defendant when the automobile was stalled on a single track of the defendant’s railway, where it appears that the plaintiff had backed his car from his garage across the sidewalk and upon the defendant’s track when the engine stopped working and the automobile stood still until it was struck by an approaching car of the defendant, it is proper for the presiding judge to refuse to allow the plaintiff’s counsel to ask the plaintiff, referring to the time when his automobile was stalled, whether he expected that the motorman was going to stop his car and whether he had reasonable cause to believe that the motorman would stop his car; as, after the automobile was stalled, the plaintiff’s expectation and the reasonableness of his belief as to what the motorman would do could not have affected the plaintiff’s conduct, still less the conduct of the motorman, and therefore are wholly immaterial.</p> <p>An exception to a portion of a judge’s charge, which refers to certain arguments and the evidence on which they were based, cannot be sustained where the arguments referred to and a part of the evidence are not before this court.</p>

<p>Negligence, In use of highway.</p> <p>A boy nine years of age, who, in attempting to cross a city street where he knows that street cars are going back and forth on parallel tracks all the time and are likely to pass each other every few minutes, without listening for an approaching car passes behind and within two or three feet of a car that is coming to a stop at a crossing and is struck instantly by a car coming from the opposite direction which he has not seen until it strikes him, is not in the exercise of due care, and, in the absence of evidence that before attempting to cross he looked from a place where he could see an approaching car for a substantial distance and saw no car approaching, he cannot recover for his injuries from the corporation operating the car, even if the motorman was negligent.</p>

Tort for an alleged abuse of civil process in the malicious prosecution of an action of contract brought by the defendant against the plaintiff, in which the plaintiff’s property was attached and he was injured in his business. Writ in the Municipal Court of the City of Boston dated February 19, 1910.

<p>Practice, Civil, Conduct of trial: rulings and instructions, Exception.</p> <p>A presiding judge properly may refuse to make a ruling which is correct in law if it is inapplicable to the issue presented by the evidence.</p> <p>A presiding judge properly may refuse to give an instruction taken from a published opinion of this court if it is not germane to the evidence in the case on trial, and, even if it is germane, he need not give the instruction in terms if he gives it in substance.</p>

<p>Attachment, Of mortgaged personal property. Mortgage, Of personal property. Municipal Court of the City of Boston, Appellate Division. Supreme Judicial Court. Practice, Civil, Appeal. Words, “Reverse.”</p> <p>The requirement of R. L. c. 167, § 70, that a mortgagee of personal property, in order to preserve his right to the mortgaged property against an attaching creditor, must “state in writing a just and true account of the debt or demand for which the property is liable to him and deliver it to the attaching creditor or officer," is not complied with by a mere statement of the face amount of the mortgage with its date and the volume and page of its recording in the clerk’s office.</p> <p>Under St. 1912, c. 649, § 8, providing that the Appellate Division of the Municipal Court of the City of Boston, in dealing with a report from a single judge of that court, “may reverse, vacate or modify” the ruling complained of “or order a new trial in whole or part,” or otherwise “shall dismiss the report,” the Appellate Division have no power to enter the judgment which they decide ought to be entered, and, if they reverse a ruling made by the judge who reported such ruling to them, the case must be remanded for appropriate proceedings in accordance with their decision.</p> <p>The provision of St. 1913, c. 716, § 3, that this court upon any appeal, or other proceeding named, "shall have power to render any judgment and to make any order that ought to have been made upon the whole case,” applies to an appeal from a decision of the Appellate Division of the Municipal Court of the City of Boston under St. 1912, c. 649, § 9, upon a ruling reported by a judge of that court, although such ruling was made on March 6,1913, and St. 1913, c. 716, which took effect upon its passage on May 28, 1913, provides in § 6 that it “shall not apply to . . . verdicts rendered or findings made on or before the day of its passage.”</p>

Tort for an assault and battery alleged to Rave been committed upon the plaintiff by one Dixon as the servant and agent of the defendant’s intestate in ejecting the plaintiff from the building numbered 535 on Albany Street in Boston, occupied as a factory by the American Skate Company, a corporation financed by the defendant’s intestate, of which the plaintiff was the sales manager and by which Dixon was employed as its factory manager, He having been previously in the…

<p>Tort for damage to a wagon of the plaintiffs alleged to have been caused by negligence of a servant of the defendant when driving a horse attached to a wagon of the defendant along Blue Hill Avenue in Boston. Writ in the Municipal Court of the City of Boston, dated September 16, 1912.</p> <p>In the Municipal Court Bennett, J., refused to rule that upon all the evidence “the injury and damage complained of was too remote to recover” and that the collision of the defendant’s horse and wagon with those of the plaintiffs was not the proximate cause of the damage to the plaintiffs’ wagon. He found for the plaintiffs in the sum of $100.25, and at the defendant’s request reported his ruling to the Appellate Division. The Appellate Division made an order that the report be dismissed and that the plaintiffs be awarded double costs. The defendant appealed to this court under St. 1912, c. 649, § 9.</p> <p>The evidence as stated in the report showed the following facts: On the date of the accident the plaintiffs’ team was standing on the right side of Blue Hill Avenue, close to the curbstone, with the wheels fastened. The driver of the team was in a store nearby delivering bread/ The defendant’s team was being driven along the highway by his servant, in the same direction in which the plaintiffs’ team was headed, and, in passing, came into collision with it and the plaintiffs’ horse thereupon ran away. The horse in running away continued along Blue Hill Avenue in the direction in which he was headed, going for some distance on the right hand side of the street and for another part of the distance in the car tracks. While he was so continuing to run, some person on the highway near the car tracks threw his hands up in the air apparently to “shoo” the horse, and thereafter the plaintiffs’ team came into collision with an electric street car which was moving toward it. The rear wheel of the plaintiffs’ wagon came in contact with the car, the wagon was overturned and the damage complained, of resulted. The evidence showed that the motorman of the car was using every effort to bring the car to a standstill to avoid a collision and that he practically had brought it to a standstill at the time the plaintiffs’ team came into collision with it.</p> <p>The case was submitted on briefs.</p>

<p>Accord and Satisfaction. Payment, By “voucher” check. Estoppel.</p> <p>Collection, by Loring, J., of authorities as to the effect of the acceptance by a creditor of an amount less than the full amount of his claim, tendered by the debtor on condition that it be accepted in satisfaction of the entire claim.</p> <p>Where a debtor, admitting that he owes his creditor a certain amount of money for merchandise delivered to him, pays that amount to the creditor by a “voucher” bank check, which has annexed to it what the debtor contends is a correct itemized statement of the account between the parties and contains a credit which the creditor has disputed, and which states that it is “in full settlement of invoices enumerated” in the account, the creditor, by accepting and cashing the check, is not precluded from asserting that the payment is on account and from enforcing against the debtor a claim for a balance still due to him on the account.</p>

<p>Abuse of Process. Malicious Attachment. Practice, Civil, Premature action. Damages, In tort.</p> <p>It is not necessary, in order to maintain an action for an alleged abuse of civil process in causing property of the plaintiff to be attached in order to prevent him from carrying out a sale of the property to a third person and to compel a sale of it to the defendant, to show that the action in which the attachment was made has been terminated.</p> <p>In order to maintain an action for an alleged abuse of civil process in causing property of the plaintiff to be attached, it is necessary to show that the defendant in instituting the action in which the attachment was made acted both with malice and without probable cause for the maintenance of such action.</p> <p>While exemplary damages may not be awarded in an action for an abuse of civil process, the plaintiff may recover the damages that he suffered as the natural consequence of the wrong done, including injury to business, reputation and feelings.</p>

<p>Street Railway, Expulsion of passenger for non-payment of fare. Passenger. Carrier, Of passengers. Trespass.</p> <p>One who, after boarding a street railway car, refuses to pay his fare, is a trespasser and has none of the rights of a passenger.</p> <p>It is the duty of the conductor of a street railway car to expel from the car one who is visibly intoxicated.</p> <p>Where the conductor of a street railway car, at a point on a highway close to a regular stopping place of the car, ejects from the car without unnecessary force a person who boarded it in a visibly intoxicated condition and who refused to pay his fare, the street railway company is not liable although the expulsion occurs on a night of extreme cold and causes personal injuries to the person expelled, such act of the conductor showing no gross, wanton or reckless disregard of the person’s rights.</p>

<p>Contract, Construction. Practice, Civil, Conduct of trial; judge’s charge.</p> <p>An agreement in writing for the sale of certain land, which contains provisions that “all clearing of existing encumbrances may be simultaneous with the transfer,” and that, “if upon examination a defect is found in the title . . . the time for passing the papers shall be deferred thirty days to allow time for remedying such defect, unless the parties” otherwise agree, and which nowhere contains expressly or by implication a limitation of the examination to the record, does not require the giving of a good record title, and the seller has complied with the contract if he gives to the purchaser a title free from actual incumbrances although it rests substantially on evidence not appearing upon the records.</p> <p>A defective record title is a marketable title if a reasonable purchaser, well informed as to the existence and legal significance of facts both within and outside the record, in the exercise of the prudence which business men ordinarily bring to bear on such transactions, would be willing to accept it.</p> <p>Where, at the trial of an action for the return of a deposit made by the plaintiff with the defendant under the terms of an agreement for the sale of land by the defendant to the plaintiff which required the defendant to give a good marketable title only, the plaintiff contends and introduces evidence tending to show that the record title to the land was defective, and an attorney for a bank which was to have made a loan to the plaintiff secured by a mortgage on the land testifies that the bank refused to make the loan because in his opinion the title was defective, the plaintiff is not harmed if the jury is instructed that the refusal of the bank to take the mortgage was not evidence that the title was not good and marketable.</p>

<p>Agency, Scope of employment. Corporation, Officers and agents. Evidence.</p> <p>At the trial of an action by a physician against a street railway company for the value of professional services, alleged to have been rendered to an injured employee of the defendant at its request, there was no contention that the defendant was liable for the injuries to the employee. There was evidence tending to show that the plaintiff was the employee’s family physician, that the defendant’s claim adjuster had offered to the employee to have the defendant’s physician treat him, and, upon the employee expressing a preference for the plaintiff, had told him to “keep right along with” the plaintiff; that, in the course of the treatment of the employee, it became necessary for him to go to a hospital, and that, at the plaintiff’s suggestion, the employee’s wife asked • the claim adjuster if he would give permission to have the employee taken to a hospital and whether the defendant “would foot the expenses,” that the adjuster had said that the defendant would do so, that the plaintiff thereupon took the employee to the hospital and attended him there, and that the hospital bill was paid by the defendant; that the claim adjuster on previous occasions had sent injured employees to the plaintiff for treatment and that, upon presentation of the bills for such treatment to the claim adjuster, they were paid by the defendant. The plaintiff offered evidence, which was excluded, tending to show that the same practice had existed with a previous claim adjuster of the defendant. Held, that the evidence offered and excluded was admissible, in connection with the other evidence, for the purpose of showing the extent to which the defendant had held out and recognized the authority of its claim adjusters to deal with the plaintiff, and how far the plaintiff was justified in dealing with them as he did. Held, also, that on the evidence a finding was warranted that the claim adjuster had apparent authority to deal with the plaintiff, and that on such a finding the defendant would be liable.</p>

<p>Practice, Civil, Conduct of trial: order of proof, Exceptions.</p> <p>The regulation of the order of proof at a trial is within the discretionary power, of the presiding judge, and no exception lies to the exercise of such discretion unless such exercise was wholly unwarranted, which here was not the case.</p>

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

<p>Bankruptcy, Preference. Assignment.</p> <p>In an action by the trustee in bankruptcy of the members of an insolvent partnership against a corporation to recover the amount of an alleged preference made to the defendant by one of the bankrupt partners, who was the general business manager of the defendant, where it appears, that such bankrupt, within four months previous to the adjudication in bankruptcy, in settlement of overdrafts upon his account with the defendant, made payments to the defendant’s bookkeeper of money that went into the defendant’s treasury and was credited upon its books, and that the bankrupt when he made such payments, knowing that he then was insolvent, intended that such payments should enure to the defendant’s benefit and had reasonable cause to believe that the defendant’s debt would be satisfied largely to the detriment of the bankrupt’s other-creditors, the defendant is chargeable with the knowledge and belief of the bankrupt, who managed its business, and a finding is warranted that there was a voidable preference, the amount of which can be recovered, by the plaintiff as trustee in bankruptcy.</p> <p>An attempted assignment by the plaintiff in a pending action for personal injuries of any future judgment that he may obtain therein is void.</p>

<p>Agency. Practice, Civil, Exceptions. Evidence, Best and secondary.</p> <p>Questions raised by the tenant in a writ of entry upon the trial of issues before a jury, as to the authority of the treasurer of a certain corporation to deliver a certain deed in behalf of the corporation, were held to have been disposed of by a decision of this court made at a previous stage of the same case and reported in 207 Mass. 133.</p> <p>At a trial in the Superior Court of issues framed by the Land Court, a record of a vote of the executive committee of a corporation was offered in evidence and was excluded by the presiding judge, subject to an exception. The report of the judge of the Land Court stated in substance the vote in question and the record containing it, and this report was admitted in evidence without qualification after the ruling excluding the record had been made, and so far as appeared was given its full probative effect. Held, that, assuming that the exclusion of the record of the vote was erroneous, the party who offered it in evidence was not harmed by its exclusion.</p>

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

<p>Landlord and Tenant, Covenant for quiet enjoyment, Eviction. Covenant. Election.</p> <p>A covenant for quiet enjoyment in a lease is broken only by an eviction.</p> <p>If the owner of a building permits the basement of the building to become flooded with water, and the circumstances are such that a lessee of the basement would be justified in treating the acts of the landlord as an eviction and surrendering possession of the demised premises, yet, if instead of doing this he remains in possession of the basement for a year after the flooding, he has elected not to treat the acts of the landlord as an eviction, and cannot maintain an action on the covenant for quiet enjoyment in his lease.</p> <p>Citation by Lorie g, J., of cases upon the question, what acts or omissions of a landlord may be treated by his tenant as an eviction.</p>

<p>Negligence, In use of automobile, Res ipso loquitur. Witness, Cross-examinatian. Evidence, Remoteness.</p> <p>At the trial of an action for personal injuries to and causing the death of one standing on a sidewalk, by running him down with an automobile which skidded as it was being turned from the tracks of a street railway in which it had been running, there was evidence tending to show that the tires of an automobile of the kind operated by the defendant, because of their size, tended to adhere tenaciously to a street railway track, so that, when an attempt was made to turn them, even from a dry track, the rear wheels would cling to the track and the car would tend to twist about, or skid, and to run upon the sidewalk; that at the time of the accident the track was wet, which greatly increased the tendency to skid, and that the defendant, who had run an automobile for eight months, just before turning the front wheels, increased the speed of the automobile. Held, that there was evidence for 'the jury of negligence of the defendant.</p> <p>Where, at the trial of an action for personal injuries to and causing the death of one standing on a sidewalk, by running him down with an automobile which skidded and ran upon the sidewalk, an expert witness for the plaintiff has testified in ; cross-examination that, from his experience on that street, skidding could not be stopped after it began, a further inquiry in cross-examination as to whether he had not seen “other light machines skid at the place where this accident occurred,” without any evidence being offered as to the conditions of management of such other cars, properly may be excluded within the discretionary power of the judge to limit cross-examination, as well as on the ground of remoteness. i</p> <p>The fact that an automobile, as it was being turned from wet tracks of a street railway in a street, skidded and ran upon a sidewalk, is not in itself evidence of negligence of the driver of the automobile.</p>

<p>Poor Debtor. Evidence, Best and secondary. Practice, Civil, Amendment of record.</p> <p>If, at the time, place and horn: appointed in a notice given under R. L. c. 168, § 33, by a debtor, who has been arrested on execution and has entered into the recognizance prescribed by § 30 of that chapter, that he desires to take the oath for the relief of poor debtors, both the debtor and the creditor attend and, the court being in session, the matter is brought to the attention of the judge informally, the mere fact that, owing to the judge’s attention being occupied by other cases being tried at the time, no formal action is taken upon the application until more than an hour has elapsed from the hour at which the notice was returnable, does not constitute a breach of the recognizance.</p> <p>The proceedings before a judge or magistrate at a hearing on an application to take the oath for the relief of poor debtors can be shown only by the record. If the record does not contain all that one of the parties thinks that it should, such party should apply to the judge or magistrate to have it amended. He cannot be allowed in a collateral proceeding to. introduce evidence for the purpose of varying the record.</p>

<p>Damages, In contract, Loss of profits.</p> <p>Where a corporation engaged in the electrification of a railroad tunnel, being in need of workmen, made an oral agreement with a woman that she should furnish as many workmen for the corporation as she could and that the corporation should give to her the exclusive privilege of supplying to the workmen, who were to cook their own meals, groceries and provisions until the work was completed, and that the corporation should furnish" a shanty and cots for sleeping purposes, if the corporation without justifiable cause discharges workmen procured by the woman and engages other employees who do not trade with her, it is liable, in an action of contract brought by her, for the loss of the profits that she would have realized if the men had not been so discharged.,.</p>

<p>Way, Private. Equity Jurisdiction, To compel assignment of private way.</p> <p>Where a woman who owned a lot of land on a comer, completely covered, excepting in front, by a double house divided by a brick partition wall from front to rear and fronting entirely on one of the streets, from which it was set back about ten feet with projecting bay windows and steps that occupied a part of the space, devised the half of the house and lot which was nearer to the side street to one son and the other half to another son “with a right of way” to the second son from the side street “over the land given to” the first son “for all purposes as if the same were a public highway,” and the first son refuses to assign to the second son a way in accordance with the will, the second son can compel the first son to make such an assignment, although when the mother made the will, she did not intend that any of the building should be destroyed to provide the way, but thought that she owned land in the rear of that given to the sons, over which the way granted would pass. Under the-circumstances of this case, the parties having agreed that a way ten feet wide-would be suitable, it was ordered that the first son should assign to the second son such a way to the side street across the space in front of his part of the-premises, and, if he refused so to do, that a master should be appointed to-assign the way.</p>

Three actions of tort, the first by a mother and the third by her child four years of age for personal injuries caused by their being thrown to the ground by the starting of an open street car of the defendant as they were in the act of alighting. The second action was by the husband and father, respectively, of the other two plaintiffs for consequential damages. Writs dated June 6, 1911.

<p>Tort for damages for the death of the plaintiff’s horse and the breaking of his wagon, alleged to have been caused by a current of electricity from the defendant’s street railway track on Broadway in Lawrence. Writ in the Police Court in Lawrence, dated December 19, 1911.</p> <p>On appeal to the Superior Court the case was tried before Bell, J. The evidence is described in the opinion. At the clpse of the evidence the judge ruled that the plaintiff was not entitled to recover, ordered a verdict for the defendant and reported the case for determination by this court, with the stipulation that, if the ruling was wrong, judgment should be entered for the plaintiff in the sum of $140; otherwise, judgment was to be entered for the defendant.</p>

<p>Negligence, In use of electricity, Res ipso loquitur. Electricity. Evidence, Presumptions and burden of proof.</p> <p>In an action against a telegraph company for the loss of a tree of the plaintiff alleged to have been killed by a current of electricity communicated from a. wire of the defendant, where there is evidence tending to show that the death of the tree was so caused and that for a long time before the tree was killed the=' defendant was notified that the electricity was being so communicated, it is not necessary for the plaintiff to show where the current came from or who was. primarily responsible for it, and the defendant is not entitled to have the jury instructed as a matter of law that it is not liable if the current of electricity which killed the tree was not generated by the defendant but passed over. its. wires without its consent; and the jury is warranted in finding that the defendant negligently suffered the current to pass over its wires and to enter and kill the tree.</p>

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

<p>Practice, Civil, Exceptions. Mechanic’s Lien.</p> <p>If a judge before whom a case has been tried without a jury understands that the unsuccessful party wishes to except to all the rulings set forth in the judge’s memorandum of his findings of fact, the exception is taken.</p> <p>"Where a proceeding at law has been tried without a jury and the judge reserves his decision, an exception taken on the second court day after the excepting counsel received notice of the rulings made by the judge is taken seasonably.</p> <p>A judge of the Superior Court, who, without a jury, heard a petition to establish a mechanic’s lien, filed findings and rulings on a Thursday, notice of which was given to the attorneys of record on the next day. Saturday was a legal holiday. On Tuesday the attorney for the petitioner waited upon the judge and stated to him that “the petitioner excepted to the rulings,” without indicating “what particular rulings he excepted to, whether to the refusal to adopt certain requests filed by him or to the adoption of certain requests filed by the respondent.” Held, that the statement made by the attorney for the petitioner to the judge on Tuesday was sufficient to save an exception to all of the rulings set forth in the findings and rulings filed by the judge; and, also, that the exceptions were saved within a reasonable time after the rulings excepted to were made.</p> <p>A judge who, without a jury, heard a petition for the enforcement of a mechanic’s lien, found that the petitioner was a subcontractor who furnished the plumbing and heating for the respondent’s house under a contract with the general contractor which, among other things, required him to do “first class work” and to leave “everything in a first class condition, ready for immediate use;” that the petitioner “substantially completed” his contract in August of a certain year, that at that time “there was a slight leak in the connecting pipes between the boiler and the range,” and that the hot water disc had been put on the cold water faucet and vice versa, that the leak was not caused by use but was due to improper work of the petitioner, that the contractor in August had called the leak to the petitioner’s attention, but that he then did not make repairs, informing the contractor that he thought that as time went on the joints would tighten and the leaks would stop. About a month later the respondent wrote to the petitioner calling attention to the leak and requesting that he stop it and also change the discs, that five days afterward, acting “in good faith solely for the purpose of repairing improper work previously done” and “to correct defective performance by [the] petitioner of the contract with” the general contractor, the petitioner went to the respondent’s house and spent two and one half hours doing the things necessary to put the work in first class condition. The statement of the lien was filed within thirty days thereafter. The judge ruled that the lien was not “revived” by the work above described and that the statement was not filed seasonably, and found generally for the respondent. Held, that the petitioner’s work above described was in completion of his contract with the general contractor, to place “everything in a first class condition;” that the contract was not performed until that date, and that the lien was filed seasonably.</p>

Tort for the obstruction of a right of way over the tracks of the defendant near Marlborough Junction station. Writ dated February 14, 1908. In the Superior Court the case was tried before Fox, J. The material facts are stated in the opinion. At the close of the evidence the parties agreed that, if the plaintiff was entitled to recover, his damages should be $100. The defendant asked for the following rulings: “1.

<p>Tort by an ironworker against a general contractor, who was engaged in the construction of a building on State Street in Springfield, for personal injuries sustained by the plaintiff on January 5, 1910, while in the employ of the defendant, by falling from an iron beam or girder that was being put in place in the building in process of construction, the fourth count of the declaration, which alone is material, alleging negligence of a superintendent. Writ dated October 10, 1910.</p> <p>In the Superior Court the case was tried before King, J. At the close of the evidence, the substance of which is described in the opinion, the defendant asked the judge to instruct the jury, that on the pleadings and the evidence the plaintiff could not recover, that he could not recover on the fourth count of the declaration, that there was not sufficient evidence that the plaintiff was in the employ of the defendant, and that there was not sufficient evidence that the plaintiff was under the direction or control of the defendant to enable the plaintiff to recover.</p> <p>• The judge refused to give any of these instructions and submitted the casé to the jury with other instructions. The jury returned a verdict for the plaintiff on the fourth count in the sum of $2,500; and the defendant alleged exceptions to the refusal of the instructions requested and to rulings of the judge excluding certain evidence offered by the defendant and admitting certain evidence offered by the plaintiff. The testimony referred to in the opinion was that of one Murphy, another ironworker who was at work on the building the day that the plaintiff was hurt. He was asked by the plaintiff, “Was there any other way for him to get by this shore, or brace, than by — without taking hold of it?” and answered, “Why, no; he couldn’t get by without taking hold of it. Nobody could get by without taking hold of it.” Being asked to repeat Ms answer, he said, “Nobody could go by without taking hold of that brace.” The defendant excepted to the questions and the answers.</p>

<p> Deed. Boundary. Seashore. </p> <p>In a description of a parcel of land a boundary "by the ledgy shore” names a monument, which controls a distance of “about thirty five feet, more or less,” that falls short of the shore from thirty to twenty feet, especially where the description by any interpretation contains one or more blunders.</p> <p>A boundary of land “by the ledgy shore" in a deed in which the grantor reserves to himself the right to take stones from “the ledgy shore and beach” passes the title to low water mark, the reservation showing such an intention on the part of the grantor.</p>

<p>Negligence, Street railway, In use of highway. Evidence, Weight, Contradictory statements of witness. Witness, Contradictory statements.</p> <p>Evidence, that a motorman operating a street railway car before five o’clock on a very foggy and dark morning in October, as he approached a street light on a comer of two intersecting streets, where it was usual for the cars to diminish their speed and Where a man who had started to cross the tracks to board the car at a white post was in plain sight within the range of the light on the comer and the range of the headlight of the car, continued to run the car at the rate of forty miles an hour until it struck and killed the man before he cleared the last rail of the track, warrants a finding that the motorman was negligent in the way he operated the car.</p> <p>Where a witness on his direct, on his cross and on his redirect examination tells a certain story as to the happening of an accident three times in the same way, and once upon his cross-examination and once upon his recross-examination tells the story twice in another way, which contradicts the first, it is for the jury to choose between the contradictory statements of the witness, unless by reason of the inconsistency of his testimony they decide not to give credit to it at all.</p>

<p> Assignment. Conflict of Laws. </p> <p>Where there is an assignment in writing of all the assignor’s interest in a contract, by which such assignor has agreed with a dealer in certain goods to insert the dealer’s advertisement in a new magazine which the assignor proposes to publish, and of “ all benefits to accrue thereon,” although the obligation of the assignor to the dealer to publish the proposed magazine is a personal one which cannot be transferred by assignment without the dealer’s assent, yet, if the publication is made by the assignor in accordance with his contract, the portion of the instrument assigning the right to receive the money to be paid for such publication is valid and binding, and can be enforced against the dealer by the assignee.</p> <p>The right of an assignee of a chose in action to bring an action in his own name depends upon the law of the forum.</p> <p>An assignment in writing of the right to receive the money thereafter to be earned by the assignor under a certain contract, which is unperformed when the assignment is made, is within the provision of R. L. c. 173, § 4, permitting the assignee of a chose in action to maintain an action thereon in his own name.</p>

<p>Limitations, Statute of. Judgment, Foreign. Practice, Civil, Appeal.</p> <p>A judgment of a court of a foreign country does not belong to any of the classes of judgments excepted by R. L. c. 202, § 2, cl. 1, from the limitation of six years prescribed by that section, and therefore no action can be brought upon such,a judgment in this Commonwealth after the expiration of six years.</p> <p>An appeal from an order of a trial judge denying a motion for a new trial asked for on the ground of newly discovered evidence presents no question of law, because such a decision of the trial judge is not open to revision.</p> <p>There is no right to enter an appeal in this court in an action at law until there is a final judgment.</p>

<p>Way, Public. Railroad, Easement in public way at crossing. Damages, For property taken or impaired by statutory authority.</p> <p>A railroad corporation, whose railroad crosses a highway at grade, by establishing its location across the highway does not extinguish the easement of the public in the way. That easement remains the same except so far as it is modified by the co-ordinate easement of the railroad corporation; and the right of a water company to lay and maintain pipes under the highway is a part of the public easement thus unextinguished, which may be exercised lawfully by the water company with a due regard to the co-ordinate rights of the railroad corporation without incurring any obligation to pay damages.</p>

<p> Worhmen’s Compensation Act. </p> <p>The death of a teamster from pneumonia brought on by his falling, into a swamp and lying there all night, after having suffered a loss of memory and having alighted from his team and wandered away from it, when by direction of his employer he was driving the team to his employer’s stable to put it up for the night, even if it is the result of a personal injury incurred “in the course of his employment,” is not the result of an injury “arising out of” such employment, and therefore the dependent of such deceased teamster is not entitled to compensation under St. 1911, c. 751, Part II, §§ 1, 6.</p>

<p>Damages, Nominal. Agency. Practice, Civil, Parties.</p> <p>A plaintiff in an action of contract, who has a legal cause of action without any beneficial interest and sues as the agent and for the benefit of the person in interest, is not restricted to nominal damages but may recover the full damages to which he is entitled by law, without regard to the fact that he is accountable to his principal for the amount recovered. In such an action the plaintiff need not state his agency in the writ, such a statement being proper but not necessary.</p>

<p>Bank. Bills and Notes. Municipal Corporations, Officers and Agents.</p> <p>Where a bank, whose note-teller receives in behalf of one of its depositors the check of a third person to be collected and applied to the payment of a note of the depositor made payable at that bank, does not credit the amount of such check to its depositor’s account, but treats it as the equivalent of cash held by the bank to meet the note, the bank in applying the proceeds of the check to the payment of the note does not lend the amount of money thus paid to its depositor; and therefore, if the check was obtained from its drawer through the fraud of one who by the misuse of his apparent authority indorsed it to the bank, the drawer of the check cannot maintain an action against the bank for a conversion of the check or for the amount of the proceeds of the check as money had and received to the plaintiff’s use.</p> <p>It is within the power of the treasurer of a city or town to indorse to a bank at which a note of the city or town is made payable a certified check payable to the city or town, in order to provide the bank with funds to pay the note; and consequently such an indorsement, although made fraudulently, is within the apparent authority of a city treasurer.</p>

<p> BanJe. Municipal Corporations. </p> <p>It here was stated that it was held in Allen v. Puritan Trust Co. 211 Mass. 409, that a bank, Which, having no pecuniary interest in the matter, has paid out money from a deposit on the fraudulent order of the person who by the terms of the deposit had the right to draw on the account, is not liable to the rightful owner of the fund unless the bank was privy to the fraud.</p> <p>A bank is not liable to a city for money paid by the bank from funds of the city left with it for the purpose by the city treasurer, upon a fraudulent order of such city treasurer, in discharge of an instrument purporting to be a note of the city which in fact was void, where the bank had no pecuniary interest in the payment and was in no way privy to the treasurer’s fraud, the bank not being put upon inquiry in regard to the validity of the note, as a purchaser of the note would have been.</p>

<p>Tort for personal injuries sustained by the plaintiff on the evening of September 26, 1908, when he was employed as a night watchman in the defendant’s brewery and outbuildings on Roland Street in Boston, by reason of the breaking of the middle step of a flight of three steps which the plaintiff in the course of his duty was attempting to descend. Writ dated June 2, 1909.</p> <p>In the Superior Court the case was tried before Brown, J., who at the close of the plaintiff’s evidence, which is described in the opinion, ordered a verdict for the defendant, and reported the case for determination by this court, with a stipulation of the parties that, if the plaintiff was entitled to go to the jury, judgment should be entered for the plaintiff in the sum of $2,500.</p>

<p>Negligence, Employer’s liability. Elevator.</p> <p>Circumstances may be shown which warrant a jury in finding that it was the duty of the proprietor of a six story building maintaining therein a freight elevator with an open platform, on which, besides goods, employees of the proprietor of the building were expected to be transported in the course of their duties, to anticipate and guard against possible injuries to such persons by reason of some portion of their bodies or clothing extending as much as six and three quarters inches beyond the line of the edge of the platform.</p> <p>If a receiving clerk in a department store, in going from the fifth floor of his employer’s building to the receiving door on the sidewalk, is being transported on the open platform of a freight elevator, on which also are other employees and two loaded trucks, and, as the elevator is descending, the receiving clerk leans forward to answer an inquiry of a fellow employee and in doing so brings a, portion of his body somewhat outside the line of the platform and the seat of his trousers is caught by an iron hook which projects from the brick wall of the elevator well to within six and three quarters inches of the line of the platform, the hook having been there for a long time in a place so dark that it only would be seen by looking for it, and if as the elevator descends he is left hanging from the hook and, his trousers giving way, he falls down the elevator well and is killed, the owner of the building maintaining the elevator can be found to be liable for causing his death.</p>

<p>Homicide. Practice, Criminal, Venue, Indictment, Variance, Conduct .of trial: order of evidence. Evidence, Opinion: experts, Competency, Official records.</p> <p>At the trial of an indictment for a murder alleged to have been committed in Essex County, the defendant admitted the killing, but contended and testified that the act was committed in Suffolk County more than one hundred rods from the Essex County line. There was evidence that the defendant had planned the crime for a considerable length of time. The body was found in Essex County over three thousand feet from thte boundary line, and there was evidence that wounds upon it showed that death must have ensued almost instantly after they were inflicted. There was further evidence that a cane and a cap, which were found in the immediate vicinity of the body, were used and worn by the deceased shortly before the body was found, and that a button, found in the same vicinity, was worn by the defendant on the afternoon of the murder. Held, that the jury were warranted in disbelieving the defendant and finding that the murder was committed in Essex County.</p> <p>It cannot be said as matter of law that, at the trial of an indictment for a murder committed by shooting, testimony of a physician having especial knowledge of anatomy and considerable experience with bullet wounds, giving his opinion as an expert as to the position in which the body of the deceased was when the wounds were received, would not be helpful in enabling the jury to reach a just conclusion on that question.</p> <p>At the trial of an indictment there was evidence warranting a conclusion that the crime was committed in order to benefit financially an aunt of the defendant, and as bearing on that issue the Commonwealth offered in evidence a deed of property to the aunt from the deceased with a letter from the deceased to a witness directing that it be held in escrow by the witness until the death of the deceased if he should die before a certain day, which would be over three years after the homicide. There was evidence that the deed had been discussed in the presence of the defendant and he testified that he knew of it and of the purpose for which it was put in escrow and that there was no secret as to the terms under which it was held in escrow. Held, that the deed and letter were competent evidence.</p> <p>Where, at the trial of an indictment for murder, it becomes material for the Commonwealth to show that a.certain button, found near the body of the deceased, was a button from the coat of the defendant, it is within the discretion of the presiding judge to permit the button to be shown to a witness before he is questioned in regard to it.</p> <p>If at the trial of an indictment for murder a diary kept by the defendant is produced by the Commonwealth during the testimony of one of its witnesses and is marked for identification only, it is within the discretion of the presiding judge to deny a demand of the defendant’s counsel to be allowed to examine it at once, and to rule that the counsel may examine it “immediately preliminary to” its introduction in evidence, and not before.</p> <p>The official record of a fact made by a public officer in the performance of his duty may be introduced in evidence as proof of the truth of the fact recorded.</p> <p>The director and forecasterof the United States Weather Bureau at Boston, testifying at the trial of an indictment for a murder committed at Lynn, stated that in his opinion the weather conditions and the velocity of the wind at Boston at the time of the alleged crime would not vary substantially from those prevailing where the body was found, and then, subject to an exception by the defendant, he was allowed to read from original records of weather conditions in Boston at the time in question, which were kept in his office under his supervision, although not in his handwriting. Held, that the exception must be overruled, because the records must be treated as in evidence, and, being records kept by a public official in the performance of his duty, were admissible.</p>

<p>Negligence, Street railway.</p> <p>It is not negligent for the 'conductor of a vestibuled box street railway car, which has stopped to take on passengers, to give the signal for the starting of • the car when a woman, who has nothing in her appearance, to indicate that she is not fully able to protect herself from being injured by the ordinary movement of the car in starting, after having -lifted a child five years of age upon the car, has taken the child by the hand and has followed her into the car from the vestibule, but has not taken a seat.</p> <p>The fact that a street railway car statted with a jerk, in the absence of evidence tending to show that the jerk was unusual or extraordinary or that the movement differed in any way from that ordinarily attending the starting of such a car, is not evidence of negligence in the operation of the car.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on April 17, 1913, seeking to enforce the specific performance of a contract, made on November 13, 1912, whereby the defendant was to sell to the plaintiff its “entire production of washed brown calf hair, standard as has been agreed between us,” for the year beginning January 1, 1913, at a certain price,' “all other terms and conditions same as contract now in force.” '</p> <p>The suit was referred to Fred T. Field, Esquire, as master. In his report the master made the following findings, among others: The words “contract now in force,” as used in the contract in •suit, meant a contract made, on January 16, 1912, whereby the plaintiff bought and the defendant sold “all the washed brown calf hair you” (the defendant) “have on hand now, and produce to December 31st, 1912.” This contract also contained the following provision: “It is understood that the hair will be cleanly washed and separated into whatever grades we [the plaintiff] may desire, and each grade held until there is a carload.”</p> <p>The words “calf hair” have a recognized meaning in the hair trade and were used with that meaning in the contract in suit. In this meaning of the words calf hair is hair from the skins of calves, that is, from the skins of young animals of the cattle kind, but the term “ calf hair” is not applied to kip hair. ICip hair is hair from kip skins, that is, from the skins of animals of the cattle kind, which, though young, are older than calves. The line of division is drawn approximately at the time when the young animal begins to eat solid food. Kip hair is also known as colt hair, though the term “colt hair” is also applied to hair from the skins of young animals of the horse kind. The grade of colt hair which is also called kip hair differs from calf hair in that it is longer, finer and more inclined to be curly. The difference between the grade of colt hair which is also called kip hair and calf hair is so slight that competent experts of equal ability often would disagree as to whether a quantity of hair, either large or small, should be classified as colt hair or calf hair.</p> <p>The grading or classifying of hair of the kinds dealt in by the defendant, including the kind called for by the contract in suit, can be done suitably only by persons of long experience, and there is frequent disagreement among competent experts as to the grade or class to which a given quantity of hair belongs. In the defendant’s factory the hair, including that called for by the contract for the year 1913 and that called for by the contract for the year 1912, after being washed was graded or classified by the defendant, and the plaintiff acquiesced in allowing the defendant to do such grading or classifying. There was no evidence that the plaintiff ever had attempted to undertake such grading or classifying itself. The defendant employed competent experts to do such grading or classifying.</p> <p>“11. I find that the standard agreed upon” in the contract in suit' “was the washed brown calf hair delivered to the plaintiff by the defendant during the year 1912 under the contract for that year. ... I find that under the contract for the year 1912 . . . the defendant delivered to the plaintiff some hair which a competent expert might reasonably classify as colt hair.”</p> <p>Between January 1 and April 17, 1913, the defendant sold to James G. Kitchen and Company three carloads of its own production of washed brown hair, billing it as “colt hair.” “This hair was in the ordinary course of business classified by the defendant as colt hair, and upon the evidence I am unable to find that there was any fraud or bad faith on the part of the defendant in so classifying it. I find, however, that a competent expert might reasonably have classified it either as colt hair or as calf hair. I find that, taking as the standard the deliveries by the defendant to the plaintiff during the year 1912 under the contract for that year, . . . this hair was washed brown calf hair, and was, therefore, washed brown calf hair of the standard agreed upon” in the contract in suit.</p> <p>The sixteenth paragraph of the master’s report was in substance as follows: “Upon the facts above found I find that the sale of three carloads of hair to James G. Kitchen and Company by the defendant . . . was in violation of the contract” in suit.</p> <p>The parties also dealt with each other under similar contracts during the years 1909 and 1911.</p> <p>The defendant excepted to the sixteenth paragraph of the report on the ground that the master’s authority was limited to an investigation and report of the facts in controversy between the parties and that that paragraph was in excess of his authority.</p> <p>The case was heard upon the exception by Loring, J., who filed the following memorandum:</p> <p>“As I construe the master’s report it is in effect this: Inasmuch as the defendant in 1912 made a delivery to the plaintiff of some hair belonging to the questionable grade, it (the defendant) is bound in 1913 to deliver to the plaintiff all the hair of the questionable grade produced by the defendant in that year. By hair of the questionable grade I mean hair which a competent expert might reasonably classify as colt hair and another competent expert might reasonably classify as calf hair.</p> <p>“As I construe the report, the master reached this conclusion without regard to the insignificance of the amount of questionable hair delivered in 1912, and without regard to the reason for that delivery, for example, without regard to its having been made by mistake.</p> <p>“In my opinion the proper construction of the agreement is this: In 1913 the plaintiff was entitled to receive as great a percentage of hair of the questionable grade as it received in 1912. That is to say: If of the hair received by the plaintiff in 1912 ten per cent was hair of the questionable grade, it is entitled in 1913 to deliveries ten per cent of which consists of hair of the questionable grade.”</p> <p>An interlocutory decree accordingly was made, overruling the defendant’s exception to the report and recommitting the report to the master “to report more fully whether, taking the actual deliveries of 1912 as thé standard, the defendant has failed to deliver to the plaintiff its entire production of washed brown calf’s hair.”</p> <p>The master, after a further hearing, filed a supplemental report containing findings in substance that, out of twenty-five and one half carloads of hair shipped by the defendant to the plaintiff in 1912 as calf hair produced by the defendant, six at least were carloads “which a competent expert might reasonably have classified as colt hair but which were reasonably and intentionally classified by the defendant acting by competent experts as calf hair and were intentionally shipped by the defendant to the plaintiff under the contract; ” that during the same year the defendant sold to James G. Kitchen and Company a little more than four and a half carloads of the hair produced by it "which a competent expert might reasonably have classified as either colt hair or calf hair, and which the defendant classified as colt hair. . . . Upon the evidence I am unable to find how much of such hair was produced by the defendant in the year 1912, and I am therefore unable to' find that in that year the defendant shipped to the plaintiff all the hair of its production which a competent expert might reasonably have classified as either colt hair or calf hair.</p> <p>“I find that from January 1, 1913, until the filing of the bill of complaint the defendant under the contract for the year 1913 . . . shipped to the plaintiff three carloads of hair produced by the defendant classified as calf hair. I find that among these three carloads of hair was hair which a competent expert might reasonably have classified either as colt hair or as calf hair as those words are used in the hair trade but without regard to any standard agreed upon between the plaintiff and the defendant. Upon the evidence, however, I am unable to find ,how large a proportion of the three carloads of hair was of this questionable grade, that is, hair which a competent expert might reasonably have classified as either colt hair or calf hair.”</p> <p>The report closes as follows: “Upon the evidence before me, construing the words 'entire production of washed brown calf hair’ used in the contract for the year 1913 as including the same percentage of hair of the questionable grade above referred to as was delivered by the defendant to the plaintiff during the year 1912 under the contract for that year, but not necessarily including all the hair of this questionable grade produced by the defendant, I am unable to find that from January 1, 1913, to the filing of the bill of complaint, 'taking the actual deliveries of 1912 as a standard, the defendant has failed to deliver to the plaintiff its entire production of washed brown calf’s hair.’”</p> <p>The case was reserved by Loring, J., for determination by the full court.</p>

<p>Corporation, Rights of stockholder, Transfer of shares. Stoohbroher. Conversion. Contract, What constitutes. Evidence, Relevancy. Statute.</p> <p>The owner of shares of stock in a corporation indorsed in blank a certificate representing the shares and delivered it to a bank in Michigan as security for a loan. The cashier of the bank embezzled the certificate and, after having passed through various hands, it was sold in Boston to a stockbroker who had no notice of any right of its original owner. The stockbroker presented the certificate to the corporation’s transfer agent in Boston, who received it and sent it to the corporation, and refused to deliver to the stockholder either the same certificate or a new certificate for the same number of shares. The stockbroker brought an action against the transfer agent, with a declaration containing counts in both tort and contract. At the trial there was no evidence of the law of Michigan, and it was held that the rule of the common law of this Commonwealth applied, that the plaintiff never received any title to the certificate or to the shares of stock which it represented, and that the transfer agent was under no liability to him, either in contract or in tort.</p> <p>Evidence of a custom in the city of Boston in regard to the effect of a sale and delivery of a certificate of capital stock in a corporation, indorsed in blank by the person whose name appears upon its face, is not admissible in an action by a stockbroker, who purchased in good faith in Boston a certificate, indorsed in blank, which had been stolen from one to whom it had been pledged by its owner in Michigan, in the absence of evidence that a custom of the same nature prevailed at the time and place of the pledge.</p> <p>Sections 1, 5, and 7 of St. 1910, c. 171, as to the transfer of title to certificates of shares of stock in corporations and to the shares which they represent, and especially as to the effect of the delivery of certificates without authority from the owner, have no extraterritorial application.</p>

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

<p>Tort for personal injuries sustained on December 29,1911, when the plaintiff was seventy-eight years of age, from, being thrown backward against the dasher of a box car of the defendant, as she was in the act of stepping into the body of the car from its platform, by the sudden starting of the car with a heavy jolt due to the alleged negligence of the defendant’s servants. Writ dated February 12, 1912.</p> <p>In the Superior Court the case was tried before Raymond, J. At the close of the evidence, the substance of which is described in the opinion, the defendant asked the judge to order a verdict for it, and also to make six rulings, of which the third and fourth were as follows:</p> <p>“3. The conductor was not negligent in starting the car when he did.</p> <p>“4. I direct you as a matter of law that there is no evidence of negligence in this case on the part of the conductor of the car. ”</p> <p>The judge refused to order a verdict for the defendant or to make the rulings requested, and submitted the case to the jury with other instructions. The jury returned a verdict for the plaintiff in the sum of $1,000; and the defendant alleged exceptions.</p>

<p>Tort under R. L. c. 171, § 2, as amended by St. 1907, c. 375, by the administratrix of the estate of John McKinnon against the Wells Brothers Company of New York, a corporation, which was the general contractor for the construction of the Stearns Building at the corner of Tremont Street and Temple Place in Boston, for causing the death of the plaintiff’s intestate by the negligence of a servant of the defendant while engaged in its business, the plaintiff’s intestate being then in the employ of the New England Bolt and Steel Company, a subcontractor. Writ dated October 15, 1909.</p> <p>In the Superior Court the case was tried before Chase, J. The evidence is described in the opinion. At the close of the evidence the defendant asked the judge to order a verdict for the defendant, which the judge refused to do. The defendant then asked the judge to make the following rulings:</p> <p>“1. There is no evidence in this case connecting the defendant, Wells Brothers Company, with the accident.</p> <p>“2. The evidence does not show that the defendant, Wells Brothers, was negligent with regard to any duty owed to the plaintiff.</p> <p>“3. The evidence does not show that the plaintiff [’s intestate] was in the exercise of due care.”</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. The defendant alleged exceptions.</p>

<p>Tort against a corporation, engaged in the restaurant business and maintaining a bar where intoxicating liquors were sold, to recover a penalty under R. L. c. 212, § 89, for discriminating unlawfully against the plaintiff on account of his color. Writ in the Municipal Court of the City of Boston, dated January 6, 1912.</p> <p>On appeal to the Superior Court the case was tried before Bell, J. It appeared that the defendant was a Massachusetts corporation maintaining a barroom as alleged, and that on October 25, 1911, one Hoffman, employed by the defendant as a barkeeper, refused to serve the plaintiff with beer on account of his color; that thereupon the plaintiff consulted an attorney and swore out a complaint in the Municipal Court of the City of Boston against Hoffman, and that, before the hearing of the complaint, the attorney for the defendant and the attorney for the plaintiff met. In answer to a question submitted to them, the jury found "that an agreement was made between the plaintiff or his attorney with the defendant’s attorney at the time of the criminal prosecution that, if the defendant Hoffman would plead guilty and pay any fine imposed on him, the plaintiff would accept that as a satisfaction of any claim which he might have on account of the discrimination.” The evidence showed that thereupon Hoffman pleaded guilty, was fined $25 and paid the fine.</p> <p>The defendant asked the judge to rule and instruct the jury as follows:</p> <p>"1. Upon all the evidence, the •plaintiff is not entitled to recover.”</p> <p>“3. The defendant cannot be held liable to the plaintiff in this action unless the plaintiff proves that the defendant aided or incited the act complained of.</p> <p>“4. A principal is not liable for the crimes of his agent.</p> <p>"5. Under this statute, the defendant is not liable for the acts of its agents.</p> <p>“6. This is a criminal or penal statute, and in order to recover thereunder, the facts necessary to make out a case must be proved by the plaintiff beyond a reasonable doubt. ”</p> <p>“8. If the plaintiff has pursued his remedy against Hoffman under this statute, he cannot now hold the defendant liable.</p> <p>"9. If the plaintiff, acting under this statute, caused the arrest and punishment of Hoffman for the act of discrimination complained of, he has exhausted his remedies and cannot after-wards proceed against any one else for the same act.</p> <p>“10. The statute does not give a person the right to prosecute one person criminally and to enforce the penalty or forfeiture against a second person for the same act of discrimination.</p> <p>“11. It was open to the plaintiff in the criminal proceedings against Hoffman to have obtained the forfeit provided by statute either in lieu of, or in addition to, the infliction of a fine or a sentence of imprisonment.</p> <p>“ 12. If, in the criminal proceedings against Hoffman, to which the plaintiff was a party, the court sentenced the prisoner to the payment of a fine only, the plaintiff cannot afterwards have any further or other penalty inflicted for the same act of discrimination.</p> <p>“ 13. If an agreement was made between the plaintiff and the defendant, each acting by their respective attorneys, that a settlement should be made of this claim of discrimination by Hoffman pleading guilty of the act complained of, and taking such sentence as the court should inflict, then the plaintiff is bound by such agreement, and cannot recover in this action.</p> <p>“ 14. If an agreement was made between the plaintiff and the defendant, each acting by their respective attorneys, that a settlement should be made of this claim of discrimination by Hoffman pleading guilty of the act complained of, and taking such sentence as the court should inflict, then the plaintiff is estopped from taking any further action in the matter and cannot recover in this action.</p> <p>“ 15. If the plaintiff by his words or conduct induced the defendant (by its attorney) to believe that all claims on account of the alleged discrimination were being settled by Hoffman’s pleading guilty of the act complained of, and taking such sentence as the court should inflict, and the defendant caused the same to be done, acting under such belief, then the plaintiff cannot recover in this action. ”</p> <p>The judge refused to make the rulings or give the instructions requested, and ruled that the agreement and the pleading guilty by Hoffman and the paying of the fine did not constitute a defense. He further instructed the jury that the plaintiff was not obliged to prove his case beyond a reasonable doubt, but that it was sufficient if he satisfied them of the facts by a fair preponderance of the evidence, and that the proceedings in the Municipal Court against Hoffman would not be a bar to the maintenance of this action, and ordered the jury to return a verdict for the plaintiff.</p> <p>The jury returned a verdict for the plaintiff in the sum of $25; and the defendant alleged exceptions.</p>

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

<p>Contract by the members of a firm of real estate and liquor license brokers against a liquor dealer to recover a commission of $600 for procuring a customer ready to purchase the defendant’s liquor business, stock in trade, good will and fixtures for $22,000. Writ dated July 10, 1909.</p> <p>In the Superior Court the case was heard by McLaughlin, J., without a jury. The judge refused a request of the plaintiffs to rule that on all the evidence they were entitled to recover, and made a memorandum of findings as follows:</p> <p>“The defendant, who was the lessee of certain premises on Washington Street [in Boston], carrying on business there as a licensed liquor dealer, employed the plaintiff [referring to the one of the plaintiffs who represented both of them in this transaction] to find a customer for his business, agreeing, if the plaintiff effected a sale thereof for the sum of $22,000, to pay him the sum of $600 as a commission.</p> <p>“The plaintiff in good faith procured a customer, one Sullivan, who was ready, able and willing to buy, and who entered into a written agreement with the defendant to purchase for the sum of $22,000. The business without the license, or the license without the lease, would have been useless to such purchaser as the parties intended should be procured. This fact was well understood by the plaintiff and the defendant, and the contract between Sullivan and the defendant contained the following clause:</p> <p>“rIt is further agreed between the parties that if the party of the second part (Sullivan) is not accepted by the landlord as a tenant, or if the party of the second part is not accepted by the said Excise Board (meaning the Licensing Board for the City of Boston established under St. 1906, c. 291) as a licensee, then the said parties of the first part (Hoffman) shall forthwith pay back and refund to the party of the second part the said deposit of' one thousand dollars ($1,000) paid this day, the receipt whereof is hereby acknowledged, and all claims against each other shall cease and terminate.’</p> <p>“The landlord refused to accept Sullivan as a tenant, or to assent to an assignment of the lease, unless Sullivan would agree to pay a much larger rental than Hoffman was paying, a condition with which Sullivan refused to comply, or at least never manifested any willingness so to do. The licensing board, furthermore, refused to accept him as a licensee and the business was subsequently sold to another person who was accepted both by the landlord and the licensing board.</p> <p>"Because Sullivan was not accepted either as a tenant or as a licensee, I find that the contract between him and Hoffman ceased to be binding; that the plaintiff, therefore, did not effect a sale of the defendant’s business, and is not entitled to his commission. ”</p> <p>The judge made a general finding for the defendant; and the plaintiffs alleged exceptions.</p>

<p>Negligence, Street railway.</p> <p>It is not evidence of negligence on the part of the conductor of a street railway box car, that he gave the signal to start the car when a healthy robust unmarried woman thirty-seven years of age, who had boarded the car as a passenger, was in the act of stepping from the floor of the vestibule, on which her left foot was planted, into the body of the car and was raising her right foot from the vestibule floor; and, if the conductor placed his hand on her back to prevent her from falling backward, that was no assurance that he would protect her from all injury, including an injury from having her right shoulder and elbow strike the woodwork of the doorway.</p> <p>The fact that, upon the starting of a street railway car, a woman passenger, in the act of stepping from the vestibule into the body of the car, lost her balance so that her right shoulder and elbow struck the woodwork of the doorway, while other passengers, although some of them were standing, remained undisturbed, is not evidence that the motorman started the car negligently.</p>

<p>Constitutional Law. Strike. Statute, Construction. Words, “Newspapers.”</p> <p>St. 1910, c. 445, making it a criminal offense for an employer, during the continuance of a strike, lockout or other labor trouble among his employees, to advertise publicly in newspapers or otherwise for employees without plainly and explicitly mentioning in such advertisements “that a strike, lockout or other labor disturbance exists,” is constitutional, its purpose and effect being to protect innocent searchers for work from being invited to seek employment where a strike is in progress in ignoratice of the true state of affairs.</p> <p>If by a rational interpretation a legitimate purpose can be attributed to a statute, which otherwise might be unconstitutional, such legitimate purpose must be assumed to have been that of the Legislature.</p> <p>St. 1912, c. 545, providing that St. 1910, c. 445, making it a crime for an employer to advertise publicly for employees during a strike without plainly mentioning that a strike exists, “shall cease to be operative when the State board of con- ■ ciliation and arbitration shall determine that the business of the employer . . . is being carried on in the normal and usual manner,” is constitutional, this statute providing only one way and not the exclusive way of determining that such a strike is at an end, and the employer having a right, if the board makes no finding or even finds that a strike still exists, to prove the cessation of the strike in any lawful manner.</p> <p>St. 1910, c. 445, making it a crime for an employer to advertise publicly “in newspapers, or by posters or otherwise, for employees ” during a strike without plainly mentioning in such advertisements that a strike exists, applies to a case where such an advertisement is published in only one newspaper, the plural word “newspapers” being used in a generic sense to designate a publication in one or more papers.</p>

<p>Tort for personal injuries sustained on February 28, 1912, at about noon, when the plaintiff had boarded as a passenger a street railway box car of the defendant at the Church Street stopping place of the defendant in Boston, and alleged to have been caused by negligence of the servants of the defendant in starting the car suddenly before the plaintiff had had time to enter the body of the car from its rear vestibule. Writ dated August 12,1912.</p> <p>In the Superior Court the case was tried before Fox, J. At the close of the plaintiff’s evidence, which is described in the opinion, the defendant asked the judge to order a verdict for it "on the ground that the testimony disclosed no negligence of the defendant or its servants or agents.” The judge refused to do this, “and submitted the case to the jury under instructions which were to the effect that it was for the jury to say whether or not the defendant’s servants or agents in charge of the car were negligent. The defendant conceded that the plaintiff was a passenger and in the exercise of due care.” “The plaintiff was sixty-five years old at the time of the accident and testified in her own behalf at the trial. She testified that before the accident she was well and not suffering from any illness or disability. ”</p> <p>The jury returned a verdict for the plaintiff in the sum of $900; and the defendant alleged exceptions.</p>

<p>Contract, Implied in fact. Chattel Loan Company. Corporation, Officers and • agents. Charity. Public Officer.</p> <p>Under St. 1907, c. 415, creating the Chattel Loan Company and providing in § 4 “that one director shall be appointed by the Governor of the Commonwealth”■ and that the compensation for his “services and attendance at the meetings shall be paid by said corporation,” if such a director is appointed by the Governor, accepts his appointment and is paid for his services by the corporation during a considerable period of time, and the other directors consent to his continuing to act as director under conditions which show an understanding by them of his expectation of being paid for his services, it can be found that the corporation accepted the services of such director under such circumstances that it expected or ought to have expected that they were to be paid for, and thus, without any formal vote, bound itself to pay a reasonable compensation for such services.</p> <p>The Chattel Loan Company, created by St. 1907, c. 415, “for the purpose of loaning money upon pledge or mortgage,” although certain provisions of that charter show that its business is to be under careful supervision and conducted so as to discriminate under proper circumstances in favor of small loans to the indigent, is a business corporation and not a charity.</p> <p>A director of the Chattel Loan Company appointed by the Governor of the Commonwealth under the provisions of the charter of that corporation contained in St. 1907, c. 415, § 4, is not a public officer.</p> <p>A director of the Chattel Loan Company appointed by the Governor of the Com- . monwealth under the provisions of the charter of that corporation contained in St. 1907, c. 415, § 4, is not required to be appointed annually and, in the absence of anything to the contrary, may serve until his successor is appointed.</p>

<p>Contract, Rescission, Performance and breach. Equity Jurisdiction, For an accounting. License.</p> <p>In a suit in equity for an accounting, it appeared that the defendant agreed to sell to the plaintiff a license to sell intoxicating liquors and an innholder’s license together with certain furniture and fixtures in the hotel where the defendant had carried on business and the good will of that business, and that in anticipation of the performance of the contract the plaintiff made certain payments of money to the defendant and took possession of the furniture and fixtures, removing some of them to a storage warehouse, and selling the rest at auction, that the licenses were the principal things contracted for and that without the licenses the furniture and fixtures would be of no value to the plaintiff, and that both parties relied on the expectation that the plaintiff could obtain a transfer of the licenses from the defendant to him, that the licensing board refused to authorize the transfer of the licenses, and thereupon the plaintiff brought his bill seeking to rescind the contract and to have repaid to him the portion of the purchase money that he had advanced. Held, that, the performance of the contract having become impossible, the plaintiff was entitled to the return of the portion of the purchase money advanced by him less such sum of money as might be due from him to the defendant on account of the furniture and fixtures, allowing the defendant the fair market value of the articles sold by the plaintiff with interest. Held, also, that, as to the articles that had been placed in storage by the plaintiff, the plaintiff had the right, after he had offered them to the defendant and the defendant had refused to receive them, to sell them at auction in a proper manner and credit the defendant with the proceeds, deducting the commission of the auctioneer. Held, also, that the plaintiff, having stored these articles for his own convenience, should pay the storage charges and was given no rights by St. 1907, c. 582, §§ 28, 29, relating to the warehouseman’s lien.</p>

<p>Evidence, Materiality, Extrinsic affecting writings. Contract, In writing. Way, Private. Deed,, Construction. Equity Pleading and Practice, Master’s report. Equity Jurisdiction, Specific performance.</p> <p>In a suit in equity to enforce the specific performance of a contract in writing collateral to a lease of real estate between the samé parties and relating to the erection by the lessee of a new building on the leased premises, evidence of a lease and agreement between other parties relating to adjacent land, which are not a part of the same transaction and are not incorporated by reference in the contract between the parties to the suit, should be excluded.</p> <p>In a suit in equity by a lessor of real estate against his lessee to enforce the specific performance of a contract in writing collateral to the lease, relating to the erection by the defendant of a new building, and to enjoin the maintenance of a stable on the leased premises, evidence of conversations between the parties, which occurred before the execution of the lease and contract, relating to the proposed new building and to the use of the stable then on the premises, should be excluded.</p> <p>The extrinsic evidence which is admissible to explain doubtful terms of an instrument in writing is evidence of the circumstances attending the transaction and not evidence of oral preliminary investigations.</p> <p>On an appeal in a suit in equity from a decree affirming a master’s report, where this court had before it all the testimony and exhibits on which the master made his findings and rulings, with the exception of a view taken by the master, which did not appear to be material upon the questions raised by the appeal in regard to the admissibility of evidence and the construction of instruments in writing, it was observed that no presumption affecting these questions was created by the findings of the master.</p> <p>An agreement contained in a lease, by which the lessee “agrees to convey forthwith a right of way to said lessor fourteen feet in width from the easterly end of the lessor’s land herein leased through to [a certain street] in fee,” requires the conveyance of a right of way free from incumbrances and is not performed by the conveyance of a right of way subject to a mortgage.</p> <p>In a suit in equity by the lessor of a parcel of land containing sixty-five hundred square feet, on which was a wooden building that covered eighteen hundred square feet of the land, against his lessee, to compel the specific performance of an alleged agreement of the defendant to erect a brick building on the land to replace the wooden one, or on top of which the old building should be placed, where it appeared that the plaintiff, acting under an honest mistaken belief that he was entitled to have the defendant build a new brick building over his entire lot, refused to allow the defendant to erect a brick building such as the contract called for covering only the space occupied by the wooden building and that in consequence of such refusal the defendant had made other plans for carrying on his business so that he did not require the use of such a new building, it was held that it would be inequitable to compel the defendant to erect a building for which he no longer had any use owing to changed conditions that had been brought about through an honest difference of opinion of the parties as to one of the essential terms of the agreement, and that therefore the proper relief to be awarded was the payment of damages, which might be assessed by a master, and that, in lieu of the contemplated brick building as security for the rent, the plaintiff should be provided with an adequate bond.</p>

<p>Corporation, Foreign, Liability of subscribers for stock under statutes of Maine. Maine.</p> <p>The provisions of the Revised Statutes of Maine, c. 47, §§ 87,89, as to the liability to a judgment creditor of a Maine corporation of those "who have subscribed for or agreed to take stock in said corporation and have not paid for the same,” as that statute is interpreted by the highest court of the State of Maine and as it accordingly is enforced here, create a liability only of persons who subscribed for stock in transactions with the corporation; and persons, who received or purchased such stock from a subscriber and did not intend to deal with the corporation itself, cannot be made liable under the statute.</p>

<p>Bill in equity, filed in the Superior Court on June, 7,1911, by Thomas Craig of Liverpool in the United Kingdom of Great Britain and Ireland, doing business under the name of Thomas Craig and Company, against two citizens of this Commonwealth doing business as copartners under the firm name of S. S. Vinal and Company, for an accounting between the plaintiff and the defendants as to an alleged joint enterprise and the recovery of a balance alleged to be due to the plaintiff for advances made and expenses incurred on account of such enterprise.</p> <p>The case was referred to James P. Parmenter, Esquire, as master, who was directed “to hear the parties and their evidence and report his findings to the cotut together with such facts and questions of law as either party may request.” His report was in substance as follows:</p> <p>The plaintiff was a dealer in damaged cotton in Liverpool and the defendants were dealers in damaged cotton in Boston. In May, 1908, an agreement was made between the plaintiff and the defendants, contained chiefly in a letter from the defendants to the plaintiff, dated May 4, 1908, whereby the defendants agreed to buy from time to time, as occasion offered, damaged cotton in America and ship it to Liverpool, where it was to be sold, profits or losses to be equally divided between the parties. This letter, which was addressed to the plaintiff and was signed “Samuel S. Vinal & Co,” was as follows:</p> <p>“At the request of Mr. E. J. Taylor [one of the defendants] we beg to inform you that we have made arrangements with him to transact his cotton business through us, and wish to state that any consignments or shipments of cotton on direct orders we may make to you or your brokers, Messrs. Higgins, Roberts & Steele, will be entirely under Mr. Taylor’s supervision and recommendation.</p> <p>“We understand that you purpose establishing a permanent credit with The Agency of The Canadian Bank of Commerce, New York, to the extent of $5000 (five thousand dollars) to facilitate financial arrangements over shipments on your Account; in view of this we have opened an account with The First National Bank of Boston, and if you establish this Credit so that our Drafts at 30 Days Sight on Lloyd’s Bank, Liverpool, accompanied by documents can be cashed by the Canadian Bank of Commerce, New York, we can make arrangements with the First National Bank of Boston, to negotiate purchases of either Damaged Cotton, sold at Auction, or Regular Sound Cotton on the Market, such as the 110 Bales ‘GA Z’ just shipped you.</p> <p>- “It is of course understood that any shipments made by us we will hold ourselves responsible for jointly with Mr. E. J. Taylor .and you will kindly send us Account Sales, and place credits of' all ‘Joint Account’ and other consignments shipped to you by us to our Account.</p> <p>“We would mention that we have been established here in Boston, as above, for the past twenty years, and as to our integrity and responsibility we beg to refer you to The Mechanics Trust Co. of Boston. We would add that with Mr. Taylor’s assistance, we feel that we shall soon build up an extensive business in Cotton. We purpose discontinuing the other branches of our business and devote our energies and resources entirely to the Cotton line, and shall hope to receive the same valued support from your goodself as we understand you have given to Mr. E. J. Taylor.”</p> <p>• Several shipments were made in 1908 according to the following method. The defendants bought a quantity of damaged cotton after consultation with the plaintiff as to the price to be paid, and shipped it to Liverpool, insuring it in America. The defendants drew upon Lloyd’s Bank in Liverpool against each shipment, and sent the draft to Higgins, Roberts and Steele, cotton brokers in Liverpool, together with the bill of lading and insurance policies. The draft was indorsed by Higgins, Roberts and Steele, and was accepted and paid by Lloyd’s Bank. When the cotton arrived in Liverpool, it was taken to warehouses owned or controlled by the plaintiff and there was dried, aired and sorted out by the plaintiff’s employees, so as to be in condition for sale. Higgins, Roberts and Steele furnished money to the plaintiff to pay his employees. The cotton was then sold by Higgins, Roberts and Steele at the best price they could get, after consulting the plaintiff and obtaining his consent. From the proceeds Higgins, Roberts and Steele paid Lloyd’s Bank the amount paid by that bank on the draft, reimbursed themselves for the expenses incurred, paid themselves a commission and credited the profit to the parties or charged them with the loss. Lloyd’s Bank required that Higgins, Roberts and Steele, or some other responsible broker, should be thus engaged in the transaction, so that the bank might have such broker to hold responsible to itself.</p> <p>It was agreed between the plaintiff and the defendants that their purchases, shipments and sales should be on joint account, and that profits and losses should be equally divided between them.</p> <p>The plaintiff contended before the master that in these transactions the plaintiff and the defendants were quasi-partners; that the plaintiff had incurred debts and expended money for the benefit of the concern, and was entitled to be repaid one half thereof by the defendants; that Higgins, Roberts and Steele were employed by the plaintiff as his agents and not as the agents of the concern. The defendants contended that Higgins, Roberts and Steele were principals with whom the quasi-partnership dealt; that in such dealings the plaintiff acted as principal for himself and as agent for the defendants; that certain of the plaintiff’s acts were unauthorized by the defendants and that he was not entitled to recover from the defendants any losses resulting from such unauthorized acts; and that, if the defendants were liable to anybody, they were liable to Higgins, Roberts and Steele.</p> <p>In addition to the above the master found the following facts bearing upon the 'relation of Higgins, Roberts and Steele to thé parties.</p> <p>The original agreement was that the defendants should buy the cotton in America after consultation with the plaintiff as to the price to be paid, and should send it to Liverpool, where the plaintiff was to attend to preparing it for market and selling it. The plaintiff also was to make such provisions as that drafts on Lloyd’s Bank by the defendants accompanied by bills of lading and insurance policies might be cashed by the defendants in New York or Boston. It was not part of the agreement that Higgins, Roberts and Steele should necessarily be the brokers. They had long been the plaintiff’s brokers and the defendant Taylor, who had formerly lived in Liverpool, was acquainted with them, and for this reason they were employed, and also for the reason that Lloyd’s Bank required that a responsible broker should be engaged in the transaction. Higgins, Roberts and Steele, upon completing the sale of each shipment, rendered an account thereof to each party, heading the same "Sold on account of Thomas Craig & Co., Liverpool in joint account with S. S. Vinal & Co., Boston,” or "Sold on account of Messrs. Thomas Craig & Co. and Messrs. S. S. Vinal & al.” Each account stated the result in profit and loss, and in some of them one half of such profit or loss was stated as due to or from T. Craig & Co. and one half to or from S. S. Vinal & Co. Profits on joint account transactions were credited one half to each and in some cases the defendants were authorized to draw on the brokers for their portion. Losses were charged by the broker, one half to each party. The defendants bought the cotton in America in their own name, the sellers drawing upon them for the price with bills of lading attached, but the defendants procured funds for meeting these drafts by discounting the drafts against Lloyd’s Bank. Consignments were made by the sellers direct to Liverpool. Bills of lading were made to the shippers’ order, and were indorsed by them and came to the defendants with the drafts upon the defendants above mentioned. The bills of lading then were attached by the defendants to the drafts on Lloyd’s Bank. These draftswere drawn by the defendants on Lloyd’s "notify Higgins, Roberts & Steele.” They were paid by Lloyd’s on Higgins, Roberts and Steele’s account, the latter charging the amounts to the joint account. These brokers had complete and exclusive supervision of the working and distribution of the cotton from the time it arrived in Liverpool, holding it as security for the money advanced and warehousing it in their own name on the joint account of the parties. The money required for all expenses of working the cotton, including the payment of Craig’s employees, was advanced by them and charged against the transaction. Most of the defendants’ general correspondence relating the transactions was with Craig, but in relation to finance and the state of accounts they corresponded both with Craig 'and also directly with the brokers. The latter rendered the accounts in duplicate, one to each party.</p> <p>After the Mancunia cotton arrived in Liverpool, a question having arisen between the parties as to the prices at which the cotton should be sold, Craig came to America and procured from the defendants and sent to the brokers a paper signed by the defendants reading as follows:</p> <p>“Messrs. Higgins, Roberts and Steele, Liverpool.</p> <p>“ Dear Sirs: We hereby authorize you to use your entire discretion as to the disposal of all cotton in your hands on Joint Account ourselves and Messrs. Thomas Craig & Co. (subject of course Mr. Craig's sanction). S. S. Vinal & Co.”</p> <p>Demands were made for payment for the balance due from the defendants on the joint account by both the plaintiff and Higgins, Roberts and Steele. The transactions specified in the second and fifth paragraphs of the bill were joint account transactions made under the arrangement and in the manner above set forth.</p> <p>“My conclusion on this branch of the case is that Higgins, Roberts and Steele were not principals, but were brokers for the plaintiff, advancing money on his account and looking to him for final reimbursement; that the form of their statements was to distinguish these transactions from others in which the plaintiff was acting alone and that they are not creditors of the defendants.</p> <p>“Taking up plaintiff’s claim in detail.</p> <p>“His first claim is contained in the second paragraph of the bill, and is for one half the loss on a shipment of forty-eight bales of cotton on the S. S. Cestrian, said one half amounting to $97.67, with interest from October 23,1908, when the same was demanded.0 This claim is not disputed except that defendants contend that on evidence it is due to Higgins, Roberts and Steele.</p> <p>“His second claim is contained in the third paragraph of the bill. The defendants here made a shipment of cotton to the plaintiff. The plaintiff complained of the condition of thirty-seven bales, and the defendants agreed to take them back and replace them with thirty-seven bales of equal weight and better quality. They sent thirty-seven bales, but not of equal weight with those returned, and agreed to pay for the deficiency in weight the sum of $30.70, with interest from October '23, 1908, when the same was demanded. This claim is not disputed by the defendants.</p> <p>“His third claim is contained in the fourth paragraph of the bill. Certain cotton shipped by S. S. Chattahoochee had been sold at a profit, of which the plaintiff’s share amounted to $61.55. The defendants had received the proceeds, but did not pay the plaintiff his share. The defendants admit this amount to be due. The plaintiff further claims interest thereon from November 20, 1908, but this the defendants dispute. I find that payment was demanded in a letter of Higgins, Roberts and Steele to the defendants February, 27, 1909.</p> <p>"His fourth claim is contained in the fifth paragraph of the bill, and is for one half the loss sustained on a shipment of cotton on S. S. Mancunia, said one half amounting to $2,371.55, on which interest is claimed from February 27, 1909. This claim the defendants dispute.</p> <p>"His fifth claim is contained in the sixth paragraph of the bill, and is for damages arising from the negligence of the defendants in the purchase of the cotton shipped on S. S. Mancunia. This claim the plaintiff waives.</p> <p>“His claims in the first and seventh paragraphs of the bill are general, and contain nothing not included in paragraphs two to five.</p> <p>“On this claim the defendants owe the plaintiff the sum of $2,371.51, with interest from February 27, 1909, when demand for payment was duly made.”</p> <p>The defendants excepted to the following findings and rulings of the master as not being supported by the facts found:</p> <p>1. To the finding that Higgins, Roberts and Steele were brokers for the plaintiff.</p> <p>2. To the finding that Higgins, Roberts and Steele advanced the money on joint account transactions on the plaintiff’s account.</p> <p>■ 3. To the finding that Higgins, Roberts and Steele are not creditors of the defendants.</p> <p>6. To the finding and ruling that the defendants owe the plaintiff on the Mancunia shipment the sum of $2,371.51, with interest .from February 27, 1909; and the defendants assigned the further ground for this exception, that the plaintiff is one of two joint parties, or partners, suing for contribution without having himself first paid the claim or loss to which contribution is sought.</p> <p>Upon these exceptions Hardy, J., made the order, “Overruled,” and later made a final decree reciting, “that the defendants’ exceptions to the master’s report had been duly overruled, and the master’s report duly confirmed, ” and ordering that the defendants pay to the plaintiff the sum of $3,219.35 with costs taxed in the sum of $277.03. The defendants appealed.</p>

<p>Probate Court, Appeal. Comer'mtor. Notice. Husband and Wife.</p> <p>On an appeal from a decree made by a single justice of this court, affirming a decree of the Probate Court discharging a conservator on the ground that the ward had become competent to manage his own estate, the question whether the ward had thus become capable of managing his own affairs is one of fact, on which the finding-of the single justice upon conflicting testimony of the witnesses who appeared before him, including the ward himself, will not be reversed unless plainly wrong.</p> <p>Under St. 1903, c. 96, amending B. L. c. 145, § 40, by providing that the conservator of the property of a married person shall not be appointed or discharged without notice to thé husband or wife of such person, where, upon the petition of a husband for the discharge of his wife as conservator of his property on the ground that the petitioner has become competent to manage his own estate, the wife has appeared by counsel after a citation has been ordered notifying her of her husband’s application for her discharge as conservator, no further notice to her is required.</p> <p>If the provision contained in St. 1911, c. 206, that “a conservator of the property of a person who is unable properly to care for his property by reason of advanced age or mental weakness shall not be appointed without such notice as the Probate Court may order to the heirs apparent or presumptive of such person,” applies by implication to a petition by a husband for the discharge of his wife as conservator of his property on the ground that he has become competent to manage his own estate, which was not decided, a wife, who has been discharged as conservator upon such a petition of her husband after having been heard in the proceeding, cannot impeach the decree on the ground that no guardian ad litem for a minor son was appointed on whom notice of the petition could be served.</p>

<p>Equity Jurisdiction, Specific performance, Fraud, Mistake. Attorney at Law.</p> <p>In a suit in equity brought by an attorney at law and a collector of claims against the members of a firm of attorneys at law, to enforce the specific performance of an alleged agreement of the defendants to share equally with the plaintiffs the compensation received by the defendants for their services rendered in a certain suit to clients who previously had employed the plaintiffs to collect claims for them, a master found, on evidence warranting such findings, that one of the plaintiffs had stated to one of the defendants that the plaintiffs had been consulted and employed by the clients in question and had authority to control the suit in question and to employ senior counsel, that these statements were false, although the plaintiff who made them believed them to be true, that, induced wholly by these statements and with no other consideration than their mistaken belief in them, the defendants made an agreement to share with the plaintiffs the compensation received by the defendants for their services in the suit, and that afterwards the defendants, on learning that the clients never intended to employ the plaintiffs as counsel but only had asked their advice as to the proper persons to employ as counsel in the suit in question, refused to be bound by their agreement. Held, that, whether the inducement on which the defendants had made their promise was considered on the ground of imputed fraud or of mutual mistake, it would be inequitable to order a specific performance of their agreement.</p>

<p>Way, Private. Deed. Boundary. Easement.</p> <p>Where two lots of land, abutting for thirty-four feet on the opposite sides of a private way, were conveyed to two different persons, by the original owner of a tract of land that included such lots with others and the passageway, by deeds bounding the lots on the way and containing no express grant as to the way other than a right to use it as a common passageway together with others likewise entitled, and later such lots are acquired by one person, such person presumably becomes the owner of the fee in the way and has a right to build a bridge fifteen feet above the ground across the way unless by reason of the circumstances and the parties at the time of the original grant an additional easement arises by implication that the way should be kept open to the sky for light, air, prospect or any other purpose of convenience.</p> <p>Where, at the time of an express grant by deed of a right to use a certain private way as a common passageway, it appears that the way was laid out by the common grantor for the purpose of selling lots! belonging to a certain estate in order to settle the estate, that it was not in a thickly settled district and was used only by persons who collected ashes and garbage, no easement that the way should be kept open to the sky for light, air, prospect or any other purpose of convenience can be added to the grant by implication.</p>

<p>Joint Tenants and Tenants in Common. Mortgage, Of real estate.</p> <p>Where three persons, who owned a parcel of land as tenants in common, conveyed it to a purchaser who gave them a promissory note payable to their order and secured by a mortgage on the land, and the three then died at different times and the amount due on the note was paid to the executor of the will of the one who died last, who thereupon discharged the mortgage, such executor cannot retain the whole of the money as property of the survivor, but must account for it in equity to the representatives of the two other payees, because, in spite of the exception of mortgages in R. L. c. 134, § 6, the title of the mortgagees must be held to have been that of tenants in common and not of joint tenants.</p>

<p>Equity Jurisdiction, Accmmting, To relieve from results of fraud.</p> <p>In a suit in equity against two individuals and two corporations, it appeared that the individual defendants by a fraudulent scheme had procured possession of the good will and property of a partnership in which the plaintiff was interested and had conveyed them to the defendant corporations, which were organized and controlled by the defendants, and that the corporations did some other business besides that acquired from the partnership and paid salaries to the individual defendants as officers which were not fraudulent or excessive; and a decree was made ordering the defendants to account to the plaintiff for the profits made by the corporations from the business formerly of the partnership. The case having been reserved for determination by this court, a rescript was issued, directing that in such accounting no allowances should be made to the corporations as to one half of the amount paid to the individual defendants as salaries. Thereafter, a final decree was entered, which stated certain amounts to have been the profits realized by the corporations from the partnership business, and, in computing such amounts, the portions of the officers’ salaries which were disallowed as payments by the corporations were treated as never having been paid out by the corporations. The plaintiff appealed, contending that the defendants should have been ordered to pay directly to him the portions of the salaries thus disallowed as payments by the corporations. Held, that the "method of accounting ordered in the decree was correct.</p>

<p>Novation. Equity Pleading and Practice, Appeal. Frauds, Statute of.</p> <p>In a suit in equity against four defendants to compel them to execute and deliver to the plaintiff a lease of a certain store, it appeared that the store was in a building owned by one of the defendants, who, before the building was completed, had made an agreement in writing to lease the entire building to two of the other defendants, the lease to be guaranteed by the fourth defendant and the agreement giving to the last three defendants power to sublet. For a proper consideration, the fourth defendant agreed to lease to the plaintiff the store in the building to be built. The completion of the building being delayed, the fourth defendant desired to be released by the other defendants from his part in the undertaking and they orally agreed with him that the owner should assume his place in the undertaking as to the plaintiff. The plaintiff, learning of this arrangement, orally acquiesced in it, and, after the building was completed, moved into the store and with the knowledge of the owner made extensive expenditures, relying upon the lease being given to him. The lease afterwards was refused. The judge who heard the suit ruled that a novation was effected, substituting the owner for the fourth defendant, and that, because there had been part performance by the plaintiff in reliance upon performance by the defendants, the statute of frauds did not apply to the undertaking of the owner with the plaintiff. A final decree accordingly was made, directing the defendants other than the fourth defendant to execute a lease to the plaintiff. Held, that on the findings of fact, which were warranted, the rulings and decree were proper.</p>

<p>Equity Jurisdiction, Specific performance. Contract, Performance and breach. Frauds, Statute of.</p> <p>In a suit in equity to enforce specific performance of an alleged contract for the sale and conveyance to the plaintiff of certain land, the following facts were found by the judge upon evidence warranting the findings: The plaintiff, accompanied by a real estate broker, interviewed the defendant in another State and offered $16,000 for the property, subject to a certain lease, the purchaser to pay all legal expenses involved in the transaction. The offer was not accepted then, and later the broker wrote the defendant a letter, stating that, “agreeable to your conversation” with the broker, the writer submitted an offer on behalf of the plaintiff of $16,000 “for your two lots ... on A street, Cambridge, and in the rear, comprising” a certain area. The letter closed, “Kindly forward your formal acceptance at once in order that the necessary papers may be prepared.” Five days after the interview the defendant wrote to the broker referring to the land by the same description as that used in the broker’s letter, and stating that he “accepted the offer of $16,000” for the property, subject to the lease, “and to be free from all legal and other expenses.” Enclosed with this letter was a personal letter to the plaintiff, referring to certain rights of way, and stating, “You will find the last description of all the property” in a certain deed which was fully described by reference to parties, date and book and page of record. The judge found that the reply to the broker’s letter was intended to be and was an acceptance of the oral offer previously made by the plaintiff. Held, that the judge’s finding was warranted. Held, also, that there was a sufficient memorandum signed by the defendant to satisfy the statute of frauds.</p> <p>In a suit in equity against two women to enforce specific performance of a contract to sell certain land, the judge who heard the case found the following facts, on evidence warranting the findings: After oral negotiations in another State between the plaintiff, accompanied by his broker, and the defendants, in which an offer was made but was not accepted, the broker wrote to the defendants asking for an immediate reply. Five days later one of the defendants, acting for herself and her sister, wrote a letter accepting the offer. This defendant was seventy-two years old and was a “business woman of considerable experience.” The defendants for years had had agents where the property was situated who were well qualified to advise them. The plaintiff had requested the defendants not to communicate to these agents either his or his broker’s name, but nothing was said to prevent an investigation as to the price offered as compared to the market value of the land. Held, that the circumstances did not require that a decree for specific performance should be refused.</p>

<p>Municipal Corporations, Fire department, Selectmen.</p> <p>Where the selectmen of a town have established a fire department and have appointed a suitable number of engineers under R. L. c. 32, § 38, the board of engineers thus appointed have under § 45 of the same chapter the exclusive care and superintendence of the buildings of the fire department owned by the town with the duty of causing them to be kept in repair, and the selectmen have no authority to expend money of the town in making repairs on such buildings.</p>

<p>Removal of Suits. Time, Fractions of a day. Evidence, Docket entries, Presumptions and burden of proof.</p> <p>Under the Judicial Code, U. S. St. 1911, c. 231, § 24, which gives a right to remove an action from a State to a federal court on the ground of diversity of citizen- ¡ ship when the amount at issue between the parties exceeds $3,000 exclusive of interest and costs, no right of removal exists where the docket entries of the Massachusetts court in which such an action was brought show that, at a previous time on the same day on which the petition and bond for removal were filed, an amendment by the plaintiff of his writ reducing the ad damnum to $3,000 was filed and allowed, this belonging to the class of cases where the court will regard fractions of a day in order to determine the rights of the parties.</p> <p>Where it is material to show which of two orders of court, made by the same court on the same day, was made first, docket entries, in which the orders in question are recorded and are numbered successively, are conclusive evidence as to the sequence in which the orders were made, this being a matter apparent on the face of the record which is to be determined by an inspection of the record and not otherwise.</p>

<p>Bill in equity, filed in the Superior Court on June 11, 1912, by the Eastern Bridge and Structural Company, a corporation, as a creditor of the defendant Worcester Auditorium Company, a corporation, in behalf of itself and such other creditors as might join, under R. L. c. 159, § 3, cl. 7, to reach and apply to the payment of the plaintiff’s claim a lease of a building called the Worcester Auditorium, constituting almost the entire assets of the defendant corporation and standing on land of the defendant Shannon, the lessor, the lease giving to the defendant corporation the right to purchase the property for a price named.</p> <p>The defendants filed no answers. The proceedings, which are described in the opinion, are there referred to as unusual and anomalous. The case was referred to William J. Taft, Esquire, as master, who made the reports referred to but not shown by the record. The second master appointed, who is referred to in the opinion as having seemed to perform the functions of a revising magistrate, was Charles F. Baker, Esquire.</p> <p>The Casino Company, a corporation, was the purchaser of the property sold at auction by the first master under an interlocutory decree. This corporation intervened by petition and was made a party to the suit by an order of court on August 25, 1913.</p> <p>The case was heard by Ratigan, J., upon a motion filed by the Casino Company and William J. Taft, master, to have the report of Charles F. Baker, special master, confirmed; a motion of the Worcester Auditorium Company to vacate the sale made by William J. Taft as master under a decree of the Superior 'Court; and a petition of William J. Taft, master, to have Maurice W. Shannon adjudged in contempt of court for refusing to sign a deed in accordance with the terms of a decree of the Superior Court.</p> <p>The judge ordered that the master’s report of Charles F. Baker be confirmed. He refused to give certain rulings requested by the defendants, and, with the consent of all the parties, reported the case for determination by this court of the questions of law raised.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on October 25 and amended on November 17, 1913, by certain stockholders of the New York, New Haven, and Hartford Railroad Company under St. 1913, c. 784, § 27, praying the court to annul or review, modify or amend, an order made by the public service commission established by that chapter approving a proposed issue by that railroad company of evidences of indebtedness amounting to $67,552,000 and also approving the issue of 675,520 shares of the capital stock of that company as asked for in the applications of that company to the commission, which are described in the opinion.</p> <p>The case was heard by Sheldon, J., who reserved and reported it for determination by the full court, to be given the precedence provided for in the last sentence of § 27 of St. 1913, c. 784.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on December 17, 1912, by the holder by assignment of a second mortgage on certain land in Norwell given by one Margaret L. Brown to one Jacob Friedberg, to set aside a foreclosure sale under a first mortgage by which the defendant Graves acquired his alleged title and to be allowed to redeem the property from such first mortgage.</p> <p>The case was referred to Walter F. Frederick, Esquire, as master. The material facts reported by the master are stated in the opinion.</p> <p>The plaintiff filed the following exceptions to the master’s report:</p> <p>“1. To the finding or ruling ‘from all the evidence I cannot find that the amount received under the sale was so inadequate of itself it would leave a suspicion that the sale had not been fairly conducted.’</p> <p>“2. To the refusal or failure to rule that the sum of $2,900 was not an adequate price to pay for the premises covered by the Kendall mortgage on October 1, 1912.</p> <p>“3. To the refusal of the master to reopen the case for the purpose of allowing the deed of George A. Brown to Annie B. Nelson, dated March 24, 1913, to be offered as evidence for the purpose of controlling the facts therein recited.”</p> <p>The defendants filed the following exceptions to the master’s report:</p> <p>“1. To the admission in evidence by the master of the unsealed instrument purporting to be a conveyance of title to certain land from George A. Brown to Annie B. Nelson.</p> <p>“2. To the refusal of admission in evidence by the master of testimony as to the amount of money paid by the complainant to Margaret L. Brown, as security for which he received an assignment of the second mortgage.</p> <p>“3. To the admission by the master of the confirmatory deed of George A. Brown to Annie B. Nelson.”</p> <p>The case was heard by Loring, J., upon the exceptions to the master’s report. The justice made an order overruling the exceptions of both parties and confirming the master’s report, and reserved the case, upon the bill and answer, the master’s report and the exceptions of both parties thereto, for determination by the full court.</p>

<p>Equity Jurisdiction, To enforce lien on fund, To enforce agreement of certain heirs at law, To enforce conditional promise. Trust, Compensation of trustee. Montana.</p> <p>It having been held in Coram v. Cams, 209 Mass. 229, upon a demurrer to a bill in equity, that the plaintiff was entitled upon his allegations to enforce a lien upon a certain fund for the amount of certain expenses incurred by him, and the case, after the overruling of the demurrer, having been referred to a master and reserved for determination upon his report, it appeared that certain material allegations of the bill were not sustained by the findings of the master or the facts reported by him, and that the fund on which the plaintiff sought to impress a lien was in no way created for the plaintiff’s benefit or to provide for the expenses that he had incurred, and it was ordered that the bill should be dismissed.</p> <p>In a suit in equity against certain heirs at law of an alleged testator, who received shares of his estate under an agreement of compromise approved by a decree made in the State of Montana where the testator died, to recover compensation for services under an agreement in writing, it was found by a master that by the law of Montana, where the contract appeared to have been made, it created a joint and several liability, and that, although by a previous contract between the defendants one of the defendants had agreed to assume all the expenses of the other defendants in the will contest in which they were engaged, the contract with the plaintiff was signed by all the defendants long after the former contract between the defendants themselves was made and related at least in part to services rendered long after the will contest was ended, and it was held, that the plaintiff was entitled to a decree against the defendants jointly and severally, directing payment out of their respective shares in a fund of the estate of the alleged testator in the hands of an ancillary administrator in this Commonwealth.</p> <p>In a suit in equity by certain heirs at law of an alleged testator to recover the shares to which they were entitled under an agreement approved by a decree made in the State of Montana, one of the defendants, who was the trustee for the plaintiffs under a certain agreement made by all the heirs at law, brought a cross bill to recover the amount due to him as such trustee. A master found that the trustee had made disbursements for expenses for which he was entitled to be allowed under the law of Montana, and was entitled to commissions on the amounts of personal property actually received by him under the distributions made in Montana. He also found that, although a fractional part of the real éstate in Montana vested in the trustees under the agreement, none of the money resulting from the sale of such real estate came to their hands, and that • under the law of Montana a trustee was entitled to a commission only on sums of money actually .received by him from the sale of property of the estate or actually disbursed by him. Held, that under these circumstances, and on all the facts found by the master, the trustee was not entitled to a commission on the real estate, the proceeds of which he did not receive, and that he was not entitled to any compensation for money set aside by the administrator of the estate in consequence of a decree entered under a decision of the Supreme Court of the United States and paid directly by the administrator to the clerk of the Circuit Court of the United States; but that the trustee was entitled to a decree upon his cross bill ordering the payment to him of the balance to which he was entitled by the parties who were before the court, irrespective of a fund that, for the purpose of his payment, had been placed by the heirs at law in the hands of a third person, not a party to the suit, the trustee never having agreed to look to such third person alone for his compensation.</p> <p>A bill in equity cannot be maintained, nor can a cross bill, to enforce an alleged agreement of certain heirs at law that the administrator of the estate in another State will include the plaintiff’s claim in his report and the account of his administration of the estate in such other State after the funds, money and property of the estate then in Massachusetts have been transferred to him as the domiciliary administrator, and that if the plaintiff’s claim is not allowed by the court such heirs at law will pay it, where it appears that the condition upon which the alleged promise was to have been performed has not arisen because there has been no transfer of the funds, money and property of the estate in Massachusetts to the domiciliary administrator in such other State.</p>

<p>Supreme Judicial Court. Practice, Civil, Amendment, Exceptions. Words, “Amendment.”</p> <p>In the provision of St. 1913, c. 716, §3, that “the Supreme Judicial Court, upon.any appeal, bill of exceptions, report, or other proceeding in the nature of an appeal in any civil action, suit or proceeding, shall have all the powers of amendment of the court below,” the word "amendment” refers only to pleadings and process, and gives this court no power to allow a correction of a statement con- ' tained in a bill of exceptions constituting a part of the record of the facts on which the trial judge based his action. The proper way to accomplish such a correction, since the enactment of the statute as well as before it, is by a motion that the bill of exceptions be discharged for the purpose of correction by . the trial judge.</p>

<p>Bill in equity, filed in the Superior Court on January 7, 1910, to enforce the specific performance of a contract, alleged to have been made on December 18, 1906, to sell and convey to the plaintiff a certain tract of land with the buildings thereon, in Danvers, which formerly belonged to one Francis Dodge, late of Danvers, and at the time of the filing of the bill belonged to the defendants, as devisees under his will.</p> <p>A former suit brought to compel the performance of this contract, the decision of which upon demurrer is reported in 200 Mass. 357, was brought against Eben Dodge alone, who, on December 18, 1906, signed a receipt for $25, which was paid to him by the real estate agent or broker mentioned in the opinion and which he received as the agent for himself and the other devisees under the will of Francis Dodge.</p> <p>The present suit was referred to William Perry, Esquire," as master. The material facts found by him are stated in the opinion. He also found the following introductory facts: Francis Dodge, the original owner of this real estate, died in January, 1906, testate. His will was proved in the following February, and Francis S. Dodge was appointed the executor of his will. His next of kin and heirs at law were Ellen M. Dodge, his widow, Francis S. Dodge, Eben Dodge, Joseph B. Dodge, sons, Louise P. Dodge, a daughter, and Frances D. Blakemore, Amy Blakemore and Harvey Blakemore, grandchildren, children of a deceased daughter. By his'will, his widow Ellen was given a third interest in this property, and Francis S. Dodge, Eben Dodge, Louise P. Dodge each a sixth interest. Joseph B. Dodge, the remaining son, was otherwise provided for. In the decision reported in 200 Mass. 357, this court intimated, that, if the bill had alleged that the real estate in question was all the property in Danvers then belonging to the estate of Francis Dodge, the demurrer would not have been sustained. The allegations of the present bill, which were supported by the evidence, cured this defect in the first bill.</p> <p>The master certified that he had read his report to the parties in interest and that they had had five days in which to file objections. No objections or exceptions to the master’s report were filed. The case was heard upon the master’s report by Hitchcock, J., who made a final decree confirming the master’s report and dismissing the bill. The plaintiff appealed.</p>

<p>Equity Pleading and Practice, Cross bill. Equity Jurisdiction, Acquired for one purpose will be extended to connected controversies, To avoid multiplicity of suits.</p> <p>It is well settled that the function of a cross bill is to obtain affirmative relief that cannot be granted under an answer, and that such a bill must be resorted to by a defendant whenever relief is sought against a plaintiff or a co-defendant.</p> <p>Where a holder of a second mortgage of real estate brought a suit in equity to set aside a foreclosure sale, which he himself had caused to be instituted, on the ground of alleged inadequacy of price, and obtained an injunction preventing the completion of the sale, the purchaser at the foreclosure sale not being named in the injunction although notice of it was served on him, and such purchaser filed a cross bill praying to be relieved from all obligations under the contract of pinchase of which performance had been prevented by the injunction and for damages, only his right to damages being contested by the original plaintiff, an award of damages on the cross bill made by the judge who heard the case was. sustained on an appeal from the final decree made by him, as it did not appear that his findings were plainly wrong.</p> <p>The objection that a cross bill is not pertinent to the case stated in the original bill can be raised only by a demurrer or an answer to the cross bill, and, where such objection is not so raised, it will be assumed that equity has jurisdiction on the ground that, having acquired it for one purpose, it will, to avoid multiplicity of suits, proceed to settle all matters within the pleadings connected with the principal controversy.</p>

<p>Equity Pleading and Practice, Master’s report: motion to recommit, exceptions. Way, Private. Adverse Use. Evidence, Matters of common knowledge.</p> <p>The denial in a suit in equity of a motion that a master’s report be recommitted, with instructions to report further evidence on a subject on which he already has reported the evidence or to report that he has reported all the evidence on the subject, is within the discretionary power of the trial judge.</p> <p>No exceptions to a master’s report in a suit in equity can be considered without a special order of the trial judge unless such exceptions are founded on objections to the draft report presented seasonably to the master and shown by his report to have been presented to him.</p> <p>If the owner of six undivided sevenths of a parcel of land, to which a right of way over an adjoining parcel of land is appurtenant, has remained for a period of time in undisturbed possession of the land, he is in possession of every part of the property, whether or not his possession has been adverse to the owner of the other undivided seventh part, and accordingly he may maintain a suit in equity to enjoin a continuous obstruction of the right of way.</p> <p>The owner of a farm, through which the owner of an adjoining farm has a defined right of way, not only may fence the sides of the way but also may erect and maintain at his own expense such gates or bars across the ends of the way as are reasonably necessary for his own protection in the pasturage of cattle or other proper use and enjoyment of his own property.</p> <p>Where a farm is crossed by a defined right of way belonging to the owner of an adjoining farm, it is a matter of common knowledge that bars maintained at the ends of the way by the owner of the servient farm make the use of the way by the owner of the dominant farm more onerous than the maintenance of a gate at each end, and, if the owner of the servient farm removes a gate at one end of the way and substitutes a barway, which he has not maintained adversely for twenty years, he can be compelled by a suit in equity brought by the owner of the dominant farm to remove the bars and restore the gate.</p> <p>The owner of a farm, crossed by a right of way, by maintaining bars across the end of such way for more than twenty years consecutively can acquire a prescriptive right to maintain a barway there instead of a gate.</p> <p>The owner of a right of way as appurtenant to a certain parcel of land belonging to him has no right to use the right of way for the purpose of access to other land belonging to him although such other land abuts on the dominant estate.</p>

<p>Equity Jurisdiction, Accounting to corporation for secret profits. Corporation, Liability of directors for secret profits. Assignment.</p> <p>The right of a corporation to maintain a suit in equity against certain of its directors and other persons for an accounting for secret profits, alleged to have been obtained by them from selling certain property to the corporation by means of a concerted scheme of fraud at a price greatly in excess of its intrinsic or market value, is not assignable at law or in equity, and does not pass under a general conveyance and transfer of all the property of the corporation made by it to a new corporation created for the purpose of receiving such property but not merged with the first corporation by legislative authority.</p>

<p>Indictment found and returned on December 6, 1913, charging the defendant with larceny from the person of one McEvoy in Boston on November 8, 1913, of money of the amount and value of $20.</p> <p>The defendant filed a “plea of former jeopardy,” alleging that the defendant had been tried for the same offense in the Municipal Court of the City of Boston on November 13, 1913, and found guilty by the judge of that court, although _ the judge afterwards withdrew his finding and declined jurisdiction and ordered the defendant to recognize for his appearance in the Superior Court.</p> <p>The Commonwealth filed a demurrer to the defendant’s alleged plea in bar.</p> <p>In the Superior Court the case was heard by McLaughlin, J., upon the demurrer to the plea. The defendant asked the judge to make certain rulings, relating principally to the construction of the provisions of, R. L. c. 160, § 34. The judge refused to make the rulings requested and sustained the demurrer of the Commonwealth to the defendant’s plea. From the order sustaining the demurrer the defendant appealed. A jury was empanelled and the defendant was tried upon his plea of not guilty. At the close of the evidence for the Commonwealth, the defendant having introduced no evidence, the jury retired and returned a verdict of guilty. The defendant alleged exceptions.</p>

<p> School and School Committee. Municipal Corporations. </p> <p>A school committee of a town or city, like the municipality itself, has no power to appropriate money as a gift to a person, and accordingly a vote of a school committee, that the principal of a high school, who has been elected for one year, shall be granted a leave of absence for the school year on account of sickness and for that time shall be paid one half his regular salary, is of no effect.</p> <p>In holding that a school committee had no power to vote a gratuity to the principal of a school to be paid during a leave of absence granted for the entire year for which he had been elected, the court called attention to the fact that the vote was not for additional compensation for extraordinarily valuable service nor to grant a vacation out of a period of service.</p>

<p>Equity Jurisdiction, To enjoin continuing nuisance, Damages. Equity Pleading and Practice, Decree, Misjoinder of parties, Master’s report, Costs.</p> <p>Where in a village adjacent to the sea near valuable stone quarries there have coexisted for a period of many years an extensive granite business and a settlement of summer residents, and in the development of the granite business the use has become necessary of surfacing machines, which produce a loud, penetrating and disagreeable noise that interferes with the reasonable comfort and enjoyment of life of the occupants of the summer residences when windows and doors are kept open, and where it is possible that by the adoption of certain devices the amount of the noise from the operation of the machines may be diminished without an excessive expenditure of money, an injunction maybe granted; in a suit in equity brought by some of the summer residents, restraining the corporation conducting the granite business there from operating the surfacing machines "in such an unreasonable manner as to interfere with the reasonable comfort of, and enjoyment of life by, the plaintiffs.”</p> <p>In a suit in equity to enjoin a continuing nuisance, a final decree that restrains the defendant from carrying on a certain" business in an unreasonable manner also may award damages for injury already done.</p> <p>In a suit in equity by a number of plaintiffs to enjoin a continuing nuisance, where the plaintiffs also seek damages for the injury already done, if the defendant wishes to raise the objection that the plaintiffs cannot maintain the suit jointly and that damages cannot be assessed in favor of the different plaintiffs whose injuries are several, he should demur for this cause to the-part of the bill relating to damages, and certainly, after he has failed to raise this objection by exceptions to the master’s report, it is not open to him.</p> <p>Where a master in a suit in equity reports all the evidence, he is required to state in his report only such facts as are material, in his view of the case, to the findings made and the conclusions reached by him.</p> <p>Where a master in a suit in equity states in his report that he has made “a finding with respect to every fact as to which either party requested a finding, so far as the belief in the evidence justified a finding,” an exception to a refusal of the master to report additional facts must be overruled; especially where, as in the present case, no harm can have been done to the excepting party by the refusal, because the facts that the master refused to report can be inferred from the facts found by him or from those disclosed by the evidence reported.</p> <p>A final decree in a suit in equity which orders the payment of costs to one of the parties should state the amount of such costs so that nothing remains to be determined in order to fix all the rights of the parties involved in the decision, but a decree, otherwise correct, will not be reversed on account of a failure to name the amount of the costs, this being merely a defect of form.</p>

<p>Negligence, In use of electricity. Electricity. Wires. Evidence, Presumptions and burden of proof.</p> <p>In an action against a public service corporation maintaining wires transmitting electricity, for personal injuries sustained by the plaintiff, when he was climbing a tree in the course of his employment, from an electric shock communicated by a wire of the defendant, if there is evidence that ¡the wire which communicated the shock to the plaintiff carried a current of electricity of six thousand six hundred volts, which was exceptionally dangerous and required extraordinary precautions, and that no extra precautions were taken, this warrants a finding of negligence on the part of the defendant.</p> <p>If, in the same action, there is evidence that an electric shock cannot be communicated by a wire unless the wire is grounded, and that such a grounding should be indicated by an instrument called a ground detector, that the accident to the plaintiff was such that it could not have been caused in case of a merely slight grounding such as might have been produced by a swaying branch or twig, and was such that it would have been recorded if the defendant’s detector-had been in proper condition, and that the detector did not indicate that any wire was grounded on the day in question, this warrants a finding of negligence on the part of the defendant in failing to keep the ground detector in order.</p> <p>If, in the same action, there is evidence that the wires of dangerous voltage, maintained by the defendant, one of which communicated the shock to the plaintiff, passed through or by trees at fifty places at least, and that in spite of this no attempt was made by the defendant to insulate the wires at these points, this warrants a finding of negligence of the defendant in this respect.</p> <p>In an action against a public service corporation for personal injuries received from an electric shock communicated by a wire of dangerous voltage maintained by the defendant, upon the issue whether the defendant was negligent in failing to insulate the wire properly, the plaintiff need not show necessarily that the methods of insulation, which his experts have testified should have been adopted, were in use elsewhere or were not too expensive. If these methods were not in use elsewhere and involved a large expense, these facts may be considered by the jury in determining whether the defendant had exercised due care under all the circumstances of the case, but the plaintiff may be entitled to go to the jury on this issue without showing affirmatively that the methods suggested by him were in use elsewhere or could have been adopted without unreasonable expense.</p> <p>An experienced tree climber, who has been employed for four years in gipsy moth work largely on private grounds, but who is not experienced in regard to electricity, if he is injured by a charge of electricity communicated by a wire that passes through the branches of a tree that he is climbing in the performance of his duty, is not in the same position in regard to the exercise of due care that a lineman employed to do work in connection with electric wires would be.</p> <p>In an action against an electric light company for personal injuries received from an electric shock communicated by a wire of dangerous voltage maintained by the defendant when the plaintiff in the course of his employment in gipsy moth work was, climbing a tree, if there is evidence on which it could have been found that with a three braid covering, which was used by the defendant on this and other wires, electricity from a wire of such high voltage would “spark” or jump three eighths of an inch and give a shock to a person who had not touched the wire, and that a shock so given to a man’s hand would cause an involuntary contraction of the muscles so that the hand unconsciously would grasp the wire, and there also is evidence that within three months before the accident sparking had been seen on these very wires where they passed through this tree, the fact, that when the plaintiff was found unconscious after the accident the tips of his middle and third fingers were so burned that those fingers had to be amputated, does not show that the plaintiff was negligent and a finding may be warranted that he was in the exercise of due care.</p>

<p>.Equity Jurisdiction, Specific performance. Husband and Wife.</p> <p>Where an unmarried woman makes a binding contract to sell certain land and then marries and refuses to make the conveyance called for by the contract, although her husband acquires no title in the land, yet, in a suit in equity by the purchaser against the wife and her husband for specific performance of the contract, if the husband files an answer to the merits of the bill, the plaintiff is entitled, not only to a decree against the wife, ordering her to convey the land to him, but also to a decree against the husband perpetually enjoining him from asserting any title to the land covered by the contract.</p>

<p>Contract for the price of labor performed and materials furnished by the plaintiffs in the installation of the heating, ventilating and plumbing system of a classical high school building, which the defendant as general contractor had erected for the city of Lynn, and for certain extra labor and materials connected therewith. Writ dated November 4, 1911.</p> <p>In the Superior Court the case was referred to Charles E. Haywood, Esquire, as auditor, who found that the plaintiffs were entitled to recover from the defendant a balance of $1,899.04. Later the case was heard by McLaughlin, J., without a jury. At the hearing it was conceded by the defendant that the plaintiffs were entitled to recover in accordance with the auditor’s report, "unless there should be deducted from the amount therein found the sum of $907.05, which was paid by the defendant for marble as stated in the opinion, and also certain other sums claimed by the defendant as allowances for minor matters. The sums claimed by the defendant other than that for the marble were all disallowed by the judge, except $10 for telephone charges which the plaintiffs admitted were proper.</p> <p>The point in controversy and the decision of the architect thereon are stated in the opinion. The plaintiffs asked the judge to make the following rulings, besides certain others which were made by him:</p> <p>"1. The terms of the contract between the plaintiffs and the defendant did not require the plaintiffs to furnish marble dadoes in the toilet rooms except as shown on the plan.”</p> <p>"8. The contract between the parties does not authorize the architect or the superintendent of buildings to require the plaintiffs to place marble dadoes in the toilet rooms except where shown on the plan.”</p> <p>The judge refused to make these rulings, and ruled that the architect had authority to make the decision which he made and that it was binding and conclusive between the defendant and the plaintiffs. He decided that there should be deducted from the amount found by the auditor $907.05 expended by the defendant for finishing the dado work and the sum of $10 for telephone service, and that the balance due the plaintiff should be stated at $981.99 instead of $1,899.04 as reported by the auditor, to which balance interest should be added from June 1,1911.</p> <p>The judge accordingly found for the plaintiffs in the sum -of $981.99 with interest; and the plaintiffs alleged exceptions.</p>

<p> Snow and Ice. Notice. Statute. </p> <p>In an action against a railroad corporation for injuries received by reason of ice upon a platform of a station of the defendant, a letter from the attorney of the plaintiff to the assistant general solicitor of the defendant, stating that a claim of the plaintiff had been placed in the writer’s hands for adjustment and that it was for injuries received on the night of a certain day on the premises of the defendant at the station in question, but containing no mention of snow or ice and no reference to the cause of the injuries, is not a sufficient notice to satisfy the requirement of St. 1908, c. 305, and, the prescribed notice being a condition precedent to a right of action, the plaintiff cannot recover.</p> <p>In an action against a corporation for injuries sustained by reason of a defective condition of premises of the defendant caused by ice, where the action could not be maintained because no sufficient notice of the cause of the plaintiff’s injuries had been given to satisfy the requirement of St. 1908, c. 305, and the time for giving notice had expired before the enactment of St. 1912, c. 221, it was held., that the last named statute had no bearing on the case because its provisions were not retroactive, and that it was not necessary to consider what their effect would have been if they had been applicable.</p>

<p>Tax, Abatement. Municipal Corporations, Officers and agents. Waiver. Words, "List.”</p> <p>A Massachusetts corporation having its usual place of business in a city of this Commonwealth, which owns a number of different parcels of land in the city, some of them, widely separated, and also owns numerous buildings, by filing a paper purporting to be a list of its taxable property as required by R. L. c. 12, § 41, and containing as its only description of real estate the words and figures “Land & Buildings 56359,400,” has not filed such a list as by § 74of the same chapter is made a prerequisite to obtaining an abatement of a tax.</p> <p>The chairman of the board of assessors of a city has no authority to waive the requirement of R. L. c. 12, § 41, (St. 1909, c. 490, Part I, § 41,) that a taxpayer shall file a true list of his taxable property which by R. L. c. 12, § 74, (St. 1909, c. 490, Part I, § 73,) is made a prerequisite to obtaining an abatement of a tax.</p> <p>By R. L. c. 12, § 74, (St. 1909, c. 490, Part I, § 73,) the filing of a list of taxable property as required by another section of the statute is made, except as otherwise provided in that section, a condition precedent to the right to secure an abatement of a tax, and it is of no consequence whether or not the assessors know or easily might ascertain the details of the property to be included in the list.</p>

<p>Tort for personal injuries received by the plaintiff, as described in the opinion, while in the defendant’s employ as a carpenter. Writ dated September 1, 1911.</p> <p>In the Superior Court the case was tried before Stevens, J., and was submitted to the jury upon a count of the declaration under St. 1909, c. 514, § 127, cl. 2, alleging negligence of a superintendent of the defendant.</p> <p>The plaintiff when injured was standing on a “ranger” of a form for making concrete. The form was described in the bill of exceptions as “made of boards nailed to upright joists that formed a narrow receptacle into which the concrete was poured to remain until hardened. The form was to be’ removed when the concrete had hardened sufficiently and the concrete inside would then be a permanent wall of the garage. In order to hold this form in the desired shape and prevent it from spreading under the pressure of the concrete, ‘rangers,’ so called, were used. These rangers were joists usually three inches by four inches and ten or twelve feet long, which were nailed horizontally to the uprights upon the form. Since the purpose of the rangers was to prevent spreading, they were nailed to the form in pairs, that is, one on the” side of the form that formed the exterior of the building, and one on the side that formed the interior, opposite to each other. “These pairs of rangers were connected by wires which ran through the boards forming the sides of the form and then through the concrete. Said wires were cut off and left in the concrete when it had hardened and the form was removed. These pairs of rangers ran up the form and were about two feet apart. The ends of the form were also boarded up to prevent the concrete from running out. The form was then, when completed, like a long narrow case or box with but one open end, to wit, at the top, at which point the concrete was poured in.”</p> <p>Other material facts are stated in the opinion.</p> <p>At the close of the evidence, the defendant asked for rulings in substance that, on all the evidence, the plaintiff could not recover, that there was no evidence of his due care, and that he had assumed the risk of the injury. The rulings were refused. The jury found for the plaintiff in the sum of $1,000; and the defendant alleged exceptions.</p>

<p>Guaranty. Notice. Contract, Acceptance.</p> <p>Where a guaranty in writing of the future obligation of another is in the nature of an offer and not pursuant to some previous understanding or arrangement, and no consideration is acknowledged in the instrument or moves directly to the guarantor, and where the circumstances of the parties and the nature of the transaction do not indicate that knowledge of acceptance will come quickly to the guarantor, notice of acceptance must be given to the guarantor within a reasonable time in order to hold him on his guaranty.</p> <p>In an action on a guaranty in writing it appeared that the defendant signed and gave to one M a letter addressed to the plaintiff as follows: “M has asked me to guarantee a bill that he is incurring at your store to the amount of $400. I hereby do so, and if same is not paid within six months from date that upon presentation of the bill to me I will pay it.” M handed this letter to the plaintiff, who thereafter delivered to M a diamond ring for the price of $450, on which M paid the plaintiff $50 and failed to pay the balance of $400. There was no evidence that the defendant had any knowledge that his letter had reached the plaintiff or had been accepted or acted upon. There-was nothing to show that the plaintiff and the defendant ever communicated with one another upon this matter before the date of the letter. The letter was written in a foreign country, and M at that time was employed by the defendant as an advertising agent. Held, that the plaintiff could not recover, there being no evidence of a reasonable notice to the defendant of an acceptance of the guaranty.</p>

<p>Practice, CM, Appeal, Motion for judgment.</p> <p>In an action for a conversion in which a trustee in bankruptcy, appointed in proceedings begun after the commencement of the action, had been substituted as plaintiff, a verdict for the plaintiff was ordered by the trial judge, who thereupon reported the case to this court, and a rescript was issued, which directed among other things that, if an amendment were allowed within a certain time changing the position of the trustee to that of one beneficially interested in an action prosecuted in the name of the original plaintiff, such proceedings thereafter should be had, either by way of judgment upon the verdict or aT new' trial or otherwise, as to the Superior Court should seem just and proper. Thereafter such an amendment was allowed, and later on a separate motion judgment was entered on the verdict, and the defendant appealed. The facts presented at the hearing of the motion for judgment were not reported. Held, that action on the motion for judgment rested in the sound discretion of the court, that the appeal could present only questions of law apparent on the record, and that no error was shown.</p> <p>Where by a rescript of this court a plaintiff is given leave to amend so that the action shall be one brought for his benefit in the name of another and to move for judgment or a new trial, and a motion for the amendment is presented and allowed, but the record sets forth no action as to judgment or a new trial, no such action can be inferred.</p> <p>An affidavit of counsel, filed in opposition to a motion for judgment, is no part of the record on an appeal from an order allowing the motion.</p>

<p>Bills and Notes, Indorsement. Partnership. • Insolvent Estate of Deceased Person. Words, “ Party.”</p> <p>A member of a partnership who, before delivery of a negotiable instrument made by the partnership and payable to a third person, writes his name upon the back of the instrument, is a “person, not otherwise a party” to the instrument, and therefore under R. L. c. 73, § 81, is liable as an indorser in accordance with the rules there stated; and, if such indorser dies insolvent, commissioners appointed under R. L. c. 142, § 2, should report a claim by the holder of such an instrument as an individual debt of the decedent and not, under § 21 of that chapter, merely as a debt of the partnership of which the deceased was a member.</p>

<p>Broker, Commission. Contract, Construction. Agency. Evidence, Competency, Opinion. Practice, Civil, Exceptions.</p> <p>If the owner of certain real estate authorized a broker to sell it for a stated sum, agreeing that “all over” that amount the broker “was to get,” nothing becomes due to the broker until a sale for a sum in excess of that stated has been completed.</p> <p>At the trial of an action where the interpretation of an oral contract, made with a third party by an agent on behalf of but in the absence of his principal, is a material question, and the agent and the third party have testified on the subject, testimony by the principal as to his understanding of the contract is immaterial.</p> <p>On an exception by the plaintiff in an action upon a special contract to a ruling of the trial judge ordering a verdict for the defendant, if on the declaration the ruling was correct, it is not open to the plaintiff to contend that the exception should be sustained because on the evidence the plaintiff might have recovered a verdict if a different contract had been alleged in the declaration. In the present case the evidence did not warrant a verdict for the plaintiff on any form of declaration that he could have adopted.</p>

<p>Negligence, Employer’s liability.</p> <p>An order by an employer, to carpenters engaged in fastening rafters to stringers in the construction of a building, to “pick up your tools and come along with me and leave here,” must be interpreted as an order to leave the work in a proper way, and cannot be held to be the cause of an injury to a fellow workman of the carpenters resulting from the falling some days later of one of the rafters which then was left by the carpenters standing, on edge and insecurely fastened.</p> <p>At the trial of an action against the employer of a carpenter for the conscious suffering and death of the carpenter, there was evidence tending to show that the deceased was engaged with several others in the construction of a shed; that fellow workmen of the deceased, several days before his injury, had been toe-nailing rafters on edge to stringers, preparatory to the placing of floor boards upon the rafters, when they were ordered from that work by the defendant, and, in leaving, left one rafter standing on edge and insecurely fastened; that, in looking at the rafter from the floor below, there was nothing in its appearance to indicate that it was in a dangerous condition; that four or five days later, while the deceased was assisting to move a derrick according to directions given by one who was assumed to be acting as a superintendent for the defendant, the rafter was struck and fell upon him, causing the injuries and death. Held, that the leaving of the rafter in a dangerous condition was due to negligence of the fellow servants of the deceased, that the defendant was not negligent in not inspecting the condition of the rafter, and that there was no evidence of negligence of the person who directed the deceased in the moving of the derrick.</p>

<p>Husband and Wife. Contract, Validity.</p> <p>A contract under seal between a husband and wife, who were living apart, and the wife’s brother, the brother joining in effect as a trustee for the wife for the purpose of enforcing the contract, recited that the husband had been guilty of improper conduct, and that it was the desire of the husband and wife “for the sake of their children to resume their home life . . . and to bring up their children in a proper manner;” and the contract provided for a resumption of marital relations, for good conduct in the future on the part of the husband and the wife, for friendly offices to them on the part of the brother, for the payment by the husband to the wife of at least $9 each week, that, if the husband failed in the performance of the contract, the wife might leave him, talcing the children with her, and that in that case the husband would “be liable for her comfortable maintenance and support.” After the contract was made, the husband and wife resumed marital relations and continued living together for more than two years, when, because of further misconduct by the husband, consisting of intoxication and cruel and abusive treatment, the wife with the children left him, and six months later the brother on behalf of the wife brought an action upon the contract. Held, that the contract was valid and enforceable to the extent of money expended for the wife’s comfortable maintenance and support.</p>

<p>Negligence, Employer’s, liability. Evidence, Presumptions and burden of proof, Matters of conjecture.</p> <p>At the trial of an action for the death of an employee of the defendant from falling down a ventilating duct while working in a penthouse on the top of a building which the defendant was constructing, there was evidence tending to show that the duct was in an unfinished condition with its sides projecting above the floor of the penthouse, that it was necessary for the deceased to cross it to get to and from an improvised bench which he was using in the penthouse, that previous to the accident he was working with a foreman and others in fastening a cornice to the penthouse, that, the foreman and the others being called away, he was left alone, the foreman having directed him to do some work in the penthouse. When next seen he was found lying dead with his head downward at the bottom of the duct, one side of the duct which projected into the penthouse was found bent in, a short plank which had been across the duct was found beside him, and his bench in the penthouse was found overturned and his tools scattered over the floor. Held, that what occurred between the time when the deceased was last seen alive and the time his body was found was a matter of conjecture, and that it could not be said that any inference that he was in the exercise of due care when he met his death was warranted.</p>

<p>Contract upon a contract in writing whereby the plaintiffs, Chauncey C. and A. Judson Hathaway as copartners, agreed to construct a synagogue in Chelsea for the defendant. Writ dated May 5, 1909; also</p> <p>Contract upon the same contract by the defendant in the first action against Chauncey C. Hathaway as the surviving member of the partnership who were the plaintiffs therein, alleging breaches of the same contract. Writ dated May 25, 1909.</p> <p>The actions were tried together before Fessenden, J. The material facts are stated in the opinion. There was a verdict for the plaintiffs in the first action in the sum of $2,839.28, and for the defendant in the second action; and the Congregation Ohab Shalom alleged exceptions.</p> <p>Exceptions taken by the plaintiffs in the first action and the defendant in the second as to the allowance by the judge, under circumstances stated in the opinion, of a motion correcting the docket entries in the case were reported by the judge to this court for determination.</p> <p>Rule 64 of the Superior Court, referred to in the opinion, is as follows:</p> <p>“In all causes in which bills of exceptions have been filed and remained without action thereon for three months, the clerk shall forthwith notify the parties interested that unless within thirty days thereafter the bill of exceptions is presented to the presiding justice for allowance, it will be dismissed and judgment will be entered as though no exceptions had been filed.</p> <p>"If within said thirty days the bill of exceptions is not allowed, or an order extending the time for hearing and allowance thereof made in the cause, the exceptions shall be dismissed as of course and judgment be entered as though no bill of exceptions had been filed.”</p> <p>The General Order of the Superior Court as to business in Suffolk County, adopted January 11, 1913, is as follows:</p> <p>“On and after Monday, April 7, A. n. 1913, in the county of Suffolk, judgments in civil actions and proceedings which are ripe for judgment shall be entered at ten o’clock in the forenoon on Monday of each week, or on the next day thereafter when said Monday is a legal holiday, unless the. party entitled thereto otherwise requests in writing.</p> <p>"No action or proceeding shall be regarded as ripe for judgment until the period for filing exceptions has expired, and, upon defaults, until after four days from the default.”</p>

<p>Practice, Civil, Exceptions, New trial. Supreme Judicial Court.</p> <p>It is a general rule of practice that exceptions will not be considered by this court until the case in which they were taken is ripe for judgment.</p> <p>After a trial of an action of tort in the Superior Court, which resulted in a verdict for the defendant, the trial judge granted a motion of the plaintiff for a new trial on the ground that wrong instructions were given to the jury, and the defendant filed a bill, entitled “Defendant’s Bill of Exceptions,” setting forth an exception to the granting of the motion together with all other exceptions of both parties taken during the trial, and the exceptions were allowed and were entered in this court. Held, that the exceptions must be dismissed because they were presented to this court prematurely.</p>

<p>Negligence, Invited person, In maintaining stairway.</p> <p>In an action by a woman against the proprietor of a department store for personal injuries sustained from a fall alleged to have been caused by a defective condition of a stairway maintained by the defendant, it appeared that the plaintiff until two days before the accident had been employed in the defendant’s store and on the day of the accident had been to the fifth floor of the building to receive the wages due her, that for the purpose of making a purchase on the first floor she was descending the stairway from the third to the second floor of the building, that the iron treads of the stairway were twelve or fourteen inches broad, that a corrugated surface which had extended back for about an inch or an inch and a half on each tread had been worn down so that the treads presented a smooth, shiny and very slippery surface rounded off at the edge, more noticeable in the middle than at the ends, and that the plaintiff while in the exercise of due care fell and sustained the injuries sued for. Held, that, the plaintiff being upon the defendant’s premises by its implied invitation, the , defendant owed her the duty of furnishing reasonably safe stairways over which she might pass, and that the questions whether the treads had become defective and whether the defendant was negligent in failing to discover and remedy the defect were for the jury.</p>

<p>Tort for personal injuries sustained by the plaintiff on June 12, 1911, while in the employ of the defendant at New Bedford. Writ dated October 25, 1911.</p> <p>The case came on for trial before White, J. The declaration contained counts both at common law and under the employers’ liability act. “No question was made about the pleadings.”</p> <p>It appeared in evidence that in response to a message from the plaintiff, E. Raymond Walsh, Esquire, an attorney at law, residing and practising at Providence, in the State of Rhode Island, went to the residence of the plaintiff in New Bedford and consulted with him in regard to the matter. The plaintiff thereupon gave to Mr. Walsh a power of attorney. Mr. Walsh on his return to Providence mailed to the defendant at New Bedford the paper dated June 28, 1911, which is quoted in the opinion. This was received by the defendant on June 30, 1911; and subsequently, acting under the power of attorney, Mr. Walsh employed the law firm of Jennings, Morton and Brayton of Fall River, to bring this action against the defendant.</p> <p>Upon this evidence the defendant asked the judge to rule that the letter of June 28, 1911, did not constitute a sufficient notice under St. 1909, c. 514, § 132.</p> <p>The judge ordered a verdict for the defendant and, by agreement of the parties, reported the case for determination by this court, with the stipulation that, if the ruling was right, judgment was to be entered on the verdict for the defendant; otherwise, judgment was to be entered for the plaintiff in the sum of $2,500.</p>

<p> Assault and Battery. Bog. </p> <p>If, while a barkeeper is in charge of a barroom of his employer, a person enters from the street and addresses him in abusive and insulting language, the barkeeper is justified in removing the intruder, using such force as is reasonably necessary under the circumstances. 1</p> <p>When a barkeeper is engaged in justifiably removing an abusive intruder from the premises of his employer and the intruder is holding the barkeeper’s hands, it cannot be said as matter of law that the barkeeper, in calling to his assistance a dog that bites the intruder, is using force that is unreasonable or excessive under the circumstances.</p> <p>In an action under R. L. c. 102, § 146, for injuries from being bitten by a dog owned or kept by the defendant, if the plaintiff proves that the defendant was the keeper of the dog, it does not matter whether or not he also was its owner.</p> <p>It is a well settled rule that the plaintiff in an action under R. L. c. 102, § 146, for injuries caused by a dog is not entitled to recover if his own negligence or misconduct contributed to his injury.</p>

<p>Two actions oe tort, by the administratrix of the estate of Joseph Hyams, the first under St. 1906, c. 463, Part I, § 63, for causing the death of the plaintiff’s intestate on December 19,1906, in the manner described in the opinion, and the second at common law for his conscious suffering. Writs dated July 20, 1907.</p> <p>In the Superior Court the cases were tried together before Jenney, J., who at the close of the evidence ordered a verdict for the defendant in each of the cases. The plaintiff alleged exceptions.</p>

<p>Two actions of tobt, against the owners of the building numbered 161 on Court Street in Boston, the first action for personal injuries sustained by the plaintiff Flora Rolfe from falling on the floor of the kitchen, in the part of the building subleased to that plaintiff’s husband, by reason of water that flooded the floor from a defective gutter which it was alleged to have been the -duty of the defendants to keep in a proper and safe condition, and the second action by the husband of the plaintiff in the first case for consequential damages. Writs dated September 24, 1910.</p> <p>In the Superior Court the cases were tried together before Wait, J. The material facts shown by the evidence are stated in the opinion. In the course of the trial the plaintiffs offered to show that one Booth, the agent of the defendants, stated, within a few days after the date of the accident, in substance this: “We have had men working on that not long ago.” This statement was offered as an admission that the defendants had undertaken to repair the gutter and' the premises generally after their attention had been called to its defective condition by the plaintiff Charles P. Rolfe, in view of the fact that that plaintiff had testified that repairs were made after his complaint. The plaintiffs further stated that the evidence related to “work done on this particular gutter after the complaint of Mr. Rolfe.” This evidence was excluded by the judge against the plaintiffs’ exception. The other evidence excluded against the plaintiffs’ exception related to the “life” or ordinary duration of a gutter such as the one in question.</p> <p>At the close of the evidence the judge ruled that the evidence was not sufficient to entitle the plaintiffs to recover, and ordered a verdict for the defendants in each of the cases. The plaintiffs alleged exceptions.</p>

<p>Tort for injuries received by the plaintiff on February 5, 1908, when she fell into a coal hole, the cover of which was alleged to have been defective owing to negligence of the defendant. Writ dated May 29, 1912.</p> <p>The case was heard by McLaughlin, J., without a jury. The opening statement, containing an offer of proof by the plaintiff’s attorney, was in substance as follows:</p> <p>"The plaintiff offers to prove the facts as alleged in her declaration in said action. Further she admits that she brought an action on or about March 19, 1908, against the defendant in the Municipal Court of the City of Boston for the same cause of action for which the present suit was brought; that on or about June 1, 1908, there was a trial of said action in said Court; that said writ recites in said action, that 'Ethel Butler, of said Boston, who sues by her next friend, Sarah Butler’; that . . . a finding was given for the defendant; that judgment was entered for the defendant on June 5,1908; that ... at the time said action was brought the plaintiff . . . had not attained the age of eighteen years; that she intended and desired to appeal from said judgment to the Superior Court; that before the time had elapsed for perfecting said appeal, she was informed by the attorney who acted for her in the trial of said cause, that it would be necessary, in order to appeal said case, that she must furnish surety or sureties to goon the appeal bond, who owned real estate; that she was unable to furnish such sureties, but was able to furnish surety or sureties, who had sufficient personal estate and that she was also able to-furnish $100 in cash to perfect said appeal, and that relying upon, said information of her attorney, she lost her right of appeal.”’</p> <p>The judge ruled that the judgment entered in the Municipal. Court was a bar to the present action and that the facts set forth, in the offer of proof, if true, by reason of said judgment did. not entitle the plaintiff to recover, and found for the defendant.. The plaintiff alleged exceptions.</p>

Contract. Writ dated February 2, 1912. The case was tried before White, J., and there was a verdict-for the plaintiff on April 8, 1913. On April 24 the defendant alleged exceptions. On June 27 the time for the presentation and allowance of exceptions was extended to October 1.

<p>Contract for the sum of $1,500, alleged to have been paid to the defendant at his request on July 6, 1901, upon the defendant’s promise to keep it and care for it for the plaintiff, to pay him interest and to return it at any time upon request. Writ dated July 18, 1908.</p> <p>In the Superior Court the case was referred to James L. Doherty, Esquire, as auditor and afterwards was tried before Hall, J. The material facts in evidence are stated in the opinion. At the close of the evidence, the plaintiff asked for the following rulings, among others:</p> <p>"3. Even if the purpose of the assignment was to keep the interest of the plaintiff away from his creditors, as alleged by the defendant, nevertheless, if the defendant paid the plaintiff $1,500 therefor andreceived back the $1,500 thus paid under an agreement to repay it, the plaintiff would have a right to recover therefor.”</p> <p>“6. If Fred Schmidt agreed to pay interest to John C. Schmidt, Jr., upon the sum of $1,500 without specifying the rate of interest, then he is bound to pay interest at the rate of six per cent, per annum.”</p> <p>The judge gave the foregoing rulings, subject to exceptions by the defendant.</p> <p>The defendant asked for the following rulings:</p> <p>“1. Upon the pleadings and the evidence the plaintiff is not entitled to recover.”</p> <p>“6. If the purpose of the plaintiff and the defendant in passing the instrument of July 6, 1901, was to protect the plaintiff from his creditors, and thereby hinder, delay and defraud his creditors, the plaintiff cannot recover.”</p> <p>"8. The plaintiff’s claim is barred by the statute, of limitations.</p> <p>“9. The plaintiff cannot recover because he made no demand upon the defendant for the payment of the sum of $1,500 with interest at least until February 6, 1908.</p> <p>“10. If the plaintiff ever deposited with the defendant the sum of $1,500 upon the agreement set forth in the plaintiff’s declaration, it was incumbent on the plaintiff to demand the payment of said sum of the defendant within six years after said date, July 6, 1901. As no demand was made within said period, plaintiff cannot recover.”</p> <p>“17. Even if the defendant made such a promise as is set forth in the declaration, to pay the plaintiff $1,500 and interest, yet if both parties understood that such a promise was not a real promise but a mere form of words, the plaintiff cannot recover.”</p> <p>The seventeenth ruling asked for by the defendant was given in substance. The others were refused, subject to exceptions by him.</p> <p>The defendant also excepted to the following portion of the charge to the jury:</p> <p>“It becomes important in your inquiry with respect to the conduct of these men and the kind of men they were to determine,, among other things, how that estate [of the father of the plaintiff and the defendant] was administered, how it was administered by Fred with respect to the rights of John. There is a provision in this will with respect to the speedy sale of the real estate, its conversion into cash, for the purpose of paying specific legacies to the sisters, for the purpose of creating the trust fund for John, and of liquidating the real estate into cash for the purpose of paying the widow a sum of money in lieu of dower, under the terms of the will. How did Fred execute that trust with respect to John? What was his conduct, speaking of his pocket and speaking of John’s pocket, in the execution of this will?</p> <p>“It is important for you to consider whether this estate was liquidated into cash within the reasonable time of the intent of the will, and what the effect of delay upon Fred’s part would be in not so speedily liquidating it; what effect, if any, the delay, if there was any, in the liquidating of this estate had on the trust fund, or had on any interest that might be properly accountable on the principal of that trust fund; where the income, if there was any, of the real estate prior to that time went.”</p> <p>In supplemental instructions given to the jury at the request of the defendant, the judge said: "I said to you early in the charge that in gouging the conduct of Fred you might consider his conduct as executor of the estate of his father. I wish to add to that, that in making that consideration, in weighing his conduct and determining the fairness of it with respect to his brother, you have a right to take into account the fact that Judge Lilley, an attorney, was his co-executor. And you also have the right to take into consideration, for such value as you give it, the statement of Fred on the witness stand that Judge Lilley advised him.”</p> <p>The jury found for the plaintiff in the sum of $2,462.25; and the defendant alleged exceptions, including, besides the exceptions stated above, others which are described in the opinion.</p> <p>The case was submitted on briefs at the sitting of the court in September, 1913, and afterwards was submitted on briefs to all the justices then constituting the court.</p>

<p>Tort for the death of Henry I. Morse, alleged to have been caused by his being negligently run into by an electric street car of the defendant on Warren Street near the corner of Rock-land Street in that part of Boston called Roxbury. Writ dated July 6, 1909.</p> <p>In the Superior Court the case was tried before Dana, J. At the close of the evidence, which is described in the opinion, the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tort for personal injuries caused by the plaintiff falling upon ice upon a public sidewalk adjoining premises of the defendant on Church Street in Salem, which was alleged in the declaration to have been a nuisance caused by the defendant. Writ dated March 13, 1912.</p> <p>In the Superior Court the case was tried before Sanderson, J. It appeared that the sidewalk in question adjoined a two apartment house of the defendant, and that a gutter on the house was out of repair, causing water to run upon the sidewalk, where it froze. The house was occupied by two families who were tenants at will. There was evidence that one of the tenants had placed sand and ashes on the ice upon which the plaintiff slipped, and that children in their play had brushed them off. One of the witnesses for the defendant testified “that he had full charge of the defendant’s building at the time of the accident, and that it was a part of his duty to collect the rents and to have repairs made.” The evidence of the plaintiff is described in the opinion.</p> <p>“It was agreed that the duty of caring for snow and ice on the sidewalk, by the ordinances of the city of Salem, rested upon the tenants or occupants of the premises, if there were any.”</p> <p>The defendant asked the judge to order a verdict in his favor. The judge refused to do so. The jury found for the plaintiff in the sum of $2,250; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Tort by the administrator of the estate of Henry R. Noonan for causing the death on June 24, 1911, of the plaintiff’s intestate, twenty-two months old, who was alleged to have fallen from the roof of the defendant’s tenement house numbered 35 on Chelsea Street in the part of Boston called Charlestown by reason of the alleged unsafe and dangerous condition of the premises, the intestate being a son of the plaintiff, who occupied as a tenant of the defendant the tenement on the fourth or top floor of the house. Writ dated November 11, 1911.</p> <p>In the Superior Court the case was tried before Stevens, J., who at the close of the evidence, which is described in the opinion, ordered a verdict for the defendant. The plaintiff alleged exceptions.</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., who made a decree confirming the decision of the Industrial Accident Board and ordering that Julia Cripps, the dependent widow of John Cripps, should receive a weekly payment of $6.75 for three hundred weeks from October 23, 1912, the date of the injury that resulted in his death. The insurer appealed from the decree.</p> <p>The questions raised by the appeal are stated in the opinion. It appeared that John Cripps was employed as a teamster by one Cogan, who was engaged in a general trucking and teaming business and had insured his employees in accordance with the provisions of the workmen’s compensation act, and that John Cripps, after his injury by a car of the Boston Elevated Bailway Company, had executed under seal a release to the Boston Elevated Bailway Company, discharging that company “ from all claims and demands, actions and causes of action, damages, costs, loss of service, expenses and compensation on account of, or in any way growing out of injuries resulting or to result from accident that occurred on or about the 23rd day of October, 1912.”</p> <p>The insurer also presented what purported to be a bill of exceptions, alleging the refusal by the judge of certain rulings. This was allowed by the judge for the purpose of raising the question whether a bill of exceptions would lie, although the judge stated in a memorandum that he was of opinion that an appeal from the decree was the proper remedy.</p>

<p> Animal. Horse. </p> <p>Where, at the trial of an action against a woman for personal injuries from being kicked by a horse belonging to her, there is evidence that the injuries were sustained when the plaintiff at the request of the defendant’s agent had entered the horse’s stall for the purpose of feeding it, that the horse was addicted to habitual kicking and of a vicious disposition, that the defendant had told a horseshoer to be careful in entering the stall, and had told others that the horse was very dangerous and that they must be very careful to look out for it as it would kick them at any minute, the case is for the jury.</p>

<p>Tort for personal injuries sustained on September 30, 1911, from being struck by a bale of skins thrown down a chute by a servant of the defendant in the freight shed on the defendant’s wharf called Mystic Wharf in that part of Boston called Charles-town. Writ dated November 9, 1911.</p> <p>In the Superior Court the case was tried before White, J., who at the close of the plaintiff’s evidence, which is described in the opinion, ordered a verdict for the defendant, and, by agreement of the parties, reported the case for determination by this court, with a stipulation that, if the ordering of the verdict was wrong, a verdict was to be entered for the plaintiff in the sum of $250, and that otherwise a verdict was to be entered for the defendant on the verdict.</p>

<p>Libel, dated November 25, 1912, for divorce on the ground that the libelee “was sentenced to confinement at hard labor for five years in Concord Reformatory.”</p> <p>The case was heard by Crosby, J., the libellee not appearing,, and the judge ruled that the sentence to the Massachusetts Reformatory was not a sentence to confinement at hard labor in the-State prison or in a jail or house of correction, so that the libellant, was not entitled to a divorce under R. L. c. 152, § 2, and reported, the case for determination by this court.</p>

<p>Bills and Notes, Validity. Contract, Consideration. Corporation, Foreign. Conflict of Laws. Statute.</p> <p>Section 2 of c. 127 of the Public Laws of 1909 of Maine, providing that “any person . . . who shall . . . sell, transfer or put upon the market any stocks” of a corporation, the charter of which, in accordance with the other provisions of the act, has been suspended for non-payment of its franchise tax, “shall be subject to a fine . . . for the benefit of the State,” is penal in character, and has no extraterritorial effect, and a promissory note, which was made and was payable in this Commonwealth and was received here in payment for the transfer of shares of the capital stock of such a corporation, neither of the parties to the transaction knowing at the time that the charter of the corporation had been suspended, is not rendered invalid by the statute.</p>

<p>Negligence, Causing death, Proximate cause, Street railway. Proximate Cause.</p> <p>If one, who was suffering from Bright’s disease in a latent and inactive form, which, although it ultimately would have resulted in his death, might not have so resulted for fifteen or twenty years, receives personal injuries by reason of the negligence of a street railway company or of its servants or agents, and, because of such injuries his condition is so far weakened that he dies from the disease within seven months, his death may be found to have been caused by reason of the negligence of the company or of its servants or agents within the meaning of St. 1907, e.. 392, § 1.</p>

<p>A communication from the Governor and Council dated March 20, 1914, and containing the following question was submitted to the Justices of the Supreme Judicial Court, who on March 31, 1914, returned the answer which is subjoined.</p> <p>Is chapter 720 of the Acts of 1912, relating to the term of office of the Adjutant General, unconstitutional in that it is an interference with or a usurpation of the powers of the Commander-in-Chief or the Executive Department?</p>